No Coverage For Participant In Drag Race

No Coverage For Participant In Drag Race

Barry Zalma   By Barry Zalma, Attorney and Consultant

"Chutzpah" - Filing Suit for Speed Contest Injuries

The danger of operating a motor vehicle in a race on city streets is obvious and well known. No insurer writes an insurance policy against injuries caused by participation in such a dangerous risk. Every automobile liability insurance policy I have ever seen excludes the risk of loss. Corey T. Hines, A Minor, et al v. Branden R. Camper, et al, 2012 -Ohio- 4110. (Ohio App. Dist.3 09/10/2012), Corey T. Hines, A Minor, et al v. Branden R. Camper, et al, 2012 -Ohio- 4110. (Ohio App. Dist.3 09/10/2012), an attempt was made to avoid the impact of the standard exclusion.

Corey Hines, a minor, and Gina Hines ("Hines"), appealed the judgment of the Court of Common Pleas of Auglaize County, Ohio granting summary judgment in favor of Allstate Insurance Company ("Allstate"), on Hines' uninsured/underinsured motorist claim.

FACTS

The suit was filed following a drag race in Auglaize County. On May 14, 2010, a group of young men, including Hines, gathered at the house of Nick Forbess. At some point, the group traveled together to a nearby gas station. After getting gas, they decided to head towards Washington Pike where they could race their cars.

Branden Camper and Forbess drove the cars involved in the race. Hines was a passenger in Camper's car, which lacked an operative safety belt for the front side passenger. To procure a working safety belt, Hines decided to sit in the back seat, where he buckled in. After the race commenced, Camper lost control of his automobile. It veered off the road and flipped upside down in a nearby field. Hines suffered several injuries, including lacerations and back and neck injuries.

At the time of the accident, Camper's parents had an automobile insurance policy with Allstate (the "Policy") that covered the car that Camper was driving. The Policy contained an uninsured/underinsured motorist provision. This provision was subject to a number of exclusions, including the following:

Allstate will not pay any damages an insured person or an additional insured person is legally entitled to recover because of bodily injury:

6. arising out of the participation in any prearranged, organized, or spontaneous:

a. racing contest;

b. speed contest; or c. use of an auto at a track or course designed or used for racing or high performance driving . . . . (Docket No. 52, Policy, p. 13).

After the accident, Hines sought recovery from Allstate under the uninsured/underinsured provision of the Policy. Allstate refused to pay Hines' claim, citing the applicability of the speed contest exclusion.

After the case was at issue Allstate filed a motion for summary judgment. Allstate asserted the applicability of the speed contest exclusion and Hines' purported assumption of the risk of injury. Attached to the motion were several of Hines' written admissions and a copy of his police statement regarding the accident. The written admissions reflect that Hines admitted he was "aware prior to this accident that it was the intention of [Camper] and [Forbess] to race their automobiles." Meanwhile, the police statement shows that when the responding officer asked whether his intention was to race when he reached the road, Hines responded in the affirmative.

TRIAL COURT DECISION

The trial court granted Allstate's motion for summary judgment finding that Hines was a participant in the drag race that led to the accident and that he was consequently excluded from the uninsured/underinsured coverage under the Policy.

The appellate court found that the issues revolves around the meaning of "participation" in the Policy. "Participation" is not a defined term in the Policy. But this fact, standing alone, does not render the term ambiguous. The mere absence of a definition in an insurance contract does not make the meaning of the term ambiguous. Participation is neither a term of art nor a word that is amenable to multiple interpretations. Rather, it is a common word and the appellate court can consequently construe it without resorting to any of the above construction rules benefitting insureds.  The appellate court used the ordinary and commonly understood definition of participation, which is the "act or state of participating: as a: the action or state of partaking of something . . . [or] b: the association with others in a relationship or an enterprise..." while citing to Webster's Third New International Dictionary 1646 (2002).

Under this definition, the evidence in the record manifestly shows that Hines was participating in the common scheme to drag race. Before the race, he spent time with Forbess and Camper at Forbess' home. Hines then traveled with the group to a gas station and admitted that during this time, the group formed the drag racing idea. Further, he willingly got into Camper's automobile intending to be part of a drag race. This all shows the existence of a joint enterprise in which Hines was a willing participant.

Hines claimed that there is a triable issue as to whether he was a participant under the policy because he did not drive a car during the drag race. Under its common and ordinary meaning, participation encompasses more conduct than driving. Here, by forming the plan to drag race and then willingly getting into an automobile that he knew would be involved in the race, Hines was a participant.

In light of Hines' failure to present additional evidence besides the fact that he was not the driver, Hines is unable to show the existence of a triable issue of fact regarding his status as a participant in the drag race. Consequently, the trial court properly granted summary judgment to Allstate on the basis of the Policy's exclusion for participation in car races.

ZALMA OPINION

The only surprise to me in this case is that the litigants bothered to take the case to the appellate court. It could not be more obvious on the facts elicited at the time of the motion for summary judgment that Mr. Hines participated in the drag race. He knew of the danger since he decided to sit in a back seat where there was an operable seat belt rather than the front seat where he would have a better view of the race or he would probably have been killed in the accident.

To bring suit with such a clear and unambiguous policy exclusion on such facts defines the Yiddish term "Chutzpah."

Reprinted with Permission from Zalma on Insurance, (c) 2012, Barry Zalma.

Barry Zalma, Esq., CFE, is a California attorney, insurance consultant and expert witness specializing in insurance coverage, insurance claims handling, insurance bad faith and insurance fraud. Mr. Zalma serves as a consultant and expert, almost equally, for insurers and policyholders. He founded Zalma Insurance Consultants in 2001 and serves as its senior consultant. He recently published the e-books, "Zalma on Insurance;" "Murder and Insurance Don't Mix;" "Heads I Win, Tails You Lose - 2011," "Zalma on Rescission in California," "Zalma on Diminution in Value Damages," "Arson for Profit" and "Zalma on California Claims Regulations," and others that are available at Zalma Books. Mr. Zalma can also be seen on World Risk and Insurance News' web based television program "Who Got Caught".

Mr. Zalma can be contacted at Barry Zalma or zalma@zalma.com, and you can access his free "Zalma on Insurance Fraud" newsletter at Zalma's Insurance Fraud Letter.

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