COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 73937 ST. PAUL FIRE & MARINE CO., : ET AL. : ACCELERATED DOCKET : PLAINTIFF : JOURNAL ENTRY : vs. : AND : GARY EVANS, ET AL. : OPINION : DEFENDANTS-APPELLANTS : PER CURIAM THIRD PARTY PLAINTIFFS : : vs. : : : LIGHTNING ROD MUTUAL : INS. CO. : : THIRD PARTY DEFENDANT- : APPELLEE : DATE OF ANNOUNCEMENT OF DECISION: SEPTEMBER 10, 1998 CHARACTER OF PROCEEDING: Civil appeal from Court of Common Pleas, Case No. CV-309093. JUDGMENT: REVERSED. DATE OF JOURNALIZATION: ________________________________ APPEARANCES: Antonios C. Scavdis, attorney for defendants-appellants, third- party plaintiffs, Gary Evans, 261 West Spruce Street, P.O. Box 978, Ravenna -i- Daran Kiefer, attorney for St. Paul Fire & Marine Co., plaintiff, 756 East 222nd Street, Cleveland, Ohio, 44123-2059. Ralph Oates, attorney for defendant Gimbel Insurance Agency, third party defendant, 217 East Main Street, Kent, Ohio, 44240. Frank Leonetti III, attorney for Continental Insurance Co., third party defendant, 113 St. Clair Building, Cleveland, Ohio, 44114. Robert J. Foulds, attorney for Lightning Rod Mutual Ins. Co., third party defendant-appellee, 5843 Mayfield Road, Mayfield Heights, Ohio, 44124. -2- PER CURIAM: An accelerated appeal is authorized pursuant to App.R. 11.1 and Loc.App.R. 25. The purpose of an accelerated docket is to allow an appellate court to render a brief and conclusory decision. Crawford v. Eastland Shopping Mall Assn. (1983) 11 Ohio App.3d 158. Defendant-third party plaintiff-appellant Gary Evans appeals the trial court's order denying his motion for summary judgement and granting the motion for summary judgement of third party defendant-appellee Lightning Rod Mutual Insurance Company (Lightning Rod). The appellant filed a declaratory judgment claim seeking both coverage and a defense from his personal insurance carrier, the appellee, for litigation surrounding a motor vehicle accident caused by appellant. The trial court order stated that there was no just reason for delay. The appellant asserts two assignments of error, the first arguing that the court erred in granting the appellee's motion for summary judgment, and the second asserting that the court erred in failing to grant the appellant's motion for summary judgment. This court reviews the lower court's granting of a motion for summary judgment de novo. Brown v. Scioto Cty. Bd. of Commrs. (1993), 87 Ohio App.3d 704. Under Civ.R. 56, summary judgment is proper when there is no genuine issue as to any material fact remaining to be litigated; the moving party is entitled to judgment as a matter of law; and, it appears from the evidence that reasonable minds can come but to one conclusion, and viewing such evidence most strongly in favor of the nonmoving party, that -3- conclusion is adverse to the party against whom the motion for summary judgment is made. Jones v. Chagrin Falls (1997), 116 Ohio App.3d 249, citing to State ex rel. Parsons v. Fleming (1994), 68 Ohio St.3d 509; Temple v. Wean United, Inc. (1977), 50 Ohio St.2d 317. Summary judgment shall be rendered forthwith if the pleading, depositions, answers to interrogatories, written admissions, affidavits, transcripts of evidence in the pending case, and written stipulations of fact, if any, timely filed in the action, show that there is not genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Civ.R. 56(C). It has been held that according to the law of pleading, an admission in a pleading dispenses with proof and is equivalent to proof of the fact. J. Miller Express, Inc. v. Pentz (1995), 107 Ohio App.3d 44, 48, citing to Rhoden v. Akron (1988), 61 Ohio App.3d 725, citing to Duffy v. Cleveland Coin Machine Exchanges, Inc. (1956), 77 Ohio Law Abs. 27. It is well-settled law in Ohio that insurance policies should be construed liberally in favor of the insured. Blue Cross & Blue Shield Mut. of Ohio v. Hrenko (1995), 72 Ohio St.3d 120. Where the meaning of language used in a contract of insurance is doubtful, uncertain, or ambiguous, the language will be construed strictly against the insurer. Blohm v. Cincinnati Ins. Co. (1988), 39 Ohio St.3d 63. An insurer, being the one who selects the language in the contract, must be specific in its use; an exclusion from liability must be clear and exact in order to be given effect. United States Fid. & Guar. Co. v. Lightening Rod Mut. Ins. Co. -4- (1997), 80 Ohio St.3d 584, citing to Lane v. Grange Mut. Cos. (1989), 45 Ohio St.3d 63. There is an absolute duty to assume the defense of the action when the underlying tort complaint states a claim which is potentially or arguably within the policy coverage. Sanderson v. Ohio Edison Co. (1994), 69 Ohio St.3d 582. Attached to the appellee's motion for summary judgment is the appellant's response to the request for admissions and the insurance policy. In his responses to the first request for admission, the appellant admits that he was on his way to pick up a load and that his vehicle was a 1987 Mercedes Benz Model 1319, which was empty. The second response admits that at the time of the collision, Evans was operating a motor vehicle which was not a passenger automobile. The third admits that at the time of the collision, Evans was operating a motor vehicle which was not a pickup truck or van that he owned. The fourth admits that at the time of the collision, Evans was not operating a trailer in connection with a private passenger automobile, pickup truck or van. Additionally, in his answer to the complaint the appellant admitted paragraphs twelve and thirteen which state: 12. On or about June 11, 1993, at W 130th & Snow Road, in the city of Brookpark, Cuyahoga County, Ohio, Defendant E & B's agent was driving his vehicle pursuant to a lease agreement with Plaintiff T.S. A copy of the lease and independent contractor agreement is attached as Exhibit A. 13. Defendant E & B's agent was on his way to pick up a load for Plaintiff T.S. but had not yet reached the pick up location. -5- The sections of the insurance company pertinent to this appeal state: INSURING AGREEMENT We will pay for damages for bodily injury or property damagefor which any insured becomes legally responsible because of an auto accident. 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 our limit of liability for this coverage has been exhausted. We have no duty to defend any suit or settle any claim for bodily injury or property damage not covered under this policy. EXCLUSIONS A. We do not provide Liability Coverage for any person: *** 11. Maintaining or using any vehicle while that person is employed or otherwise engaged in any business not described in exclusion 10.1 This exclusion does not apply to the maintenance or use of a: a. private passenger auto b. pickup or van that you own; or c. trailer used with a vehicle described in a. or b. above. (Emphasis original.) It is clear from the answers to the second, third and fourth request for admissions that the exceptions to the exclusion do not apply to the case sub judice. However, the exclusion would still apply if the appellant admitted to using a vehicle while he was employed or for business. This he has not done. A close reading of both the answer to the complaint and the answer to the first request for admissions reveals that the appellant admits only that he was on his way to pick up a load. 1Exclusion A. 10 is not applicable to this action. -6- Whether or not this constitutes a use while employed or for business is by no means certain, and the appellee failed to attach evidence which would meet the burden set forth in Civ.R. 56. For example, while the appellant admits in the answer to the complaint that the E&B's agent was driving pursuant to a lease agreement with T.S. Expediting, the appellee failed to attach evidence which would resolve 1) the ownership of the truck driven by the appellant; 2) the employment status of Evans, i.e. self-employment, independent contractor, or employee of E&B or some other entity. All that appellant Evens admitted was that he was an agent of E&B, this does not preclude him from having some other status as well. That he was driving pursuant to a lease agreement does not automatically mean that he was using the truck for business purposes. A salesman may drive a leased vehicle for business purposes, but may use the vehicle at other times for personal use. It is also noteworthy that the lease itself is signed by an authorized agent of T.S. Expediting and by Robert Norris, Contractor. The signature does not reference either E&B Trucking or Gary Evans. Most importantly, there is no evidence as to whether or not Evans was traveling from home or from some work site. These questions, while certainly not meant to be an inclusive or dispositive list, might shed some light on the issue of whether or not the appellant was using the truck for a business purpose. Absent the pertinent evidence in the record, the appellant's claim is potentially or arguably within the policy coverage, and the appellee owes a duty to defend the appellant. Whether or not -7- the appellee must provide coverage is a question of fact turning on the issue of whether or not the appellant was using the vehicle he was driving at the time of the accident for his employment or for business. The appellant's first assignment of error is well taken. The appellant's second assignment of error is granted to the extent that the appellee is required to provide a defense, but overruled as to whether or not the appellee must provide coverage. Judgement reversed. This cause is reversed and remanded for further proceedings consistent with the opinion herein. It is ordered that appellant recover of appellee his costs herein taxed. It is ordered that a special mandate issue out of this Court directing said 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. ______________________________ LEO M. SPELLACY, J. ______________________________ JAMES D. SWEENEY, J. ______________________________ JOSEPH J. NAHRA, P.J., Dissents, with dissenting opinion attached. N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the clerk per App.R. 22(E). See, also S.Ct.Prac.R. II, Section 2(A)(1). COURT OF APPEALS OF OHIO EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 73937 -9- ST. PAUL FIRE & MARINE CO., : ET AL., : : Plaintiff : : vs. : : GARY EVANS, ET AL., : : D I S S E N T I N G Defendants/Appellants : Third Party Plaintiffs : O P I N I O N : vs. : : LIGHTNING ROD MUTUAL INS. CO.,: : Third Party Defendant- : Appellee : DATE: SEPTEMBER 10, 1998 NAHRA, P.J., DISSENTING: The answers to interrogatories by the appellant clearly show he was working at the time of the accident. He was going to pick up a load. Under these circumstances, the policy excludes .