[Cite as Hines v. Camper, 2012-Ohio-4110.]

IN THE COURT OF APPEALS OF OHIO 

THIRD APPELLATE DISTRICT 

AUGLAIZE COUNTY 

 

COREY T. HINES, A MINOR, ET AL., 

 PLAINTIFFS-APPELLANTS, CASE NO. 2-11-31 

 v. 

BRANDEN R. CAMPER, ET AL., O P I N I O N 

 DEFENDANTS-APPELLEES. 

 

Appeal from Auglaize County Common Pleas Court 

Trial Court No. 2011-CV-110 

Judgment Affirmed 

Date of Decision: September 10, 2012 

 

APPEARANCES: 

Kevin W. Attkisson for Appellants 

Paul B. Roderer for Appellees 
Case No. 2-11-31 

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ROGERS, J. 

{¶1} Plaintiffs-Appellants, Corey Hines, a minor, and Gina Hines 

(“Hines”), appeals the judgment of the Court of Common Pleas of Auglaize 

County granting summary judgment in favor of Defendant-Appellee, Allstate 

Insurance Company (“Allstate”), on Hines’ uninsured/underinsured motorist 

claim. On appeal, Hines contends that the trial court erroneously granted 

summary judgment because the following genuine issues of material fact exist: (1) 

whether Hines was a participant in the underlying drag race that gave rise to this 

action; and (2) whether Hines assumed the risk of injury when he entered the 

automobile involved in the street race. For the reasons that follow, we affirm the 

trial court’s judgment. 

{¶2} This matter arose from a drag race in Auglaize County. On May 14, 

2010, a group of young men, including Hines, gathered at the house of Nick 

Forbess. At some point, the group traveled together to a nearby gas station. After 

getting gas, they decided to head towards Washington Pike where they could race 

their cars. 

{¶3} Branden Camper and Forbess drove the cars involved in the race. 

Hines was a passenger in Camper’s car, which lacked an operative safety belt for 

the front side passenger. To procure a working safety belt, Hines decided to sit in 

the back seat, where he buckled in. After the race commenced, Camper lost 
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control of his automobile. It veered off the road and flipped upside down in a 

nearby field. Hines suffered several injuries, including lacerations and back and 

neck injuries. 

{¶4} At the time of the accident, Camper’s parents had an automobile 

insurance policy with Allstate (the “Policy”) that covered the car that Camper was 

driving. The Policy contained an uninsured/underinsured motorist provision. This 

provision was subject to a number of exclusions, including the following: 

Allstate will not pay any damages an insured person or an additional 

insured person is legally entitled to recover because of bodily injury: 

. . . 

6. arising out of the participation in any prearranged, organized, or 

spontaneous: 

a. racing contest; 

b. speed contest; or 

c. use of an auto at a track or course designed or used for racing or 

high performance driving . . . . (Docket No. 52, Policy, p. 13). 

After the accident, Hines sought recovery from Allstate under the 

uninsured/underinsured provision of the Policy. However, Allstate refused to pay 

Hines’ claim, citing the applicability of the above exclusion. 

{¶5} On May 9, 2011, Hines initiated a personal injury action against 

Camper, Forbess, and several other defendants. He also brought an 

uninsured/underinsured action against Allstate for its failure to pay on his claim. 

Allstate answered and denied coverage. 
Case No. 2-11-31 

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{¶6} On July 29, 2011, Allstate filed a motion for summary judgment. 

Allstate advanced two alternative bases for summary judgment: (1) the 

applicability of the above exclusion; and (2) Hines’ purported assumption of the 

risk of injury. Attached to the motion were several of Hines’ written admissions 

and a copy of his police statement regarding the accident. The written admissions 

reflect that Hines admitted he was “aware prior to this accident that it was the 

intention of [Camper] and [Forbess] to race their automobiles.” (Docket No. 52, 

Exhibit A-1, p. 3). Meanwhile, the police statement shows that when the 

responding officer asked whether his intention was to race when he reached the 

road, Hines responded in the affirmative. (Docket No. 52, Exhibit A-2, p. 1). 

{¶7} After allowing a continuance for Hines to complete additional 

discovery, the trial court granted Allstate’s motion for summary judgment on 

November 2, 2011. The trial court found that Hines was a participant in the drag 

race that led to the accident and that he was consequently excluded from the 

uninsured/underinsured coverage under the Policy. It further found that summary 

judgment was appropriate due to the assumption of risk doctrine. As a result, the 

trial court dismissed Hines’ complaint against Allstate and certified its order under 

Civ.R. 54(B). Hines’ other claims against the other defendants remain before the 

trial court for adjudication. 
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{¶8} Hines filed this timely appeal presenting the following assignment of 

error. 

Assignment of Error No. I 

THE TRIAL COURT ERRED IN DETERMINING THAT 

THERE WAS NO GENUINE ISSUE OF MATERIAL FACT 

AND THAT APPELLEE IS ENTITLED TO SUMMARY 

JUDGMENT AS A MATTER OF LAW. 

{¶9} In his sole assignment of error, Hines asserts that the trial court’s 

summary judgment order was improper because genuine issues of material fact 

exist. Specifically, Hines claims that there are genuine issues of material fact as to 

(1) whether he was a participant in the drag race and (2) whether he assumed the 

risk of injury by entering Camper’s automobile knowing that a drag race was 

going to occur. We disagree. 

Summary Judgment Standard

{¶10} An appellate court reviews a summary judgment order de novo. 

Hillyer v. State Farm Mut. Auto. Ins. Co., 131 Ohio App.3d 172, 175 (8th Dist. 

1999). Accordingly, a reviewing court will not reverse an otherwise correct 

judgment merely because the lower court utilized different or erroneous reasons as 

the basis for its determination. Diamond Wine & Spirits, Inc. v. Dayton 

Heidelberg Distr. Co., 148 Ohio App.3d 596, 2002-Ohio-3932, ¶ 25 (3d Dist.), 

citing State ex rel. Cassels v. Dayton City School Dist. Bd. of Ed., 69 Ohio St.3d 
Case No. 2-11-31 

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217, 222 (1994). Summary judgment is appropriate when, looking at the evidence 

as a whole: (1) there is no genuine issue as to any material fact, and (2) the moving 

party is entitled to judgment as a matter of law. Civ.R. 56(C). In conducting this 

analysis the court must determine “that reasonable minds can come to but one 

conclusion and that conclusion is adverse to the party against whom the motion for 

summary judgment is made, [the nonmoving] party being entitled to have the 

evidence or stipulation construed most strongly in the [nonmoving] party’s favor.” 

Id. If any doubts exist, the issue must be resolved in favor of the nonmoving 

party. Murphy v. Reynoldsburg, 65 Ohio St.3d 356, 358-59 (1992). 

{¶11} The party moving for summary judgment has the initial burden of 

producing some evidence which demonstrates the lack of a genuine issue of 

material fact. Dresher v. Burt, 75 Ohio St.3d 280, 292 (1996). In doing so, the 

moving party is not required to produce any affirmative evidence, but must 

identify those portions of the record which affirmatively support his argument. 

Id. The nonmoving party must then rebut with specific facts showing the 

existence of a genuine triable issue; he may not rest on the mere allegations or 

denials of his pleadings. Id.; Civ.R. 56(E). 

Insurance Policy Interpretation

{¶12} This matter revolves around the meaning of “participation” in the 

Policy. We apply the precepts of contract interpretation when construing 
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insurance policies. See, e.g., Yeager v. Pacific Mut. Life Ins. Co., 166 Ohio St. 71 

(1956), paragraph two of the syllabus. Insurance coverage is assessed by 

interpreting the contract “in conformity with the intention of the parties or 

gathered from the ordinary and commonly understood meaning of the language 

employed.” King v. Nationwide Ins. Co., 35 Ohio St.3d 208, 211 (1988). When 

the policy is clear and unambiguous, the court “may look no further than the four 

corners of the insurance policy to find the intent of the parties.” (Citation 

omitted.) Crow v. Dooley, 3d Dist. No. 1-11-59, 2012-Ohio-2565, ¶ 8. 

{¶13} Courts have developed several rules of interpretation to protect 

insureds. First, “[w]hen provisions of a contract of insurance are reasonably 

susceptible to more than one interpretation, they will be construed strictly against 

the insurer and liberally in favor of the insured.” King at syllabus. Second, “there 

is a presumption that all coverage applies unless it is clearly excluded in the 

contract.” Crow at ¶ 10. And, third, the insurer must prove the applicability of 

any policy exclusion. Beaverdam Contracting, Inc. v. Erie Ins. Co., 3d Dist. No. 

1-08-17, 2008-Ohio-4953, ¶ 19. 

“Participation” in Allstate’s Policy 

{¶14} “Participation” is not a defined term in the Policy. But this fact, 

standing alone, does not render the term ambiguous. See Nationwide Mut. Fire 

Ins. Co. v. Guman Bros. Farm, 73 Ohio St.3d 107, 108 (1995) (“The mere absence 
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of a definition in an insurance contract does not make the meaning of the term 

ambiguous.”). Participation is neither a term of art nor a word that is amenable to 

multiple interpretations. Rather, it is a common word and we consequently 

construe it without resorting to any of the above construction rules benefitting 

insureds. Id. As such, we reject Hines’ suggestion that we read R.C. 4511.251’s 

definition of “participant” into the Policy’s terms. Instead, we use the ordinary 

and commonly understood definition of participation, which is the “act or state of 

participating: as a: the action or state of partaking of something . . . [or] b: the 

association with others in a relationship or an enterprise.” Webster’s Third New 

International Dictionary 1646 (2002). 

{¶15} Under this definition, the evidence in the record manifestly shows 

that Hines was participating in the common scheme to drag race. Before the race, 

he spent time with Forbess and Camper at Forbess’ home. Hines then traveled 

with the group to a gas station and admitted that during this time, the group 

formed the drag racing idea. Further, he willingly got into Camper’s automobile 

intending to be part of a drag race. This all shows the existence of a joint 

enterprise in which Hines was a willing participant. 

{¶16} Hines suggests that there is a triable issue as to whether he was a 

participant under the policy because he did not drive a car during the drag race. 

But, under its common and ordinary meaning, participation encompasses more 
Case No. 2-11-31 

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conduct than driving. Here, by forming the plan to drag race and then willingly 

getting into an automobile that he knew would be involved in the race, Hines was 

a participant. 

{¶17} In light of Hines’ failure to present additional evidence besides the 

fact that he was not the driver, Hines is unable to show the existence of a triable 

issue of fact regarding his status as a participant in the drag race. Consequently, 

the trial court properly granted summary judgment to Allstate on the basis of the 

Policy’s exclusion for participation in car races. 

Assumption of Risk 

{¶18} Our resolution of the policy exclusion’s applicability renders it 

unnecessary to address the trial court’s ruling regarding the operation of 

assumption of risk doctrine in this matter. Consequently, we decline to address 

the assumption of risk prong of the ruling. See App.R. 12(A)(2). 

{¶19} Accordingly, we overrule Hines’ sole assignment of error. 

{¶20} Having found no error prejudicial to Plaintiffs-Appellants, Corey 

Hines, a Minor and Gina Hines, in the particulars assigned and argued, we affirm 

the judgment of the trial court. 

Judgment Affirmed 

SHAW, P.J. and PRESTON, J., concur. 

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