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Published: Wednesday, 9/15/2010

Justices hear arguments on insurance in bus crash

BY JIM PROVANCE
BLADE COLUMBUS BUREAU CHIEF

COLUMBUS - An emotional case involving a 2007 bus crash that killed seven people, including five members of Bluffton University's baseball team, boiled down to legal definitions of two words Tuesday before the Ohio Supreme Court.

The question of whether the survivors of that Georgia crash and the families of those killed may make claims under the university's insurance policies in addition to that of the charter bus company will be determined by how the court defines the words "hire" and "permission."

Did Bluffton University "hire'' the bus when it contracted with Ottawa-based Executive Coach Luxury Travel, and did the team's coach give "permission'' to use a company driver to get the team to and from a Sarasota, Fla., tournament?

In both cases, Allen County Common Pleas Court and the Lima-based 3rd District Court of Appeals said "no'' in dismissing the lawsuit against the university's insurance carriers. The Supreme Court did not rule Tuesday on the appeal.

"… the university has obtained use of that vehicle and is obviously using it with the permission of Executive Coach … " said Steven R. Smith, Toledo attorney for the estate of David Betts.

Mr. Betts was among the ballplayers killed when the bus driver apparently mistook an I-75 exit ramp near Atlanta for the continuation of a high-occupancy vehicle lane at about 5:38 a.m. on March 2, 2007.

The bus exited the highway at an estimated 65 miles per hour, crossed a street intersection at the top of the ramp, struck a barrier on the far side, flipped over the barrier, and landed 19 feet below back on the highway.

In addition to Mr. Betts, Bluffton students Tyler Williams and Scott Harmon of Lima, Cody Holp of Arcanum, and Zach Arend of Oakwood were killed immediately or died soon after the crash.

Also killed were bus driver Jerome Niemeyer and his wife, Jean, of Columbus Grove.

Twenty-eight other players and team staff members were injured, seven of them seriously.

"Executive Coach called the baseball coach and specifically asked, as you might expect since the driver was going to spend a week in Florida with the team, 'Is it all right for Mr. Niemeyer to be your driver?'•" Mr. Smith told the court. "The coach said 'Yes.'•"

The case revolves around language in the university's insurance contracts.

The policy with the school's primary insurer, Hartford Insurance Co., covers any vehicle that the university "owned, hired, or borrowed."

The school also had two supplementary insurance policies.

The insurers maintain that the bus was never under the control of the university but rather of an independent contractor.

"The facts are clear that at all times Executive and the driver maintained possession and control … " said John Travis, attorney for Federal Insurance Co., which held one of the supplemental policies.

But several members of the court questioned this, noting that at one point the coach made an issue of a malfunctioning DVD system on the bus, prompting the charter company to correct the problem before setting out on the trip.

"Everything about the trip is going to be controlled by the coach. … " Justice Paul Pfeifer said.

"The coach may not tell the driver which filling station to fill up at, but other than that everything about that trip is really going to be driven by the coach's instructions. And when you look at the contract here, it doesn't help much to resolve this. The contract is bare bones. … "

Contact Jim Provance at:

jprovance@theblade.com

or 614-221-0496.



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