Motion No. 4750314
`
`NAILAH K. BYRD
`CUYAHOGA COUNTY CUERK OF COURTS
`1200 Ontario Street
`Cleveland, Ohio 44113
`
`Court of Common Pleas
`
`January 31,2019 12:16
`
`By: DAVID B. HENDERSON 0060003
`
`Confirmation Nbr. 1613206
`
`EQUATISHCHIA HENDERSON ET AL.
`
`CV 18 901836
`
`vs.
`
`FIRST ACCEPTANCE AUTO INSURANCE CO. ET AL.
`
`Judge: SHANNON M. GALLAGHER
`
`Pages Filed: 59
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`Electronically Filed 01/31/2019 12:16 / MOTION / CV 18 901836 / Confirmation Nbr. 1613206 / CLMCS
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`

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`IN THE COURT OF COMMON PLEAS
`CUYAHOGA COUNTY, OHIO
`
`EQUATISHCHIA HENDERSON, et al.,
`
`CASE NO. CV 18 901836
`
`Plaintiffs,
`
`JUDGE SHANNON M. GALLAGHER
`
`v.
`
`FIRST ACCEPTANCE AUTO INS. CO., et
`al.,
`
`Defendants.
`
`MOTION FOR SUMMARY JUDGMENT OF
`FIRST ACCEPTANCE AUTO INSURANCE
`COMPANY AND FIRST ACCEPTANCE
`INSURANCE SERVICES, INC.
`
`First Acceptance Insurance Company, Inc., and First Acceptance Services, Inc., incorrectly
`
`identified in the complaint as First Acceptance Insurance Auto Ins. Co., and First Acceptance
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`Insurance Services, Inc., by and through the undersigned counsel, and hereby move this court for
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`an order granting summary judgment in their favor as a matter of law. The basis for this motion
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`is fully set forth in the attached brief in support, which is incorporated as if fully rewritten herein.
`
`Respectfully submitted,
`
`DAVID B. HENDERSON (0060003)
`840 Brainard Road
`Highland Heights, OH 44143
`440.720.0379 (t); 440.720.0385 (f)
`dhenderson@hendersonschmidlin.com
`Attorney for Defendants
`
`Electronically Filed 01/31/2019 12:16 / MOTION / CV 18 901836 / Confirmation Nbr. 1613206 / CLMCS
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`

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`I.
`
`Statement of the Case
`
`brief in support
`
`On August 8, 2018, Plaintiffs, Elsie Henderson, Equatishchia Henderson, Keniyah R.
`
`Johnson, and Antwonae G. Wright filed a complaint against First Acceptance Insurance Auto Ins.
`
`Co., and First Acceptance Ins. Services, Inc., in which the set forth the following allegations:
`
`1)
`
`2)
`
`3)
`
`4)
`
`5)
`
`6)
`
`7)
`
`8)
`
`Equatishchia Henderson, Keniyah R. Johnson, Antwonae G. Wright, and Elsie
`Henderson, sustained damages on August 12, 2016, as a proximate result of a motor
`vehicle accident that occurred on I-71;
`
`Elsie Henderson was a permissive user of Equatishchia Henderson’s vehicle when
`the accident occurred;
`
`Keniyah R. Johnson and Antwonae G. Wright are the natural born daughters of
`Equatischia Henderson and resided with her when the accident at issue occurred;
`
`Elsie Henderson, the mother of Equatishchia Henderson, did not reside with
`Equatischia on August 12, 2016;
`
`Equatishchia Henderson, Keniyah R. Johnson, and Antwonae G. Wright were
`occupants of the vehicle driven by Elsie Henderson when the accident occurred;
`
`The accident occurred when an animal bolted across the highway causing Elsie
`Henderson to swerve and lose control of the vehicle;
`
`Equatishchia Henderson had a policy of insurance issued by FAC;
`
`Plaintiffs are entitled to liability, uninsured/underinsured motorist, and medical
`payments coverage from the defendants; and
`
`9)
`
`The defendants have acted in bad faith.
`
`On October 15, 2018, the defendants filed an amended joint answer in which they asserted
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`affirmative defenses, including, but not limited to, the following: 1) the complaint fails to state a
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`claim upon which relief can be granted; 2) Plaintiffs’ claims are barred or limited by the terms,
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`provisions, conditions, and exclusions of the insurance policy issued by First Acceptance
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`Insurance Company, Inc., and/or O.R.C. §3937.18; 3) Plaintiffs failed to comply with the
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`conditions precedent to coverage as set forth in the insurance policy/bond at issue in this matter;
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`4) these answering defendants incorporates by reference the defenses contained in O.R.C.
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`§3937.18 including, inter alia, the set off provisions of O.R.C. §3937.18(A)(2); 5) the motor
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`vehicle accident referenced in the complaint was not caused by the actions or omissions of an
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`underinsured or uninsured motorist; 6) the policy/bond at issue does not provide medical payments
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`coverage; and 7) lack of privity of contract
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`II. Statement of the Facts
`
`All four plaintiffs claim to have sustained injuries and damages as a proximate result of a
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`motor vehicle accident that occurred when “when a deer or other unknown animal bolted across
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`the interstate highway in front of the described motor vehicle causing [Elsie Henderson] to swerve
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`to avoid a collision with the animal which in turn caused the vehicle to proceed into the center
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`median, roll over and come to a halt in the center median of the interstate highway.” See paragraph
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`9 of the complaint. The only vehicle involved in the accident was the vehicle operated by Elsie
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`Henderson and owned by Equatischia Henderson. See complaint.
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`First Acceptance Ins. Co., Inc., incorrectly identified in the complaint as First Acceptance
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`Insurance Auto Ins. Co., issued automobile liability insurance policy 48 NSOH000012837 to
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`Equatishchia Henderson. See affidavit of Karl Davis attached hereto as Exhibit A, declarations
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`page attached hereto as Exhibit A-1, and policy attached hereto as Exhibit A-2.
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`First Acceptance Services, Inc., incorrectly identified in the complaint as First Acceptance
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`Insurance Services, Inc., is a claim handling entity that is a subsidiary of First Acceptance Ins. Co.,
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`Inc. See Exhibit A. This entity is not an insurance company and did not issue a policy of insurance
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`that arguably, actually, or potentially provides coverage to Plaintiffs. Id.
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`III. Relevant Provisions of the First Acceptance Declarations Page and Policy
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`First Acceptance Insurance Company, Inc., issued policy no. 48 NSOH 000012837 to
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`Equatishchia Henderson after Ms. Henderson executed an application. See Exhibits A, A-1, and
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`A-2 attached hereto. The policy was effective from April 2, 2016, to October 2, 2016. Id. Exhibit
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`A-1, the declarations page, contains a list of coverages afforded to Ms. Henderson under the policy.
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`Equatischia Henderson did not purchase medical payments coverage. Id.
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`Exhibit A-1, policy no. 48 NSOH 000012837, provides in relevant part:
`
`DEFINITIONS
`
`Throughout this policy, you and your refer to:
`1. the named insured shown on the Declarations Page; and
`2. the spouse, if a resident of the same household.
`
`The following words or phrases, when printed in boldfaced type, are defined as
`follows:
`
`...Auto or automobile means: a motor vehicle having more than three load­
`bearing wheels and which is of a kind required to be registered under the laws of
`this state relating to motor vehicles designed primarily for operation upon the public
`streets, roads and highways and driven by power other than muscular power.
`
`.Bodily injury means: bodily harm, sickness or disease, including death that
`results therefrom. Bodily injury does not include harm, sickness, disease or death
`arising out of a medically defined communicable disease contracted by any person
`or the exposure of such a disease by any person to any other person.
`.Declarations Page means the document from us listing:
`1. the types of coverage you have elected;
`2. the limit for each coverage;
`3. the cost for each coverage;
`4. the specified autos covered by this policy;
`5. the types of coverage for each auto; and
`6. other information applicable to this policy.
`
`.Family member means: a person related to you by blood, marriage or adoption
`that is a resident of your household. This includes a ward or foster child, or
`stepchild.
`
`.Named insured means the named insured as shown on the Declarations
`Page; and the spouse if a resident of the same household.
`
`.Occupying means: in, upon, getting into, out of, on or off.
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`Own, Owned or Owner means the person:
`1. holds legal title to the vehicle;
`2. has legal possession of the vehicle that is subject to a written security
`agreement with an original term of six (6) months or more; or
`3. has legal possession of the vehicle that is leased to that person under
`a written agreement for a continuous period of six (6) months or more.
`
`... Resident means a person living in your household. Any resident must be listed
`on the application or the policyholder must inform us within thirty (30) days of any
`changes in residents.
`
`.Your covered auto means:
`1. Any auto shown on the Declarations Page.
`
`.PART A: LIABILITY COVERAGE
`
`INSURING AGREEMENT
`If you pay a premium for this coverage, we will pay damages, except punitive or
`exemplary damages or legal costs related thereto, up to the policy limits stated on
`the Declarations Page, for bodily injury or property damage for which any
`insured becomes legally responsible because of an auto accident. Damages
`include prejudgment interest awarded against the insured subject to our limit of
`liability for this coverage. We will settle or defend, as we consider appropriate, any
`claim or suit asking for these damages. In addition to our limit of liability, we will
`pay all defense costs we incur. Our duty to settle or defend ends when the limit of
`liability has been exhausted by the payment of a judgment or settlement. We have
`no duty to defend any suit, settle any claim or pay any judgment for bodily injury
`or property damage not covered under this policy.
`
`DEFINITIONS
`Insured as used in this Part means:
`.3. Any person driving your covered auto with your permission and
`within the scope of such permission.
`
`.EXCLUSIONS
`A. Coverage under this Part A, including our duty to defend, does not apply to:
`.18. Bodily injury to you or a family member.
`
`.PART B: MEDICAL PAYMENTS COVERAGE
`
`INSURING AGREEMENT
`Subject to the limit of Liability shown on the Declarations Page, if you pay a
`premium for Medical Payments Coverage, we will reimburse for any reasonable
`expenses that have been paid for necessary medical and funeral services because
`of bodily injury:
`1. caused by an auto accident; and
`2. sustained by an insured.
`
`...LIMIT OF LIABILITY
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`A. The limit of liability shown on the Declarations Page for this coverage is our
`maximum limit of liability for each person injured in any one accident regardless
`of the number of:
`1. claims made;
`2. autos or premium shown on the Declarations Page;
`3. autos involved in the auto accident;
`4. insureds;
`5. lawsuits brought; or
`6. premiums paid.
`
`...PART C: UNINSURED MOTORIST COVERAGE
`
`INSURING AGREEMENT
`If you pay a premium for this coverage, we will pay damages, except punitive and
`exemplary damages, which an insured is legally entitled to recover from the
`owner or operator of an uninsured motor vehicle because of bodily injury or
`property damage sustained by an insured and caused by an accident.
`
`The owner or operator’s liability for these damages must arise out of the
`ownership, maintenance or use of an uninsured motor vehicle.
`
`DEFINITIONS
`Insured as used in this Part means:
`1. you;
`2. any family member who does not own an auto;
`3. any family member who owns an auto, but only while occupying
`your covered auto;
`4. any other person occupying your covered auto within the scope of
`the owner’s express or
`implied permission; or
`5. any personal representative for damages that person is legally entitled
`to recover because of bodily Injury to which this coverage applies
`sustained by a person listed in 1., 2., 3., or 4. above.
`Uninsured motor vehicle means a motor vehicle, which is not owned by or
`furnished for the regular use of you or any family member.
`
`However, uninsured motor vehicle does not include any vehicle or equipment:
`.5. Owned by or furnished or available for the regular use of you or any
`family member.
`
`IV. Law and Argument
`
`A.
`
`Standard of Review
`
`Civ.R. 56(B) provides, in pertinent part, that a “party against whom a claim . . . is asserted
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`. . . may at any time, move with or without supporting affidavits for a summary judgment in the
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`party’s favor as to all or any part of the claim . . . .” Civ.R. 56(C) provides:
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`Summary judgment shall be rendered forthwith if the pleadings . . . in the pending
`case, and written stipulations, if any, timely filed in the action, show there is no
`genuine issue as to any material fact and that the moving party is entitled to a
`judgment as a matter of law.
`
`The purpose of Civ. R. 56 is to pierce through the allegations in the pleadings and to
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`analyze the evidence to ascertain whether an actual need for trial exists. See Dresher v. Burt
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`(1996), 75 Ohio St. 3d 280, 288, 662 N.E. 2d 264. When a motion for summary judgment is made
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`and supported by the type of evidence listed in Civ. R. 56(C), supra, “the nonmoving party then
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`has a reciprocal burden . . . to set forth specific facts showing that there is a genuine issue for trial
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`and, if the nonmovant does not so respond, summary judgment, if appropriate, shall be entered
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`against the nonmoving party.” Id., at 293. Summary judgment is appropriate where no genuine
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`issues of material fact remain to be litigated, the moving party is entitled to judgment as a matter
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`of law, and viewing the evidence most strongly in favor of the nonmoving party, reasonable minds
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`can come to but one conclusion, and that conclusion is adverse to the nonmoving party. See Tolkes
`
`& Son, Inc. v. Midwestern Indemn. Co. (1992), 65 Ohio St. 3d 621, 629, 605 N.E. 2d 936.
`
`For the reasons set forth below, these moving defendants are entitled to summary judgment
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`as a matter of law.
`
`B.
`
`Plaintiffs’ Are Barred from Bringing a Claim for Liability Insurance
`Coverage Against First Acceptance Ins. Co., Inc., Which Is Incorrectly
`Identified in the Complaint as First Acceptance Insurance Auto Ins. Co., Is
`Barred Because They Have Not Met the Requirements Set Forth in O.R.C.
`§3929.06 for Bringing a Direct Cause of Action Against a Liability Insurer.
`
`Ohio plaintiffs are not entitled to bring a direct action against the liability insurer of a
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`tortfeasor for damages allegedly caused by the insured tortfeasor unless the direct action is in the
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`form of a supplemental action filed after a final judgment for damages is rendered in the plaintiff’s
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`favor and against the insured tortfeasor and 30 days have elapsed without payment of the judgment.
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`See O.R.C. §3929.06 as amended by H.B. 581, eff. 09-24-99, which was enacted to supersede
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`certain Ohio Supreme Court decisions that permitted direct actions by injured claimants to
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`determine a liability insurer's obligation to indemnify.
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`§3929.06, as amended, provides as follows:
`
`Division (A)(2) does not authorize the commencement of a civil action against an
`insurer until a court entered the final judgment described in (A)(1) of this section
`in the distinct civil action for damages between the plaintiff and insured tortfeasor
`and until the expiration of the thirty-day period referred to in division (A)(2) of this
`section.
`
`In the present case, Plaintiffs have not obtained a judgment against a First Acceptance
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`insured for damages arising out of the motor vehicle accident referenced in the complaint.
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`Therefore, their direct cause of action for liability coverage is without merit.2
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`C.
`
`The First Acceptance Policy at Issue Clearly and Unambiguously Excludes the
`Plaintiffs’ Uninsured and Underinsured Motorist Coverage Claims.
`
`“An insurance policy is a contract whose interpretation is a matter of law.” Cincinnati Ins.
`
`Co. v. CPS Holdings, Inc., 115 Ohio St.3d 306, 2007-Ohio-4917, 875 N.E.2d 31, f7, quoting
`
`1 ...[t]he General Assembly declares that, in enacting divisions (A) and (B) of new section 3929.06 and
`new division (B) of section 2721.02 of the Revised Code in this act, in outright repealing existing section
`3929.06 of the Revised Code in this act, and in making conforming amendments to sections 2721.03 and
`2721.04 of the Revised Code in this act, it is the intent of the General Assembly to supersede the effect of
`the holding of the Ohio Supreme Court in Krejci v. Prudential Prop. and Cas. Ins. Co. (1993), 66 Ohio St.
`3d 15, Broz v. Winland (1994), 68 Ohio St. 3d 521, 524-525, and Mezerkor v. Mezerkor (1994), 70 Ohio
`St. 3d 304, 308, that existing section 3929.06 of the Revised Code does not preclude the commencement of
`a civil action under that section or a declaratory judgment action or proceeding under Chapter 2721 of the
`Revised Code against an insurer that issued a policy of liability insurance until a court of record enters in a
`distinct civil action for damages between the plaintiff and an insured tortfeasor a final judgment awarding
`the plaintiff damages for the injury, death, or loss to person or property involved. 1999 H 58, §§ 4 and 5,
`eff. 9-24-99.
`
`2 The only potential tortfeasor is Elsie Henderson, one of the plaintiffs herein, who was the permissive
`user-driver of the named insured’s vehicle when the accident at issue occurred. Elsie Henderson is not
`entitled to recover liability coverage for damages she caused to herself. Furthermore, the other three
`plaintiffs, Equatischia Henderson and her children are barred from recovery under Part A, Liability
`Coverage, of the First Acceptance policy pursuant to Exclusion 18 referenced above because they
`admittedly either the named insured or resident relatives of the named insured.
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`Sharonville v. Am. Emps. Ins. Co., 109 Ohio St.3d 186, 2006-Ohio-2180, 846 N.E.2d 833, ^6. In
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`interpreting such contracts, “the role of the court is to give effect to the intent of the parties to the
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`agreement.” (Citations omitted.) Westfield Ins. Co. v. Galatis, 100 Ohio St.3d 216, 2003-Ohio-
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`5849, 797 N.E.2d 1256, ^11. In Galatis, the court stated:
`
`We examine the insurance contract as a whole and presume that the intent of the
`parties is reflected in the language used in the policy. Kelly v. Med. Life Ins. Co.
`(1987), 31 Ohio St.3d 130, 31 OBR 289, 509 N.E.2d 411, paragraph one of the
`syllabus. We look to the plain and ordinary meaning of the language used in the
`policy unless another meaning is clearly apparent from the contents of the policy.
`Alexander v. Buckeye Pipe Line Co. (1978), 53 Ohio St.2d 241, 7 O.O.3d 403, 374
`N.E.2d 146, paragraph two of the syllabus. When the language of a written contract
`is clear, a court may look no further than the writing itself to find the intent of the
`parties. Id. As a matter of law, a contract is unambiguous if it can be given a
`definite legal meaning. Gulf Ins. Co. v. Burns Motors, Inc. (Tex.2000), 22 S.W.3d
`417, 423. Id.
`
`1.
`
`Plaintiff’s Are Not Entitled to Uninsured/Underinsured Motorist
`Coverage Because the Accident at Issue Was Not Caused by the
`Negligent Ownership, Maintenance, or Use of an Uninsured or
`Underinsured Motor Vehicle.
`
`In the case at bar, Exhibit A-1, Part C, Insuring Agreement, specifies that First Acceptance
`
`“will pay damages, except punitive and exemplary damages, which an insured is legally entitled
`
`to recover from the owner or operator of an uninsured motor vehicle because of bodily injury or
`
`property damage sustained by an insured and caused by an accident.” Exhibit A-1, Part C,
`
`Definitions, as set forth in Section III of this brief, clearly and unambiguously defines “uninsured
`
`motor vehicle” as “a motor vehicle, which is not owned by or furnished for the regular use of you
`
`or any family member.” (Emphasis added). “You,” is defined on the fourth page of Exhibit A-1,
`
`which contains general definitions used throughout the policy. “You” means “the named insured
`
`shown on the Declaration Page.” Plaintiff, Equatischia Henderson, is the named insured on the
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`declarations page. See Exhibit A-2. Therefore, any vehicle owned by Equatischia Henderson is
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`not an “uninsured motor vehicle” for purposes of coverage under Part C of the First Acceptance
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`policy at issue.
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`D.
`
`Plaintiffs Are Not Entitled to Pursue Claims for Medical Payments Coverage
`Under Part B of the Policy Purchased by Equatishchia Henderson Does Not
`Provide Medical Payments Coverage.
`
`As established above, medical payments coverage is not afforded under Equatishchia
`
`Henderson’s insurance policy; Ms. Henderson did not opt to have, pay for, secure, or otherwise
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`select medical payments coverage. See Exhibits A, A-1 and A-2. Therefore, Plaintiffs’ claims for
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`said coverage are without merit.
`
`E.
`
`Plaintiffs’ Claims for Insurance Coverage Against First Acceptance Services,
`Inc., Which Is Incorrectly Identified in the Complaint as First Acceptance
`Insurance Services, Inc., Is Without Merit Because Plaintiffs Are Not in
`Privity of Contract with Said Defendant and Said Defendant Is Not an
`Insurance Provider.
`
`Plaintiffs claim for insurance coverage against First Acceptance Services, Inc., which is
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`incorrectly identified in the complaint as First Acceptance Insurance Services, Inc., is a breach of
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`contract action. Plaintiffs must establish the following four elements in order to recover on a claim
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`for breach of contract: (1) the existence of a binding contract, (2) performance by the plaintiff, (3)
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`breach by the defendant, and (4) damages resulting from the breach. Corsaro v. ARC Westlake
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`Village, Inc., 8th Dist. Cuyahoga No. 84858, 2005-Ohio-1982, ^ 20, and Am. Sales, Inc. v. Boffo,
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`71 Ohio App.3d 168, 175, 593 N.E.2d 316 (2d Dist.1991).
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`In the present action, Plaintiffs cannot establish the existence of a contractual relationship
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`with First Acceptance Services, Inc. As established in Exhibit A, First Acceptance Services, Inc.,
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`is a claim handling entity that is a subsidiary of First Acceptance Ins. Co., Inc. See Exhibit A.
`
`This entity is not an insurance company, it does not issue insurance policies or bonds, and was not
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`in a contractual relationship with any of the plaintiffs. See Exhibit A.
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`F.
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`Defendants Have Not Acted in Bad Faith
`
`The tort of bad faith insurance claims handling arises from an underlying contractual
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`relationship between the insured and insurer. See, e.g., Zoppo v. Homestead Ins. Co., 71 Ohio
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`St.3d 552 (1994) and Hoskins v. Aetna Life Ins. Co., 6 Ohio St.3d 272, 452 N.E.2d 1315 (1983).
`
`An insurer has a duty to act in good faith in the processing and payment of valid claims of its
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`insured.” Hoskins, at paragraph one of the syllabus. “An insurer fails to exercise good faith in the
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`processing of a claim of its insured where its refusal to pay the claim is not predicated upon
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`circumstances that furnish reasonable justification therefor.” Zoppo at paragraph one of the
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`syllabus.
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`An insurance company’s refusal to pay a valid claim is not conclusive of bad faith, but if
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`the insurer bases its refusal on a belief that there is no coverage for a particular claim, such belief
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`may not be arbitrary or capricious. Hart v. Republic Mut. Ins. Co., 152 Ohio St. 185, 188, 87
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`N.E.2d 347 (1949). See also Staff Builders, Inc. v. Armstrong, 37 Ohio St.3d 298, 302, 525 N.E.2d
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`783 (1988). In general, an arbitrary and capricious decision is one made without consideration of
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`or regard for facts, circumstances, fixed rules, or procedures. Black's Law Dictionary (10th
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`Ed.2014).
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`Insureds may not maintain actions for bad faith against their insurer without first proving
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`they are entitled to coverage under a policy of insurance issued by that insurer. Pasco v. State
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`Auto. Mut. Ins. Co., 99-LW-5679, 99 AP-430, at pp. 5-6 (10th Dist. Ct. App. 1999) appeal not
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`accepted for review, 106 Ohio St.3d 1536, 835 N.E.2d 384, 2005-Ohio-5146 (2005);and Bob
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`Schmitt Homes, Inc. v. The Cincinnati Insurance Co. (Feb. 24, 2000), 8th Dist. App. No. 75263;
`
`and Gaston v. Allstate Ins. Co., 2008 WL 5716525, at *5 (U.S. Dist Ct., N.D. Ohio)(granting
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`summary judgment on bad faith claim after finding defendant entitled to summary judgment on
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`coverage claim).3
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`“The rule announced in Zoppo presupposes that the insured is entitled to coverage in the
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`first instance... Therefore, since the initial factual prerequisite to this claim is lacking, summary
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`judgment in favor of [the insurer] on [the insured's] bad faith claim was appropriate.” Bob Schmitt
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`Homes, supra.
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`In the case at bar, Plaintiffs’ bad faith claim must fail because, as established above, they
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`are not entitled to coverage under the insurance policy at issue. In addition, there is no evidence
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`of bad faith claims handling. First Acceptance Ins. Co., Inc., incorrectly identified in the complaint
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`as First Acceptance Insurance Auto Ins. Co., gathered the relevant facts and investigated all related
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`coverage issues in a timely and reasonable manner. See Exhibit A.
`
`The reasons for the denial of Plaintiffs’ liability, medical payments, and uninsured motorist
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`claims that are set forth above in the other sections of this brief are summarized as follows:
`
`1.
`
`The policy at issue does not provide medical payments coverage. See Exhibits A
`
`and A-1.
`
`2.
`
`3.
`
`The parties have not presented a liability claim against a First Acceptance insured.
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`The policy would not afford liability coverage to Elsie Henderson if claims are
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`brought against her by Equatishchia Henderson, Keniyah R. Johnson, and
`
`Antwonae G. Wright for bodily injury arising out of the accident referenced in the
`
`complaint. See Exhibit A and Part A, Exclusion 18 of Exhibit A-2.
`
`4.
`
`The vehicle operated by Elsie Henderson when the accident at issue occurred was
`
`not an “uninsured motor vehicle” as defined in the policy. See Exhibits A and A-
`
`3 See also, Eastham v. Nationwide Mut. Ins. Co., 66 Ohio App.3d 843, 586 N.E.2d 1131 (1st Dist. App. Ct.
`1990); Buckeye Union Ins. Co. v. State Farm Mut. Auto. Ins. Co. (Apr. 16, 1997), 1st Dist. App. No. C-
`960282; GRE Ins. Group v. Internatl. EPDM Rubber Roofing Systems, Inc. (Apr. 30, 1999), 6th App. Dist.
`No. L-98-1387; American Family Ins. Co. v. Charmunda Inc., 2008-Ohio-1910, 23524 (9th Dist. App. Ct.);
`Bolton v. State Farm Fire & Casualty Co., 3:16 CV 220 (U.S. Dist. Ct. N.D. Ohio 2017); and Taylor v.
`State Farm Fire & Cas. Co., 2012 WL 1643877, *4 (U.S. Dist Ct., N.D. Ohio).
`
`Electronically Filed 01/31/2019 12:16 / MOTION / CV 18 901836 / Confirmation Nbr. 1613206 / CLMCS
`
`Page 12 of 14
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`

`

`2, Part C.
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`5.
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`The parties are not entitled to recover uninsured or underinsured motorist coverage
`
`from First Acceptance because their alleged injuries do not arise from a person’s
`
`operation of an uninsured or underinsured motor vehicle. See Exhibits A and A-2,
`
`Part C.
`
`V. Conclusion
`
`For all of the foregoing reasons, First Acceptance Ins. Co., Inc., incorrectly identified in
`
`the complaint as First Acceptance Insurance Auto Ins. Co., and First Acceptance Services, Inc.,
`
`incorrectly identified in the complaint as First Acceptance Insurance Services, Inc., request the
`
`court to grant summary judgment as a matter of law in their favor and against Plaintiffs as to each
`
`count set forth in the complaint.
`
`Respectfully submitted,
`
`_
`
`_
`
`_
`_
`_
`_
`_
`_
`_
`_
`_
`_
`/s/ David B. Henderson_
`DAVID B. HENDERSON (0060003)
`Henderson, Schmidlin & McGarry Co., L.P.A.
`840 Brainard Road
`Highland Heights, OH 44143
`440.720.0379 (p); 440.720.0385 (f)
`dhenderson@hendersonschmidlin.com
`Attorney for First Acceptance Insurance Auto Ins.
`Co., and First Acceptance Ins. Services, Inc.
`
`Electronically Filed 01/31/2019 12:16 / MOTION / CV 18 901836 / Confirmation Nbr. 1613206 / CLMCS
`
`Page 13 of 14
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`

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`CERTIFICATE OF SERVICE
`
`A copy of the foregoing was sent by electronic mail and/or this court’s online docketing
`
`system on January 31, 2019, to the following:
`
`John B. Gibbons
`Jgibbons4@sbcglobal.net
`Attorney for Plaintiffs
`
`/s/ David B. Henderson
`DAVID B. HENDERSON
`
`Electronically Filed 01/31/2019 12:16 / MOTION / CV 18 901836 / Confirmation Nbr. 1613206 / CLMCS
`
`Page 14 of 14
`
`

`

`}
`STATE OF TENNESSEE } SS.
`COUNTY OF DAVIDSON }
`
`AFFIDAVIT
`
`Now comes KARL DAVIS, being duly sworn, and testifies that he is competent and of
`lawful age, and that the following statements are based upon hIS personal knowledge and are
`true to the best of hIS knowledge:
`
`1.
`
`I am an employed by First Acceptance Insurance Company, Inc., hereinafter
`“Acceptance.”
`
`2.
`
`I have reviewed the business records of Acceptance to determine whether it owes
`coverage for the bodily injury claims of Elsie Henderson, Equatishchia Henderson,
`Keniyah R. Johnson, and Antwonae G. Wright (hereinafter referred to in the aggregate as
`“Plaintiffs”), as referenced in their complaint filed in Cuyahoga County Court of
`Common Pleas case no. CV 18 901836, that arise out of a motor vehicle accident that
`occurred on August 12, 2016.
`
`3. First Acceptance Ins. Co., Inc., incorrectly identified in the above-referenced complaint
`as First Acceptance Insurance Auto Ins. Co., issued automobile liability insurance policy
`48 NSOHOOOO12837 (hereinafter “Policy”) to Equatishchia Henderson; Equatishchia
`Henderson was the named insured under the policy, which was in effect on August 12,
`2016.
`
`4. Attached hereto as Exhibit A-l is a true and accurate copy of the Policy and.
`
`5. Attached hereto as Exhibit A-2 is a true and accurate copy of the declaration page for the
`Policy that was in effect on August 12, 2016.
`
`6. First Acceptance Services, Inc., incorrectly identified in the above-referenced complaint
`as First Acceptance Insurance Services, Inc., is a claim handling entity that is a subsidiary
`of First Acceptance Ins. Co., Inc. See Exhibit A. This entity is not an insurance
`company and did not issue a policy of insurance to or otherwise contract with any of the
`Plaintiffs.
`
`7. Elsie Henderson, Keniyah R. Johnson, and Antwonae G. Wright were not named insureds
`under any automobile insurance policy or bond issued by Acceptance that was in effect
`on or about August 12, 2016.
`
`8. The motor vehicle accident that occurred on or about August 12, 2016, on Interstate 71 in
`Cuyahoga County, Ohio, wherein Plaintiffs were occupants of a vehicle operated by Elsie
`Henderson and owned by Equatischia Henderson. A copy of the police report for said
`accident is attached hereto as Exhibit A-3.
`
`9. Claims for damages were submitted to First Acceptance by or on behalf of Plaintiffs for
`bodily injury damages they allegedly sustained as a result of the motor vehicle accident
`
`Electronically Filed 01/31/2019 12:16 / MOTION / CV 18
`
`£jP2firmation Nbr. 1613206 / CLMCS EXHIBIT A
`
`

`

`referenced in Exhibit A-3.
`
`10. Acceptance denied coverage to Plaintiffs for their claims for liability, medical payments,
`uninsured/underinsured motorist coverage for the bodily injuries they claim to have
`sustained as a result of the August 12, 2016, motor vehicle accident.
`
`11. Acceptance’s denial of the above-referenced claims was based upon the terms and
`conditions of the Policy because:
`
`a.
`
`There is no coverage under Part A (liability coverage) of the Policy for:
`
`i. Elsie Henderson with regard to the injuries she may have sustained (she is
`not entitled to recover liability coverage for damages she may have caused
`to herself; and
`
`ii. Equatischia Henderson and her children, Keniyah R. Johnson and
`Antwonae G. Wright, are barred from recovery pursuant to Exclusion 18
`of said coverage part because Equatischia Henderson is the named insured
`under the Policy and Keniyah R. Johnson and Antwonae G. Wright are
`resident relatives of the named insured.
`
`b.
`
`c.
`
`Plaintiffs are not entitled to uninsured/underinsured motorist coverage under Part
`C of the Policy because the accident at issue was not caused by the negligent
`ownership, maintenance, or use of an “uninsured motor vehicle” as defined in said
`
`coverage part.
`
`Plaintiffs are not entitled to pursue claims for medical payments coverage under
`Part B of the Policy because Equatischia Henderson did not opt to have, pay for,
`secure, or otherwise select medical payments coverage; the lack o