Helms et al v. Nationwide Insurance Company of America

Filing 55

ORDER denying 45 Motion for Partial Summary Judgment. Signed by Magistrate Judge Stephanie K. Bowman on 10/22/12. (jl1)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION

WILLIAM HELMS, et al.,

Case No. 1:11-cv-410

Plaintiffs,

Bowman, M.J.

v.

NATIONWIDE INSURANCE
COMPANY OF AMERICA, et al.,
Defendants.
MEMORANDUM OPINION AND ORDER
This litigation stems from an automobile accident; the matter is before this Court
on the basis of diversity jurisdiction. Pursuant to 28 U.S.C. §636(c), the parties have
consented to final disposition before the undersigned magistrate judge. (Doc. 7).
Currently pending is Plaintiffs’ motion for partial summary judgment. (Doc. 45). For the
reasons that follow, that motion will be denied.
I. Background
On February 23, 2010, Plaintiff William Helms was involved in an automobile
accident in Hamilton County, Ohio, which he alleges caused serious injuries. 1 CoPlaintiff Gail Helms claims damages resulting from the loss of her husband’s
companionship. (Doc. 3).
Plaintiffs allege that the accident was caused solely by the negligence of another
driver, Joshua Sanders, who was insured by Progressive Casualty Insurance Company
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Nationwide disputes that Plaintiffs’ injuries were proximately caused by the accident.
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(“Progressive”). However, rather than filing suit against Sanders and/or Progressive,
Plaintiffs initiated suit in state court against their own insurer, Defendant Nationwide
Insurance Company of America (“Nationwide”), for breach of contract and bad faith
concerning payment under their UIM policy. On June 23, 2011, Nationwide removed
the litigation to this Court.

On February 21, 2012, Plaintiffs filed a third amended

complaint, 2 adding Sanders as an additional defendant.
There is no dispute that Sanders was engaged in making a U-turn, and had not
employed his turn signal, when his vehicle collided with the vehicle driven by Mr. Helms.
Sanders admits he was negligent in the operation of his vehicle, but has pleaded
comparative negligence by Helms. The Hamilton County Sheriff’s Office responded to
the accident, but did not cite either Sanders or Helms for any violations of state law.
Following completion of discovery, Plaintiffs moved for partial summary
judgment, seeking a ruling as a matter of law that Defendant Sanders is solely liable for
the negligence that led to the automobile accident at issue.

Both Nationwide and

Sanders have filed responses in opposition to Plaintiffs’ motion, to which Plaintiffs have
filed no reply.
II. Analysis
A. Summary Judgment Standard
In considering a motion for summary judgment, “a court must view the facts and
any inferences that can be drawn from those facts ... in the light most favorable to the
nonmoving party.” Keweenaw Bay Indian Comm. v. Rising, 477 F.3d 881, 886 (6th Cir.
2007)(internal quotation marks and additional citations omitted). “Summary judgment is
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Plaintiffs’ first and second amended complaints were stricken from the record. (Doc. 21).
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only appropriate ‘if the pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any, show that there is no genuine
issue as to any material fact and that the moving party is entitled to a judgment as a
matter of law.’” Id. (quoting Fed.R.Civ.P. 56(c), internal quotation marks omitted).
“Weighing of the evidence or making credibility determinations are prohibited at
summary judgment-rather, all facts must be viewed in the light most favorable to the
non-moving party.” Id.
The requirement that facts be construed in the light most favorable to the
nonmoving party, however, does not mean that the court must find a factual dispute
where record evidence contradicts wholly unsupported allegations.

“The ‘mere

possibility’ of a factual dispute is not enough.” Mitchell v. Toledo Hosp., 964 F.2d 577,
582 (6th Cir.1992) (citing Gregg v. Allen-Bradley Co., 801 F.2d 859, 863 (6th Cir.1986)).
In order to defeat the motion for summary judgment, the non-moving party must present
probative evidence that supports its complaint. Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 249-50, 106 S.Ct. 2505 (1986). The non-moving party's evidence “is to be
believed, and all justifiable inferences are to be drawn in his favor.”

Id. at 255

(emphasis added).
Although reasonable inferences must be drawn in favor of the opposing party,
inferences are not to be drawn out of thin air. Matsushita Elec. Indus. Co., Ltd. v.
Zenith Radio Corp., 475 U.S. 574, 587 (1986). To demonstrate a genuine issue, the
opposing party “must do more than simply show that there is some metaphysical doubt
as to the material facts .... Where the record taken as a whole could not lead a rational
trier of fact to find for the nonmoving party, there is no ‘genuine issue for trial.’” Id.
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(additional citation omitted).
As explained herein, genuine issues of material fact remain in this case
concerning whether Joshua Sanders was solely, or only partially, negligent. Therefore,
Plaintiffs’ motion for partial summary judgment must be denied.
B. Plaintiffs’ Motion
Unfortunately, Plaintiffs did not fully comply with the Civil Trial Procedures of the
undersigned magistrate judge by attaching to their motion a statement of “Proposed
Undisputed Facts.” In addition to requiring the referenced statement, the Court requires
undisputed facts to be supported by specific citation to an affidavit, deposition, or other
admissible evidence. While Plaintiffs have attached some supporting evidence to their
motion, the Defendants’ responses (and corresponding documents entitled “Disputed
Issues of Material Fact), make clear that genuine issues of material fact preclude
summary judgment.
In support of their motion, Plaintiffs begin by arguing that Sanders committed
negligence per se, by violating three separate Ohio statutes. First, Plaintiffs contend
that Sanders violated ORC §4511.33, which requires a driver to remain “as nearly as is
practicable, entirely within a single lane” and not to change lanes “until the driver has
first ascertained that such movement can be made with safety.” Second, Plaintiffs
assert that Sanders violated O.R.C. §4511.25, by failing to stay in the “right half of the
roadway” except under specified conditions, including when making a left turn. Third,
Plaintiffs argue that Sanders violated O.R.C. §4511.39, which prohibits a driver from
turning or moving his vehicle “unless and until such person has exercised due care to

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ascertain that the movement can be made with reasonable safety,” and prohibits turns
“without giving an appropriate signal.”
Plaintiffs next urge this Court to find that Mr. Helms was not contributorily
negligent as a matter of law. The Ohio Supreme Court has stated that “[i]ssues of
comparative negligence are for the jury to resolve unless the evidence is so compelling
that reasonable minds can reach but one conclusion.” Simmers v. Bentley Constr. Co.,
64 Ohio St. 3d 642, 646, 597 N.E.2d 504 (Ohio 1992)(additional citations omitted).
Plaintiffs admit that O.R.C. §4511.34 requires a driver to operate his motor vehicle with
an “assured clear distance ahead,” and “having due regard for the speed of such
vehicle…and the traffic upon and the condition of the highway.” However, Plaintiffs
maintain that Helms was legally excused from any possible violation of O.R.C.
§4511.34, based upon their view that Sanders’ vehicle suddenly and abruptly turned
into Mr. Helms’ path of travel.
Nationwide points out in response to the motion for summary judgment that quite
of few facts about the accident remain in dispute. For example, Nationwide points to
variations in Mr. Helms’ multiple accounts of the accident, some of which relate to
whether Sanders’ vehicle was beside Helms, behind Helms, or in front of Helms, just
prior to the accident. (See Doc. 47-2 at 6; compare Doc. 49 at 20-21, 97). As Sanders
explains in his response in opposition, some of the evidence suggests that Helms was
following Sanders when Sanders commenced his U-turn. Other evidence suggests that
Sanders came up from behind Helms, passed him on the shoulder to the right, and then
commenced his U-turn to the left.

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Nationwide points to these discrepancies and additional evidence through which
a jury could infer that Helms violated O.R.C. §4511.34 by failing to maintain a safe
distance, and that Helms should have seen Sanders in time to avoid the accident.
Nationwide also notes that Sanders, while admitting that he did not use his turn signal,
testified that he did check his mirrors and blind spot, and determined that he could turn
safely prior to attempting the U-turn. Last, Nationwide cites to deposition testimony that
suggests that Mr. Helms himself pulled out of a gas station parking lot just before the
accident. (See Doc. 49 at 20).
Viewed as a whole, the evidence presents issues of fact and of law as to
Sanders’ underlying negligence vis a vis the possible negligence of Helms. Only the
fact that Sanders failed to use his turn signal is undisputed. While the failure to use a
turn signal is a per se violation of O.R.C. §4511.39 (requiring “an appropriate signal”
prior to turning), Plaintiffs have not conclusively proven that Sanders violated either of
the other two statutes on which they rely. Both statutes contain language permitting
exceptions to maintaining one’s lane, including when making a left turn, and when the
driver has “ascertained that such movement [moving from the lane] can be made with
safety.” See O.R.C. §§4511.33(A)(1), 4511.25. The evidence cited by Nationwide and
Sanders presents issues of fact concerning whether Sanders’ operation of his vehicle
fell within those exceptions.
Moreover, notwithstanding the Court’s conclusion that Sanders violated O.R.C.
§4511.39, that violation alone “is not a finding of liability per se because the plaintiff will
also have to prove proximate cause and damages.” Leizerman v. Kanous, 910 N.E.2d
26, 28 (2009)(additional citations omitted). In order to establish proximate cause, a
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plaintiff must demonstrate that the accident was a foreseeable consequence of the
alleged negligence. See Shinaver v. Szymanski, 471 N.E.2d 477 (Ohio 1984)(denying
summary judgment where both drivers were negligent per se based upon statutory
violations, but questions remained regarding proximate cause).

Resolution of the

question of whether a party’s negligence proximately caused an accident ordinarily is a
question of fact. Id. ; see also Keister v. Park Centre Lanes, 2 Ohio App.3d 19, 443
N.E.2d 532, 538 (Ohio Ct. App. 1981).
Construing all of the facts in favor of Nationwide and Sanders, as is required on
summary judgment, a fact-finder could conclude that Sanders’ failure to use his turn
signal while executing a U-turn was not the sole or even the primary cause of the
accident. At the same time, the evidence presented is not so one-sided that this Court
can determine whether or not Plaintiff Helms was contributorily negligent in the
operation of his vehicle, by failing to maintain an assured clear distance given road
conditions 3 and the relative positions of the parties’ vehicles. The only conclusion this
Court can reach is that disputed issues of fact and of law remain concerning whether
Sanders’ single, uncontested violation of O.R.C. §4511.39 was the sole proximate
cause of the accident.
III. Conclusion and Order
Accordingly, IT IS ORDERED THAT Plaintiffs’ motion for partial summary
judgment (Doc. 45) be DENIED.

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There is some evidence that the road was wet, a condition that impacts the safe distance required
between vehicles.
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s/ Stephanie K. Bowman
Stephanie K. Bowman
United States Magistrate Judge

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