UNITED STATES DISTRICT COURT 

SOUTHERN DISTRICT OF OHIO 

EASTERN DIVISION 

JEREMY HUE OWENS, et al., 

 Plaintiffs, 

v. 

NATIONAL INDEMNITY COMPANY, 

 Defendant. 

Case No. 2:17-cv-813 

JUDGE GEORGE C. SMITH 

Magistrate Judge Vascura 

OPINION AND ORDER 

This matter is before the Court upon the parties’ cross-motions for summary judgment 

(Docs. 30–31). The motions are fully briefed and ripe for disposition.1 For the following reasons, 

Defendant’s motion is GRANTED and Plaintiffs’ motion is DENIED. 

I. BACKGROUND 

The underlying facts are not in dispute. On March 13, 2015, Plaintiff Jeremy Owens was 

seriously injured in an accident when he, a member of a road crew patching potholes, was struck 

by a pickup truck owned and operated by Joseph Adkins. On August 4, 2015, Jeremy and his wife, 

Plaintiff Brooke Owens, commenced a personal injury action against Joseph Adkins in the Court 

of Common Pleas for Madison County, Ohio. (Doc. 1-2, State Court Compl.). Plaintiffs later 

amended their complaint in the state action to add Joseph’s brother, Ernest Adkins, doing business 

as Ernie’s Truck and Tire Repair, as an additional defendant. (Doc. 31-5, State Court Am. 

 

1

 Defendant also moved for leave to file a surreply brief in relation to Plaintiffs’ motion for summary judgment, 

which Plaintiffs opposed. (Docs. 37–38). Defendant’s motion is hereby GRANTED and the Court will consider 

the parties’ surreply arguments in deciding Plaintiff’s motion for summary judgment. 
2 

Compl.). Plaintiffs claimed that Joseph was an employee of Ernest’s garage business and was 

acting within the scope his employment with Ernest at the time of the accident. (Id.). 

Ernest maintained a policy of liability insurance for his garage business with Defendant 

National Indemnity Company (“National”) that was in effect at the time of the accident. (Doc. 26-

1, Policy). National learned of the accident when it received a copy of the Amended Complaint 

from Plaintiffs’ counsel in October 2015. National denied coverage for the claim because, at the 

time of the accident, Joseph was driving a vehicle that was not a “covered auto” under the Policy. 

(Doc. 27-1, Denial of Coverage Letter). 

On July 24, 2017, the state court entered a consent judgment submitted by Plaintiffs, 

Joseph, and Ernest that granted judgment against Joseph and Ernest in favor of Plaintiffs in the 

sum of $2,000,000. (Doc. 30-7, State Court Judgment). The judgment entry also stated that 

Plaintiffs “shall affect [sic] satisfaction of this judgment by supplementary proceedings authorized 

by statute, or other claims against liability insurers for Defendants, . . . including but not limited 

to National Indemnity Company . . .” and that “Plaintiffs shall have no further recourse against 

Defendants to satisfy this judgment except as set forth hereinbefore, by an action or actions, 

including but not limited to a supplementary complaint against liability insurers of the 

Defendants.”2 (Id.). 

On August 14, 2017, Plaintiffs filed a supplemental complaint in the state action against 

National under Ohio Revised Code § 3929.06, which permits a judgment creditor to seek 

satisfaction of the judgment from the judgment debtor’s liability insurer. (Doc. 1-2, Suppl. 

Compl.). National removed the supplemental complaint to this Court on September 15, 2017. 

(Doc. 1). 

 

2

 Joseph was insured under a GEICO auto liability policy; as part of the consent judgment, GEICO agreed to pay its 

policy limits of $25,000 and was expressly excluded from any further enforcement efforts by Plaintiffs. (Id.) 
3 

II. STANDARD OF REVIEW 

The parties move for summary judgment pursuant to Rule 56 of the Federal Rules of Civil 

Procedure. Summary judgment is appropriate when “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); Berryman 

v. SuperValu Holdings, Inc., 669 F.3d 714, 716–17 (6th Cir. 2012). The Court’s purpose in 

considering a summary judgment motion is not “to weigh the evidence and determine the truth of 

the matter” but to “determine whether there is a genuine issue for trial.” Anderson v. Liberty 

Lobby, Inc., 477 U.S. 242, 249 (1986). A genuine issue for trial exists if the Court finds a jury 

could return a verdict, based on “sufficient evidence,” in favor of the nonmoving party; evidence 

that is “merely colorable” or “not significantly probative,” however, is not enough to defeat 

summary judgment. Id. at 249–50. 

The party seeking summary judgment shoulders the initial burden of presenting the Court 

with law and argument in support of its motion as well as identifying the relevant portions of “‘the 

pleadings, depositions, answers to interrogatories, and admissions on file, together with the 

affidavits, if any,’ which it believes demonstrate the absence of a genuine issue of material fact.” 

Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (quoting Fed. R. Civ. P. 56). If this initial 

burden is satisfied, the burden then shifts to the nonmoving party to set forth specific facts showing 

that there is a genuine issue for trial. See Fed. R. Civ. P. 56(e); see also Cox v. Kentucky Dep’t of 

Transp., 53 F.3d 146, 150 (6th Cir. 1995) (after burden shifts, nonmovant must “produce evidence 

that results in a conflict of material fact to be resolved by a jury”). 

In considering the factual allegations and evidence presented in a motion for summary 

judgment, the Court “views factual evidence in the light most favorable to the non-moving party 

and draws all reasonable inferences in that party’s favor.” Barrett v. Whirlpool Corp., 556 F.3d 

502, 511 (6th Cir. 2009). But self-serving affidavits alone are not enough to create an issue of fact 
4 

sufficient to survive summary judgment. Johnson v. Washington Cty. Career Ctr., 982 F. Supp. 

2d 779, 788 (S.D. Ohio 2013) (Marbley, J.). “The mere existence of a scintilla of evidence to 

support [the non-moving party’s] position will be insufficient; there must be evidence on which 

the jury could reasonably find for the [non-moving party].” Copeland v. Machulis, 57 F.3d 476, 

479 (6th Cir. 1995); see also Anderson, 477 U.S. at 251. 

That the parties have filed cross-motions for summary judgment does not alter the Court’s 

standard of review. See Taft Broad. Co. v. United States, 929 F.2d 240, 248 (6th Cir. 1991) (“[T]he 

standards upon which the court evaluates the motions for summary judgment do not change simply 

because the parties present cross-motions.”). Thus, in reviewing cross-motions for summary 

judgment, the Court must still “evaluate each motion on its own merits and view all facts and 

inferences in the light most favorable to the non-moving party.” Wiley v. United States, 20 F.3d 

222, 224 (6th Cir. 1994). 

III. ANALYSIS 

National argues that Jeremy’s injuries are not covered by the Policy because Joseph was 

using a vehicle that was not a “covered auto” at the time of the accident. For the following reasons, 

the Court agrees. 

A. The Court assumes without deciding that the consent judgment is valid. 

First, National argues that the consent judgment in the state action is invalid for various 

reasons and cannot impose liability on National. Plaintiffs argue that the entry of judgment against 

Ernest in addition to Joseph “at a minimum embraces judgment on [Plaintiffs’] allegation that Joe 

Adkins was ‘acting within the scope and course of agency and/or employment’ by Ernie Adkins 

when he negligently struck Jeremy Owens.” (Doc. 31, Pls.’ Mot. at 5). National disputes this 

reading of the consent judgment because no evidence was introduced in the state action in support 

of this allegation and the state court made no findings of fact to that effect. (Doc. 33, National’s 
5 

Resp. at 16–17). National also points out that Plaintiffs commenced the supplemental action 

before the 30-day period provided for by Ohio Revised Code § 3929.06 had elapsed. (Id. at 18). 

Further, National contends the state court was without jurisdiction to enter the consent judgment 

because the $2,000,000 judgment exceeded the caps on recoverable non-economic losses imposed 

by Ohio Revised Code § 2315.18. (Id. at 18). Finally, National argues the consent judgment was 

the product of collusion—that is, because Plaintiffs agreed to never seek satisfaction of the 

judgment directly from them, Joseph and Ernest “would have agreed to virtually anything 

Plaintiffs’ counsel put in the Judgment Entry.” (Id. at 16–17). 

Ultimately, however, none of these issues are material. Because, as explained below, 

National is entitled to judgment even if the consent judgment is valid, the Court assumes its validity 

without so deciding. 

B. National may raise contract defenses in a supplemental action based on a valid 

judgment. 

Assuming for the sake of argument that the consent judgment does everything Plaintiffs 

argue it does—that it establishes as res judicata that Joseph was Ernest’s employee and acting 

within the scope of his employment at the time of the accident—National is not liable to Plaintiffs 

simply by virtue of the consent judgment’s existence. Liability ensues only if Joseph’s negligence 

was covered by the Policy. O.R.C. § 3929.06(C)(1) (“[T]he insurer has and may assert as an 

affirmative defense against the judgment creditor any coverage defenses that the insurer possesses 

and could assert against the holder of the policy in a declaratory judgment action or proceeding.”). 

As the Ohio Supreme Court has explained, “[i]t is well established that the rights of such 

a plaintiff against the insurer cannot rise above those of the insured, and that any defenses which 

would have been available to the insurer in an action by the insured are equally available to the 

insurer when named a defendant in a supplemental petition filed under the provisions of Section 
6 

3929.06, Revised Code.” Bennett v. Swift & Co., 163 N.E.2d 362, 364 (Ohio 1959). See also

Transamerica Ins. Co. v. Taylor, 504 N.E.2d 15, 17 (Ohio 1986), overruled on other grounds 

by Preferred Risk Ins. Co. v. Gill, 507 N.E.2d 1118 (Ohio 1987) (in a proceeding under § 3929.06, 

“insurance companies may raise any defense that they would have against the insured.”). Thus, 

for Plaintiffs to succeed, the language of the Policy must encompass the accident. 

C. The Policy does not provide coverage for the accident. 

Ernest’s Policy is based on National’s standard Garage Coverage Form, CA 00 05 10 01. 

(Doc. 26-1, Policy, PAGEID #432–47). Plaintiffs assert the accident is covered by the portion of 

the Policy providing coverage for “‘Garage Operations’ — Other Than Covered ‘Autos.’” (Doc. 

31, Pls.’ Mot. at 7). This section of the Policy provides as follows: 

SECTION II – LIABILITY COVERAGE 

A. Coverage 

1. “Garage Operations” – Other Than Covered “Autos” 

a. We will pay all sums an “insured” legally must pay as damages 

because of “bodily injury” or “property damage” to which this 

insurance applies caused by an “accident” and resulting from 

“garage operations” other than the ownership, maintenance or use 

of covered “autos”. 

(Doc. 26-1, Policy at PAGEID #433). Several terms in this provision must be defined before the 

extent of coverage can be ascertained. 

First, “auto” means “a land motor vehicle, ‘trailer’ or semitrailer.” (Id. at PAGEID #445). 

No party disputes that Joseph’s truck was an “auto” as defined by the Policy. Next, covered 

“autos” are determined by consulting the “coverage symbols” listed next to a coverage on the 

declarations page of the Policy. “The symbols entered next to a coverage on the Declarations 

designate the only ‘autos’ that are covered ‘autos.’” (Doc. 26-1, Policy, PAGEID #432). In 

Ernest’s policy, coverage symbol “30” is entered on the declarations page next to “Liability” 
7 

coverage. (Id. at PAGEID #428). Coverage symbol 30 is defined by the Policy as “‘Autos’ Left 

With You For Service, Repair, Storage Or Safekeeping — Any customer’s land motor vehicle or 

trailer or semitrailer while left with you for service, repair, storage or safekeeping. Customers 

include your ‘employees’, and members of their households, who pay for the services performed.” 

(Id. at PAGEID #433). Joseph was clearly not operating a covered “auto” at the time of the 

accident, because the vehicle he was driving was out on the road and not “left with” Ernest’s 

business “for service, repair, storage, or safekeeping.” Plaintiffs expressly concede that Joseph’s 

pickup truck was not a covered “auto” under the Policy. (Doc. 31, Pls.’ Mot. at 6). 

Further, “insured” is defined, for purposes of “Garage Operations Other Than Covered 

‘Autos,” as including “your employees, directors or shareholders” “but only while acting within 

the scope of their duties.” (Id. at PAGEID #434–35, 448). Thus, to the extent Joseph was 

employed by Ernest and acting within the scope of that employment at the time of the accident (a 

fact that the Court continues to assume without deciding), Joseph qualifies as an “insured” under 

the Policy. 

Finally, it is undisputed that Jeremy suffered “bodily injuries” “caused by an ‘accident.’” 

As a result, the existence of coverage turns entirely on the definition of “garage operations.” In 

the Garage Coverage Form, “garage operations” is defined as follows: 

SECTION VI — DEFINITIONS 

* * * 

H. “Garage operations” means the ownership, maintenance or use of locations for 

garage business and that portion of the roads or other accesses that adjoin these 

locations. “Garage operations” includes the ownership, maintenance or use of the 

“autos” indicated in Section I of this Coverage Form as covered “autos”. “Garage 

operations” also include all operations necessary or incidental to a garage business. 

(Doc. 26-1, Policy at PAGEID #445–46). Plaintiffs argue that this provision establishes coverage 

because Joseph, acting in the scope of his employment, was on his way to perform an errand on 
8 

behalf of Ernest’s business, which constitutes “operations necessary or incidental to a garage 

business.” (Doc. 31, Pls.’ Mot. at 7). 

However, the Policy also includes an Endorsement titled “Garage Coverage—Exclusion 

of ‘Autos’ Other Than Covered ‘Autos’” which provides: 

SECTION VI — DEFINITIONS, “Garage operations” is deleted and replaced by the 

following: 

“Garage operations” means the ownership, maintenance, or use of locations for 

garage business and that portion of the roads or other accesses that adjoin these 

locations. “Garage operations” includes the ownership, maintenance, or use of the 

“autos” indicated in SECTION I of this Coverage Form as covered “autos.” 

“Garage operations” also includes all operations necessary or incidental to a garage 

business. “Garage operations” does not include the ownership or use of any 

“auto” which is not a covered “auto” under this policy. 

(Id. at PAGEID #454) (emphasis added). It is incontrovertible that Plaintiffs’ injuries arise out of 

an accident caused by the “use of an[ ] ‘auto’ which is not a covered ‘auto’ under [the Policy].” 

Jeremy was injured when he was struck by a truck owned and operated by Joseph, a truck that 

Plaintiffs expressly concede is not a covered “auto.” Thus, even if Joseph were an employee of 

Ernest and Joseph was acting within the scope of that employment at the time of the accident, the 

Endorsement specifically excludes coverage for the use of Joseph’s vehicle. As a result, Plaintiff’s 

injuries are not covered by the Policy.3

D. The exclusion for the use of non-covered autos is not ambiguous or unconscionable. 

Although the Endorsement’s definition of “garage operations” expressly excludes 

coverage for use of non-covered autos such as Joseph’s truck, Plaintiffs argue that the Endorsement 

 

3

 As further justification for denial of coverage, National also points to an additional provision of the same 

Endorsement, which adds a new exclusion to liability coverage under the Policy for injuries “resulting from the 

maintenance of any ‘auto’ which is not a covered ‘auto’ under this policy if such [injuries] occur[ ] while such ‘auto’ 

is being used for garage business.” (Doc. 26-1, Policy at PAGEID #454). However, it is not clear to the Court that 

Plaintiffs’ injuries resulted from the “maintenance” of Joseph’s truck. Because coverage for the “use” of Joseph’s 

truck is expressly excluded by the Endorsement’s revised definition of “garage operations,” the Court need not 

decide the import of the “maintenance” exclusion. 
9 

is “buried at the end of the policy” and “any average person reading the Policy would expect that 

National would not both grant coverage for ‘other than covered autos’ prominently at the 

beginning of the Policy issued in 2014, only to remove that coverage by an Endorsement . . .” 

(Doc. 31, Pls.’ Mot. at 7). Plaintiffs also suggest that “the average person would find such a Policy 

ambiguous at a minimum, and much more likely unconscionable, as there was absolutely no 

reasonable basis to use an old Policy form which granted liability coverage for garage operations 

not involving covered autos, and another form excluding non-covered autos from garage 

operations at the end of the same Policy.” (Id. at 8). The Court disagrees. 

First, the Endorsement is not “buried” at the end of the policy. As with any contract, all 

terms of an insurance policy must be considered as a whole to arrive at the contracting parties’ 

intent. Laboy v. Grange Indemn. Ins. Co., 41 N.E.3d 1224, 1227 (Ohio 2015) (“[t]he fundamental 

goal when interpreting an insurance policy is to ascertain the intent of the parties from a reading 

of the policy in its entirety and to settle upon a reasonable interpretation of any disputed terms in 

a manner designed to give the contract its intended effect.”) (emphasis added). The Endorsement 

expressly says that it “modifies insurance provided under” the Garage Coverage Form in standard 

size type at the top of the page. (Doc. 26-1, Policy at PAGEID #454). The mere fact that the 

endorsement is included near the end of the Policy documents is not evidence that it was, or was 

intended to be, hidden. Moreover, it is commonplace for insurers to use standard coverage forms 

as a starting point so that they need not craft entire policies from scratch for each insured. They 

then achieve coverage tailored to the insured’s choices by adding endorsements that alter the 

standard coverage form terms as appropriate. There is nothing deceptive about this practice. 

Nor does the Endorsement create ambiguity. While “provisions in an insurance contract 

that are reasonably susceptible of more than one interpretation will be construed liberally in favor 
10 

of the insured,” this rule “will not be applied so as to provide an unreasonable interpretation of the 

words of the policy.” Laboy, 41 N.E.3d at 1227 (citing King v. Nationwide Ins. Co., 519 N.E.2d 

1380 (Ohio 1988), syllabus, and Cincinnati Ins. Co. v. CPS Holdings, Inc., 875 N.E.2d 31, 34 

(Ohio 2007)). The Court cannot see a reasonable interpretation of the Endorsement that leads to 

more than one interpretation. The Endorsement expressly states that the definition contained in 

the standard Garage Coverage Form is “deleted and replaced by” the definition excluding coverage 

for the use of autos other than covered autos. (Doc. 26-1, Policy at PAGEID #454). This language 

creates a single, clear result: that the original definition in the standard Garage Coverage Form is 

not effective, and the definition in the Endorsement is. 

Finally, the Endorsement is not unconscionable. The party asserting the unconscionability 

of a contract bears the burden of proving that the contract involves “both an absence of meaningful 

choice on the part of one of the parties together with contract terms which are unreasonably 

favorable to the other party.” Hayes v. Oakridge Home, 908 N.E.2d 408, 412 (Ohio 2009) (quoting 

Lake Ridge Academy v. Carney, 613 N.E.2d 183 (Ohio 1993)). That is, “the party challenging a 

contract as unconscionable must prove ‘a quantum’ of both procedural and substantive 

unconscionability.” Taylor Bldg. Corp. of Am. v. Benfield, 884 N.E.2d 12, 24 (Ohio 2008) (citing 

Ball v. Ohio State Home Servs., Inc., 861 N.E.2d 553, 555 (Ohio Ct. App. 2006)). 

While Plaintiffs allude to the Policy’s possible unconscionability, the Court finds they have 

not offered evidence sufficient to raise a genuine issue of material fact as to either procedural or 

substantive unconscionability. As to the substantive prong, Plaintiffs insist, without citation, that 

a reasonable person would have “expected” that coverage for “‘Garage Operations’ – Other Than 

Covered ‘Autos’” would include coverage for the use of autos other than covered autos. However, 

as explained supra, that “expectation” is defeated by reading the Policy in its entirety. 
11 

Plaintiffs also suggest that National was obligated, at the time Ernest purchased the Policy, 

to provide coverage for all vehicles used in his business. (Doc. 32, Pls.’ Resp. at 8). They rely on 

Ohio’s financial responsibility law, which states: 

No person shall operate, or permit the operation of, a motor vehicle in this State, 

unless proof of financial responsibility is maintained continuously throughout the 

registration period with respect to that vehicle or, in the case of a driver who is not 

the owner, with respect to the driver’s operation of the vehicle. 

O.R.C. § 4905.101(A)(1). Plaintiffs contend that, “[g]iven that Ernie Adkins had no other liability 

insurance coverage for his trucks utilized in his proprietorship, Ernie certainly was entitled to 

expect National would write a Policy compliant with Ohio law.” (Doc. 32, Pls.’ Resp. at 8). But 

§ 4905.101(A)(1) does not impose a duty on insurers to provide any particular type of coverage. 

Rather, the statute puts the onus on vehicle owners to obtain compliant coverage. In this case, 

Ernest did not even own the vehicle at issue. Joseph did, and he apparently complied with 

§ 4905.101(A)(1) by obtaining an auto insurance policy from GEICO, who already offered its 

policy limits to Plaintiffs. (Doc. 30-7, State Court Judgment). 

Nor have Plaintiffs introduced evidence or argument to suggest that Ernest was deprived 

of any meaningful choice in purchasing the Policy. National seeks to underscore this point by 

relying on Ernest’s application for the Policy as well as an affidavit by Jim Ross, Ernest’s insurance 

agent through which he purchased the Policy. (Doc. 33-1, Application; Doc. 39-1, Ross Aff.). 

Plaintiffs object to the introduction of the application at this juncture, relying on an agreement 

between the parties to limit the exhibits used in the summary judgment motions. Because the 

Court finds that the Endorsement is not substantively unconscionable, and because Plaintiffs have 

not introduced any evidence as to procedural unconscionability, the Court need not consider the 

application or Mr. Ross’s affidavit at this time. Accordingly, National’s Motion for Leave to File 

Affidavit of Jim Ross is denied as moot. 
12 

In sum, the Endorsement expressly excludes coverage for Plaintiffs’ claims, and Plaintiffs 

have not established that the Endorsement is invalid on any grounds. National is therefore entitled 

to summary judgment. 

IV. CONCLUSION 

For the foregoing reasons, Defendant’s Motion for Summary Judgment (Doc. 30) is 

GRANTED and Plaintiffs’ Motion for Summary Judgment (Doc. 31) is DENIED. Defendant’s 

Motion for Leave to File Affidavit of Jim Ross is DENIED AS MOOT. 

The Clerk shall remove Documents 30, 31, and 39 from the Court’s pending motions list 

and close this case. 

IT IS SO ORDERED. 

 /s/ George C. Smith 

GEORGE C. SMITH, JUDGE 

UNITED STATES DISTRICT COURT