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Smith v. Air-Ride3/27/2003
. This is an appeal by plaintiffs-appellants, Robert J. Smith and Patrick Smith, from a judgment of the Franklin County Court of Common Pleas granting summary judgment in favor of defendants-appellees, BAX Global ("BAX"), Air-Ride, Inc. ("Air-Ride"), Nationwide Mutual Insurance Company ("Nationwide") and intervenor Continental Casualty Company ("Continental").
. On May 5, 1998, Samuel Huston was driving a truck on an interstate highway in Illinois , while Joan Huston was in the sleeper berth of the truck. At approximately 3:25 a.m., Huston's vehicle ran into the back of another truck stopped at a tollbooth. Samuel Huston and Joan Huston were both killed as a result of the collision and ensuing fire. The plaintiffs in this action are Joan Huston's sons.
. On April 25, 2000, plaintiff, Robert J. Smith, individually and as the co-administrator of the estate of Joan Huston, filed a complaint, naming as defendants Air-Ride, Floyd A. Huston, II (the administrator of the estate of Samuel Huston), Progressive Insurance Co. ("Progressive"), Nationwide, State Farm Fire and Casualty Company ("State Farm") and various John Does. In the complaint, plaintiff alleged that Air-Ride and various John Does acted together in a joint venture, enterprise or business relationship providing freight delivery services as an interstate common carrier on May 5, 1998. It was further alleged that, on that date, in Flora, Illinois , Samuel Huston negligently and/or recklessly operated a loaded tractor trailer with combustible freight by proceeding in excess of the speed limit and failing to maintain an assured clear distance, striking a tractor trailer stopped in Huston's lane of traffic and causing the death of Joan Huston. Plaintiff sought to recover wrongful death and survivorship damages from the estate of Samuel Huston and Air-Ride. Plaintiff also sought uninsured motorist coverage benefits from Progressive, Nationwide and State Farm.
. On May 9, 2000, plaintiffs, Robert J. Smith and Patrick Smith (collectively "plaintiffs"), filed an amended complaint. On October 10, 2000, Continental filed a motion to intervene, which the trial court subsequently granted. On November 29, 2000, Continental filed a complaint for declaratory relief, seeking a declaration that the liability coverage of a policy issued by Continental to Air-Ride did not apply to the May 5, 1998 accident, and that it had no duty to defend or indemnify Air-Ride.
. On December 28, 2000, defendants Air-Ride and the estate of Samuel Huston filed a motion for summary judgment, asserting that the fatal injuries to Joan Huston occurred during the course and scope of her employment, and that defendants were entitled to judgment as a matter of law based upon complying employer and "fellow employee" immunities under the Workers' Compensation Act (R.C. 4123.74 and 4123.741).
. On January 29, 2001, Nationwide filed a motion for summary judgment, arguing that uninsured/underinsured motorist coverage did not arise by operation of law under Nationwide's contractor's policy issued to Robert J. Smith. More specifically, Nationwide argued that its contractor's policy was not an automobile or motor vehicle liability policy of insurance pursuant to R.C. 3937.18.
. On February 28, 2001, plaintiff Robert J. Smith filed a memorandum contra Nationwide's motion for summary judgment, as well as a cross-motion for partial summary judgment against Nationwide. Also on February 28, 2001, plaintiffs filed a motion for partial summary judgment as to Air-Ride. Both Progressive and Continental subsequently filed motions for summary judgment.
. On May 21, 2001, plaintiffs filed a second amended complaint, a
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