[Cite as Harris v. Crosby, 2012-Ohio-4288.]

Court of Appeals of Ohio

EIGHTH APPELLATE DISTRICT 

COUNTY OF CUYAHOGA 

JOURNAL ENTRY AND OPINION 

No. 98030 

TABIOUS HARRIS

PLAINTIFF-APPELLEE 

vs. 

KEVIN CROSBY, ET AL. 

DEFENDANTS-APPELLEES 

[APPEAL BY AMERITEMPS, INC., N.K.A. 

EXTINCT TEMPS, INC.]

JUDGMENT: 

AFFIRMED

Civil Appeal from the 

 Cuyahoga County Common Pleas Court 

Case No. CV-736899 

BEFORE: Boyle, P.J., Cooney, J., and Kilbane, J. 

 RELEASED AND JOURNALIZED: September 20, 2012 
ATTORNEY FOR APPELLANT

L. Terrence Ufholz 

Corsin, Sanislo & Ufholz, LLC 

304 N. Cleveland-Massillon Road 

Commonwealth Square 

Akron, Ohio 44333 

ATTORNEYS FOR APPELLEES

For Tabious Harris

Henry W. Chamberlain 

Chamberlain Law Firm 

526 Superior Avenue 

620 Leader Building 

Cleveland, Ohio 44114 

For Crum & Forster Indemnity Company 

Brandon M. Fairless 

Gary W. Johnson 

Weston Hurd LLP 

The Tower at Erieview 

1301 East Ninth Street, Suite 1900 

Cleveland, Ohio 44114 

For State Farm Insurance Company 

James P. Carrabine 

Carrabine & Reardon Co., LPA 

7445 Center Street 

Mentor, Ohio 44060 

For Kevin Crosby

Kevin Crosby, pro se 

180 East Broad Street 

Columbus, Ohio 43215
MARY J. BOYLE, P.J.: 

{¶1} Defendant-appellant, Ameritemps, Inc., n.k.a. Extinct Temps, Inc. 

(“Ameritemps”) appeals the trial court’s grant of summary judgment in favor of 

defendant-appellee, Crum & Forster Indemnity Company (“Crum & Forster”). Finding 

no merit to the appeal, we affirm. 

Procedural History and Facts

{¶2} In October 2006, four Ameritemps employees were traveling to a job site in 

a vehicle owned and operated by employee Kevin Crosby when the vehicle went left of 

center and struck another vehicle. At the time of the accident, Ameritemps carried a 

commercial auto liability policy issued by Crum & Forster. As a result of the accident, 

multiple lawsuits followed, including the underlying action commenced by Tabious Harris, 

a passenger in the vehicle. 

{¶3} Harris sued Crosby for his negligent operation of the vehicle, alleging that 

he suffered severe and permanent injuries. Harris further alleged that Crosby was in the 

course and scope of his employment at the time of the accident, asserting claims against 

Ameritemps for vicarious liability and negligent entrustment. Harris further sued Crum 

& Forster, seeking to recover uninsured and/or underinsured benefits under the Crum & 

Forster policy covering Ameritemps. 

{¶4} While the underlying action was pending, Crum & Forster separately filed a 

declaratory judgment action seeking a declaration that it did not have a duty to defend or 

indemnify Ameritemps against liability in this case (or the other personal injury cases) 
because the plaintiffs, including Harris, were not covered under the policy. The trial 

court in the declaratory action ultimately agreed and declared that Crum & Forster had no 

duty to defend or indemnify. 

{¶5} All of the defendants in the underlying case separately moved for summary 

judgment, which the trial court granted. Ameritemps appeals from the trial court’s grant 

of summary judgment in favor of Crum & Forster, raising the following two assignments 

of error: 

I. The trial court should not have granted summary judgment to Crum & 

Forster. Once Ameritemps was granted summary judgment, the issue of 

coverage became moot. 

II. The trial court should not have granted summary judgment because 

issues of material fact exist to be determined by a jury. 

{¶6} We will address these two assignments of error together because they 

involve the single issue of whether the trial court properly granted summary judgment. 

Summary Judgment

{¶7} We review an appeal from summary judgment under a de novo standard. 

Baiko v. Mays, 140 Ohio App.3d 1, 10, 746 N.E.2d 618 (8th Dist.2000). Accordingly, we 

afford no deference to the trial court’s decision and independently review the record to 

determine whether summary judgment is appropriate. N.E. Ohio Apt. Assn. v. Cuyahoga 

Cty. Bd. of Commrs., 121 Ohio App.3d 188, 192, 699 N.E.2d 534 (8th Dist.1997). 

{¶8} Civ.R. 56(C) provides that before summary judgment may be granted, a 

court must determine the following: 

(1) no genuine issue as to any material fact remains to be litigated, 
 (2) the moving party is entitled to judgment as a matter of law, and 

 (3) it appears from the evidence that reasonable minds can come to but one 

conclusion, and viewing the evidence most strongly in favor of the 

nonmoving party, that conclusion is adverse to the nonmoving party. 

State ex rel. Duganitz v. Ohio Adult Parole Auth., 77 Ohio St.3d 190, 191, 672 N.E.2d 

654 (1996). 

{¶9} In its first assignment of error, Ameritemps argues that the trial court should 

not have reached the merits of Crum & Forster’s motion for summary judgment once it 

determined that Ameritemps was not liable. It argues that the mootness doctrine 

precluded the trial court from considering the issue because there was no longer a “live 

controversy” between the parties. We find Ameritemps’ argument misplaced. Crum & 

Forster moved for summary judgment on the claim asserted against it by Harris. 

Although the trial court’s finding that Ameritemps was not liable would be an additional 

basis to find that Harris is not entitled to any benefits under the Crum & Forster policy, 

the finding in and of itself did not preclude the trial court from resolving the claim 

pending against Crum & Forster. 

{¶10} Ameritemps next argues that the trial court should not have granted 

summary judgment because an issue of fact exists as to whether Harris is entitled to 

benefits under the policy. But in the companion appeal to this case — the appeal of the 

declaratory judgment action — this court has already decided this issue and determined 

that the vehicle operated by Crosby is not covered under the policy. See Crum & 

Forster Indemn. Co. v. Ameritemps, Inc. a.k.a. Extinct Temps, 8th Dist. No. 97843, 
2012-Ohio-4160 (“declaratory action appeal”). Thus, under the doctrines of res judicata 

and collateral estoppel, which preclude the relitigation of an issue that has been actually 

and necessarily litigated and determined in a prior action, our holding in the declaratory 

action appeal is dispositive of Ameritemps’ second assignment of error. See Ft. Frye 

Teachers Assn. OEA/NEA v. S.E.R.B., 102 Ohio St.3d 283, 2004-Ohio-2947, 809 N.E.2d 

1130, ¶ 10. 

{¶11} The two assignments of error are overruled. 

{¶12} Judgment affirmed. 

It is ordered that appellees recover from appellant costs herein taxed. 

The court finds there were reasonable grounds for this appeal. 

It is ordered that a special mandate be sent to said court to carry this judgment into 

execution. 

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of 

the Rules of Appellate Procedure. 

 

MARY J. BOYLE, PRESIDING JUDGE 

COLLEEN CONWAY COONEY, J., and 

MARY EILEEN KILBANE, J., CONCUR