Basha v. Ghalib

IN THE COURT OF APPEALS OF OHIO

TENTH APPELLATE DISTRICT

Farah Basha,

[Canal Insurance Company],

Plaintiff-Appellant,

No. 07AP-963

(C.P.C. No. 06CV-2243)

(REGULAR CALENDAR)

Abdi Jama Ghalib et al.,

[Daryel Express Trucking, LLC],

Defendants-Appellees

Farah Basha,

Plaintiff-Appellant,

No. 07AP-964

(C.P.C. No. 05CV-11473)

(REGULAR CALENDAR)

Abdi Jama Ghalib et al.,

Defendants-Appellees.

O P I N I O N

Rendered on August 7, 2008

Charles H. Bendig

, for appellant.

Baker, Dublikar, Beck, Wiley & Mathews, Ralph Dublikar

and

Melissa Day

, for appellee Abdi Jama Ghalib.

Chris Tsitouris

, for appellees, Canal Insurance Company and

Daryel Express Trucking, LLC.

APPEALS from the Franklin County Court of Common Pleas.

No. 07AP-963 and 07AP-964

McGRATH, P.J.

{¶1}

Plaintiff-appellant, Farah Basha ("appellant"), appeals from the judgment of

the Franklin County Court of Common Pleas denying his motions for summary judgment

and granting summary judgment in favor of appellee Canal Insurance Company

("Canal").

{¶2}

This matter arises out of a motor vehicle accident that occurred on June 15,

2005. On October 18, 2005, appellant filed a complaint against Abdi Jama Ghalib

("Ghalib") and Daryel Express Trucking, LLC ("Daryel Express"), alleging he was injured

as a result of Ghalib's negligence. According to the complaint, appellant was a

passenger in a 2000 Freightliner tractor trailer, operating under USDOT No. 1205287,

which was assigned to Daryel Express. Appellant alleged in his complaint that Ghalib

failed to control the tractor trailer, resulting in an accident that occurred on westbound

Interstate 40 in Coconino County, Arizona. Under a reservation of rights, Canal

undertook the defense of Ghalib and Daryel Express. On February 16, 2006, Canal filed

a complaint for declaratory judgment against appellant, Ghalib, and Daryel Express,

seeking a declaration that pursuant to the terms, conditions and exclusions of the

insurance policy, Canal was not obligated to defend or indemnify either Daryel Express or

Ghalib for the claims arising out of the June 15, 2005 accident.

{¶3}

On April 25, 2006, appellant filed a motion, which was granted, to

consolidate the two cases. Thereafter, appellant filed a motion for summary judgment

against Canal and a motion for summary judgment against Ghalib. In response, Canal

filed a combined memorandum contra and motion for summary judgment against

No. 07AP-963 and 07AP-964

appellant. Additionally, Canal filed motions for default judgment against Daryel Express

and Ghalib.

{¶4}

On October 22, 2007, the trial court issued a decision: (1) granting in part

Canal's motion to strike; (2) granting Canal's motion for reconsideration of the court's

decision denying default judgment; (3) denying appellant's motion for telephone

deposition; (4) granting Canal's motion for summary judgment; and (5) denying

appellant's motions for summary judgment.

{¶5}

This appeal followed, and appellant brings six assignments of error for our

review:

ASSIGNMENT OF ERROR NO. 1

The Trial Court erred in failing to find that defendant driver

Ghalib is an "insured" under the Canal insurance contract;

Canal has a duty under the MCS 90 to pay damages for the

Defendant driver Ghalib's negligence, completely independent

of any liability Canal might have to pay damages for the

Defendant "named insured" owner Daryel.

ASSIGNMENT OF ERROR NO. 2

The trial court erred in failing to find the endorsement (E-4),

excluding insurance coverage for bodily injury sustained by

any person occupying the vehicle is unenforceable under

Federal statute.

ASSIGNMENT OF ERROR NO. 3

The trial court erred when it failed to grant Plaintiff's motions

for summary judgment.

ASSIGNMENT OF ERROR NO. 4

The Trial Court erred in Granting Default Judgment against

both the Defendant Ghalib and the Defendant Daryel in the

Declaratory Judgment action.

No. 07AP-963 and 07AP-964

ASSIGNMENT OF ERROR NO. 5

The Court should have allowed telephone depositions, and

abused discretion in refusing to allow telephone depositions.

ASSIGNMENT OF ERROR NO. 6

The trial court erred when it failed to find a question of fact

remains on whether Basha was an employee of Daryel, for

purpose of insurance coverage.

{¶6}

This matter was decided in the trial court by summary judgment, which

under Civ.R. 56(C) may be granted only when there remains no genuine issue of material

fact, the moving party is entitled to judgment as a matter of law, and reasonable minds

can come to but one conclusion, that conclusion being adverse to the party opposing the

motion.

Tokles & Son, Inc. v. Midwestern Indemn. Co.

(1992), 65 Ohio St.3d 621, 629,

citing

Harless v. Willis Day Warehousing Co.

(1978), 54 Ohio St.2d 64. Additionally, a

moving party cannot discharge its burden under Civ.R. 56 simply by making conclusory

assertions that the nonmoving party has no evidence to prove its case.

Dresher v. Burt

(1996), 75 Ohio St.3d 280, 293. Rather, the moving party must point to some evidence

that affirmatively demonstrates that the nonmoving party has no evidence to support his

or her claims. Id.

{¶7}

An appellate court's review of summary judgment is de novo

. Koos v. Cent.

Ohio Cellular, Inc.

(1994), 94 Ohio App.3d 579, 588;

Patsy Bard v. Society Nat. Bank, nka

KeyBank

(Sept. 10, 1998), Franklin App. No. 97APE11-1497. Thus, we conduct an

independent review of the record and stand in the shoes of the trial court.

Jones v. Shelly

Co.

(1995), 106 Ohio App.3d 440, 445. As such, we must affirm the trial court's judgment

No. 07AP-963 and 07AP-964

if any of the grounds raised by the movant at the trial court are found to support it, even if

the trial court failed to consider those grounds. See

Dresher

, supra;

Coventry Twp. v.

Ecker

(1995), 101 Ohio App.3d 38, 41-42.

{¶8}

At issue in this case is the "Basic Automobile Liability Policy" of insurance

("the Policy") issued by Canal to Daryel Express. In Section A of the Policy, it states, in

relevant part:

I. Coverage A * * *

The company will pay on behalf of the

insured

all sums which

the

insured

shall become legally obligated to pay as

damages because of

bodily injury or property damage

which this insurance applies, caused by an

occurrence

and

arising out of the ownership, maintenance or use, including

loading and unloading, for the purposes stated as applicable

thereto in the declarations, of an

owned

automobile or of a

temporary substitute automobile

, and the company shall

have the right and duty to defend any suit against the

insured

seeking damages on account of such

bodily injury

property damage

, even if any of the allegations of the suit

are groundless, false or fraudulent, and may make such

investigation and settlement of any claim or suit as it deems

expedient, but the company shall not be obligated to pay any

claim or judgment or to defend any suit after the applicable

limit of the company's liability has been exhausted by

payment of judgments or settlements.

Exclusions:

This insurance does not apply:

* * *

Though not raised by the parties, we take this opportunity to note the application of Ohio law to the

matter at hand. Despite this accident having occurred in Arizona, this court has previously held that "a

cause of action against an insurer arising out of an automobile accident and involving the interpretation of

an insurance policy sounds in contract, not in tort, despite the fact that the triggering event was an

automobile accident."

Gustin v. USAA Casualty Ins. Co.

(Feb. 13, 2001), Franklin App. No. 00AP-130,

citing

Fiste v. Atlantic Mut. Ins. Co.

(1994), 94 Ohio App.3d 165, 167. Under choice of law principles,

Ohio law applies because the insurance policy was issued in Ohio to an Ohio entity. Id.

No. 07AP-963 and 07AP-964

bodily injury

to any employee of the

insured

arising

out of and in the course of his employment by the

insured

to any obligation of the

insured

to indemnify another because

of damages arising out of such injury; but this exclusion does

not apply to any such injury arising out of and in the course of

domestic employment by the

insured

unless benefits therefor

are in whole or in part either payable or required to be

provided under any workmen's compensation law * * *[.]

(Emphasis sic.)

{¶9}

The policy also contains several endorsements, two of which are relevant to

this appeal. One of the them, the "Occupant Hazard Excluded" endorsement ("Occupant

Hazard Endorsement"), provides, in part, "[i]t is agreed that such insurance as is afforded

by the policy for Bodily Injury Liability does not apply to Bodily Injury including death at

any time resulting therefrom, sustained by any person while in or upon, entering or

alighting from the automobile." The second endorsement pertinent to this matter is the

federally-mandated Form MCS-90 ("MCS-90"), which provides in relevant part:

In consideration of the premium stated in the policy to which

this endorsement is attached, the insurer (the company)

agrees to pay, within the limits of liability described herein,

any final judgment recovered against the insured for public

liability resulting from negligence in the operation, mainten-

ance or use of motor vehicles subject to the financial respon-

sibility requirements of Sections 29 and 30 of the Motor

Carrier Act of 1980 regardless of whether or not each motor

vehicle is specifically described in the policy and whether or

not such negligence occurs on any route or in any territory

authorized to be served by the insured or elsewhere. Such

insurance as is afforded for public liability does not apply to

injury to or death of the insured's employees while engaged in

the course of their employment, or property transported by the

insured, designated as cargo.

{¶10}

Canal argued to the trial court that appellant was an employee of Daryel

Express, and, therefore, because of the employee exclusions contained in both the Policy

No. 07AP-963 and 07AP-964

and the MCS-90, appellant was not entitled to any benefits under the Policy. Further,

Canal argued that appellant was precluded from coverage pursuant to the Occupant

Hazard Endorsement. Though calling Daryel Express his employer in his answer, in his

first affidavit, in his deposition, and his motions for summary judgment against Canal and

Ghalib, appellant altered his theory and nomenclature, and argued in his memorandum

contra that he was not an employee of Daryel Express.

Appellant also argued to the trial

court that Ghalib qualified as a separate insured under the Policy, and since appellant

clearly was not an employee of Ghalib, none of the employee exclusions were applicable,

and, thus, appellant was not precluded from coverage.

{¶11}

The trial court held that despite his protestations to the contrary, appellant

was, in large part due to his own admissions, an employee of Daryel Express, and was

therefore, not entitled to benefits under the Policy. It is clear that if the trial court is

correct, that appellant is an employee of Daryel Express, judgment must be rendered in

favor of Canal, as the policy and the endorsements are clear and unambiguous on their

face. If, however, there is a genuine issue of material fact with respect to this issue, then

appellant would be correct that this matter was inappropriately decided by summary

judgment.

{¶12}

In his first assignment of error, appellant contends the trial court failed to

find that Ghalib was an insured under the Policy. According to appellant, Ghalib qualifies

as an "insured" under the Policy, and the MCS-90 binds Canal to pay for injury resulting

Though appellant has yet to definitively state what his relationship was with Daryel Express, it appears

he is asserting not that he was an employee, but rather that he retained the status of an independent

contractor.

No. 07AP-963 and 07AP-964

from the negligence of an "insured." Because appellant was not an employee of the

"insured" Ghalib, appellant contends he is not barred by the employee exclusion

contained in the MCS-90.

{¶13}

We find this argument untenable. Under the Motor Carrier Act of 1980,

certain commercial motor carriers engaged in interstate commerce must register with the

United States Secretary of Transportation and comply with minimum financial

responsibility requirements established by the Secretary of Transportation.

Lynch v. Yob

(2002), 95 Ohio St.3d 441, 443, citing Sections 13902(a)(1) and 31139, Title 49,

U.S.Code. "Courts that consider the applicability of an MCS-90 endorsement, a federally

mandated endorsement to motor carrier insurance policies, construe its operation and

effect as a matter of federal law." Id. at 445, citing

Canal Ins. Co. v. First Gen. Ins. Co.

(C.A.5, 1989), 889 F.2d 604, 610, modified on other grounds (C.A.5, 1990), 901 F.2d 45;

Ford Motor Co. v. Transport Indemn. Co.

(C.A.6, 1986), 795 F.2d 538, 545. See, also,

John Deere v. Nueva

(C.A.9, 2000), 229 F.3d 853.

{¶14}

Pursuant to Section 387.5, Title 49, C.F.R. "insured" is defined as, "the

motor carrier named in the policy of insurance, surety bond, endorsement, or notice of

cancellation, and also the fiduciary of such motor carrier." Further, Section 390.5, Title

49, C.F.R. defines "employee" as:

Employee means any individual, other than an employer, who

is employed by an employer and who in the course of his or

her employment directly affects commercial motor vehicle

safety. Such term includes a driver of a commercial motor

vehicle (including an independent contractor while in the

course of operating a commercial motor vehicle), a mechanic,

and a freight handler. Such term does not include an

employee of the United States, any State, any political

No. 07AP-963 and 07AP-964

subdivision of a State, or any agency established under a

compact between States and approved by the Congress of

the United States who is acting within the course of such

employment.

{¶15}

Contrary to appellant's assertions, the status of Ghalib is largely irrelevant

as it is appellant's status with which we are concerned. Applying the above-cited

definitions, it is apparent that for purposes of the MCS-90, the insured is Daryel Express,

and appellant does indeed meet the statutory definition of an employee of Daryel

Express. As such, appellant's status as an employee of the insured Daryel Express

precludes coverage under the MCS-90. Though appellant contends coverage under the

MCS-90 is available to him, he cites no authority in support of his position, i.e., that as an

employee or independent contractor who was not driving at the time of the accident he is

entitled to benefits under the MCS-90. In fact, our research has revealed that those

seeking coverage and benefits under the MCS-90 have indeed been denied such by

virtue of the employee exclusion contained in the MCS-90 regardless of whether or not

they were a passenger or the driver at the time of the accident. For example, in

Consumers Cty. Mut. Ins. Co. v. PW & Sons Trucking, Inc.

(C.A.5, 2002), 307 F.3d 362, a

trucking company hired two drivers, Palliet and Bob, to haul loads to various locations in

the United States. On the return trip, Bob was driving and Palliet was asleep in the truck's

sleeper bunk. An accident occurred leaving Palliet seriously injured. Bob did not survive

the accident. Palliet sought recovery under the policy issued by Consumers, which

resulted in Consumers seeking a declaration that there was no coverage because of the

employee exclusion contained in the policy. Palliet argued he was not an employee but,

rather, was an independent contractor, and, therefore, the employee exclusion did not

No. 07AP-963 and 07AP-964

apply to him. The Fifth Circuit noted that Section 390.5, Title 49, C.F.R. removed the

common law distinction between employees and independent contractors, and, therefore,

coverage was precluded under the MCS-90. The court also stated:

The policy at issue in this case is a public-liability policy

designed specifically for use by motor carriers in the interstate

trucking industry. Federal law requires motor carriers to

procure at least a minimum level of public-liability insurance in

order to obtain an operating permit. See Motor Carrier Safety

Act of 1984, 49 U.S.C. Section 13906 (2000); 49 C.F.R.

Section 387.1 et seq.

The purpose of this insurance

requirement is to ensure that a financially responsible party

will be available to compensate members of the public injured

in a collision with a commercial motor vehicle. Although the

Motor Carrier Safety Act places an affirmative insurance

obligation on motor carriers with respect to the public, it does

not require motor carriers to obtain coverage for "injury to or

death of [their]employees while engaged in the course of their

employment." 49 C.F.R. Section 387.15

Id. at 365-366.

{¶16}

The court then considered the insurance policy as a whole and determined

that the parties intended Section 390.5, Title 49, C.F.R. to supply the definition of the term

"employee" not only to the term as it was used in the MCS-90 Endorsement, but also as

the term was used in the policy. Therefore, the court held regardless of his common law

status as an independent contractor, the definition of employee contained in Section

390.5, Title 49, C.F.R., which includes independent contractors in its definition, applied to

both the MCS-90 and the policy itself, thus rendering coverage unavailable. See, also,

Perry v. Harco Natl. Ins. Co.

(C.A.9, 1997), 129 F.3d 1072 (for purposes of the MCS-90

endorsement, the plaintiff's husband, who was driving at the time of the accident and was

argued to be an independent contractor, was a statutory employee and thus precluded

No. 07AP-963 and 07AP-964

from coverage);

Amerisure Mut. Ins. Co. v. Carey Transp., Inc.

(Jan. 4, 2007), Michigan

Court of Appeals No. 270339, appeal denied by (2007), 479 Mich. 851 (injured plaintiff

was barred by the employee exclusion in the insurance policy as well as the MCS-90

even though she was sleeping in the truck's berth at the time of the accident while her

fellow-employee/husband was driving);

Canal Ins. v. A & R Transp.

(Apr. 6, 2005), 357 Ill.

App.3d 305 (since the statutory definition of employee for purposes of the MCS-90

included independent contractors, the plaintiff truck driver was an employee of the

insured, and therefore the MCS-90 endorsement afforded no coverage).

{¶17}

Because the MCS-90 clearly and unambiguously limits coverage to the

insured, Daryel Express, and excludes coverage to employees, which appellant is under

the statutory definition, we cannot find that he is entitled to coverage or benefits under the

MCS-90. Accordingly, we overrule appellant's first assignment of error.

{¶18}

In his second assignment of error, appellant contends the trial court erred in

failing to find the Occupant Hazard Endorsement unenforceable under federal law. While

appellant is correct to the extent he contends policy exclusions are unenforceable where

there is permissible recovery under the MCS-90, he is incorrect that he is not barred by

the Occupant Hazard Endorsement in this circumstance.

{¶19}

Powers v. Meyers

(1995), 101 Ohio App.3d 504, discretionary appeal not

allowed by 73 Ohio St.3d 1413, John Meyers, Sr., was operating a tractor trailer owned

by this employer. In direct violation of his employer's oral and written instructions, Meyers

had five members of his family as passengers. An accident occurred, in which Meyers

and three family members were killed and two family members were injured. The

No. 07AP-963 and 07AP-964

insurance policy contained an Occupant Hazard Excluded endorsement like that present

in the matter before us. The insurer argued because the claimants, Heather, who was

killed, and John, who was injured, were both passengers at the time of the accident, the

Occupant Hazard Excluded endorsement excluded coverage for injuries or death. The

First District Court noted that under the endorsement, the status of Heather and John as

passengers precluded coverage, but that under the ICC Endorsement,

the status of the

tort victims as passengers was not, standing alone, determinative of the issue of whether

the policy provides bodily-injury liability coverage for the claims of Heather and John.

Thus, the court held "[t]o the extent that an endorsement to a policy of insurance issued

to a motor carrier excludes bodily-injury liability coverage based upon the status of the tort

victims as passengers in a covered vehicle, it is inconsistent with and thus deleted by the

endorsement to the policy which was developed by the Interstate Commerce Commission

to assure compliance with Section 1043.1(a), Title 49, C.F.R., and which imposes upon

the insurer an obligation to pay any final judgment returned against an insured for bodily

injury resulting from negligence in the operation, maintenance or use of a covered

vehicle." Id. at syllabus.

{¶20}

However, the important distinction to be made is that the claimants, Heather

and John, were not employees, or in any other way associated with the insured trucking

Powers

refers to an ICC Endorsement. As stated by the court in

Lynch

, supra, "[an MCS-90

endorsement is often referred to as an ICC endorsement because its form was initially prescribed under

statutes delegating some of the enforcement of their provisions to the Interstate Commerce Commission.

However, the ICC was abolished by the ICC Termination Act of 1995, and its responsibilities were

transferred to the Surface Transportation Board of the Department of Transportation. Public Law No.

104-88, Section 201, 109 Stat. 803, 932-934, December 1995. At that time, the registration and financial

responsibility statutes at issue in this case were revised and renumbered. (In particular, Section 13906,

Title 49, U.S.Code is similar in many respects to former Section 10927, Title 49, U.S.Code.)"

No. 07AP-963 and 07AP-964

company in that case. By its own terms, the MCS-90 "afforded for public liability does not

apply to injury to or death of the insured's employees while engaged in the course of their

employment, or property transported by the insured, designated as cargo." Thus, if a

member of the general public was injured and Canal sought to exclude coverage under

the Occupant Hazard Endorsement, the MCS-90 might very well apply so as to negate

the Occupant Hazard Endorsement. However, when it is the person hired by the insured,

whether it is as an employee or independent contractor, we did not find, nor did appellant

provide, any case in which the MCS-90 operated so as to negate the policy's exclusion.

Accordingly, we overrule appellant's second assignment of error.

{¶21}

In his third assignment of error, appellant contends the trial court should

have granted summary judgment in his favor and against Canal and Ghalib. For the

reasons stated in our disposition of appellant's first, second, and remaining assignments

of error, we find no error in the trial court's denial of appellant's motion for summary

judgment against Canal. Pertaining to Ghalib, appellant asserts, "construing the

uncontested evidence most favorably for driver Ghalib, reasonable minds can only

conclude he negligently failed to control the vehicle, causing the wreck, and injuring

plaintiff Basha." (Appellant's merit brief at 15.) The trial court's decision makes no

specific findings regarding Ghalib's negligence, but the trial court did, however, strike

most of the evidence appellant submitted in support of such argument. As stated by

Ghalib, appellant presents this court with neither law nor citations to the record to support

his argument on appeal.

No. 07AP-963 and 07AP-964

{¶22}

The trial court struck portions of appellant's July 2006 affidavit and portions

of the Traffic Crash Report, as either not being based on personal knowledge or being

based on inadmissible hearsay. Once stricken, it is clear that as the record stood at the

time the motions for summary judgment were pending, appellant had not met his burden

under Civ.R. 56 and established there was no genuine issue of material fact with respect

to the cause of the accident. Therefore, we cannot say the trial court erred in denying

appellant's motion for summary judgment against Ghalib.

{¶23}

Accordingly, we overrule appellant's third assignment of error.

{¶24}

In his fourth assignment of error, appellant contends despite the fact that

valid service was perfected and they failed to answer or otherwise appear, the trial court

erred in granting a default judgment against Ghalib and Daryel Express in the declaratory

judgment action. According to appellant, because default judgment was sought against

the tortfeasor Ghalib, the trial court should have allowed appellant to appear and litigate

the issue of insurance coverage. In support, appellant cites to two cases,

State Farm Fire

& Cas. Co. v. Laviena

, Mahoning App. No. 04-MA-176, 2005-Ohio-6601, and

Western

Reserve Cas. v. Glagola

, Stark App. No. 2005CA00225, 2006-Ohio-6013, neither of

which we find applicable to the matter before us. In each of those cases, a declaratory

judgment action was filed by an insurer against the tortfeasor seeking a declaration that

the insurer had no duty to defend the tortfeasor. In each case, prior to the injured party

becoming a party and having an opportunity to be heard, default judgments were entered.

The injured parties in those cases then sought relief pursuant to Civ.R. 60(B). In an effort

to allow the issue regarding the insurer's duty to provide coverage to the tortfeasor to be

No. 07AP-963 and 07AP-964

litigated, both courts held that relief from judgment was appropriate. Here, however,

appellant was permitted to litigate the issues raised in the declaratory judgment action. In

fact, this is precisely the issue with which we are concerned on appeal, i.e., the insurer's

duty to provide coverage for the accident at issue. Accordingly, we find no merit to

appellant's argument that a default judgment was not proper with respect to Ghalib and

Daryel Express, and, therefore, overrule appellant's fourth assignment of error.

{¶25}

In his fifth assignment of error, appellant contends the trial court abused its

discretion in refusing to allow a telephone deposition. Appellant states, "if still required on

remand," appellant should be permitted to develop his case regarding Ghalib's alleged

negligence with a telephone deposition.

{¶26}

On January 11, 2007, appellant filed a motion for a deposition by telephone

pursuant to Civ.R. 30(B) in order to take the deposition of the investigating officer and

eyewitnesses to the incident. Canal filed a memorandum contra arguing that pursuant to

the agreed scheduling order filed on September 14, 2006, the discovery cutoff was

December 7, 2006. Canal also argued that appellant's request did not comply with Civ.R.

30. The trial court, "based upon the rule, as well as Canal's objection," denied appellant's

motion. (October 18, 2007 Decision at 16.)

{¶27}

Absent an abuse of discretion, a reviewing court must affirm a trial court's

disposition of discovery issues.

Bush v. Dictaphone Corp.

, Franklin App. No. 00AP-1117,

2003-Ohio-883, at ¶81, citing

State ex rel. The V. Cos. v. Marshall

(1998), 81 Ohio St.3d

467, 469.

" 'An abuse of discretion connotes an unreasonable, arbitrary, or

unconscionable decision.' " Id., quoting

Marshall

No. 07AP-963 and 07AP-964

{¶28}

It appears the trial court denied the motion for telephonic deposition, at least

in part, due to the discovery deadline established in the parties' scheduling order. It is

well-settled that a trial court has the inherent power to control its own docket and the

progress of the proceedings in its court.

Paramount Parks, Inc. v. Admiral Ins. Co.

Warren App. No. CA2007-05-066, 2008-Ohio-1351;

Business Data Systems, Inc. v.

Gourmet Café Corp.

, Summit App. No. 23808, 2008-Ohio-409;

Chou v. Chou

, Cuyahoga

App. No. 80611, 2002-Ohio-5335;

In the Matter of Zmuda

(Mar. 31, 1997), Lucas App.

No. L-96-073.

{¶29}

We do not find, nor does appellant provide, any reason as to why it was an

abuse of discretion for the trial court to deny appellant's motion for a telephonic deposition

after the discovery deadline set forth in the parties' agreed scheduling order had passed.

Accordingly, we overrule appellant's fifth assignment of error.

{¶30}

In his sixth assignment of error, appellant contends the trial court erred in

failing to find that a question of fact remains as to whether or not appellant was an

employee of Daryel Express for purposes of insurance coverage. We disagree.

{¶31}

Canal filed a complaint for declaratory judgment seeking a determination

that appellant's claims were specifically excluded under the Policy. Appellant filed an

answer and counterclaim in response. In his answer, appellant admits paragraphs 3, 6,

and 14 of the complaint. Paragraph 3 states: "Upon information and belief, Defendant

Farah Basha is a resident of the State of Ohio and was an employee of Defendant Daryel

We make no finding as to the appropriateness of a deposition by telephone in the event the claims

against Ghalib proceed after the conclusion of this appeal and a new scheduling order is established.

No. 07AP-963 and 07AP-964

Express Trucking LLC on the 15

day of June, 2005, and was occupying a motor vehicle

owned by Defendant Daryel Express Trucking LLC." (Complaint at 2.) Paragraph 6

states, "[o]n June 15, 2005, Defendant Farah Basha was a passenger in a 2000

Freightliner tractor-trailer, as an employee of Defendant Daryel Express trucking LLC,

driven by Defendant Abdi Jama Ghalib." Id. Similarly, paragraph 14 states: "Plaintiff

further states that at the time of the alleged accident, defendant Farah Basha was an

employee of Defendant Daryel Express Trucking LLC and was in the motor vehicle at the

time he sustained the alleged bodily injury." Id. at 3.

{¶32}

On July 18, 2006, appellant filed a motion for summary judgment against

Canal, which states: "Farah Basha was an employee of Daryel Express Trucking, acting

within the course and scope of his employment at the time he was injured. Daryel

Express was an Ohio employer. It failed to pay any worker's compensation premiums.

Therefore it was a non complying employer." (Appellant's Motion for Summary Judgment

at 4.) The affidavit attached to his motion for summary judgment states: "On June 15,

2005, I was the driver for employer Daryel Express Trucking LLC, operating a 2000

Freightliner tractor, owned by Daryel Express Trucking LLC." (Affidavit at 1.) Later in the

affidavit, appellant states: "I have recently received some workers compensation here in

Ohio. My employer is an Ohio business, but did not pay any premium. The State is

paying on the basis on [sic] a non complying employer." Id.

{¶33}

Appellant's deposition was taken on August 8, 2006. During the deposition,

the following exchanges occurred:

Q. After he trained you, did you get a job as a truck driver?

No. 07AP-963 and 07AP-964

A. Yeah.

Q. With who?

A. With Daryel Express.

(Depo. at 25.)

Q. Okay. When you were hired there, they gave you the job,

what is the first driving job that you ever did for them?

A. To drive?

Q. Yeah. After they hired you, did you drive the next day?

A. Yes.

Id. at 32.

{¶34}

In responding to a question regarding the ownership of the trucks, appellant

stated:

Actually, the way I believe is the only Daryel I know the

company was Daryel Express, but after that, I don't know. I

am just employee.

Id. at 39.

Q. When you hired [sic] for Daryel Express, did they give you

any – did they have an employee handbook or anything like

that? Any rules and regulations?

A. They do, but I don't have them.

Id. at. 46.

Q. And the last thing, just so we are clear on things because

we are not going to be able to ask you again, at the time of

this incident – this accident, you were an employee of Daryel

Express?

A. Yeah.

No. 07AP-963 and 07AP-964

Q. And you were working for Daryel when the accident

occurred?

A. Yes.

Id. at 128.

{¶35}

On November 9, 2006, Canal filed a combined memorandum contra to

appellant's motion for summary judgment and a motion for summary judgment. Canal

argued that at the time of the accident, appellant was an employee of Daryel Express

acting within the scope of his employment, and, as such, appellant's claims were speci-

fically excluded under the Policy. Thereafter, on January 4, 2007, appellant filed a

"supplemental memorandum" in support of summary judgment and memorandum contra

to Canal's motion for summary judgment, with a "Second Affidavit" of appellant attached.

In this memorandum, appellant stated: "There is no evidence that the Plaintiff was an

'employee' of Defendant Daryel Express Trucking," and goes on to explain the payment

methods and other indicators suggesting that he was not an employee of Daryel Express.

(Supplemental Memorandum, at 1.) In his second affidavit, appellant stated he was

merely "occupying a vehicle owned by Daryel Express Trucking LLC." (Second Affidavit,

at 1.)

{¶36}

As Canal argues, despite appellant's contentions to the contrary, the record

establishes, by appellant's own admissions, that he was indeed an employee of Daryel

Express. Moreover, to the extent appellant filed the Second Affidavit in an attempt to alter

or clarify his deposition testimony, it is clear that such a contradictory affidavit cannot

create an issue of fact.

Burt v. Harris

, Franklin App. No. 03AP-194, 2004-Ohio-756, at

¶18, citing

Luft v. Perry Cty. Lumber & Supply Co.

, Franklin App. No. 02AP-559, 2003-

No. 07AP-963 and 07AP-964

Ohio-2305, ¶59, discretionary appeal not allowed by 99 Ohio St.3d 1542, 2003-Ohio-

4671 ("Where a [non-moving party] testifies to something in a deposition, inconsistent

statements in a later affidavit cannot establish a genuine issue of material fact");

Zacchaeus v. Mt. Carmel Health System

, Franklin App. No. 01AP-683, 2002-Ohio-444,

(" '[A] non-moving party cannot defeat a motion for summary judgment by creating an

issue of fact through a contradictory affidavit,' " citing

Schaeffer v. Lute

[Nov. 22, 1996],

Lucas App. No. L-96-045).

{¶37}

As noted by this court in

MacDaniels v. Sovereign Homes

, Franklin App.

No. 06AP-399, 2006-Ohio-6149, "[a]n exception to this general rule may exist where the

conflicting affidavit suggests that the affiant was confused at the time of the deposition or

offers some reason for the contradiction with prior testimony." Id. at ¶18, citing

Hull v.

Lopez,

Scioto App. No. 01CA-2793, 2002-Ohio-6162. "However, where inconsistencies

exist between statements in affidavits and prior deposition testimony 'and the affidavit

neither suggests affiant was confused at the deposition nor offers a reason for the

contradictions * * * the affidavit does not create a genuine issue of fact which would

preclude summary judgment.' " Id., quoting

McDowell v. Target Corp.

, Franklin App. No.

04AP-408, 2004-Ohio-7196, at ¶12.

{¶38}

In his appellate brief appellant states: "The Plaintiff Basha in his deposition

honestly stated he didn't really understand the legal relationship." (Brief at 20.) We,

however, are unable to find evidence in the record to support this statement. Further, the

record establishing appellant was an employee of Daryel Express consists of more than

just appellant's deposition testimony, as it also includes appellant's answer with

No. 07AP-963 and 07AP-964

admissions, as well as appellant's first affidavit, all of which state appellant was an

employee of Daryel Express. Therefore, we find no genuine issue of material fact relating

to appellant's status as an employee of Daryel Express, and accordingly, overrule

appellant's sixth assignment of error.

{¶39}

For the foregoing reasons, appellant's six assignments of error are

overruled, and the judgment of the Franklin County Court of Common Pleas is hereby

affirmed.

Judgment affirmed.

BROWN and TYACK, JJ., concur.

____________________