
    Barbian, Administrator, v. Cooper et al.
    [Cite as Barbian v. Cooper (1972), 32 Ohio Misc. 59.]
    (No. 134498
    Decided May 23, 1972.)
    Common Pleas Court of Montgomery County.
    
      Messrs. Wiles, Doucher é Tressler and Mr. Stanley K. Van Burén, Messrs. Andary, Geisenfeld é Isenson and Mr. Fred M. Isenson, for plaintiff.
    
      Messrs. Curtner, Selva & Thornburgh and Mr. William II. Selva, Messrs. Young & Alexander and Mr, Ted ilenks^ for defendant^,
   Brenton, J.

This cause is before the court for determination upon the cross complaint of defendant, Buckeye Union Insurance Company for declaratory judgment, the answer of the plaintiff to the cross complaint, the stipulation of the parties, the evidence and the briefs and memorandums..

Essentially Buckeye Union Insurance Company requests that the court declare that its policy of insurance number 70 A 1385 44 38 is void as to covering defendant Jerry Lee Cooper for any action or actions against him growing out of or resulting from the operation of a Dodge automobile on May 16, 1969.

The thrust of Buckeye’s argument has to do with an alleged violation of the “cooperation clause” of the insurance contract. Buckeye avers that defendant Cooper made a deal with plaintiff’s counsel to the effect that if Cooper would cooperate in giving plaintiff a statement, plaintiff and counsel in turn would not object to probation for Cooper in his then pending manslaughter case and, in fact, that they would, if requested, appear before Judge Brenton to assist Cooper on probation in any way they could.

The facts delineated from the record and essential to this controversy are:

That Cooper was involved in an automobile collision on May 16,1969, and as a result thereof Betty Lou Barbian was killed.

On May 29, 1969, Buckeye’s insurance adjuster, Telmo Suarez, took a detailed statement from Cooper as to the facts and circumstances of the automobile collision. In this statement Cooper stated he had a part of a quart of beer to drink and then remembered that because of medicine he was taking, he was not to drink and quit drinking. This was on the day of and sometime before the accident.

On October 14, 1969, at the request of Cooper’s personal attorney, Jerome B. Bohman, Cooper appeared in Bohman’s office and in the presence of Bohman, attorneys for plaintiff Barbian interrogated Cooper and his wife before a certified shorthand reporter. In that statement Cooper stated that he consumed a considerable quantity of beer plus several shots of whiskey on the day of and before the accident.

Prior to the statement given by Cooper to counsel for plaintiff, Cooper had been charged in this court with homicide by motor vehicle in the first degree.

Counsel for the plaintiff approached Mr.. Bohman for the statement from Cooper and in so approaching stated to Bohman that Mr. Barbian was not interested in persecuting Cooper and would be glad to cooperate with Bohman and Cooper in doing whatever they could to get Cooper probation on the homicide charge.

Bohman did not exact a promise from the plaintiff and his counsel to appear before this court or to tall?: to the judge about probation for Cooper but that he certainly would not turn down all the help he could get.

Neither Cooper nor Bohman at any time ever requested counsel for plaintiff or Mr. Barbian to appear before the court on Cooper’s behalf with regard to probation.

On February 2, 1972, Cooper’s deposition was taken at the Lebanon Correctional Institution and thereafter Mr. Selva, who was then defending Cooper on the wrongful death action in this cause at the request of Buckeye, and then defending by reason of the insurance policy contract now in question, learned for the first time that Cooper, in fact, had consumed considerable more alcohol than he had admitted to the adjuster and that he had given a statement to plaintiff’s counsel on the proposition that he would get some aid and comfort from them with respect to probation at the time of the proceedings against him for the homicide.

This case for declaratory judgment presents several questions as follows:

1. Whether an insured’s original tale to his insurance adjuster that he had drunk “only a half quart of beer” prior to the accident is later changed to “five quarts of beer and a few shots of whisky” in his sworn statement before plaintiff’s counsel and prior to any civil action constitutes a violation of the insurance policy contract “cooperate clause.”

2. Whether a declaratory judgment by way of a cross complaint against the defendant insured by his insurer in the original action on the wrongful death claim is an appropriate and proper proceeding.

3. Whether the question of a violation of the “cooperation clause” is one of law or fact.

4. Whether the giving of a statement by an insured to plaintiff’s counsel by way of sworn testimony in the hope that plaintiff and plaintiff’s counsel will provide some aid and comfort to the insured on his homicide case arising out of the same accident is collusion such as to violate the insurance contract’s “cooperation clause.”

Research would indicate conclusively that in general the question of whether some action by an insured is such as to make the contract void as to him under the requirement of the “cooperation clause” is determined by whether such action is material.

G-enerally speaking, to constitute a breach of the cooperation provision of the insurance contract, there must be a lack of cooperation by the assured in some material and substantial respect. Finkle v. Western Auto Co. 224 Mo. App. 285, 26 S. W. 2d 843. Western Casualty and Surety Co. v. Barnhart, 312 F. 2d 148; Lundz et al. v. Ohio Casualty and Surety Co., 135 Ohio St. 225. The court further finds from the facts and circumstances in evidence that the only discrepancy in Cooper’s statements is that on his deposition and on his stalement to counsel for plaintiff he told of consuming much more alcohol than he had originally told his insurance company. This discrepancy was, in fact, a misrepresentation.

The court also finds that Ohio has not determined whether an insured’s misrepresentation as to his consumption of alcohol just prior to an accident is a violation of the “cooperation clause” in a material and substantial respect.

In Ohio the issue as to whether there has been a violation of the “cooperation clause” is clearly one for the trier of the facts. Costa v. Cox, 168 Ohio St. 379; Weaver v. Ballard, 174 Ohio St. 59.

On the question of whether or not a declaratory judgment action by way of cross claim is proper, this court finds that this question has not been specifically determined. Nonetheless in Travelers Indemnity Co. v. Cochrane, 159 Ohio St. 305, the court found that a declaratory judgment action brought on this same issue, that is the “cooperation clause” before judgment on the original complaint though not in the same action was proper. By analogy, then, this court is of the opinion that the proceedings here are appropriate, proper and in accordance with law.

It has been held that misrepresentation as to the consumption of alcohol is not a material and substantial violation of the “cooperation clause” in Pacific Indemnity Co. v. MacDonald, 107 F. 2d 446 (Oregon); Western Casualty and Surety Co. v. Barnhart, 312 F. 2d 149 (Mo.).

Considering all the facts and circumstances before this court on the record, the preponderance of the evidence fails to show that the misrepresentation as to alcohol consumed is of such a nature as to violate the “cooperation clause” of the policy.

Finally the court also finds upon all the facts and circumstances that there was no collusion between Cooper and plaintiff of any material significance substantially effecting Buckeye’s position to its prejudice. Therefore, the fact that Cooper gave statements to the plaintiff about the facts and circumstances surrounding the accident on the strength that some help on probation in all common probability would be forthcoming is not such collusion and non-cooperation as to render the policy contract void as to Cooper absent fraud and material or substantial discrepancies in his statements given at various times.

This court deems it to be not improper for an insured to make true statements to a claimant regarding the facts within the insured’s knowledge. Furthermore, it is no more a breach of the “cooperation clause” for an insured to furnish such truthful information as he has in his possession to the attorney for the plaintiff than it is to furnish it directly to the claimant.

In conclusion this court is of the opinion that the Buckeye Union Insurance Company cannot be affected by the misrepresentation as to the amount of alcohol consumed by the insured, however reprehensible in itself it may appear to have been. The insured was consistent in his statements that he did not know what happened at the time the accident occurred and the complaining insurance company knew or should have known by its continuing investigation as to the trouble the insured was involved by reason of his indictment for homicide by motor vehicle and other criminal charges placed against him resulting from the accident. The complaining insurance company is not in fact prejudiced or aggrieved by any of the action or inaction complained of by the insured Cooper.

Wherefore the court declares, orders, decrees and renders judgment on the cross complaint of Buckeye Union Insurance Company as follows:

That the provisions of policy number 70[ A XXXX XX XX ] issued by Buckeye Union Insurance Company do afford coverage to Jerry Lee Cooper thereunder while he operated a certain 1966 Dodge Charger automobile on May 16, 1969, and that by reason thereof Buckeye Union Insurance Company is obligated to pay any judgment for or on behalf of Jerry Lee Cooper that may be rendered against him resulting from an automobile collision in which he was involved on May 16, 1969, to the extent of the limits of the policy..

Costs of the proceedings on this declaratory judgment action are assessed against the defendant Buckeye Union Insurance Company.

Judgment for defendant insured.  