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Espy v. Interstate Food Service LLC

Court of Appeals of Ohio, Twelfth District, Butler

June 19, 2017

ROBERT ESPY, Plaintiff-Appellant,
v.
INTERSTATE FOOD SERVICE LLC, et al., Defendants-Appellees.

         CIVIL APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS Case No. CV2015-06-1399

          O'Connor, Acciani & Levy LPA, Dennis E. Mahoney, Robert B. Acciani, for plaintiff-appellant.

          Green & Green, Jane M. Lynch, Sean P. McCormick, for defendant-appellee, Interstate Food Service LLC.

          Freund, Freeze & Arnold, Gordon D. Arnold & Nicole A. Mitchell, Fifth Third Center, for defendant-appellee, Owners Insurance Co.

          Smith, Rolfes & Skavdahl Co., LPA, Jerome F. Rolfes, Andrew J. Weber, for defendant, Stephen Isaac, Jr.

          OPINION

          RINGLAND, J.

         {¶ 1} Plaintiff-appellant, Robert Espy, appeals the decision of the Butler County Court of Common Pleas, granting summary judgment in favor of Defendants-appellees, Interstate Food Services LLC ("Interstate") and Owners Insurance Company. For the reasons detailed below, we reverse the decision of the trial court and remand for further proceedings.

         {¶ 2} The record before this court does not provide a precise image of Interstate's business, but the pertinent facts can be gleaned from the record. Interstate was a company engaged in the sale of meat products, including steaks, seafood, chicken, and pork. Interstate's general manager testified that a typical customer may be "small mom & pop grocery stores, " and "organizations like FOP, Eagles, " or even individual consumers. Interstate has since gone out of business.

         {¶ 3} Interstate owned a number of vehicles and claimed to hire independent contractors to deliver meat products to their customers. Interstate would set the base price for the product and then, according to Interstate, they would allow their drivers to sell the product at a higher price. Beyond those basic facts, however, the record is very limited. Interstate claims that they exercised no control over the drivers or their routes.

         {¶ 4} Stephen Isaac, the individual defendant in this case, worked in some capacity for Interstate and Interstate's predecessor corporation, Buckeye Food Distributors, Inc. ("Buckeye"). The parties dispute whether Isaac was an independent contractor or an employee.

         {¶ 5} Pertinent to this case, Robert Espy was injured in an automobile accident when he collided with a vehicle driven by Isaac. Isaac did not have a driver's license and thus did not maintain any automobile insurance coverage. Isaac's vehicle, however, was owned by Interstate and insured by a policy issued by Owners Insurance.

         {¶ 6} On June 16, 2015, Espy filed an action against Isaac, Interstate, and the Ohio Bureau of Workers' Compensation seeking damages for personal injuries sustained as a result of the accident.[1] Espy alleged that Isaac was an employee or agent of Interstate at the time of the accident and further alleged that Interstate negligently hired and retained Isaac and negligently entrusted its vehicle to Isaac.

         {¶ 7} Owners Insurance moved to intervene in the action and sought declaratory judgment that they had no duty to defend or indemnify. Both Interstate and Owners Insurance argued that Isaac was an independent contractor.

         {¶ 8} Interstate moved for summary judgment and the trial court determined that Isaac was an independent contractor and Interstate did not negligently entrust the vehicle to Isaac. Therefore, the trial court granted summary judgment in favor of Interstate. In several subsequent entries, the trial court also granted Owners Insurance summary judgment, finding no duty to defend or indemnify based on the previous findings. In a final entry, the trial court ordered Civ.R. ...


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