If this case was [sic] to be decided on a common law basis, the Court would find from the evidentiary material submitted that Farran was not acting within the scope of his employment (or contract) at that [sic] time Sprinkle was injured, and grant the Defendant's motion for summary judgment.But, this Court is bound by the Wyckoff case [Wyckoff Trucking, Inc. v. Marsh Bros. Trucking Service, Inc., 58 Ohio St.3d 261, 569 N.E.2d 1049 (1991) ] and the Second Appellate District cases applying and interpreting the public policy reason to establish an irrebuttable presumption; which is to protect injured third parties in such cases from the factual confusion attendant to determining who is responsible for damages. Cincinnati Ins. Co. v. Haack, pg. 197, [ Cincinnati Ins. Co. v. Haack, 125 Ohio App.3d 183, 708 N.E.2d 214 (2nd Dist.1997) ] citing Wyckoff.The Defendant's motion for summary judgment is overruled.

58 Ohio St.3d at 266. {¶ 19} The facts of the present case are strikingly similar to Cincinnati Ins. Co. v. Haack (1997), 125 Ohio App.3d 183. A glaring omission from appellants' brief is any mention of Haack, a case relied upon by the trial court and extensively cited by appellees at both the trial level and in the instant appeal.

Since Wyckoff, intermediate Ohio appellate courts have split on whether the Wyckoff holding extends to such disputes. Compare Lime City Mut. Ins. Ass'n v. Mullins, 83 Ohio App.3d 517, 615 N.E.2d 305, 309 (1992) (" Wyckoff Trucking . . . does not govern the relationship between insurers."), and Lakes v. Minor, 86 Ohio App.3d 386, 620 N.E.2d 1015, 1018 (1993), with Cincinnati Ins. Co. v. Haack, 125 Ohio App.3d 183, 708 N.E.2d 214, 226 (1997) ("[T]he [Ohio] Supreme Court's decision in Wyckoff . . . could be extended to settle the dispute between the owner's and lessee's insurer."), and Ohio Cas. Ins. Co. v. United S. Assurance Co., 85 Ohio App.3d 529, 620 N.E.2d 163, 165-66 (1993) ("If the doctrine of statutory employment irrefutably establishes the liability of the carrier-lessee, then the doctrine should also establish that the carrier-lessee's insurance company is responsible for the coverage."). In the absence of clear legal directives from the Ohio Supreme Court, a federal court applying Ohio law must predict what the Ohio Supreme Court would hold.

The Ohio courts utilize the following test for determining whether a driver is acting "in the business of a lessee": "[A]n assignment for a lessee does not terminate until the owner-driver returns to the point where the haul originated, to the terminal from which the haul was assigned, or to the driver's home terminal from which he customarily obtained his next assignment." Cincinnati Ins. Co. v. Haack, 125 Ohio App.3d 183, 208 (2d Dist. 1997) (citing St. Paul Fire Marine Ins. Co. v. Frankart, 69 Ill.2d 209 (1977)). In this case, it is not disputed that Moon had not yet returned to his home, or any of the other relevant points cited above, at the time of the accident.

F.2d 258 (2d Cir. 1991);Johnson v. S.O.S. Transport, Inc., 926 F.2d 516 (6th Cir. 1991); Price v. Westmorland, 727 F.2d 494 (5th Cir. 1984);Rodriguez v. Ager, 705 F.2d 1229 (10th Cir. 1983); White v. Excalibur Ins. Co., 599 F.2d 50 (5th Cir. 1979); Wellman v. Liberty Mutual Ins. Co., 496 F.2d 131 (8th Cir. 1974); Proctor v. Colonial Refrigerated Transportation, Inc., 494 F.2d 89 (4th Cir. 1974); Simmons v. King, 478 F.2d 857 (5th Cir. 1973);Mellon Nat'l Bank Trust Co. v. Sophie Lines, Inc., 289 F.2d 473 (3d Cir. 1961): Reliance Nat'l Ins. Co. v. Royal Indem. Co., No. 99 Civ. 10920 (NRB), 2001 U.S. Dist. LEXIS 12901 (S.D.N.Y. Aug. 24, 2001); Baker v. Robert's Express, Inc., 800 F. Supp. 1571 (S.D.Ohio 1992); Riddle v. Trans-Cold Express, Inc., 530 F. Supp. 186 (S.D.Ill. 1982); Pierre v. Providence Washington Ins. Co., 784 N.E.2d 52 (N.Y. 2002); Parker v. Erixon, 473 S.E.2d 421 (N.C.Ct.App. 1996); Wycoff Trucking, Inc. v. Marsh Bros. Trucking Service, Inc., 569 N.E.2d 1049 (Ohio 1991);Cincinnati Ins. Co. v. Haack, 708 N.E.2d 214 (Ohio Ct.App. 1997); Stonerock v. Miller Bros. Paving Inc., 594 N.E.2d 94 (Ohio Ct.App. 1991); Wilkerson v. Allied Van Lines, Inc., 521 A.2d 25 (Pa. 1987). This Court does not purport to offer any opinion regarding whether or not suits by a "statutory employee" driver against the "statutory employer" are barred by § 390.5, a question not presented in this case.

In answering that proposition in the affirmative, the court noted that, pursuant to Ohio law, "'an owner-driver remains in the business of the carrier-lessee until the owner-driver "returns to the point where the haul originated * * * to the terminal from which the haul was assigned * * *, or to the owner-driver's home terminal from which he customarily obtained his next assignment.'" Illinois Natl. at 654, quoting Marine Ins. Co. Frankart, 69 Ill.2d 209, 218 (1977); see also Cincinnati Ins. Co. v. Haack, 125 Ohio App.3d 183 (2d Dist.1997). Thus, when considering the totality of the events prior to the accident, the court determined that Moon remained in the business of the motor carrier until he returned home from Dofasco and was excluded from Ohio 9 Security's coverage.

Placard liability, or the proposition that liability for the loss runs with the placard displayed on the truck, is well established in Ohio. See, e.g., Cincinnati Ins. Co. v. Haack, 12 Ohio App.3d 183, 708 N.E.2d 214 (2nd Dist. 1997). In the instant case, there is no lease agreement, or any written agreement alleged between [Buroker] and Snyder and/or Turmoil Trucking.

Thus, it found that pursuant to the federal regulations, Bell was irrebuttably presumed to be Rogers' employee. {¶ 120} In Cincinnati Ins. Co. v. Haack (1997), 125 Ohio App.3d 183, 708 N.E.2d 214, the Second District Court of Appeals analyzed and explained Wyckoff stating, "when a lessee motor carrier's I.C.C. or P.U.C.O. [Ohio] placard is in the window of the truck at the time of the accident, the driver and truck are presumed to be under the employment of the lessee motor carrier and presumed to have been acting `in the service of' the motor carrier at the time of the accident." Id. at 197.

Id. at 772-73. See, also,Cincinnati Ins. Co. v. Haack (Dec. 5, 1997), Montgomery App. No. 16375, unreported. Accordingly, appellant's third assignment of error is found not well-taken.