Court of Appeals of Ohio, Twelfth District, Butler
APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS Case No.
O'Connor, Acciani & Levy LPA, Dennis E. Mahoney,
Robert B. Acciani, for plaintiff-appellant.
& 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
Rolfes & Skavdahl Co., LPA, Jerome F. Rolfes, Andrew J.
Weber, for defendant, Stephen Isaac, Jr.
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
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. 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
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. ...