[Cite as Great Am. Assurance Co. v. Acuity, 2022-Ohio-501.]

IN THE COURT OF APPEALS 

TWELFTH APPELLATE DISTRICT OF OHIO 

BUTLER COUNTY 

GREAT AMERICAN ASSURANCE 

COMPANY, 

 Appellee, 

 - vs - 

ACUITY, A MUTUAL INSURANCE 

COMPANY, et al. 

 Appellants. 

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CASE NO. CA2021-08-097 

O P I N I O N 

2/22/2022 

CIVIL APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS 

Case No. CV2020-04-0767 

Montgomery Johnson, LLP, and George D. Jonson, for appellee. 

Lewis, Brisbois, Bisgaard & Smith LLP, and Judd R. Uhl and Katherine L. Kennedy, for 

appellant, Acuity, A Mutual Insurance Company. 

 HENDRICKSON, J. 

{¶1} Appellant, Acuity, A Mutual Insurance Company ("Acuity"), appeals the 

decision of the Butler County Court of Common Pleas granting summary judgment to 

appellee, Great American Assurance Company ("GAAC"). For the reasons outlined below, 

we affirm the trial court's decision. 
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Background 

{¶2} This case arises from a vehicular accident that occurred on October 4, 2019 

between a 2000 Volvo tractor owned by Herb Winsted ("the Truck") and another motor 

vehicle. At the time of the accident, Winsted was an independent contractor for Wm. Hafer 

Drayage Co. ("Hafer"), which is an intermodal trucking company that hauls containers via 

company drivers and independent contractors. Pursuant to his independent contractor 

agreement with Hafer, Winsted provided transportation related services to Hafer and used 

the Truck to move containers to and from different warehouses. Winsted began exclusively 

hauling loads for Hafer in 2019, and at the time of the accident, the Truck displayed Hafer's 

name and "DOT" number on its door. 

Winsted's Insurance Coverage 

{¶3} Pursuant to Winsted's independent contractor agreement with Hafer, the 

Truck was covered by Hafer's "public liability [and] property damage * * * insurance 

coverage[.]" At the time of the accident, Hafer was insured with Acuity via a Commercial 

Auto and Commercial Excess Liability Policy ("the Acuity Policy"). Pursuant to the Acuity 

Policy, Acuity agreed to "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 the ownership, maintenance or use of a covered auto." (Emphasis sic.) The 

parties do not dispute that the Acuity Policy includes the Truck in its schedule of covered 

autos. 

{¶4} Winsted also obtained a Non-Trucking Liability and Physical Damage Policy 

from GAAC for the Truck while it was not being operated on behalf of Hafer ("the GAAC 

Policy"). Obtaining such a policy was a requirement of Winsted's independent contractor 

agreement with Hafer. Pursuant to the GAAC Policy, GAAC agreed to provide liability 

coverage for the Truck as described by Part (II)(A) of the policy. Specifically, the policy 
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states that, 

[GAAC] 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 the ownership, maintenance or use of a covered 

auto. 

Part (II)(C) of the GAAC Policy provides certain coverage exclusions, and indicates that, 

[t]his insurance does not apply to any of the following: 

* * * 

13. TRUCKING OR BUSINESS USE 

Bodily injury or property damage arising out of any accident

which occurs while the covered auto is being used in the 

business of any lessee or while the covered auto is being used 

to transport cargo of any type. For purposes of this exclusion, 

the phrase "in the business of any lessee" means any of the 

following uses of the covered auto: 

* * * 

(f) while traveling from * * * (1) any terminal or facility of any 

lessee; * * * to any location where the covered auto is regularly 

garaged. 

{¶5} The GAAC Policy defines "lessee" as "any person or organization to whom a 

covered auto is leased, rented or loaned." The phrase "regularly garaged" is defined as 

"parked or stored on a regular basis, whether indoors or outdoors." 

Winsted's Business for Hafer and the Day of the Accident 

{¶6} While working with Hafer, Winsted received his job assignments from Hafer's 

dispatcher. On a typical workday, dispatch would direct Winsted to his first pickup 

assignment, which Winsted would drive to in the Truck directly from his home. After 

completing his initial pickup, Winsted would communicate with dispatch to pick up, drop off, 

and move containers to various locations using the Truck and a Hafer chassis, i.e., trailer. 

After completing his final assignment of the day, Winsted would either proceed to the Hafer 

shipping yard ("the shipping yard"), located at 11320 Mosteller Road, to return the chassis, 
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or go directly to his home at 5360 Alert New London Road. Regardless of whether Winsted 

returned to the shipping yard after his final assignment or proceeded directly home, Winsted 

always garaged the Truck at his home. As a result, Winsted typically began and ended his 

workday with the Truck at his home. 

{¶7} On October 4, 2019, the date of the accident, Winsted alerted dispatch at 7:53 

a.m. that he had completed his first assignment of the day and planned to take the Truck to 

Hafer's shop for transmission fluid. After receiving the transmission fluid, Winsted continued 

to communicate with dispatch and completed several additional deliveries and pickups in 

Ohio and Kentucky. At 3:06 p.m., Winsted informed dispatch that he had completed a 

delivery, but still had a chassis. At that point, dispatch instructed Winsted to return to the 

shipping yard to return the chassis. 

{¶8} The location of Winsted's final delivery was approximately two or three miles 

from the Hafer shipping yard. Upon arriving at the shipping yard, Winsted returned the 

chassis and submitted his weekly paperwork to the dispatcher. After conversing with a few 

workers, Winsted left the shipping yard in the Truck and headed home. Winsted could not 

recall how long he remained at the shipping yard prior to heading home. On his way home, 

Winsted stopped at Ollie's Bargain Outlet ("Ollie's"), where his wife was working at the time, 

and purchased blue jeans. Winsted could not recall how long it took to get to Ollie's or how 

long he spent inside the store. After leaving Ollie's, Winsted continued his customary route 

home, stopping for fuel at a Marathon gas station on the way. The accident occurred after 

Winsted left the Marathon gas station, around 5:00 p.m., and on Winsted's typical route 

home from the shipping yard. 

{¶9} From the time Winsted left the shipping yard until the accident, it is undisputed 

that Winsted took the same route, aside from a one-half mile deviation, that he would have 

taken had he traveled directly home without any detours. Typically, Winsted would have 
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taken Interstate 275 westbound to State Route 126. At that point, Winstead would have 

turned onto State Route 27, also known as Colerain Avenue. He would have proceeded 

west onto Hamilton Cleves Road, followed by right turn onto Cincinnati Brookville Road and 

a left turn onto his street, Alert New London Road. 

{¶10} Winsted's stop at Ollie's to purchase blue jeans only took him approximately 

one-half mile off Interstate 275. After purchasing the jeans, Winsted returned to Interstate 

275 at the same place he exited and continued westbound on his normal route home. 

Winsted then pulled into the Marathon gas station, located on Hamilton Cleves Road, after 

exiting State Route 27. After purchasing fuel, Winsted continued on Hamilton Cleves Road, 

as he would have on a typical drive home. Approximately five to seven minutes from 

Winsted's home, at the intersection of Cincinnati Brookville Road and Brown Farm Drive, 

Winsted collided with another vehicle, allegedly causing harm to the vehicle's minor 

passengers. Thus, despite the brief departures and returns to his normal route, Winsted's 

drive home from the shipping yard was the same route he would have typically taken at the 

end of a workday. 

The Declaratory Action and Summary Judgment Decision 

{¶11} After the accident, GAAC filed a complaint for declaratory judgment in the trial 

court. Relevant here, GAAC requested the trial court to enter a judgment against Acuity 

declaring that, based on the language in the Trucking or Business Use Exclusion in Part 

(II)(C)(13)(f)(1), the GAAC Policy did not provide coverage for injury arising out of the 

October 2019 accident. 

{¶12} Acuity denied that the GAAC Policy did not provide coverage for injuries 

arising from the accident and sought declaratory judgment in a counterclaim. Specifically, 

Acuity requested the trial court to enter a judgment declaring that Acuity has no coverage 

obligation under the Acuity Policy for Winsted because he is not an insured under Acuity's 
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Policy. 

{¶13} On March 26, 2021, both parties moved the trial court for summary judgment. 

After a hearing, the trial court granted GAAC's motion for summary judgment and denied 

Acuity's motion. In so doing, the trial court held that "based upon the undisputed facts, * * 

* the GAAC Policy does not provide coverage based upon the application of the GAAC 

Policy's Trucking or Business Use Exclusion." The trial court entered judgment in favor of 

GAAC declaring that no insurance coverage was available under the GAAC Policy for any 

claims that have been made, or may be asserted, as a result of the October 2019 accident. 

The Appeal 

{¶14} Acuity now appeals, raising the following assignment of error for our review: 

{¶15} Assignment of Error No. 1: 

{¶16} THE TRIAL COURT ERRED IN DETERMINING THAT GAAC'S NONTRUCKING POLICY DOES NOT PROVIDE COVERAGE FOR EARL WINSTEAD (sic). 

{¶17} This court reviews a trial court's summary judgment decision under a de novo 

standard. Deutsche Bank Natl. Trust Co. v. Sexton, 12th Dist. Butler No. CA2009-11-288, 

2010-Ohio-4802, ¶ 7. Summary judgment is appropriate under Civ.R. 56 when (1) there is 

no genuine issue of material fact remaining to be litigated, (2) the moving party is entitled 

to judgment as a matter of law, and (3) reasonable minds can come to but one conclusion 

and that conclusion is adverse to the nonmoving party, who is entitled to have the evidence 

construed in his favor. BAC Home Loans Servicing, L.P. v. Kolenich, 194 Ohio App.3d 777, 

2011-Ohio-3345, ¶ 17 (12th Dist.), citing Zivich v. Mentor Soccer Club, Inc., 82 Ohio St.3d 

367, 369-370 (1998). 

{¶18} The party requesting summary judgment bears the initial burden of informing 

the court of the basis for the motion and identifying those portions of the record that 

demonstrate the absence of a genuine issue of material fact. Dresher v. Burt, 75 Ohio St.3d 
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280, 292 (1996). Once a party moving for summary judgment has satisfied its initial burden, 

the nonmoving party "must then rebut the moving party's evidence with specific facts 

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

denials in its pleadings." Sexton at ¶ 7; Civ.R. 56(E). 

{¶19} On appeal, Acuity argues the trial court erred in finding the Trucking or 

Business Use Exclusion precluded coverage under the GAAC Policy for two reasons. First, 

Acuity contends the trial court erred in concluding that the language of the Trucking or 

Business Use Exclusion Part (II)(C)(13)(f) excludes coverage for Winsted. Acuity further 

claims the remaining exclusions of the GAAC Policy do not apply to Winsted, and do not 

preclude coverage for the accident. 

{¶20} "The words and phrases contained in an insurance policy must be given their 

plain and ordinary meaning unless there is something in the contract that would indicate a 

contrary intention." Hance v. Allstate Ins. Co., 12th Dist. Clermont No. CA2008-10-094, 

2009-Ohio-2809, ¶ 20. It is well established that contracts of insurance are to be strictly 

construed against the insurer, especially when an exclusionary clause is at issue. United 

Ohio Ins. Co. v. Vanosdol, 12th Dist. Warren Nos. CA92-09-073 and CA92-08-075, 1993 

Ohio App. LEXIS 2756, *4 (June 1, 1993). "An exclusion in an insurance policy will be 

interpreted as applying only to that which is clearly intended to be excluded." Hybud Equip. 

Corp. v. Sphere Drake Ins. Co., Ltd., 64 Ohio St.3d 657, 665 (1992). However, while 

exclusions in insurance contracts are read narrowly in Ohio to apply only to that which is 

clearly intended to be excluded, that rule of strict construction does not permit a reviewing 

court to ignore the obvious intent of an exclusionary provision. AKC, Inc. v. United 

Specialty Ins. Co., Slip Opinion No. 2021-Ohio-3540, ¶ 11, citing Hybud Equip. Corp. at 

665. 

{¶21} As noted above, the trial court granted summary judgment in GAAC's favor 
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on the basis that Winsted was not covered by the GAAC Policy pursuant to its Trucking or 

Business Use Exclusion. The parties do not dispute that the Truck is a covered auto as 

defined by the GAAC Policy, that the Truck was regularly garaged at Winsted's home, or 

that the shipping yard is a facility of Hafer, a lessee. Rather, the primary issue on appeal is 

whether Winsted was "in the business of [Hafer]," as that term is defined in the Trucking or 

Business Use Exclusion, at the time of the accident. 

{¶22} In concluding that Winsted remained in the business of Hafer at the time of 

the accident, the trial court relied upon the Sixth Circuit's decision in Illinois Natl. Ins. Co. v. 

Ohio Security Ins. Co., 452 Fed. Appx. 651 (6th Cir. 2011). In Illinois Natl., the court 

considered an appeal related to insurance coverage after a motor vehicle accident. Like 

Winsted, the driver, Terry Moon, leased his tractor to a motor carrier and was driving the 

tractor, which displayed the motor carrier's identification placard in its window, at the time 

of the accident. Illinois Natl. at 651- 652. 

{¶23} The motor carrier maintained liability insurance with Illinois National, which 

provided coverage for Moon's tractor. Id. at 651. Moon also maintained a separate "nontrucking use" policy with Ohio Security, which provided coverage when Moon's tractor was 

not being used in the business of any trucking company. Id. at 652. Like the GAAC Policy, 

Moon's policy with Ohio Security provided certain exclusions, and excluded coverage when 

the tractor was being maintained or used "at the direction of, under the control of, under 

orders from, after being dispatched by, or in the business of any trucking company or lessee 

of such auto." Id. The Ohio Security policy also excluded coverage when the tractor was 

"on a return trip to the place it is customarily garaged * * * after having delivered goods or 

merchandise under direction, control, or dispatch to anyone other than the Named Insured 

under this policy." Id. 

{¶24} Like Winsted, Moon regularly parked his tractor at his home, was paid a flat 
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rate per assignment, and did not drive for the motor carrier on the weekends. Id. On the 

date of the accident, Moon picked up a load at Dofasco, Inc. ("Dofasco") in Marion, Ohio. 

Id. at 653. Moon planned to take the loaded trailer to his home for the weekend before 

making the delivery to Florida, however, the motor carrier instructed Moon to leave the 

loaded trailer at Dofasco for the weekend and to pick it up on Sunday night. Id. At that 

point, Moon detached his loaded trailer and headed toward Upper Sandusky, Ohio to look 

for a truck wash. Id. Unable to locate a truck wash after checking "a couple" places, Moon 

began to head home. Id. From the time Moon left Dofasco until the accident, he took the 

same route he would have taken had he traveled directly home without detouring to look 

for the truck wash, which consisted of a one-half mile departure from the highway. Id. After 

returning to the highway, Moon collided with a motorcycle, killing its driver and passenger. 

Id. After the driver and passenger's estate sued Moon and the motor carrier, Ohio Security 

denied coverage on the basis that the accident occurred while Moon was returning to his 

home terminal and acting in the business of the motor carrier. Id. 

{¶25} On appeal, the court considered whether Moon was "in the business" of the 

motor carrier at the time of the accident, as he was en route to his home, where he typically 

parked his tractor, but took a detour to locate a truck wash. In answering that proposition 

in the affirmative, the court noted that, pursuant to Ohio law, "'an owner-driver remains in 

the business of the carrier-lessee until the owner-driver "returns to the point where the haul 

originated * * * to the terminal from which the haul was assigned * * *, or to the ownerdriver's home terminal from which he customarily obtained his next assignment.'" Illinois 

Natl. at 654, quoting Marine Ins. Co. Frankart, 69 Ill.2d 209, 218 (1977); see also Cincinnati 

Ins. Co. v. Haack, 125 Ohio App. 3d 183 (2d Dist.1997). Thus, when considering the totality 

of the events prior to the accident, the court determined that Moon remained in the business 

of the motor carrier until he returned home from Dofasco and was excluded from Ohio 
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Security's coverage. Id. at 655. 

{¶26} Particularly relevant here, the court further held that Moon's detour to look for 

a truck wash did not remove him from the motor carrier's business. Rather, the court 

explained the following: 

* * * Moon's brief detour to look for a truck wash does not affect 

this analysis; the accident occurred after the detour was 

complete and Moon had returned to his customary route home. 

However, even if the detour were a relevant consideration, this

Court has previously found that minor personal detours such as 

the one here do not take a driver out of the carrier's business. 

See Auto-Owners Ins., 549 F.3d at 1046 (driver remained in 

carrier's business where he left loaded trailer at delivery site 

then drove to find a motel); see also Frankart, 370 N.E.2d 1062 

(driver's detour to buy cheap fuel and find additional work from 

a different carrier did not take him out of dispatching carrier's 

business). 

Id. In light of its analysis above, the court affirmed the trial court's decision granting 

summary judgment in favor of Ohio Security. Id. 

{¶27} After our review, we agree with the basic principle set forth in Illinois 

Natl. that when a driver is operating a vehicle in the business of a motor carrier on a 

customary route, short personal detours do not take the driver out of the business of 

the motor carrier. Applying this principle to the facts before us, we arrive at the same 

result, and find that Winsted was operating the Truck "in the business of" Hafer at 

the time of the accident. This is because Winsted had completed his short personal 

detours and returned to his customary route home before the accident occurred. 

Consequently, because Winsted was traveling from a Hafer facility to the place 

where the Truck was regularly garaged at the time of the accident, the GAAC Policy 

excludes any coverage for damage or liability. 

{¶28} Acuity attempts to distinguish Illinois Natl. on various grounds, 

including that the Trucking or Business Use Exclusion of the GAAC Policy is 
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fundamentally different than the policy language interpreted by the court in Illinois 

Natl. and that while Moon made a single personal detour, Winsted made two detours, 

one to Ollie's and one to Marathon. In light of these distinctions, Acuity argues Illinois 

Natl. should not govern the result in this case. 

{¶29} After our review of the record and the relevant case law, we find these 

distinctions to be without a difference. As an initial note, the record reflects Winsted 

and Moon were in substantially similar circumstances at the time of their accidents. 

Winsted, like Moon, was en route to his home for the weekend, and did not anticipate 

receiving or working on another assignment until the weekend concluded. Like 

Moon, Winsted did not typically work on the weekends and the accident occurred on 

a Friday after completing his last delivery for the week. While Moon's delivery was 

not fully completed, he had been authorized to leave the trailer on location for the 

weekend. Accordingly, at the time of the accident, both Winsted and Moon had 

completed a delivery at a facility and were on a return trip home, the place where 

their vehicles were regularly garaged, for the duration of the weekend. 

{¶30} Additionally, both made slight personal detours from their customary 

routes home, approximately one-half mile away from their typical path. While Acuity 

argues Winsted's detours were more elaborate than Moon's, lasting approximately 

two hours and consisting of two personal stops as opposed to one, we note that the 

court's decision in Illiinois Natl. does not reference the length of Moon's detour. 

Regardless, it is evident Moon stopped at more than one place to search for a truck 

wash. Furthermore, the record in this case indicates approximately two hours 

elapsed between Winsted completing his final delivery and the accident. During that 

time, Winsted drove to the shipping yard, removed his chassis, turned in his 

paperwork, chatted with his fellow coworkers, and then began his drive home. 
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Winsted could not recall how long he spent at Ollie's or at Marathon gas station, 

however, given the description of those detours, we find they do not constitute 

anything greater than minor personal detours that were incidental to his drive home. 

This is particularly true given the brief nature of the detours and the fact that Winsted 

had completed the detours and returned to his customary route home before the 

accident occurred. 

{¶31} Lastly, while we agree with Acuity that Winsted did not travel directly 

from the Hafer facility to his home, we disagree that such a fact precludes application 

of Part 13(f) of the GAAC Policy's Trucking or Business Use Exclusion. That is, in 

light of our analysis above, Winsted's brief personal detours did not negate that 

Winsted was traveling from the facility of the lessee to a location where the Truck 

was regularly garaged, nor did they alter his status of being in the business of Hafer 

at the time of the accident. On this basis, reasonable minds could only conclude that 

the GAAC Policy does not provide coverage in this instance. 

{¶32} Thus, in light of the plain and unambiguous language in the policy 

before us and given the evidence submitted by GAAC in support of its motion for 

summary judgment, we find that GAAC has demonstrated that there are no genuine 

issues of material fact and that it is entitled to judgment as a matter of law. Based 

on the evidence submitted, we find that a reasonable trier of fact could only come to 

one conclusion: the GAAC Policy does not provide coverage based upon the 

application of the GAAC Policy's Trucking or Business Use Exclusion and as a result, 

no insurance coverage is available under the GAAC Policy issued to Winsted for any 

claims that have been made, or may be asserted, arising out of the October 2019 

accident. 

{¶33} Because the Trucking or Business Use Exclusion conclusively 
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resolves this dispute, we have no need to consider whether coverage in this case is 

additionally barred under a different exclusion in the GAAC Policy. Finding no error 

in the trial court's decision granting summary judgment in favor of GAAC, we overrule 

Acuity's sole assignment of error and affirm the judgment of the trial court. 

{¶34} Judgment affirmed. 

 M. POWELL, P.J., and S. POWELL, J., concur.