Hines v. Camper?(Ohio)(Not Published)
(A passenger in a car participating in a street race was injured when the car crashed. ?After the insurer of the driver?s car refused to afford coverage, the plaintiff brought an uninsured/underinsured action against it. ?The trial court ruled that the policy exclusion relating to racing and speed contests precluded coverage. ?The passenger appealed, arguing he was not a ?participant,? but ?the decision was affirmed on appeal.)
The plaintiff and several of his friends gathered to participate in an amateur street drag race one evening. ?Plaintiff sat in the back seat of the car during the race since the front passenger seat did not have a seatbelt. ?During the race, the driver of the car lost control and they crashed, with the plaintiff suffering numerous injuries. ?Following the incident, the?plaintiff?sought recovery from the insurance company that insured the parents of the driver. ?However, the claim was denied based upon the exclusion that provided that the insurer ?will not pay any damages an insured person or an additional insured person is legally entitled to recover because of bodily injury . . . arising out of the participation in a pre-arranged, organized, or spontaneous . . . racing contest . . . speed contest . . .or use of an auto at a track or course?designed?or used for racing or high performance driving . . . .?
At the trial court level, the defendant insurer?s motion for summary judgment was granted based on both the aforementioned policy exclusion and the?plaintiff?s?assumption of the risk of injury associated with him entering the vehicle involved in the street race. ?The plaintiff appealed, arguing (1) he was not a ?participant? in the street race because he was not driving and (2) there was a triable issue of material fact pertaining to his assumption of the risk.
On appeal, the Court affirmed the lower court?s decision. ?First, the Court noted that the evidence showed that prior to the incident, both plaintiff and the driver of the vehicle were aware of the intention of the parties to participate in a street race. ?Although ?participant? was not defined in the policy, the Court applied a common definition of the term which referred to ?the action or state of partaking in something? and ?the association with others in a relationship or an enterprise.? ?It was clear to the Court that plaintiff was a ?participant? in the street race such that the policy exclusion applied and precluded coverage.
In light of the Court?s decision on the policy exclusion, it noted that it was ?unnecessary to address the trial court?s ruling regarding the operation of assumption of risk doctrine? in the case.
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Source: http://defendingsportsblog.com/2012/11/15/speed-trap/
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