Haney v. Nationwide Ins. Co.
| Decision Date | 21 June 2010 |
| Docket Number | Case No. CVH-2002-0776,CASE NO. 09 HA 6 |
| Citation | 2010 Ohio 3149 |
| Parties | DONNA JEAN HANEY, Administrator of the Estate of Edith Ager, etc PLAINTIFFS-APPELLEES v. NATIONWIDE INSURANCE COMPANY DEFENDANT-APPELLANT |
| Court | Ohio Court of Appeals |
APPEARANCES:
For Plaintiffs-Appellees: Atty. Frank J. Bruzzese Atty. Thomas Mark Beetham
For Defendant-Appellant: Atty. Ralph F. Dublikar Atty. James F. Mathews Baker, Dublikar, Beck, Wiley & Mathews
{¶1} Appellant, Nationwide Mutual Insurance Company, appeals the decision of the Harrison County Court of Common Pleas to enter summary judgment against it and in favor of Appellee, Donna Jean Haney, Administrator of the Estate of Edith Ager, and to award prejudgment interest to the estate in this declaration of coverage action. For the following reasons, the judgment of the trial court is reversed, and the prejudgment interest award is vacated.
{¶2} Mrs. Ager was killed in a motor vehicle accident on September 28, 2001. She was travelling northbound on State Route 9 in Harrison County, Ohio, when a red vehicle operated by an unidentified driver travelling southbound was in the process of passing a southbound pickup truck being driven by Jerry L. Anderson. As the red vehicle cut back into the southbound lane in front of Anderson, Anderson lost control of his truck, travelled left of center, and collided head-on with Ager.
{¶3} The parties stipulate that, on or about October 30, 2002, the sum of $50,000 was paid to the estate by Grange Mutual Insurance Company, Anderson's insurer, "in connection with [the estate's] release of all claims of liability against [Anderson], [his wife], and [Grange]." (Stip. at ¶10.) At the time of the accident, Ager was covered by a Nationwide automobile policy, Policy No. 92 34 N 125126 ("Ager policy"), issued on August 31, 2001, that included uninsured/underinsured motorist coverage with limits of $100,000 each person and $300,000 each occurrence. Nationwide subsequently paid the sum of $50,000 to the estate.
{¶4} The estate sought a declaration that Appellant owed the estate an additional $50,000 pursuant to the uninsured/underinsured motorist coverage provision in Ager's policy. In its motion for summary judgment, the estate reasoned that the red vehicle that forced Anderson off of the road was an "uninsured vehicle" as that term is defined by Ager's policy, and, that the estate should recover pursuant to the policy limits of the uninsured/underinsured motorist coverage provision.
{¶5} The Ager policy reads, in pertinent part:
{¶6} "An uninsured motor vehicle is:
{¶7} "* * *
{¶8} "d) a 'hit-and-run' motor vehicle which causes bodily injury to an insured.
{¶9} "The driver and the owner of the 'hit-and-run' vehicle must be unknown
* * *
{¶10} (Ager policy, Form V-2352A, p. 2.)
{¶11} Appellant does not dispute the fact that the red vehicle was an "uninsured motor vehicle" as that term is defined by the Ager policy, but argues instead that a setoff of the proceeds of the Grange settlement was mandated by R.C. 3937.18(A)(2).
{¶12} In Ross v. Farmers Ins. Group of Cos. (1998), 82 Ohio St.3d 281, 695 N.E.2d 732, the Supreme Court held that, "the statutory law in effect at the time of entering into a contract for automobile liability insurance controls the rights and duties of the contracting parties." Id. at syllabus. The Ager policy in effect on the date of the accident, September 28, 2001, was issued on August 31, 2001. Therefore, the version of R.C. 3937.18, effective September 21, 2000, applies in the case sub judice. The statute reads, in pertinent part:
{¶13} "(A) No automobile liability or motor vehicle liability policy of insurance insuring against loss resulting from liability imposed by law for bodily injury or death suffered by any person arising out of the ownership, maintenance, or use of a motor vehicle shall be delivered or issued for delivery in this state with respect to any motor vehicle registered or principally garaged in this state unless both of the following coverages are offered to persons insured under the policy due to bodily injury or death suffered by such insureds:
{¶14} "(1) Uninsured motorist coverage, which shall be in an amount of coverage equivalent to the automobile liability or motor vehicle liability coverage and shall provide protection for bodily injury, sickness, or disease, including death under provisions approved by the superintendent of insurance, for the protection of insureds thereunder who are legally entitled to recover from owners or operators of uninsured motor vehicles because of bodily injury, sickness, or disease, including death, suffered by any person insured under the policy.
{¶17} In its motion for summary judgment, the estate relied on the argument that under the facts of this case, Anderson was not negligent pursuant to the doctrine of sudden emergency, and, therefore, was not a "person[] liable to the insured." The trial court disagreed, specifically concluding that the $50,000 payment made by Grange "was received to resolve a claim of liability against the Andersons." (1/7/09 J.E., p. 5.)
{¶18} However, the trial court ultimately granted a declaratory judgment in favor of the estate. The trial court reasoned that Ager was killed by the negligence ofa driver of an uninsured motor vehicle, as that term was defined by her policy, and, "[n]either Ohio Revised Code Section 3937.18(A)(1), nor [the Ager policy] contain any provision similar to the specific 'amounts available for payment' language considered [in R.C. 3937.18(A)(2).]" (1/7/09 J.E., p. 6.) As a consequence, the trial court concluded that '[w]hile it may make sense that there be a limitation on the uninsured motorist coverage where an additional tortfeasor has insurance coverage, no restriction has been identified by [Nationwide]." (1/7/09 J.E., p. 6.) In a separate judgment entry, the trial court awarded prejudgment interest to the estate. This timely appeal followed.
{¶19} In making its decision here, the trial court had before it the stipulations of the parties, the Ager policy, and the release and settlement executed between the estate and Grange on behalf of the Andersons. Also before the trial court were the depositions of Gregory Mamula, an Ohio State Patrolman, Richard Milleson and Mary Jane McCaslin, both of the Milleson Insurance Agency, and Kenneth Ager, Ager's husband. Mr. Ager was a plaintiff in the trial court action, as well as the original administrator of the estate. Mr. Ager, in his personal capacity, sought a declaration of coverage under his own Nationwide policy. However, the trial court's decision with respect to Mr. Ager's policy was not appealed.
{¶20} An appellate court reviews a trial court's summary judgment decision de novo, applying the same standard used by the trial court. Ohio Govt. Risk Mgt. Plan v. Harrison, 115 Ohio St.3d 241, 2007-Ohio-4948, 874 N.E.2d 1155, ¶5. A motion for summary judgment is properly granted if the court, upon viewing the evidence in alight most favorable to the party against whom the motion is made, determines that: (1) there are no genuine issues as to any material facts; (2) the movant is entitled to a judgment as a matter of law; and (3) the evidence is such that reasonable minds can come to but one conclusion and that conclusion is adverse to the opposing party. Civ.R. 56(C); Byrd v. Smith, 110 Ohio St.3d 24, 2006-Ohio-3455, 850 N.E.2d 47, ¶10. Only the substantive law applicable to a case will identify what constitutes a material issue, and only the disagreements "over facts that might affect the outcome of the suit under the governing law" will prevent summary judgment. Id. at ¶12, citing Anderson v. Liberty Lobby, Inc. (1986), 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202.
{¶21} When moving for summary judgment, "the moving party bears the initial responsibility of informing the trial court of the basis for the motion, and identifying those portions of the record which demonstrate the absence of a genuine issue of fact on a material element of the nonmoving party's claim." (Emphasis omitted.) Dresher v. Burt (1996), 75 Ohio St.3d 280, 296, 662 N.E.2d 264. The nonmoving party has the reciprocal burden of specificity and cannot rest on the mere allegations or denials in the pleadings. Id....
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