Court of Appeals of Ohio, Fifth District, Ashland
TRAVELERS PROPERTY CASAULTY COMPANY OF AMERICA Plaintiff-Appellant
CINCINNATI INSURANCE COMPANY Defendant-Appellee
from the Ashland County Court of Common Pleas, Case No.
PLAINTIFF-APPELLANT: GARY L. NICHOLSON RICHARD C.O. REZIE
DEFENDANT-APPELLEE: LOUIS M. DEMARCO JAMES J. REAGAN
William B. Hoffman, P.J. Hon. Patricia A. Delaney, J. Hon.
Craig R. Baldwin, J.
Plaintiff-Appellant Travelers Property Casualty Company of
America appeals the June 20, 2018 judgment entry of the
Ashland County Court of Common Pleas.
AND PROCEDURAL HISTORY
On January 26, 2017, Joylynn M. Lopeman filed a complaint in
the Ashland County Court of Common Pleas against Glen P.
Stewart, both individually and in his official capacity as
the Mayor of the City of Ashland, based on an accident that
occurred on December 2, 2015. Lopeman alleged that on
December 2, 2015, Stewart was driving his 2007 Chevy Colorado
eastbound on Samaritan Avenue. Lopeman was walking on College
Boulevard. Stewart turned onto College Boulevard and hit
Lopeman, causing her bodily injuries. Lopeman brought
multiple causes of actions, one being respondeat superior.
Lopeman alleged that at the time of the accident, Stewart was
working within the scope of his employment as Mayor;
therefore, the City of Ashland was responsible for his
At the time of the accident, Stewart was the named insured on
an automobile liability insurance policy issued by
Defendant-Appellee Cincinnati Insurance Company. The
Cincinnati policy was purchased by Steward and covered
Stewart's 2007 Chevy Colorado. Also at the time of the
accident, Plaintiff-Appellant Travelers Property Casualty
Company of America issued an automobile liability insurance
policy to the City of Ashland. Cincinnati communicated with
Travelers and stated that Cincinnati and Travelers should
defend and indemnify Stewart on a pro rata basis. Travelers
responded that pursuant to the terms of its policy, it
provided only excess liability insurance for nonowned
vehicles and Cincinnati provided primary liability coverage.
Stewart filed a third-party complaint against the City of
Ashland demanding that the City provide a full defense and
On March 24, 2017, the parties filed a Joint Stipulation of
Dismissal pursuant to Civ.R. 41(A)(1)(b). It stated:
Now come the parties and pursuant to Civ.R. 41(A)(1)(b)
hereby stipulate to the dismissal of Defendant Glen P.
Stewart, Individually. For the purpose of this litigation,
the parties stipulate that Mr. Stewart was acting in the
course and scope of his employment, as the Mayor of the City
of Ashland, at the time of the motor vehicle accident which
is the subject of Plaintiff's Complaint.
This case will remain pending against Defendant Glen P.
Stewart, Mayor of the City of Ashland, as an official
capacity claim against the City of Ashland, as well as the
other named Defendants.
Joint Dismissal was signed by counsel for Plaintiff Lopeman;
counsel for Defendants City of Ashland and Stewart, as Mayor;
counsel for Defendant State Farm; and counsel for
Defendants/Third Party Plaintiffs Stewart, individually, and
Stewart, as Mayor.
On August 21, 2017, Travelers filed a declaratory judgment
action against Cincinnati in the Ashland County Court of
Common Pleas. Travelers requested the trial court issue a
declaratory judgment finding that Cincinnati's automobile
liability insurance provided primary coverage and
Travelers' automobile liability policy provided excess
coverage. Travelers contended Cincinnati had a duty to settle
or defend until its limit of insurance coverage was tendered
for settlement. Travelers argued the matter should be
resolved by the Ohio Supreme Court decision in Motorists
Mutual Ins. Co. v. Lumbermens Mut. Ins. Co., 1 Ohio
St.2d 105, 205 N.E.2d 67 (1965). Cincinnati argued that
pursuant to the terms of its automobile liability policy,
Travelers was responsible for primary liability coverage and
Cincinnati was responsible for excess liability coverage.
The matter was scheduled for a bench trial before the
magistrate. In preparation for the bench trial, the parties
filed joint stipulated facts and exhibits. The parties also
submitted bench briefs in support of their positions.
Automobile Liability Policy
Travelers argued that pursuant to the terms of its automobile
liability policy, it provided coverage excess over
Cincinnati's primary liability coverage. In support of
its argument, it submitted the automobile liability insurance
policy issued to the City of Ashland, effective from August
30, 2015 to August 30, 2016. The named insured on the policy
was, "City of Ashland." Travelers did not dispute
that pursuant to the terms of its Business Auto Coverage, the
Mayor's Chevy Colorado was a "covered auto."
The Business Auto Coverage Part Declarations explained the
Coverage and Limits of Insurance:
II - Covered Autos Liability Coverage A. Coverage
We will pay all sums an "insured" legally must pay
as damages because of a "bodily injury" or
"property damage" to which this insurance applies,
caused by an "accident" and resulting from the
ownership, maintenance or use of a covered "auto".
1. Who Is An Insured
The following are "insureds":
a. You for any covered "auto".
The automobile liability policy included a Public Entity Auto
Extension Endorsement. It added the following definition to
"A.1., Who Is An Insured," of
"SECTION II - COVERED AUTOS LIABILITY
Any of your lawfully elected or appointed officials,
directors or executive officers or any member of your boards
is an "insured" while using a covered
"auto" in the course of his or her duties for you
at the time of an "accident."
Most relevant to the declaratory judgment action, the
Travelers automobile liability policy included conditions for
coverage. Travelers argued that "Section IV - Business
Auto Conditions" limited its coverage for the ...