Unlicensed driver exclusions are a common feature of automobile liability insurance policies. Typically, these exclusions provide that no coverage is afforded “if the covered auto is being operated by a person who is not a qualified, licensed driver, or is without a valid driver license.” However, a recent decision by Ohio’s Tenth Appellate District (Franklin County), Gregory Dickenson of Paula M. Pate, et al., 2011 Ohio 1085 (10th App. Dist.), addressed for the first time the issue of whether “operation” of a motor vehicle for purposes of triggering the exclusion includes parking the vehicle.
Dickenson arises from injuries sustained by the Plaintiff when struck by the truck owned by Paula Pate (“Paula”) when it rolled backwards in a parking lot. The truck had been driven to the parking lot by Paula’s husband, William, who did not have a valid driver’s license. Safe Auto Insurance Company (“Safe Auto”) had issued a policy of automobile liability insurance to Paula, under which her truck was listed as a covered vehicle.
Plaintiff filed suit against Paula for negligence and negligent entrustments in parking and securing the truck. Plaintiff also sought a declaratory judgment against Safe Auto, which filed a motion for summary judgment on the grounds that the policy’s unlicensed driver exclusion operated to exclude the accident from coverage. The trial court granted summary judgment, concluding that the unlicensed driver exclusion should be enforced on the basis that: (1) William was the last person to drive the vehicle prior to the accident; and (2) William had admittedly parked the vehicle at the precise location from which it rolled and struck Plaintiff.
On appeal, Appellants argued that the issue of whether the exclusion applied turned on a determination of what constitutes “operation” of a motor vehicle; specifically, whether the truck was being operated by William at the time of the accident. In this regard, Appellants argued that the plain and ordinary meaning of the word “operated” requires elements of physical control over the vehicle. According to Appellants, the exclusion is not enforceable when the facts indicate that the alleged operator is outside the vehicle and lacks the capacity to exercise control over the vehicle at the time of the accident.
Noting the lack of cases in Ohio that address the meaning of “operation” of a motor vehicle, the Appeals Court adopted the proposition set forth in the Pennsylvania case of Cacchione v. Wieczerek (1996), 674 A. 2d 773, that “parking is unquestionably an act normally related to the operation of a vehicle.” Furthermore, on the basis of William’s testimony that he “parked and exited” the vehicle before the accident, the Appeals Court found insufficient evidence to determine whether William had “properly” parked/secured the vehicle such that operation of the vehicle had terminated by the time Plaintiff was injured. Accordingly, the Court ruled that genuine issues of material fact existed as to whether the actions of William were sufficient to trigger the policy’s exclusionary language (“is being operated”). Therefore, summary judgment was overturned.
Dickenson represents the first Ohio appellate decision to interpret vehicle “operation” to include the act of parking. Ultimately, whether the unlicensed driver exclusion applies to Plaintiff’s accident will turn on a fact-based analysis of whether William properly parked/secured the vehicle before the accident. Assuming that the trial court determines that William failed to properly park/secure the truck, it appears that the exclusion will apply since his unlicensed “operation” had not terminated. Auto liability insurance carriers, as well as their counsel, should keep an eye on the final outcome of Dickenson as it will dictate how broadly the unlicensed driver exclusion is applied in the State of Ohio.
If you would like a copy of the Dickenson opinion, or if you have any questions concerning its implications, please do not hesitate to contact one of our General Casualty/Excess and Surplus Lines Practice Group Members.
