COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 68384 : ACCELERATED DOCKET KATHLEEN EDLEY : : JOURNAL ENTRY Plaintiff-Appellant : : and -vs- : : OPINION : CROSS ROADS AUTO MILE FORD, ET AL. : PER CURIAM : Defendants-Appellees : : DATE OF ANNOUNCEMENT JULY 20, 1995 OF DECISION: CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court Case No. 237165 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: __________________________ APPEARANCES: FOR PLAINTIFF-APPELLANT: FOR DEFENDANTS-APPELLEES: LESTER S. POTASH, ESQ. JOSEPH W. PAPPALARDO, ESQ. 2000 Illuminating Building ROCCO D. POTENZA, ESQ. 55 Public Square Gallagher, Sharp, Fulton Cleveland, Ohio 44113 & Norman 7th Fl., Bulkley Building 1501 Euclid Avenue Cleveland, Ohio 44115 -2- PER CURIAM: Kathleen Edley, plaintiff-appellant, appeals a decision from the trial court granting summary judgment in favor of Motorist Mutual Insurance Company, defendant-appellee. Edley assigns the following error for our review: THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT TO DEFENDANT MOTORIST MUTUAL INSURANCE COMPANY. After reviewing the record and the arguments of the parties, we affirm the decision of the trial court. The apposite facts follow. Edley was injured when her automobile was rear-ended by a car driven by Kenneth Collins, a salesman at Cross Road Auto Mile Ford. Collins was driving a 1991 Ford Escort provided by Cross Roads. The accident occurred on Tuesday night at approximately 9:30 pm. Edley filed a complaint against Cross Roads and Collins seeking compensation for injuries sustained in the accident. In her complaint, Edley alleged Collins was acting within the scope of his employment at Cross Roads at the time of the accident. The trial court overruled Cross Roads' motion for summary judgment and referred the case to arbitration. On September 15, 1993, the arbitrator ruled in favor of Edley and awarded a $7000 judgment against Collins. The arbitrator found against Edley on her claims against Cross Roads. On October 19, 1993, Edley filed a supplemental complaint under R.C. 3929.06 adding Motorist Mutual Insurance Company as a defendant. The complaint alleged Collins operated the car with the knowledge and consent of Cross Roads and, -3- consequently, was covered by Cross Roads' insurance policy with Motorist Mutual. In a December 22, 1994 journal entry, the trial court granted Motorist Mutual's motion for summary judgment. The court found that "the issue of scope of employment having been decided adversely to [Edley] per journal entry dated 9-15-93, Defendant Motorist Mutual has no obligation to pay damages for personal injury or property damage arising out of the incident of 8-14-90, and is therefore entitled to summary judgment in its favor as a matter of law." This appeal followed. The trial court granted Motorist Mutual's motion for summary judgment after concluding that the scope of employment issue had been decided by the arbitrator. Motorist Mutual argues the principle of collateral estoppel applies to bar Edley from pursuing her claim against Motorist Mutual. The collateral estoppel doctrine precludes the relitigation in a second action of an issue or issues that have been actually and necessarily litigated and determined in a prior action. Goodson v. McDonough Power Equip., Inc. (1983), 2 Ohio St.3d 193, 195. However, "[a] judgment can operate as collateral estoppel only where all of the parties to the proceeding in which the judgment is relied upon were bound by the judgment." Id. Motorist Mutual was not a party to the prior proceeding. In addition, the issue of insurance coverage was not addressed in the prior action. For these reasons, we find that the doctrine of collateral estoppel is inapplicable to this case. However, we do -4- find summary judgment proper. Taylor v. Yale & Towne Mfg. Co. (1987), 36 Ohio App.3d 62, 63. In this case, summary judgment was properly granted if no material issue of fact exists as to whether Collins was covered by Motorist Mutual at the time of the accident. Motorist Mutual policy defined an "insured" as follows: (1) You for any covered auto. (2) Anyone else while using with your permission a covered "auto" you own, hire or borrow****[.] In her brief before this court, Edley argues Motorist Mutual presented no evidence that Collins' operation of the car at the time of the accident fell outside the scope of the permission given by his employer Cross Roads Ford. However, Motorist Mutual included the affidavit of Gary Milan, president of Cross Roads Ford. In the affidavit, Milan stated that Collins did not have permission to drive the car for his personal use during non- working hours. Despite Edley's arguments to the contrary, Milan's sworn affidavit met all the requirements of Civ.R. 56(E) and was properly considered by the trial court under Civ.R. 56(C). Once Motorist Mutual filed its motion for summary judgment along with the supporting affidavit, Edley had the burden of going forward with evidence on every issue for which she would bear the burden of production at trial. Wyatt v. Ohio Dept. of Transp. (1993), 87 Ohio App.3d 1,5. As the nonmovant, Edley could not rest on mere allegations but had the duty to respond to Motorist Mutual's affidavits through affidavits of her own or otherwise to show there was a genuine issue of material fact for trial. See Van -5- Fossen v. Babcock & Wilcox Company (1988), 36 Ohio St.3d 100,117. Edley failed to present any affidavits or other evidentiary material to support her claim. The uncontradicted affidavit of Gary Milan reveals that Collins did not have permission to drive the demonstrator car for his personal use during non-working hours. Milan averred that Collins was only authorized to drive the car to and from work. It is undisputed that the dealership closed at 6:00 p.m. on the night of the accident and that Collins was not headed to or from work at the time of the 9:30 p.m. accident. Because Collins was not using the car with Cross Roads' permission at the time of the accident, he was not an "insured" under Cross Roads' policy of insurance with Motorist Mutual. Consequently, summary judgment was properly granted on Edley's claim against Motorist Mutual. Judgment affirmed. -6- It is ordered that Appellees recover of Appellant their 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 Common Pleas Court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. PATRICIA ANN BLACKMON, PRESIDING JUDGE DAVID T. MATIA, JUDGE JAMES M. PORTER, JUDGE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announcement of decision (see Rule 26). Ten (10) days from the date hereof this document will be stamped to indicate journaliza- .