United States District Court, N.D. Ohio, Eastern Division
MEMORANDUM OF OPINION AND ORDER [RESOLVING ECF NO.
Y. Pearson United States District Judge.
is Plaintiff Scottsdale Surplus Line Insurance Company's
(“Scottsdale”) Motion for Summary Judgment
(ECF No. 26), filed on June 11, 2019. On July 16,
2019, the Yoder Family filed a Notice (ECF No. 29) that
they do not intend to submit a memorandum in opposition to
the motion. The Court conducted a Telephonic Case Management
Conference on August 5, 2019, at which time the Court ordered
that Defendants Keystone Auto Sales (“Keystone
Auto”) and Keystone Transportation, LLC
(“Keystone Transportation”) (collectively
“Keystone”) file a memorandum in opposition to
the motion on or before August 9, 2019. See Minutes
dated August 5, 2019. To date, Keystone has not submitted a
memorandum in opposition. Therefore, the motion is
unopposed. The Court has been advised, having
reviewed the record, the motion, and the applicable law. For
the reasons set forth below, the motion is granted.
January 8, 2019, Scottsdale filed this liability insurance
coverage action for declaratory relief in this Court.
See Complaint (ECF No. 1). On March 22,
2019, the Yoder Family filed an Answer and Counterclaim
(ECF No. 12). The Yoder Family are plaintiffs in an
underlying personal injury action pending in the Marion
County, Ohio Court of Common Pleas. Yoder v. Lydick,
No. 2018 CV 0639. Scottsdale is currently defending Keystone
and Defendant Becky Porter in connection with the underlying
action under a reservation or rights to disclaim coverage.
Declaration of Dennis Clair (ECF No. 27-2) at PageID
#: 316, ¶ 7; Letter dated December 13, 2018 (ECF No.
27-2) at PageID #: 320-24.
Auto regularly provided transportation services for a fee to
members of the Amish Community. Examination Under Oath of
Regis Skiffington (ECF No. 27-1) at PageID #: 260.
On March 11, 2018, members of the Yoder Family were injured
while occupying a 2005 Chevy Express passenger van driven by
Ms. Porter, which was under the control of Keystone, when it
collided with a vehicle driven by Dan Lydick on U.S. Route 23
in Marion County. The Chevrolet Express van was consigned to
Keystone Auto, a car lot engaged in the business of selling
automobiles. ECF No. 27-1 at PageID #: 251, 279. Keystone
Auto was providing transportation services to the Yoder
Family for a fee at the time of the collision. ECF No. 27-1
at PageID #: 261, 288.
judgment is appropriately granted when the pleadings, the
discovery and disclosure materials on file, and any
affidavits show “that there is no genuine dispute as to
any material fact and the movant is entitled to judgment as a
matter of law.” Fed. R. Civ. P. 56(a); see
also Johnson v. Karnes, 398 F.3d 868, 873 (6th Cir.
2005). The moving party is not required to file affidavits or
other similar materials negating a claim on which its
opponent bears the burden of proof, so long as the movant
relies upon the absence of the essential element in the
pleadings, depositions, answers to interrogatories, and
admissions on file. Celotex Corp. v. Catrett, 477
U.S. 317, 322 (1986). The moving party must “show that
the non-moving party has failed to establish an essential
element of his case upon which he would bear the ultimate
burden of proof at trial.” Guarino v. Brookfield
Twp. Trustees., 980 F.2d 399, 403 (6th Cir. 1992).
the movant makes a properly supported motion, the burden
shifts to the non-moving party to demonstrate the existence
of genuine dispute. An opposing party may not simply rely on
its pleadings. Rather, it must “produce evidence that
results in a conflict of material fact to be resolved by a
jury.” Cox v. Ky. Dep't. of Transp., 53
F.3d 146, 150 (6th Cir. 1995). The non-moving party must, to
defeat the motion, “show that there is doubt as to the
material facts and that the record, taken as a whole, does
not lead to a judgment for the movant.”
Guarino, 980 F.2d at 403. In reviewing a motion for
summary judgment, the court must view the evidence in the
light most favorable to the non-moving party when deciding
whether a genuine issue of material fact exists.
Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 587-88 (1986); Adickes v. S.H. Kress &
Co., 398 U.S. 144 (1970).
United States Supreme Court, in deciding Anderson v.
Liberty Lobby, Inc., 477 U.S. 242 (1986), stated that in
order for a motion for summary judgment to be granted, there
must be no genuine issue of material fact. Id. at
248. The existence of some mere factual dispute between
the parties will not defeat an otherwise properly supported
motion for summary judgment. Scott v. Harris, 550
U.S. 372, 380 (2007). A fact is “material” only
if its resolution will affect the outcome of the lawsuit. In
determining whether a factual issue is “genuine,
” the court must decide whether the evidence is such
that reasonable jurors could find that the non-moving party
is entitled to a verdict. Id. Summary judgment
“will not lie . . . if the evidence is such that a
reasonable jury could return a verdict for the nonmoving
party.” Id. To withstand summary judgment, the
non-movant must show sufficient evidence to create a genuine
issue of material fact. Klepper v. First Am. Bank,
916 F.2d 337, 342 (6th Cir. 1990). The existence of a mere
scintilla of evidence in support of the non-moving
party's position ordinarily will not be sufficient to
defeat a motion for summary judgment. Id.
issued to Regis Skiffington DBA: Keystone Auto Sales a garage
insurance policy, No. CGH0000156, for the May 3, 2017 to May
3, 2018 policy period (“Policy”). ECF No.
1-1; ECF No. 27-2 at PageID #: 316, ¶ 5.
moves the Court to declare that it has no duty to defend or
indemnify Keystone and/or Ms. Porter in connection with the
underlying personal injury action. It argues that coverage is
precluded by (1) the Livery Exclusion under the Covered Autos
Liability Coverage Part and (2) the Auto Exclusion under the
General Liability Coverages in the Policy. The Court
concludes these exclusions in the Policy entirely preclude
coverage, which in turn, bar any duty to defend or indemnify
Plaintiff could even arguably have to Keystone and/or Ms.
also moves the Court to find the Yoder Family's
Counterclaim (ECF No. 12) has no merit because the
application of the two exclusions prelude the Yoder