United States District Court, S.D. Ohio, Western Division
ORDER DENYING DEFENDANT'S MOTION FOR SUMMARY
J. DLOTT UNITED STATES DISTRICT JUDGE.
matter is before the Court on Defendant's Motion for
Summary Judgment (Doc. 70). The underlying dispute arose
after a boat owned by non-party Roy Franklin Smith sank while
docked at a marina on the Ohio River in January 2014, and
Plaintiff The Standard Fire Insurance Company
(“Standard Insurance” or “SFIC”) paid
Smith on a policy insuring the boat. SFIC has sued Defendant
Dan Zeisler, the individual whom Smith hired to winterize the
boat, alleging that he did not adequately prepare the boat to
withstand the winter weather. Zeisler now moves for summary
judgment on this basis asserting that he is not liable for
damages to SFIC because he winterized the boat in accordance
with Smith's expectations. Because material facts remain
in dispute, the Court will DENY the Motion.
issued Travelers Yacht Policy No. 988923213-840-1 (“the
Policy”), in effect from May 2013 to May 2014, to CBS,
Inc. d.b.a. A Leasing (“CBS”), an entity wholly
owned by Smith. (Doc. 67-2 at PageID 769-95.) Travelers
Insurance Company is a subsidiary of SFIC. (Pais Dep., Doc.
63 at PageID 545.) The Policy provided $150, 000 in coverage
on Smith's boat, described as a fifty-foot houseboat.
(Doc. 67-2 at PageID 769.) The Policy specifically excluded
coverage for “loss or damage caused by or resulting
from . . . [t]he insured's failure to properly winterize
the yacht or dinghy in accordance with the manufacturer's
specifications or customs of the area.” (Id.
at PageID 788.) This section will be referred to herein as
the Winterization Exclusion.
of the terms “winterize” and
“winterization” are at issue in this litigation.
David Timpani, an accredited marine surveyor and SFIC's
expert opinion witness, described the process of
winterization as follows:
Q. All right. What -- what are the steps, as far as your
understanding of winterizing a boat, what are the steps that
you take to winterize a boat?
A. Anything that contains water has to be drained or
displaced with antifreeze and that would include engines,
freshwater plumbing, ice makers, toilets, washing machine,
anything that has water going to it or through it -
A. -- would need to be winterized to prevent freezing.
(Timpani Dep., Doc. 45 at PageID 353.)
required Smith to obtain an appraisal or marine survey of the
boat in order to obtain the Policy worth $150, 000. (Wade
Dep., Doc. 65 at PageID 656; Smith Dep. 10/20/17, Doc. 69 at
PageID 835, 837-38.) Although Smith had purchased the boat
for $69, 000, he appears to have obtained an appraisal of the
boat in the amount of $150, 000 from a marine surveyor named
Jack Carnes. (Smith Dep. 12/12/16, Doc. 29 at PageID 106,
118-19.) However, when deposed in this action, Carnes denied
appraising the boat or preparing the written $150, 000
appraisal. (Doc. 42 at PageID 221-23.) The Court granted
Defendant's attorney leave to depose Smith a second time
after the Carnes deposition. (Dkt. Entry 10/04/2017.) At the
second deposition, Smith testified that he did not remember
how he obtained the $150, 000 appraisal appearing to be
signed by Carnes. (Smith Dep. 10/20/17, Doc. 69 at PageID
fall of 2013, Smith paid Zeisler, his friend, $203.80 to
“winterize” the boat for the upcoming winter.
(Smith Dep. 12/12/16, Doc. 29 at PageID 136, 145.) Smith
testified that he did not recall exactly what services he
asked Zeisler to perform, nor did he recall whether he asked
Zeisler to winterize the boat's air conditioner or sea
strainer. (Id. at PageID 136-37.) Smith testified
that he did not know exactly what was required to winterize a
boat. (Id. at PageID 146.) He understood that
Zeisler would perform the same tasks he had performed on the
boat in previous years. (Id. at PageID 137-38.)
averred that he winterized the boat each year solely by
replacing the engine fluid with antifreeze and placing two
portable heaters inside the boat, the same method he had
witnessed an individual named John Clements perform for
Smith's boat in 2008 and 2009. (Zeisler Aff., Doc. 70-1
at PageID 878; Zeisler Dep., Doc. 78 at PageID 1107.) Zeisler
did not winterize or drain the air conditioning lines because
he understood that Smith intended to use the boat sometimes
over the winter and the boat systems required fresh water.
(Zeisler Dep., Doc. 78 at PageID 1149.) The portable heater
was intended to keep the air conditioner lines from freezing.
(Id. at PageID 1125). Zeisler believed this was a