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The Standard Fire Insurance Co. v. Zeisler

United States District Court, S.D. Ohio, Western Division

February 20, 2018

The Standard Fire Insurance Company, Plaintiff,
v.
Dan Zeisler, Defendant.

          ORDER DENYING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

          SUSAN J. DLOTT UNITED STATES DISTRICT JUDGE.

         This 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.

         I. BACKGROUND

         A. Factual History

         SFIC 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.

         The use 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 -
Q. Okay.
A. -- would need to be winterized to prevent freezing.

(Timpani Dep., Doc. 45 at PageID 353.)

         SFIC 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 837-38.)

         In the 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.)

         Zeisler 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 ‚Äúsafe ...


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