[Cite as State Farm Mut. Auto. Ins., Co. v. Garcia, 2024-Ohio-2800.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT

COUNTY OF CUYAHOGA

STATE FARM MUTUAL AUTOMOBILE :

INSURANCE COMPANY,

:

Plaintiff-Appellee, No. 112434

:

v.

:

JOSE GARCIA, ET AL.,

Defendants-Appellants. :

JOURNAL ENTRY AND OPINION

JUDGMENT: AFFIRMED

RELEASED AND JOURNALIZED: July 25, 2024

Civil Appeal from the Cuyahoga County Court of Common Pleas

Case No. CV-22-965584

Appearances:

Collins, Roche, Utley & Garner, LLC, David L. Lester and 

Richard M. Garner, for appellee. 

Mark D. Griffin, Cleveland Director of Law, William M. 

Menzalora, Chief Assistant Director of Law, and Michael 

J. Pike and Carli R. Young, Assistant Directors of Law, for 

appellant.

LISA B. FORBES, J.:

This case involves a declaratory judgment action brought by plaintiffappellee State Farm Mutual Automobile Insurance Co. (“State Farm”) against 
defendant-appellant Jose Garcia (“Garcia”) concerning liability coverage under an 

automobile insurance policy for a shooting that resulted in the death of Desmond 

Franklin (“Franklin”). Garcia appeals the trial court’s decision granting summary 

judgment in favor of State Farm and denying his motion for partial summary 

judgment. Garcia contends that the trial court erred in concluding, as a matter of 

law, that State Farm has no duty to defend or indemnify Garcia as to claims 

Franklin’s estate filed against him arising out of the incident. For the reasons that 

follow, we affirm the trial court. 

I. Facts and Procedural History 

A. The Wrongful Death Action

On April 9, 2020, Franklin died from a gunshot fired by Garcia while 

Garcia was in the driver’s seat of his 2007 Honda Accord. In December 2021, the 

administrator of Franklin’s estate (the “Estate”) filed suit in the Cuyahoga County 

Court of Common Pleas against Garcia, asserting a wrongful death claim, a 

survivorship claim, and claims for “negligence-reckless conduct,” intentional 

infliction of emotional distress, and “unconstitutional seizure” under 42 U.S.C. 1983

for Garcia’s role in the shooting death of Franklin. The case was removed to the 

United States District Court for the Northern District of Ohio, Eastern Division, Case 

No. 1:22-CV-00061, where it remains pending (the “wrongful death action”). 

The complaint in the wrongful death action alleged that Garcia was a 

Cleveland police officer who was driving his vehicle to the police station to begin his 

shift when the incident occurred. The complaint further alleged that Garcia 
confronted Franklin and a teenage friend after they allegedly took soda from an open

delivery truck and that Garcia then shot at Franklin when their cars were stopped 

side-by-side at an intersection, “willfully, wantonly, recklessly, negligently, 

intentionally, and maliciously caus[ing] the wrongful death of Desmond Franklin.”

Garcia filed an answer in which he claimed, as an affirmative defense, 

that he shot Franklin in self-defense after Franklin pointed a gun at him.

B. The Insurance Policy

At the time of the incident, Garcia was a named insured and his 2007 

Honda Accord was a covered vehicle under an auto insurance policy issued by State 

Farm (the “policy”). The policy had liability limits of $100,000 per 

person/$300,000 per accident.

With respect to liability coverage, the policy stated in relevant part:

LIABILITY COVERAGE

* * *

Insuring Agreement

1. We will pay damages an insured becomes legally liable to pay 

because of:

a. bodily injury to others; and

b. damage to property

caused by an accident that involves a vehicle for which that 

insured is provided Liability Coverage by this policy.

2. We have the right to:

a. investigate, negotiate, and settle any claim or lawsuit;
b. defend an insured in any claim or lawsuit, with attorneys 

chosen by us; and

c. appeal any award or legal decision 

for damages payable under this policy’s Liability Coverage.

(Emphasis sic.)1

The policy defines “insured,” in relevant part, as follows: 

Insured means:

1. you and resident relatives for:

a. the ownership, maintenance, or use of:

(1) your car;

(2) a newly acquired car; or

(3) a trailer; and

b. the maintenance or use of:

(1) a non-owned car; or

(2) a temporary substitute car[.]

(Emphasis sic.)2

“Bodily injury” is defined as “bodily injury to a person and sickness, 

disease, or death that results from it.” (Emphasis sic.) “Accident,” “involves,” and 

“use” are not defined in the policy. 

1 The boldface, italicized terms are defined in the policy.

2 The policy also contains an exclusion that provides “THERE IS NO COVERAGE 

FOR AN INSURED * * * WHO INTENTIONALLY CAUSES BODILY INJURY OR 

DAMAGE TO PROPERTY.” (Emphasis sic.) Because that exclusion is not at issue, i.e., 

State Farm has not claimed it applies, we do not address it further here.
C. The Declaratory Judgment Action

State Farm began defending Garcia in the wrongful death action 

under a reservation of rights. On June 30, 2022, State Farm filed a complaint for 

declaratory judgment in the Cuyahoga County Court of Common Pleas, seeking a 

judgment declaring that it had no duty to defend or indemnify Garcia as to the claims 

asserted in the wrongful death action. 

On December 16, 2022, the parties filed motions for summary 

judgment in the declaratory judgment action. State Farm argued that because the 

shooting did not arise out of the “ownership, maintenance, or use” of a motor 

vehicle, Garcia was not an “insured” under the policy for purposes of the claims 

asserted in the wrongful death action and State Farm, therefore, had no duty to 

defend or indemnify Garcia against those claims. Garcia, in turn, moved for partial 

summary judgment on State Farm’s duty to defend. He argued that, based on his 

claim of self-defense, the claims asserted against him in the wrongful death action 

were at least “potentially or arguably” within the scope of the policy’s liability 

coverage, triggering State Farm’s duty to defend. He asserted that the issue of State 

Farm’s duty to indemnify was premature and not subject to summary judgment. 

The parties stipulated (1) to the policy State Farm had issued to 

Garcia, (2) to the complaint in the wrongful death action, (3) that “[t]he [u]nderlying 

[l]awsuit arises out of an April 9, 2020 incident, in which Desmond Franklin died 

from a gunshot fired by Garcia while Garcia was in the driver’s seat of Garcia’s motor 

vehicle,” (4) that “[t]he motor vehicle that Garcia occupied at the time of the incident 
is the 2007 Honda Accord listed in the Declarations Page of Garcia’s State Farm auto 

policy,” and (5) to the Cuyahoga County Medical Examiner’s report setting forth the 

cause and manner of Franklin’s death.3 

On January 27, 2023, the trial court granted State Farm’s motion for 

summary judgment and denied Garcia’s motion for partial summary judgment, 

concluding, as a matter of law, that State Farm had no duty, under the policy, to 

defend or indemnify Garcia against the claims in the wrongful death action. 

Garcia appealed, raising the following sole assignment of error for 

review:

The lower court erred when it granted summary judgment in favor of

Appellee/Plaintiff’s [sic] motion for summary judgment and denied

Appellant/Defendant’s motion for partial summary judgment on the

issue of an insurer’s duty to defend under an automobile policy of

insurance where Appellant/Defendant Garcia is the named insured.

II. Law and Analysis

A. Standard of Review

We review summary judgment rulings de novo, applying the same 

standard as the trial court. Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105 

3 As stated in his report, the medical examiner concluded:

Based on all information known to me at this time, it is my opinion that 

DESMOND M. FRANKLIN, a 22-year-old male, died as a result of a 

GUNSHOT WOUND OF THE HEAD. The circumstances surrounding the 

death, as determined by the investigative and postmortem findings, indicate 

that the manner of death is HOMICIDE.

(Emphasis deleted.)
(1996). We accord no deference to the trial court’s decision and conduct an 

independent review of the record to determine whether summary judgment is 

appropriate.

Under Civ.R. 56, summary judgment is appropriate when no genuine 

issue exists as to any material fact and, viewing the evidence most strongly in favor 

of the nonmoving party, reasonable minds can reach only one conclusion that is 

adverse to the nonmoving party, entitling the moving party to judgment as a matter 

of law. Id. On a motion for summary judgment, the moving party carries an initial 

burden of identifying specific facts in the record that demonstrate his or her 

entitlement to summary judgment. Dresher v. Burt, 75 Ohio St.3d 280, 292-293 

(1996). If the moving party fails to meet this burden, summary judgment is not 

appropriate; if the moving party meets this burden, the nonmoving party has the 

reciprocal burden to point to evidence of specific facts in the record demonstrating 

the existence of a genuine issue of material fact for trial. Id. at 293. Summary 

judgment is appropriate if the nonmoving party fails to meet this burden. Id. 

In this case, the material facts are not in dispute. The parties 

stipulated to virtually all of the relevant, material facts. This case is purely a matter 

of contract interpretation, i.e., whether, under the facts and the terms of the policy,

State Farm had a duty to defend and indemnify Garcia as to the claims asserted in 

the wrongful death action. 
B. An Insurer’s Duty to Defend and General Principles of Contract 

Interpretation

“An insurer’s duty to defend is both broader than and distinct from 

its duty to indemnify.” Acuity v. Masters Pharm., Inc., 2022-Ohio-3092, ¶ 12, citing 

Ohio Govt. Risk Mgt. Plan v. Harrison, 2007-Ohio-4948, ¶ 19. When determining 

whether an insurer has a duty to defend, the court must “look to the scope of the 

allegations of the underlying complaint filed against the insured” and compare it 

with the policy’s coverage. Masters Pharm. at ¶ 12. ‘“If the allegations state a claim 

that potentially or arguably falls within the liability insurance coverage, then the 

insurer must defend the insured in the action.’” Id., quoting Ward v. United 

Foundries, Inc., 2011-Ohio-3176, ¶ 19. An insurer, however, has no duty to defend 

an action “when all the claims are clearly and indisputably outside the policy 

coverage.” Masters Pharm. at ¶ 12. 

The interpretation of a contract is a question of law, and insurance 

policies are construed in accordance with the same rules as other written contracts. 

Acuity v. Progressive Specialty Ins. Co., 2023-Ohio-3780, ¶ 11, 30 (“Insurance 

policies are contracts. And when we interpret contracts, we must take their language 

seriously.”). When confronted with an issue of contractual interpretation, the role 

of the court is to “give effect to the intent of the parties to the agreement.” Westfield 

Ins. Co. v. Galatis, 2003-Ohio-5849, ¶ 11, citing Hamilton Ins. Servs., Inc. v. 

Nationwide Ins. Cos., 86 Ohio St.3d 270, 273 (1999). We examine the insurance 

policy as a whole and presume that the intent of the parties is reflected in the 
language used in the policy. Galatis at ¶ 11, citing Kelly v. Med. Life Ins. Co., 31 Ohio 

St.3d 130 (1987), paragraph one of the syllabus. 

When the language of an insurance policy is clear and unambiguous, 

we look no further than the writing itself to determine the parties’ intent. Galatis at 

¶ 11. Like any other contract, its terms are given their plain and ordinary meaning

unless another meaning is clearly apparent from the contents of the policy. Id.; see 

also Gomolka v. State Auto. Mut. Ins. Co., 70 Ohio St.2d 166, 167-168 (1982) 

(“[W]ords and phrases used in an insurance policy must be given their natural and 

commonly accepted meaning, where they in fact possess such meaning, to the end 

that a reasonable interpretation of the insurance contract consistent with the 

apparent object and plain intent of the parties may be determined.”).

Because the insurer customarily drafts the insurance contract, any 

ambiguity in an insurance contract is generally construed against the insurer and in 

favor of the insured. Galatis at ¶ 13 (“[W]here the written contract is standardized 

and between parties of unequal bargaining power, an ambiguity in the writing will 

be interpreted strictly against the drafter and in favor of the nondrafting party.”); 

Sharonville v. Am. Emps. Ins. Co., 2006-Ohio-2180, ¶ 6 (“If provisions are 

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

the insurer and liberally in favor of the insured.’”), quoting King v. Nationwide Ins. 

Co., 35 Ohio St.3d 208 (1988), syllabus. However, there are limits to this rule. “‘[A] 

court cannot create ambiguity in a contract where there is none.’” Sauer v. Crews, 

2014-Ohio-3655, ¶ 12, quoting Lager v. Miller-Gonzalez, 2008-Ohio-4838, ¶ 16. A 
term is not ambiguous simply because it is not defined in the policy. State ex rel. 

Petro v. R.J. Reynolds Tobacco Co., 2004-Ohio-7102, ¶ 23; Sarrough v. Budzar, 

2015-Ohio-3674, ¶ 21 (8th Dist.).

C. The Parties’ Arguments 

As it relates to this appeal, the policy provides liability coverage for 

“damages an insured becomes legally liable to pay because of . . . bodily injury

to others . . . caused by an accident that involves a vehicle for which that insured is 

provided Liability Coverage by this policy.” (Emphasis sic.) 

Garcia argues that the policy’s liability coverage extends to the claims 

asserted against him in the wrongful death action because (1) “there is no dispute 

that the underlying [c]omplaint alleges ‘bodily injury’” to Franklin, (2) an act in selfdefense qualifies as an “accident” under the policy, and (3) given that he was in the 

driver’s seat of his 2007 Honda Accord when he fired the shot that killed Franklin, 

the shooting “involved a vehicle for which [Garcia] was provided Liability Coverage 

under the policy.” 

State Farm responds that because Garcia is an “insured” under the 

policy only “[f]or . . . the ownership, maintenance, or use” of his vehicle and 

Franklin’s shooting death did not arise out of the ownership, maintenance, or use of 

his vehicle, the policy does not cover the claims asserted against Garcia in the 

wrongful death action. 

We need not resolve the issue of whether an act in self-defense 

qualifies as an “accident” under the policy or whether the shooting “involved a 
vehicle” because Garcia was in the driver’s seat of his 2007 Honda Accord at the time 

he shot and killed Franklin. Even if “accident,” as used in Garcia’s policy, could be 

construed to include intentional conduct committed in self-defense and even if the 

shooting were deemed to have “involved a vehicle,” the claims asserted in the 

wrongful death action would still not meet the requirements for liability coverage 

under the policy. 

D. Liability Coverage under Garcia’s Auto Insurance Policy 

In determining whether liability coverage exists for Franklin’s death,

we must first consider the extent to which Garcia is an insured under the policy. For 

purposes of liability coverage, the policy defines “insured,” in relevant part, as “you

and resident relatives for . . . the ownership, maintenance, or use of . . . your 

car.” “You” and “your” are defined, in relevant part, as “the named insured or 

named insureds shown on the Declarations Page,” i.e., Garcia. “Your car” is defined, 

in relevant part, as “the vehicle shown under ‘YOUR CAR’ on the Declarations Page,” 

i.e., Garcia’s 2007 Honda Accord.

Garcia argues that we should ignore the policy’s definition of 

“insured” because (1) it “is not in the Insuring Agreement,” (2) “the Insuring 

Agreement, not the Definitions section, sets forth the available coverage,” and (3) a 

“Definitions section” cannot “remove coverage granted by the Insuring Agreement” 

or be “covert[ed] . . . into an Insuring Agreement.” Alternatively, he argues that the 

policy is ambiguous as to whether the phrase “ownership, maintenance, or use” —

as used in the definition of “insured” — modifies only “resident relatives” or “you”
and “resident relatives” and that this ambiguity should be construed against State 

Farm. Garcia maintains that “the plain language of the Insuring Agreement results 

in coverage, because bodily injury was caused by an accident involving Garcia’s 

scheduled auto for which he is provided automobile liability coverage by the Policy.”

State Farm asserts that the policy language is unambiguous and 

argues that because Franklin’s death was caused by Garcia firing a handgun and did 

not “arise out of” Garcia’s “ownership, maintenance, or use” of his vehicle, Garcia 

was not an “insured” under the policy with respect to the claims asserted against 

him in the wrongful death action. 

“[I]nsured,” as used in the insuring agreement, is in boldface, 

italicized type indicating that it is a defined term. When interpreting an insurance 

policy, as with any other contract, we must give effect to all language used, including 

defined terms. See, e.g., Acuity, 2023-Ohio-3780, at ¶ 25-26 (noting that the court 

has “not hesitated to apply the plain meaning of policy language by which an insurer 

limits coverage through its definition of ‘insured person’” and that “absent a 

statutory prohibition to the contrary, parties are free to reach their own agreement 

about who is an insured under an insurance policy”), citing In Holliman v. Allstate 

Ins. Co. Corp., 86 Ohio St.3d 414, 416-417 (1999); Sherwin-Williams Co. v. 

Travelers Cas. & Surety Co., 2003-Ohio-6039, ¶ 20 (8th Dist.) (“[C]ourts must read 

insurance policies as a whole and give effect to all of the policy’s provisions rather 

than interpreting particular sections in isolation.”). Thus, we cannot ignore the 
definition of “insured” in determining the scope of coverage under the insuring 

agreement.

“[F]or . . . the ownership, maintenance, or use of . . . your car” has 

the same meaning and import whether it appears directly in the insuring agreement 

or in the definition of “insured” as used in, and incorporated by reference into, the 

insuring agreement.4 Further, it is clear from a reading of the definition of “insured” 

in its entirety that “the ownership, maintenance, or use of . . . your car” modifies 

both “you” and “resident relatives”; there is no ambiguity. “For” is “a function word” 

used “to indicate purpose,” “an intended goal,” or “suitability or fitness,” or “the 

object or recipient of a perception, desire, or activity”; it means “as being or 

constituting” or “with respect to.” Merriam-Webster Online,

https://www.merriam-webster.com/dictionary/for (accessed July 18, 2024) 

[https://perma.cc/N7K7-JHYM]. Under the terms of the policy, Garcia was an 

insured not for any and all purposes but rather, as relevant to the issues here, only 

“for” the “ownership, maintenance, or use” of his vehicle.

1. Policies Providing Coverage for Accidents or Injuries 

“Arising out of” or “Resulting From” Ownership, 

Maintenance or Use of a Vehicle

In support of its reading of the policy, State Farm cites numerous 

cases, including three Ohio Supreme Court cases, in which Ohio courts have 

4 Given that “insured,” as defined in the liability coverage section of the policy, 

contains five enumerated sections (some of which also contain subparts) referencing 

other defined terms, it is entirely reasonable that State Farm used “insured” as a defined 

term rather than incorporating the multiple definitions of that term directly into the 

insuring agreement. 
interpreted policy provisions providing coverage for accidents or injuries “arising 

out of the ownership, maintenance or use” of a vehicle or “resulting from the 

ownership, maintenance or use” of a vehicle. In these cases, courts have held that

injuries resulting from shootings and other assaults fortuitously occurring in, or 

facilitated by, motor vehicles are not covered under such policy provisions.

In Kish v. Central Nat. Ins. Group, 67 Ohio St.2d 41 (1981), the 

insured’s car was rear-ended when stopped at a traffic light. When the insured got 

out of his car to speak with the driver of the other vehicle, the driver of the other 

vehicle shot and killed the insured. Id. at 42. The insured’s estate sought to recover 

damages under a policy that provided uninsured motorist coverage for “bodily 

injury damages that you or your legal representative are legally entitled to recover 

from the owner or driver of an uninsured motor vehicle” that “result from an 

accident arising out of the ownership, maintenance, or use of the uninsured vehicle.” 

(Emphasis deleted.) Id. at 49. In determining whether recovery should be allowed 

under that provision, the Ohio Supreme Court rejected a “but for” analysis and held 

that the “relevant inquiry” is “whether the chain of events resulting in the accident 

was unbroken by the intervention of any event unrelated to the use of the vehicle.”

Id. at 50. The court distinguished the case from cases involving “intentional acts 

directed at insureds in which the injury causing instrumentality is the vehicle itself” 

and held that there was no coverage under the terms of the policy because “the 

injuries sustained by [the insured], although accidental as to him, did not arise ‘out 
of the ownership, maintenance, or use of the uninsured vehicle.’” Id. at 51-52. The 

court further explained: 

The application of this standard to the instant facts leads us to conclude 

that the intentional, criminal act of the murderer was an intervening 

cause of injury unrelated to the use of the vehicle. As the court below 

stated, “the death resulted from an act disassociated from and 

independent of the use of the vehicle as such.”

Id. at 50.

In Howell v. Richardson, 45 Ohio St.3d 365 (1989), the plaintiff was 

shot while he was an occupant in a vehicle that was fired upon by the driver of 

another vehicle. Id. at 365-366. The plaintiff sought recovery for his injuries under 

the shooter’s auto insurance policy, which provided liability coverage for “bodily 

injury to others . . . caused by accident resulting from the ownership, maintenance 

or use of [the insured’s] car.” Id. at 366, 368. Discussing its holding in Kish, the 

court noted that in determining whether coverage exists, the focus is on the 

instrumentality causing the injury, pointing out that the result in Kish would have 

been different if the death had resulted from intentional ramming of the decedent’s 

vehicle by the tortfeasor’s vehicle. Id. at 368-369. The court ruled that the trial court 

had properly entered a directed verdict in favor of the insurance company, holding: 

“[I]t is our conclusion that bodily injury to an insured resulting from the discharge 

of a firearm by a tortfeasor is not encompassed within the terms of a policy of 

insurance which limits coverage to injuries ‘caused by accident resulting from the 

ownership, maintenance or use of’ an automobile.” Id. at 369. 
In Lattanzi v. Travelers Ins. Co., 72 Ohio St.3d 350 (1995), the 

plaintiff insured was involved in a collision with an uninsured motorist. Id. at 351. 

The uninsured driver then forced his way into the insured’s vehicle, carjacked the 

insured, and drove her to a house, where he raped her. Id. The insured did not 

sustain any injuries from the collision or while she was in her vehicle but sustained 

bodily injury and psychological injury as a result of the rape. Id. at 351-352. The 

insured sought coverage for her injuries under her uninsured motorist coverage, 

which provided coverage for “damages that the insured is legally entitled to recover 

from the owner or operator of an uninsured motor vehicle because of bodily injury 

suffered by the insured and caused by accident” that “arise out of the ownership, 

maintenance or use of the uninsured motor vehicle.” (Emphasis deleted.) Id. at 351.

Applying Kish, 67 Ohio St.2d at 41, and Howell, the court observed 

that, in determining whether coverage exists, “it is how [the tortfeasor] causes the 

injury that is important” and whether the injury “was achieved through the use of 

the automobile as an instrumentality.” Id. at 352-353. The court explained: 

That the assailant intended to harm [the insured] and that he intended 

to use her automobile to take her to a place where he could harm her is 

not disputed, nor is it relevant. While the assailant may not have been 

able to achieve his nefarious purpose without the use of [the insured’s] 

car, a “but for” analysis is inappropriate. . . . At the time the assailant 

removed [the insured] from her automobile, she had not yet suffered 

an injury. Any injury incurred by [the insured] after she and her 

abductor left the car was not achieved through use of the automobile as 

an instrumentality. Once leaving the automobile, the assailant’s own 

brutal, criminal conduct became the only relevant instrument of injury.

Therefore, the [insured’s] injuries are not covered under the . . . policy. 

Uninsured motorist provisions compensate for injuries caused by 
motor vehicles; they typically do not compensate for, or protect from, 

the evil that men do. 

Id. at 353,

Other Ohio courts have reached similar conclusions. See, e.g., 

McGuire v. Motorists Mut. Ins. Co., 2021-Ohio-3945, ¶ 2, 14 (2d Dist.) (injuries of 

vehicle passenger, who was caught in the cross-fire between the occupants of two 

other cars and struck in the head by a stray bullet, were not covered under uninsured 

motorist coverage because they did not arise out of the “ownership, maintenance, or 

use” of an uninsured motor vehicle as a matter of law but “arose out of the use of a 

firearm”); Westfield Ins. Co. v. Cahill, 76 Ohio App.3d 410 (3d Dist. 1991) (following 

Howell, 45 Ohio St.3d at 365, and concluding that insured was not entitled to 

coverage under uninsured motorist provision for injuries he sustained when his 

girlfriend’s estranged husband pursued insured in his car in a high-speed chase, 

firing several shots at him and striking him twice); Arrowood v. Lemieux, 2002-

Ohio-6336, ¶ 2, 13, 15 (8th Dist.) (affirming summary judgment in favor of insurer

where plaintiff sustained injuries when tortfeasor shot her from his parked car, 

reasoning that plaintiff’s injuries had nothing to do with the “operation, 

maintenance or use” of the uninsured vehicle; “[r]ather, her injuries were caused by 

the discharge of a firearm”); Farmers Ins. of Columbus, Inc. v. Sotak, 1994 Ohio 

App. LEXIS 3242 (10th Dist. July 19, 1994) (no coverage for injuries to a passenger 

in insured’s vehicle who was shot and killed by an occupant in a vehicle following 

insured’s vehicle because the “gun used to shoot decedent” and not “[t]he vehicle 
itself” was “the instrumentality of harm”); cf. Estate of Nord v. Motorists Mut. Ins. 

Co., 2005-Ohio-2165, ¶ 13-14 (“[A]n uninsured-motorist provision, which limits 

coverage to damages that ‘arise out of the ownership, maintenance or use of the 

uninsured motor vehicle,’ does not cover damages caused by an event unrelated to 

the ownership, maintenance, or use of an uninsured motor vehicle. . . . An accident 

. . . does not arise out of the ownership, maintenance, or use of an uninsured motor 

vehicle merely because it fortuitously occurs within an uninsured motor vehicle.”).5 

The message of these cases is clear. For an accident or injury “to arise 

out of” or “result from” the “use” of a vehicle, the vehicle itself must be the accidentcausing or injury-causing instrumentality. Here the policy language is different. But 

the same reasoning applies. 

5 We are unpersuaded by the cases Garcia cites in which courts reached a different 

outcome. The cases Garcia cites are factually dissimilar, do not apply Ohio law, and/or 

pre-date Howell. See, e.g., Shouman v. Nationwide Ins. Co., 42 Ohio App.3d 159, 159-

160 (8th Dist. 1988) (finding a question of fact existed as to whether appellants’ injuries 

were causally related to the ownership, maintenance, or use of uninsured motor vehicle 

where appellants were injured when armed robbers in an unidentified vehicle intercepted 

the car the appellants were driving, a chase ensued, and, during the course of the chase, 

appellants’ automobile was rammed, forced off the road, and one of the appellants was 

shot); Nationwide Ins. Co. v. Auto-Owners Mut. Ins. Co., 37 Ohio App.3d 199 (10th Dist.

1987) (finding “a sufficient causal relationship existed” for liability coverage for injuries 

resulting from accidental discharge of a shotgun where insured’s vehicle was being used 

to transport men and their weapons on a hunting trip, it was necessary, as part of this use, 

that the guns be placed in the truck and the ammunition removed for that purpose, and

the insured was complying with the requirements of an Ohio statute when he was ejecting 

the shells from the shotgun); Progressive Cas. Ins. Co. v. K.S., 731 F.Supp.2d 829, 831-

836 (S.D.Ind. 2010) (concluding that vehicle was “in use” for purposes of auto insurance 

policy when passenger “mooned” the occupants of another vehicle while vehicle was 

transporting him from one location to another — which caused the other vehicle to lose 

control); State Farm Mut. Auto. Ins. Co. v. Davis, 937 F.2d 1415 (9th Cir. 1991) (applying 

California law); see also Arrowood at ¶ 14 (“We believe that the holding in Howell

precludes our adopting the reasoning of the Shouman case.”), citing Cahill at 412.
2. Coverage under Garcia’s Policy 

Although Garcia’s auto insurance policy does not require that an 

accident or injury arise out of the ownership, maintenance or use of a vehicle or 

result from the ownership, maintenance or use of a vehicle for liability coverage, the 

policy includes other causal language that clearly links the damages for which 

coverage is provided under the policy to the ownership, maintenance, or use of the 

vehicle as a vehicle. Under the policy, State Farm agrees to pay damages an insured 

becomes legally liable to pay “because of” bodily injury to others “caused by” an 

accident that “involves a vehicle” “for which [the] insured is provided Liability 

Coverage by [the] policy.”

6 Garcia is not an insured under the policy for any and all 

purposes. He is an insured under the policy “for . . . the ownership, maintenance, or 

use” of his vehicle. As such, the reasoning applied in the Kish/Howell line of cases 

6 Citing State Farm Mut. Auto. Ins. Co. v. Schalk, 2016-Ohio-732 (2d Dist.), Garcia 

argues that the policy language “caused by an accident that involves a vehicle for which that 

insured is provided Liability Coverage by this policy” applies “only to the property damage 

portion of the policy and not personal injury.” Although Schalk purportedly involved an 

interpretation of the same policy form at issue here, the Schalk Court concluded that the 

phrase “caused by an accident that involves a vehicle for which that insured is provided 

Liability Coverage by this policy” modified only “damage to property” and not also “bodily 

injury to others.” Id. at ¶ 14-15. We disagree. 

The issue addressed by the court in Schalk was whether the insured had intended to 

cause bodily injury when he intentionally drove his truck into a bar. Id. at ¶ 16-44. The 

Second District affirmed the trial court’s granting of summary judgment in favor of the 

insurance company on any claims for property damage arising from the incident but held 

that, under the facts of that case, including the insured’s testimony that he thought he was 

“taking a path that would not hit anybody,” a genuine issue of material fact existed as to 

whether the insured intended to cause injury. Id. at ¶ 38, 44, 46. Unlike in this case, where 

the instrumentality of the harm was the insured’s gun, the instrumentality of the harm in 

Schalk was the insured’s vehicle. 
applies with equal force here: Liability coverage does not exist under the policy 

where the vehicle was not the instrumentality of the harm. 

It was not Garcia’s “ownership, maintenance, or use” of his vehicle 

that led to the “bodily injury” or “accident” in this case. Franklin’s death resulted 

from “an act disassociated from and independent of the use of the vehicle as such.” 

(Citation omitted.) Kish, 67 Ohio St.2d at 50. The instrumentality that caused harm

to Franklin was Garcia’s gun — not Garcia’s vehicle. Likewise, the conduct that 

caused harm to Franklin was the act of Garcia shooting Franklin with his gun — not 

Garcia’s ownership, maintenance, or use of his vehicle. 

An insured’s firing a gun out of the window of his vehicle at an 

occupant in another vehicle while the vehicles are stopped at an intersection does 

not logically follow from the use of a vehicle for its purpose of transportation. We 

find that, based on the plain terms of the policy at issue, the vehicle must be more 

than the mere situs of the injury-causing event.

Following a thorough review of the record, considering the relevant 

policy language in its entirety, we conclude that the claims asserted against Garcia 

in the wrongful death action are “clearly and indisputably outside the policy 

coverage.” Masters Pharm., 2022-Ohio-3092, at ¶ 12. As such, State Farm owes no 

duty to defend Garcia in the wrongful death action. Because State Farm has no duty 

to defend Garcia and because the duty to defend is broader than the duty to 

indemnify, State Farm likewise does not have a duty to indemnify Garcia for the 

claims asserted in the wrongful death action. The trial court did not err in granting 
State Farm’s motion for summary judgment and denying Garcia’s motion for partial 

summary judgment. 

Garcia’s assignment of error is overruled. 

Judgment affirmed. 

It is ordered that appellee recover from appellant the costs herein taxed.

The court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this court directing the 

Cuyahoga County Court of Common Pleas 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.

_

LISA B. FORBES, JUDGE

KATHLEEN ANN KEOUGH, A.J., and

ANITA LASTER MAYS, J., CONCUR