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Mendoza v. Bishop1/24/2005
n the employer. Therefore, an employee exclusion in the policy need not apply to any civil liability that anyone else may have to the same injured employee." Id.
{ } Because the trial court failed to consider the coverage afforded separately to Solid Rock, the court erred in granting summary judgment in Indiana's favor on the issue of whether Indiana had a duty to defend and indemnify Solid Rock.
{ } Using the same analysis, we further find that factual issues exist regarding coverage for the claims against Darlene Bishop. As we mentioned, Mrs. Bishop is a named insured on the ClaimsCo/Clarendon policy and is afforded liability coverage for all sums for which she is liable due to bodily injury caused by an occurrence. Under "exclusions," the policy provides that the personal liability coverage does not apply to "'bodily injury' to a 'farm employee' of an 'insured' if it occurs in the course of employment by the 'insured.'" Like the Motorists and Indiana policies, the ClaimsCo/Clarendon policy has a severability clause, which states, after defining who are "insured" parties, that "each of the above is a separate 'insured,' but this does not increase our 'limit.'" ClaimsCo/Clarendon Personal Liability Coverage, Definitions, Section 9.
{ } The facts indicate that Mendoza was a "farm employee," but the facts are unclear with regard to whether Mendoza's injury occurred in the course of employment by "the insured," Mrs. Bishop. While the factual disputes are created by differences in the testimony of the Bishops and by the lack of a record on some points, that does not mean summary judgment was proper. Mr. Bishop's testimony seems to indicate that Mrs. Bishop helped run the business, but Mrs. Bishop denied being involved. She stated that she did not work outside the home, and had no role whatsoever with the ranching business, other than working in the office, around once a week for a few hours, paying bills. She also said she did not hire or supervise employees. Further, Mr. Bishop's testimony was contradictory concerning whether Mrs. Bishop had any ownership interest in the ranch. The ranch was a sole proprietorship, in the name of "Lawrence Bishop."
{ } The amended complaint alleges that Mrs. Bishop was negligent in failing to train Mendoza on how to properly hook up a wagon and in failing to install safety devices or personnel to guard Mendoza from being crushed between two moving vehicles. These claims were made in the context of Mrs. Bishop's role as an alleged employer and were also asserted alternatively, in the event that Mrs. Bishop was not considered Mendoza's employer. We express no view on the validity of these claims. We simply note that in view of the factual disputes and lack of information on Mrs. Bishop's involvement in the business, summary judgment in favor of ClaimsCo/ Clarendon on this point was improper.
{ } Accordingly, the three assignments of error are sustained in part, but only as to the summary judgment granted in Indiana's favor against Solid Rock, and the summary judgment granted in Indiana's favor against Darlene Bishop. The trial court did not err in granting summary judgment in favor of ClaimsCo/Clarendon and Indiana on the duty to defend and indemnify Lawrence Bishop.
{ } Based on the preceding discussion, the judgment of the trial court is affirmed in part, is reversed in part, and is remanded for further proceedings.
WALSH, P.J., and HENDRICKSON, J., concur.
Brogan, J., of the Second Appellate District, sitting by assignment of the Chief Justice, pursuant to Section 5(A)(3), Article IV of the Ohio Constitution.
Hendrickson, J., Retired Judge of the Twelfth Appellate Di
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