Continental Ins. Co. v. Whittington

SUPREME COURT CASES

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State: Ohio

Court: Supreme Court

Docket No: 1993-0667

Case Date: 12/14/1994

Plaintiff: Continental Ins. Co.

Defendant: Whittington

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Continental Insurance Company, Appellee, v. Whittington et al.,
Appellees; Smith et al., Appellants.
[Cite as Continental Ins. Co. v. Whittington (1994), Ohio
St.3d .]
Civil procedure -- Any error by trial court in denying

motion for summary judgment is rendered moot or harmless,

when.

---
Any error by a trial court in denying a motion for summary

judgment is rendered moot or harmless if a subsequent

trial on the same issues raised in the motion demonstrates

that there were genuine issues of material fact supporting

a judgment in favor of the party against whom the motion

was made.

---
(No. 93-667 -- Submitted October 11, 1994 -- Decided
December 14, 1994.)
Appeal from the Court of Appeals for Darke County, No.
CA-1295.

On July 5, 1989, at approximately 9:30 p.m., Sean Sonner
("Sonner") was involved in an accident while driving a van
owned by his employer, appellees Terry Whittington and William
Brinley, d.b.a. Whittington Produce ("Whittington Produce").
Thomas Sonner (Sonner's brother), Michelle Smith and Lewis
Hawes, appellants, were passengers in the vehicle. At the time
of the accident, Sonner was using the company van for his own
personal purposes. No other vehicle was involved in the crash.

Whittington Produce was owned and operated as a
partnership by Terry Whittington and William Brinley. At the
time of the accident, Whittington Produce was insured under a
policy of motor vehicle liability insurance issued by
Continental Insurance Company ("Continental"), appellee.1 The
policy contained a section known as an "omnibus clause"
required by R.C. 4509.51(B).2 Specifically, Section II(A)(1)
of the policy defined the "insureds" as follows:

"a. You [Whittington Produce] for any covered 'auto'.

"b. Anyone else while using with your [Whittington
Produce's] permission a covered 'auto' you own, hire or borrow

* * *." (Emphasis added.)

The vehicle involved in the accident was a covered "auto"
within the meaning of the policy.

On October 13, 1989, Continental filed an action for
declaratory judgment in the Court of Common Pleas of Darke
County, naming, as defendants, Terry Whittington, William
Brinley, Whittington Produce, Sonner, Michelle Smith, Lewis
Hawes, Thomas Sonner and others. In the complaint, Continental
alleged that Sonner did not have permission to use the company
van for personal purposes at the time of the accident.
Therefore, Continental sought a declaration that no coverage
was available under the terms of the policy because Sonner was
not an "insured" at the time of the accident. Further,
Continental sought a declaration that it owed no duty to defend
or indemnify Sonner or Whittington Produce in any subsequent
tort action brought by anyone claiming to have suffered injury
or damage as a result of the accident.

The following relevant matters were elicited upon
discovery.

Whittington Produce is a business that transports live
poultry from farms to other locations. As part of the business
operation, employees are transported to and from work in
company-owned vehicles. On July 5, 1989, at approximately 5:00
or 5:30 p.m., Terry Whittington gave Sonner express permission
to use a company van to drive several employees home from
work. Whittington instructed Sonner to keep the van overnight,
to park the van in front of his (Sonner's) house, and to pick
up the employees the following morning to return them to work.
Whittington never told Sonner not to use the van for personal
purposes. Whittington Produce had no written policy
prohibiting personal use of company vehicles. However,
according to Whittington, all employees knew that personal use
of company vehicles was strictly prohibited.

On the evening of July 5, 1989, Sonner drove the employees
to their homes in accordance with Whittington's instructions.
He then drove home and parked the van. Later, he drove the van
to a friend's house. There, he decided to take the vehicle out
on the town for the evening. He was joined by Thomas Sonner,
Hawes, Smith, and others. The accident occurred while Sonner
was using the van for his own social and personal benefit. In
his deposition, Sonner admitted that his personal use of the
van at the time of the accident exceeded the scope of
permission given to him by Whittington. He testified that
company vehicles were ordinarily not used by employees for
personal pursuits. Following the accident, Sonner was not
fired or otherwise disciplined for having used a company
vehicle for personal purposes.

Thomas Sonner and Lewis Hawes were deposed on August 22,
1990. Both men had worked for Whittington Produce. Thomas
Sonner testified that prior to July 5, 1989, several
Whittington Produce employees had regularly used company
vehicles for personal purposes. He further testified that
Whittington normally allowed employees to ride around or
"cruise" in company vehicles after working hours. Hawes
testified that he knew of no policy prohibiting personal use of
company vehicles. Hawes also testified that Terry Whittington
never seemed to care whether company vehicles were used by

employees for personal purposes.

Continental filed a Civ.R. 56 motion for summary judgment,
arguing that Sonner had exceeded the scope of permission
granted to him by Whittington to use the van for a limited
business purpose. Therefore, Continental claimed that it was
entitled to a declaration that Sonner was not an "insured" at
the time of the accident and, thus, no coverage was available
under the terms of the policy. Continental also argued that
Sonner's use of the vehicle at the time of the accident
represented a "complete deviation" from the scope of permission
originally granted to him by Whittington. In this regard,
Continental claimed that no coverage was available under the
so-called "minor deviation" rule of Gulla v. Reynolds (1949),
151 Ohio St. 147, 39 O.O. 2, 85 N.E.2d 116. The "minor
deviation" rule states that where the use of a vehicle deviates
slightly from the purpose for which permission was initially
granted, a standard omnibus clause in a liability insurance
policy will be interpreted to extend coverage, but if the use
represents a gross deviation from the scope of permission
given, no coverage is to be afforded. See Frankenmuth Mut.
Ins. Co. v. Selz (1983), 6 Ohio St.3d 169, 171, 6 OBR 227, 229,
451 N.E.2d 1203, 1204, and Erie Ins. Group v. Fisher (1984), 15
Ohio St.3d 380, 383, 15 OBR 497, 500, 474 N.E.2d 320, 323-324.

Smith, Hawes and Thomas Sonner (collectively referred to
as "appellants") opposed the motion, urging that questions of
fact remained to be determined as to whether Sonner had implied
permission to use the vehicle for personal purposes at the time
of the accident. Whittington and Brinley also opposed the
motion, but only on the issue whether Continental had a duty to
defend them in any subsequent tort action filed by persons
claiming to have been injured or damaged as a result of the
accident. In a reply memorandum, Continental stated that
"[t]he plaintiff does acknowledge the position of the
defendants Terry Whittington and William Brinley. As they are
named insureds on the policy, Continental does not assert the
position that coverage should be excluded as to them." From
that point forward, the interests of Continental and
Whittington and Brinley, d.b.a. Whittington Produce, became
aligned. Continental eventually dismissed those portions of
the complaint relating to Whittington and Brinley.

On November 9, 1990, the trial court denied Continental's
motion for summary judgment, finding that genuine issues of
material fact remained to be determined regarding the scope of
permitted use. Thereafter, the matter proceeded to trial
before a jury.

At trial, evidence was presented which, if accepted,
established that Sonner's use of the van at the time of the
accident was within the scope of implied permission initially
granted to him by Whittington. Sonner's testimony at trial
indicated that prior to July 5, 1989, vehicles entrusted to
Whittington Produce employees to transport workers to and from
work were, as a matter of custom and practice, frequently used
by employees for personal purposes. Sonner claimed that he had
relied on this custom and practice when he used the van for
personal reasons on the night of the accident. In this regard,
Sonner admitted to having lied at his deposition wherein he had
claimed no prior knowledge of authorized personal use of

company vehicles. According to Sonner, he lied at his
deposition because, among other things, he was afraid of losing
his job. Sonner indicated that he was able to tell the truth
at trial because he was "not afraid anymore," presumably
because he was no longer employed by Whittington Produce.
Sonner's testimony was supported by the testimony of other
witnesses who detailed a long and established history involving
personal use of company vehicles. The direct and
circumstantial evidence at trial also tended to establish that
Terry Whittington knew or should have been aware of the
widespread personal use of company vehicles, and that
Whittington may have tolerated or condoned such activities.

Following the presentation of evidence, the jury was asked
to determine whether Sonner had express or implied permission
to use the van for personal purposes at the time the accident
occurred -- i.e., whether Sonner was an "insured" within the
meaning of Section II(A)(1)(b) of the policy. The trial court
also instructed the jury on the "minor deviation" rule of
Gulla, supra. The trial court rejected appellant Smith's
request that the jury be instructed on the so-called "initial
permission" rule. The "initial permission" rule, which has
been rejected in this state on a number of previous occasions,
provides that when an owner of a motor vehicle consents to its
use by a permittee, any subsequent use by the permittee remains
permissive short of conversion or theft of the vehicle,
notwithstanding that the subsequent use exceeds limitations
included in the initial grant of permission. See Erie, supra,
15 Ohio St.3d 380, 383, 15 OBR 497, 500, 474 N.E.2d 320, 323.

In response to specific interrogatories, the jury found
that (1) Sonner did not have express permission to use the van
at the time of the accident, (2) Sonner had the implied
permission of Whittington, Brinley, or both, d.b.a. Whittington
Produce, to operate and use the vehicle at the time of the
accident, and (3) Sonner's use of the van at the time of the
accident did not deviate from the permission originally granted
to him by Whittington. Accordingly, the trial court entered
judgment in accordance with the jury's findings, holding that
Sonner was an "insured" under the policy and that coverage for
the accident was therefore available.

Continental appealed to the court of appeals, urging,
among other things, that the trial court erred in denying
Continental's pretrial motion for summary judgment. Appellant
Smith cross-appealed, claiming that the trial court erred in
refusing to adopt the "initial permission" rule in its
instructions to the jury.

As to the cross-appeal, the court of appeals, citing Erie,
supra, 15 Ohio St.3d 380, 15 OBR 497, 474 N.E.2d 320, rejected
Smith's contention that the trial court erred in failing to
adopt the "initial permission" rule. With respect to
Continental's appeal, the court of appeals determined that the
trial court erred in denying Continental's motion for summary
judgment. Specifically, the court of appeals, reviewing the
record as it existed at the time the trial court denied the
motion, held that the deposition testimony of Whittington,
Sonner, Hawes and Thomas Sonner demonstrated that Sonner had no
permission, express or implied, to use the vehicle for personal
purposes, and that Sonner's use of the vehicle at the time of

the accident grossly deviated from the scope of permission
originally granted to him by Whittington. On this basis, the
court of appeals reversed the judgment of the trial court and
ordered that summary judgment be entered in favor of
Continental.

The cause is now before this court pursuant to the
allowance of motions to certify the record.

Bieser, Greer & Landis and David P. Williamson, for
appellee Continental.

Hanes, Schipfer, Hurley, McClurg, Cooper & Graber and
William H. Cooper, for appellees Terry Whittington and William
Brinley, d.b.a. Whittington Produce.

Pickrel, Schaeffer & Ebeling Co., L.P.A., and James W.
Kelleher, for appellant Michelle Smith.

Bertram & Hayes and William H. Bertram, Jr., for
appellants Lewis Hawes and Thomas Sonner.

Dyer, Garofalo, Mann & Schultz, Ronald E. Schultz and
Kimberly K. Harshbarger, urging reversal for amicus curiae,
Ohio Academy of Trial Lawyers.

Douglas, J. The primary issue in this case is whether
the court of appeals erred in reversing the final judgment of
the trial court based upon the trial court's decision denying
Continental's motion for summary judgment. The court of
appeals held that the question whether a trial court errs in
granting or denying a motion for summary judgment hinges upon a
review of the evidence that was before the trial court at the
time the decision was made. The evidence before the trial
court at the time Continental's motion for summary judgment was
denied consisted of the deposition testimony of Whittington,
Sonner, Hawes and Thomas Sonner. On the basis of this
evidence, the court of appeals reversed the final judgment of
the trial court and ordered that summary judgment be entered in
favor of Continental, stating that:

"[I]t must be concluded that Sean Sonner's use of the
vehicle at the time of the accident on July 5, 1989, was not
with Terry Whittington's permission, express or implied.
Further, rational minds could only conclude that Sonner's use
of the vehicle grossly deviated from any permission given to
him by Terry Whittington when he entrusted the van to Sonner.
Therefore, under the rule of Gulla v. Reynolds, supra [151 Ohio
St. 147, 39 O.O. 2, 85 N.E.2d 116], Sonner was not an insured
to whom coverage is extended under the 'omnibus clause' of the
policy issued by Continental to Whittington. There is no
genuine issue of material fact concerning the matter in
dispute. Civ.R. 56(C) mandates summary judgment for
Continental upon its motion. The trial court erred in denying
Continental's motion for summary judgment."

However, we find that even if the trial court erred in
denying Continental's motion for summary judgment, that error
did not rise to the level of reversible error. In our
judgment, the court of appeals erred in reversing the trial
court's final judgment in favor of appellants by failing to
consider the requirements of Civ.R. 61, which states:

"No error in either the admission or the exclusion of
evidence and no error or defect in any ruling or order or in

anything done or omitted by the court or by any of the parties
is ground for granting a new trial or for setting aside a
verdict or for vacating, modifying or otherwise disturbing a
judgment or order, unless refusal to take such action appears
to the court inconsistent with substantial justice. The court
at every stage of the proceeding must disregard any error or
defect in the proceeding which does not affect the substantial
rights of the parties." (Emphasis added.)

Here, substantial justice was done at the trial court
level following the trial on the merits. The evidence adduced
at trial revealed the existence of genuine issues of material
fact concerning the issues raised by Continental in its motion
for summary judgment. While the record before the trial court
at the time it denied the motion may not have reflected that
situation, the facts as we now know them, as determined by the
jury, show that Continental was clearly liable to provide
coverage under the terms of the policy. Under these
circumstances, it would seem incongruous to now say that the
trial court committed reversible error in denying Continental's
motion. Any error in the denial of the motion was rendered
moot or harmless since a full and complete development of the
facts at trial (as opposed to the limited factual evidence
elicited upon discovery) showed that appellants were entitled
to judgment. In this regard, substantial justice would clearly
not be served by setting aside the jury's findings and the
final judgment of the trial court.

Accordingly, we reverse the judgment of the court of
appeals and reinstate the final judgment of the trial court.
We hold that any error by a trial court in denying a motion for
summary judgment is rendered moot or harmless if a subsequent
trial on the same issues raised in the motion demonstrates that
there were genuine issues of material fact supporting a
judgment in favor of the party against whom the motion was
made.3 In so holding, we are persuaded by Graham v. Pavarini
(1983), 9 Ohio App.3d 89, 9 OBR 140, 458 N.E.2d 421, wherein an
Ohio appellate court held, at paragraph three of the syllabus,
that "[a]ny error by the denial of a summary judgment is
rendered moot or harmless where evidence at a subsequent trial
on the same issues demonstrates that there were genuine issues
of material fact and that evidence supported a judgment for the
party opposing summary judgment." See, also, Sanders v. Mt.
Sinai Hosp. (1985), 21 Ohio App.3d 249, 256, 21 OBR 292, 300,
487 N.E.2d 588, 596 ("We need not evaluate the evidentiary
materials supporting and opposing the hospital's summary
judgment motion on this issue. Any error in denying that
motion is moot or harmless, even if it had merit when the court
denied it. Graham v. Pavarini [1983], 9 Ohio App.3d 89, 95 [9
OBR 140, 146, 458 n.e.2D 421, 428]. The subsequent trial
demonstrated that there was a genuine issue of material fact on
this subject."). But, see, Love v. Motorists Mut. Ins. Co.
(1993), 86 Ohio App.3d 394, 620 N.E.2d 987. We are also
persuaded by the fact that courts throughout this country
generally hold that the denial of a motion for summary judgment
is not a point of consideration in an appeal from a final
judgment entered following a trial on the merits. See,
generally, Annotation, Reviewability of Order Denying Motion
for Summary Judgment (1967), 15 A.L.R.3d 899, 922-925, and 1994

Supplement at 72-76. In this regard, the case of Home Indemn.
Co. v. Reynolds & Co. (1962), 38 Ill.App.2d 358, 187 N.E.2d
274, is particularly compelling. In that case, an Illinois
appellate court made the following enlightening observations:

"The contention that the trial court erred in denying the
motions for summary judgment [filed by plaintiff Home
Indemnity, an insurer, against defendant Reynolds & Co., the
insured] poses an unusual question. Does a party, whose motion
for summary judgment is denied, have the right to have the
denial of its motion reviewed after the case goes to trial and
a verdict is returned against it? * * *

"* * * [W]e will, for the purpose of reaching the
substance of the issue presented, make two assumptions: (a)
that one or both of its [Home Indemnity's] motions should have
been granted and (b) that the verdict in favor of Reynolds was
not against the weight of the evidence. Obviously, under these
assumptions the evidence must have differed at the time of the
motions and at the time of the trial. Obviously, a greater
quantity or a better quality of evidence was produced by
Reynolds at the trial than on the motions.

"An incorrect ruling [denying Home Indemnity's motions]
deprived the moving party of a judgment it should have had. It
could not immediately appeal from the orders denying its
motions because the orders were not final and appealable. * *

* If it cannot appeal after judgment, * * * what remedy does
it have? To deny a review seems to be unjust. But to grant it
would necessarily result, under our first assumption, in the
finding that the judgment entered upon the verdict should be
set aside and that judgment should be awarded upon one of the
motions. This would be unjust to the party that was victorious
at the trial, which won judgment after the evidence was more
completely presented, where cross-examination played its part
and where witnesses were seen and appraised.

"The greater injustice would be to the party which would
be deprived of the jury verdict. Otherwise, a decision based
on less evidence would prevail over a verdict reached on more
evidence and judgment would be taken away from the victor and
given to the loser despite the victor having the greater weight
of evidence. This would defeat the fundamental purpose of
judicial inquiry.

"We hold that if a motion for summary judgment is
improperly denied the error is not reversible for the result
becomes merged in the subsequent trial. Therefore, even if an
examination of the affidavits, counter-affidavits, depositions
and exhibits were to lead to the conclusion that either one or
both of Home Indemnity's motions should have been granted it
would avail nothing, for the error cannot be reviewed." Home
Indemn. Co., supra, 38 Ill.App.2d at 365-367, 187 N.E.2d at
277-278.

We agree with this cogent analysis of the issue. The
question whether the trial court erred in denying Continental's
motion for summary judgment became irrelevant and the error (if
any) was corrected when the jury determined the issues at trial
in favor of appellants.

We recognize that our decision today might be cited as
having some impact on the case of Balson v. Dodds (1980), 62
Ohio St.2d 287, 16 O.O.3d 329, 405 N.E.2d 293, wherein this

court held, at paragraph one of the syllabus, that "[a] trial
court's denial of a motion for summary judgment is reviewable
on appeal by the movant from a subsequent adverse final
judgment." However, as noted by the author of Balson, Justice
William B. Brown, in his concurring opinion in Dupler v.
Mansfield Journal (1980), 64 Ohio St.2d 116, 127, 18 O.O.3d
354, 361, 413 N.E.2d 1187, 1195, fn. 11, Balson did not address
the question whether the harmless error doctrine applies to
determinations denying summary judgment motions. Further, the
denial of the motion for summary judgment in Balson could not
have been harmless since the denial was predicated upon a pure
question of law, i.e., the legal conclusiveness of a party's
failure to timely respond to requests for admissions.4
Similarly, the case of Nayman v. Kilbane (1982), 1 Ohio St.3d
269, 1 OBR 379, 439 N.E.2d 888, is also distinguishable from
the case at bar.5

Moreover, appellants correctly note the distinctions
between the case at bar and cases such as State ex rel. Emrick

v.
Wasson (1990), 62 Ohio App.3d 498, 576 N.E.2d 814, and Bean

v.
Metro. Property & Liability Ins. Co. (1990), 68 Ohio App.3d
732, 589 N.E.2d 480. Both Emrick and Bean involved appellate
review of the denial of a motion for summary judgment where no
intervening trial occurred on the merits of the case. For
instance, Emrick was decided by the trial court on
cross-motions for summary judgment. The court found no genuine
issue of material fact, and none of the parties challenged that
finding. The trial court applied the law to the undisputed
facts in the case, denied relators' motion, and granted the
motion of the respondents. On appeal, the court of appeals
reversed the decision of the trial court denying relators'
motion and entered final judgment for relators, finding that
the trial court erred in its conclusions of law. Id. at 508,
576 N.E.2d at 820. Our decision today has no effect on cases
such as Emrick and others involving pure questions of law. We
hold only that where, as here, a motion for summary judgment is
denied upon a finding that genuine issues of material fact
exist that must be determined at trial, and the subsequent
trial on the issues raised in the motion supports a final
judgment for the party against whom the motion was made, that
final judgment is not to be disturbed solely because it might
have appeared before trial that no genuine issue of material
fact existed.

The next issue raised by appellants involves the relative
merits of the "minor deviation" rule. Appellants and amicus
invite this court to abandon the "minor deviation" rule in
favor of the more liberal "initial permission" rule rejected in
Gulla, supra, 151 Ohio St. 147, 39 O.O. 2, 85 N.E.2d 116, Selz,
supra, 6 Ohio St.3d 169, 6 OBR 227, 451 N.E.2d 1203, and Erie,
supra, 15 Ohio St.3d 380, 15 OBR 497, 474 N.E.2d 320. However,
appellants prevailed at trial even though the jury was
instructed on the "minor deviation" rule. Given our
determination that the judgment of the trial court and the
findings of the jury are to be reinstated, the issue whether
the "minor deviation" rule should now be rejected in favor of a
more liberal rule for determining the scope of permitted use is
not an issue that must be decided in this case. For this
reason, we decline the invitation of appellants and amicus to

revisit the rule of Gulla and its progeny.

As a final matter, Continental has raised the following
proposition of law:

"The burden of proof is on a person injured to establish
that the individual operating the automobile at the time of the
accident comes within the protective provisions of an
automobile liability insurance policy."

At trial, the trial court instructed the jury that
Continental bore the burden of proof on the issue of coverage.
Continental objected to this instruction. The trial court
overruled the objection. On appeal, the court of appeals did
not address the issue, given the court of appeals' conclusion
that Continental was entitled to summary judgment.

Continental has not filed a cross-appeal in this case.
However, Continental did preserve the alleged error by raising
the argument in the court of appeals. In deciding the merits
of this issue, we reject Continental's proposition of law since
Continental was the party in the lawsuit urging the affirmative
of a proposition and, thus, bore the burden of establishing the
matters raised in its complaint.6

For the foregoing reasons, we reverse the judgment of the
court of appeals and reinstate the judgment of the trial court.
Judgment reversed.
Moyer, C.J., A.W. Sweeney, Resnick, F.E. Sweeney and
Pfeifer, JJ., concur.

Wright, J., dissents.
FOOTNOTES:
1 The named insured in the policy was "Terry Whittington &
William Brinley DBA Whittington Poultry." (Emphasis added.)
Apparently, Whittington Poultry and Whittington Produce were
names for the partnership business that were used
interchangeably.
2 R.C. 4509.51 provides, in part:

"Every owner's policy of liability insurance:

"(A) Shall designate by explicit description or by
appropriate reference all motor vehicles with respect to which
coverage is thereby granted;

"(B) Shall insure the person named therein and any other
person, as insured, using any such motor vehicles with the
express or implied permission of the insured, against loss from
the liability imposed by law for damages arising out of the
ownership, maintenance, or use of such vehicles * * *[.]"
3 We disregard as unfounded any notion that our holding
today encourages the denial of valid (meritorious) motions for
summary judgment. See, generally, Love v. Motorists Mut. Ins.
Co. (1993), 86 Ohio App.3d 394, 404-405, 620 N.E.2d 987, 994
(Grey, J., concurring in part and dissenting in part).
Obviously, we encourage trial courts to grant summary judgment
where it is appropriate to do so.
4 In Balson, plaintiff Mary J. Balson filed a complaint
against defendant Linda Dodds alleging that Dodds had alienated
the affections of Balson's husband, and engaged in criminal
conversation. Requests for admissions were filed along with
the complaint. Dodds filed a timely answer to the complaint,
but her answers to the requests for admissions were filed
several days late. Before Dodds filed the late answers to the
requested admissions, Balson had filed a motion for summary

judgment arguing that Civ.R. 36 required that the requests for
admissions be deemed admitted and that Balson was entitled to
judgment based upon the admissions. The trial court denied the
motion, finding that the late filing was due to an honest
mistake, and that the matter should proceed to trial. At
trial, the trial court granted Dodds a directed verdict at the
close of Balson's case-in-chief. On appeal, the court of
appeals affirmed the judgment of the trial court and refused to
consider the issue whether the trial court had erred in denying
the motion for summary judgment.

On further appeal, this court upheld the trial court's
decision denying Balson's motion for summary judgment, finding
that the trial court appropriately interpreted and applied
Civ.R. 36 to allow Dodds to escape the legal conclusiveness of
her failure to timely respond to the requests for admissions.
Id., 62 Ohio St.2d at 290-291, 16 O.O.3d at 331, 405 N.E.2d at

296.
5 In Nayman, Melvin E. Mazza, Jr. filed an
employment-related intentional tort action against various
defendants, seeking to recover for injuries sustained at his
place of employment. The defendants moved for summary judgment
claiming that the action was barred by the Workers'
Compensation Act. The trial court denied the motion and
scheduled the case for trial. Thereafter, the defendants filed
an original action in prohibition in the Court of Appeals for
Cuyahoga County, seeking to prohibit the trial judge from
allowing the case to proceed to trial. Alternatively, the
defendants-relators requested that the court of appeals order
the trial judge to grant the motion for summary judgment on all
issues raised in Mazza's complaint. The court of appeals
dismissed the original action.

On appeal, this court affirmed the judgment of the court
of appeals, finding that the trial court had jurisdiction to
consider Mazza's cause of action. Id., 1 Ohio St.3d at 271, 1
OBR at 380-381, 439 N.E.2d at 890. We further indicated that
defendants-relators had an adequate remedy at law to appeal the
denial of their summary judgment motion at the conclusion of
the trial court proceedings. Id. Obviously, given the facts
and procedural posture of Nayman, this court did not consider
whether the doctrine of harmless error would apply in any
subsequent appeal from the denial of the motion. Additionally,
the issue in Nayman involved the trial court's subject matter
jurisdiction -- an issue of law that could always be raised by
the defendants-relators in a subsequent appeal from an adverse
final judgment.
6 We note that the reported Ohio appellate decisions cited
by Continental in support of its proposition are
distinguishable from the case at bar. Namely, Continental
cites Baily v. Weaver (1941), 67 Ohio App. 259, 21 O.O. 248, 35
N.E.2d 1006, Marolt v. Lisitz (1952), 94 Ohio App. 298, 51 O.O.
451, 115 N.E.2d 169, and Carver v. Johnson (1962), 91 Ohio Law
Abs. 40, 191 N.E.2d 62. These cases hold that a person injured
in an automobile accident bears the burden of proof in a
supplemental proceeding against a liability insurance carrier
to show that the driver of the automobile was an "insured" at
the time of the accident. For example, in Marolt, supra,
paragraph one of the syllabus, the court held that "[w]here the

omnibus clause of an insurance policy covers one who uses the
automobile with the permission of the named insured, the burden
of proof is on a person injured to establish that the
individual operating the automobile at the time of the accident
comes within the protective provisions of the policy." Accord
Baily, supra, 67 Ohio App. 259, 21 O.O. 248, 35 N.E.2d 1006,
paragraph three of the syllabus; Carver, supra, 91 Ohio Law
Abs. at 42, 191 N.E.2d at 63. However, in each of these three
cases the injured person with the burden of proof was the
plaintiff in the litigation. Here, Continental initiated a
declaratory judgment action seeking a determination that Sonner
had exceeded the scope of the permission granted to him to
operate the vehicle. As the party in the lawsuit seeking to
change the status quo and the party urging the affirmative of a
proposition, Continental bore the burden of proof. Therefore,
the trial court was correct to instruct the jury as it did.

Wright, J., dissenting. I would affirm the decision of
the court of appeals. The majority incorrectly concludes that
there were genuine issues of material fact that justified the
trial court's denial of Continental's motion for summary
judgment. In determining whether a denial of summary judgment
is proper, we must review the record before the trial court at
the time Continental moved for summary judgment. Civ. R.
56(C). If the record at the time of the motion for summary
judgment does not contain evidence creating a genuine issue of
material fact, denial of summary judgment is improper. Wing v.
Anchor Media, Ltd. of Texas (1991), 59 Ohio St.3d 108, 570
N.E.2d 1095. In this case, the record contained no evidence
that Sonner had permission to use the van for personal purposes
and did contain evidence that his use of the van constituted a
gross deviation from the scope of permission initially granted
by Whittington. Consequently, the record did not raise a
genuine issue of material fact and denial of summary judgment
was improper.

The holding of the majority creates a new rule that
appellate review of a denial of summary judgment is precluded
once the case has gone to trial. This rule is in outright
conflict with our decision in Balson v. Dodds (1980), 62 Ohio
St.2d 287, 16 O.O. 3d 329, 405 N.E.2d 293, paragraph one of the
syllabus, where we held that "[a] trial court's denial of a
motion for summary judgment is reviewable on appeal by the
movant from a subsequent adverse final judgment." The court in
that case reasoned that if the denial of a motion for summary
judgment is nonreviewable when the cause has subsequently gone
to trial, the appellant "would be required to choose either
trial on the merits without preserving for appellate review the
trial court's alleged error on summary judgment or immediate
appellate review of the trial court's alleged error on summary
judgment without preserving [the] right to trial on the
merits." (Emphasis sic.) Id. at 289, 16 O.O.3d at 330, 405
N.E.2d at 295. The court concluded that such a scheme would
"inhibit effective and consistent appellate court scrutiny of
trial court compliance with pre-trial procedure. To avoid such
difficulties, appellant should be permitted to try [the] case
on the merits and still preserve for appellate review the trial
court's alleged error on summary judgment." Id. at 289, 16
O.O.3d at 331, 405 N.E.2d at 295. This is rock solid law and

should not be tampered with.

The majority states, "[w]e recognize that our decision
today might be cited as having some impact on the case of
Balson v. Dodds." (Emphasis added.) The holding of the
majority has more than "some impact" on Balson. It overrules
the holding in its entirety, thereby confronting head-on the
problem created by precluding review of the denial of summary
judgment -- inhibiting effective and consistent appellate
court scrutiny of trial court compliance with pretrial
procedure.

The majority states that under Civ. R. 61, even if the
trial court erred in denying Continental's motion for summary
judgment, that error did not rise to the level of reversible
error because the ensuing trial supported a judgment in favor
of the defendants. Such reasoning flies in the face of the
policy announced in Balson, supra. The ruling of the trial
court could not be considered "harmless error" as proposed by
the majority because the court's error greatly affected the
substantial rights of the parties. The majority is essentially
rewriting a contract between the parties by extending coverage
far beyond the contemplation of the parties when they formed
the contract.

Whittington could not have been more clear when he gave
Sonner instructions concerning the use of the company van. He
told Sonner to take the other workers to their homes, and then
to "take [the van] home and leave it there and pick the guys up
tomorrow morning and go to the farm." After Sonner took the
co-workers to their homes, he drove the company van to a
friend's home. While at his friend's home, Sonner, who was
only eighteen years old at the time, drank five beers in less
than two hours. After drinking the beers, Sonner decided to
drive his friends to Piqua, Ohio. Although Sonner was aware of
the fact that company policy prohibited the use of alcohol in
its vans, Sonner permitted his friends to bring beer in the van
with them. This is clearly a "frolic and detour" if I ever saw
one.

Sonner admitted in his deposition that his use of the van
on the night of the accident exceeded the permission given to
him by Whittington. He also admitted that he was not
authorized to drive the van for personal use, and that this
personal use had absolutely nothing to do with his employment
at Whittington Produce.4 When he testified at trial, Sonner
changed his statement to better comport with the defendants'
position. This testimony was not part of the record at the
time Continental moved for summary judgment and therefore
cannot be considered when reviewing the merits of the motion.
Even though he changed some of his testimony at trial, Sonner
still admitted that the use of the van on the night of the
accident was personal, that he was not using the van for any
reason for which Whittington had given him permission, and that
he did not have permission to drive the van for personal
purposes.

The issue before the trial court was whether Sonner was an
"insured" under the insurance policy provided to Whittington
Produce by Continental Insurance. "Insured" is defined in the
policy as follows:

"a. You [Whittington Produce] for any covered 'auto'.

"b. Anyone else while using with your permission a covered
'auto' ***." (Emphasis added.)

It is clear from his deposition that Sonner did not have
the permission of Whittington to use the company van for
personal reasons and that his use of the van at the time of the
accident greatly exceeded the scope of permission, whether
express or implied, granted by Whittington. Furthermore, there
is no indication from the depositions of Thomas Sonner, Lewis
Hawes, or Terry Whittington that Sean Sonner had permission,
express or implied, to use the company van for personal
purposes or that there was a company policy, express or
implied, which permitted the personal use of company vehicles.
Accordingly, no genuine issue of material fact existed that
could justify the denial of summary judgment in favor of
Continental.

The majority professes that it has declined the invitation
of appellants and amicus to adopt the "initial permission"
rule, which we rejected in Gulla v. Reynolds (1949), 151 Ohio
St. 147, 39 O.O. 2, 85 N.E.2d 116, and its progeny. However,
by refusing to view Sonner's irresponsible actions as anything
but a gross deviation, the majority seems to be applying the
initial permission rule. The reason we rejected this rule was
because it "obviously lends itself to gross abuse by an
unscrupulous individual who, in violation of his express
instructions, might retain possession of the automobile
indefinitely and operate it over unlimited territory with the
insurance still in effect." Id. at 154, 39 O.O. at 5, 85
N.E.2d at 120. This is precisely what Sean Sonner did when he
disregarded the express instructions of his employer by picking
up some friends, drinking alcoholic beverages, and driving
miles away from his home. Because Whittington did not
explicitly state "do not get drunk and drive your friends
around town," the majority feels he is deemed to have given
implied permission for Sonner to do just that. This simply
does not follow. How the majority can view Sonner's actions as
anything but a gross deviation from the scope of permission
granted astounds me. The more the majority tries to explain
it, the less one can understand it.

For the above-mentioned reasons, I respectfully dissent.
FOOTNOTE:

1 At his deposition, Sonner testified as follows:

"Q: At the time you had the accident on July 5, 1989 were
you using the van for any reason associated with your work at
Whittington Produce?

"A: No.

"Q: Were you using the van for any reason that Terry
Whittington had given you permission to use the van?

"A: No.

"Q: At the time of the accident on July 5, 1989 did you
realize you were exceeding the scope of the permission Mr.
Whittington had given you?

"A: Yeah."

Sonner further testified as follows:

"Q: Those verbal instructions were to drop the guys off,
leave the van at your house and to pick them up the next
morning, is that right?

"A: Yeah.

"Q: Did Mr. Whittington ever authorize your use of the van
for personal use?

"A: No.

"Q: And your use of the van on the evening of July 5, 1989
was for personal use?

"A: Yes.

"Q: It had nothing to do with your employment at
Whittington Produce?

"A: Nope."

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