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Turner v. University of Cincinnati

Court of Claims of Ohio

May 30, 2018

JACOB TURNER, Plaintiff
v.
UNIVERSITY OF CINCINNATI Defendant

          Anderson M. Renick Magistrate Judge.

          DECISION

          PATRICK M. MCGRATH Judge.

          {¶1} Before the court are (1) a motion for summary judgment with an attendant memorandum filed on April 13, 2018, by defendant University of Cincinnati (UC) wherein UC contends that it is entitled to judgment as a matter of law on plaintiff Jacob Turner's corrected complaint and (2) an unopposed motion for leave to file a reply brief filed on May 22, 2018 by UC. Because the court determines that UC is entitled to judgment as a matter of law, the court concludes that UC's motion for summary judgment should be granted and that UC's motion for leave to file a reply brief should be denied as moot.

         I. Background

         {¶2} On October 27, 2016, Turner, through counsel, filed a corrected complaint alleging that, about two years earlier, on October 26, 2014, at about 8:30 p.m., he was a passenger in a motor vehicle, which was owned by Sherri M. Messmore and which was being driven by Connor Messmore. According to Turner, Connor Messmore-a member of UC's Ultimate Frisbee Club Team-"was driving Mr. Turner and three other teammates home from a sanctioned tournament in Columbus, Ohio that the club team had been scheduled to participate in with knowledge of the defendant. Consequently, Mr. Messmore was operating a non-owned vehicle in the conduct of the University of Cincinnati's business." (Corrected Complaint, ¶ 6.)

          {¶3} Turner asserts that, while Connor Messmore was traveling southbound on Interstate 71, Connor Messmore "negligently allowed his vehicle to drift off the left side of the roadway, striking the concrete divider, then heading right across all southbound lanes of travel, striking a vehicle, then veering off the roadway and striking a tree." (Corrected Complaint, ¶ 5.) Turner maintains that, as a "direct and proximate result" of the incident, he "sustained injuries to his face, mouth, teeth, and ankle, among injuries to other parts of his body, causing severe pain, suffering, mental anguish and permanent injury, for the treatment of which he has undergone at least ten (10) surgeries and has incurred reasonable medical expenses in an amount in excess of Four Hundred Seventy-Six Thousand Dollars ($476, 000.00) and expects to incur such expenses in the future." (Corrected Complaint, ¶ 10.)

         {¶4} In the corrected complaint, Turner contends that UC should be held liable (1) because "at all times pertinent to this action, [UC] provided bodily injury liability coverage through the Inter-University Council - Insurance Consortium Joint Self-Insurance Pool (hereinafter Agreement)" (Corrected Complaint, at ¶ 3), and (2) because "[u]nder the terms of the Agreement, at the time of the accident * * * Connor Messmore was a protected person and Mr. Messmore's auto was a covered auto entitling Jacob Turner to recover damages against [UC] for his bodily injuries caused by Mr. Messmore's negligence." (Corrected Complaint, ¶ 8.) According to the corrected complaint, Turner "demands judgment against defendant University of Cincinnati and prays for compensatory and general damages in an amount in excess of Twenty Five Thousand Dollars ($25, 000.00), said plaintiff further demands interest, costs and any further just relief." Turner's corrected complaint does not contain a claim for a declaratory judgment. And Turner does not pray for a declaratory judgment in the corrected complaint's demand.

         {¶5} On April 13, 2018, UC moved for a summary judgment. UC maintains that it is entitled to judgment as a matter of law (1) because there was no agency relationship between UC and Connor Messmore, (2) because Messmore did not receive permission from UC to go on the trip to Columbus, (3) because Turner and his teammates did not complete paperwork required for the trip to Columbus, and (4) because Turner and the other members of the UC Ultimate Club Frisbee Team failed to rent a vehicle to travel to Columbus, which, according to UC, is necessary for coverage through the insurance agreement. In support of its summary judgment motion, UC relies on (1) an affidavit of Jeffery Logsdon, program coordinator for club sports at UC, that is dated April 6, 2018, (2) an exhibit attached to Logsdon's affidavit of April 6, 2018, (3) Logsdon's testimony from a deposition held on April 3, 2018, (4) an affidavit of Elizabeth A. Conlin, director of the Inter University Council (IUC) - Insurance Consortium, and (5) an exhibit attached to Conlin's affidavit-a copy of the Inter-University Council-Insurance Consortium Joint Self-Insurance Pool Automobile Liability Coverage Agreement, Coverage Agreement Number: IUCIC-AL-July 2014-15 (Insurance Policy).

         {¶6} On May 18, 2018, Turner filed a memorandum opposing UC's summary judgment. Turner also has filed two exhibits: (1) Exhibit 4 to Logsdon's deposition and (2) Exhibit 5 to Logsdon's deposition. By Turner's memorandum in opposition, Turner "requests that the Court declare that Defendant's Insurance Policy covers his injuries and damages, whereby rendering Defendant's Motion for Summary Judgment moot; or in the alternative, Plaintiff requests that Defendant's Motion for Summary Judgment be denied." Turner states in his memorandum: "This Court should treat Defendant's Motion, in part, as a Motion for Declaratory Judgment regarding the limited question of whether Messmore is a protected person under the Insurance Policy and whether Messmore's automobile is a covered auto under the Insurance Policy."

         {¶7} On May 22, 2018, UC moved the court for leave to file a reply to Turner's memorandum in opposition; UC represented to the court that Turner "ha[d] no objection to Defendant's request." Two days later-on May 24, 2018-Turner filed a "Notice To Clarify For The Record" wherein (1) Turner indicated that he "remains unopposed" to UC's motion for leave to file a reply; (2) he took issue with a paragraph in UC's motion for leave to file a reply brief; and (3) Turner stated that "it is erroneous to state that Plaintiff has asked for affirmative relief in the form of a declaratory judgment as it is Plaintiffs position that Defendant is the one who sought affirmative relief in the form of a declaratory judgment, albeit inaccurately titling it as a Motion for Summary Judgment."

         {¶8} Turner's suggestion that this court should treat UC's summary judgment, in part, as a motion for declaratory judgment is not well-taken for several reasons: (1) this court's role is that of a neutral arbiter of matters that are properly presented to the court; the court's role generally does not include refashioning a party's motion, see Greenlaw v. United States, 554 U.S. 237, 243, 128 S.Ct. 2559, 171 L.Ed.2d 399 (2008) (stating that in "our adversary system, in both civil and criminal cases, in the first instance and on appeal, we follow the principle of party presentation That is, we rely on the parties to frame the issues for decision and assign to courts the role of neutral arbiter of matters the parties present"); Id. at 244, quoting United States v Samuels, 808 F.2d 1298, 1301 (CA8 1987) (R Arnold, J, concurring in denial of reh'g en banc) ("'[Courts] do not, or should not, sally forth each day looking for wrongs to right. We wait for cases to come to us, and when they do we normally decide only questions presented by the parties'"); (2) Turner's corrected complaint does not present a declaratory-judgment claim for the court to adjudicate; (3) when Turner filed his lawsuit in this court he "was aware" of the university's Insurance policy, yet Turner did not present a claim for declaratory relief in his corrected complaint (Memorandum in Opposition, 3; Complaint); (4) Turner has not sought to amend his complaint in a manner set forth in Civ.R. 15(A) for the purpose of adding a claim for a declaratory judgment; and (5) UC expressly has moved for summary judgment under Civ.R. 56(C) regarding a complaint that does not contain a claim for a declaratory judgment.

         {¶9} Because there is no proper claim for a declaratory judgment as to the Insurance Policy, the court should not issue a binding determination that establishes the rights and other legal relationship of the parties with respect to the Insurance Policy. UC's summary judgment motion and Turner's response therefore raise these issues for the court's determination: (1) whether there is a genuine issue of material fact relative to whether Connor Messmore's purported negligence may be imputed to UC, (2) whether in this instance automobile liability coverage provided to UC through an agreement with the Inter-University Council - Insurance Consortium Joint Self-Insurance Pool imputes liability upon UC for Connor Messmore's purported negligence.

         II. Law and Analysis

         A. Standard of review ...


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