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.
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
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
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 email@example.com, and you can
access his free "Zalma on Insurance Fraud" newsletter at Zalma's Insurance Fraud
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