Lumberman's Mutual Casualty Co. v. Martha Mckinley

Decision Date04 August 1988
Docket Number53934,88-LW-3025
PartiesLUMBERMAN'S MUTUAL CASUALTY COMPANY, Plaintiff-Appellee, v. Martha McKINLEY, et al., Defendant-Appellants.
CourtOhio Court of Appeals

Civil appeal from Court of Common Pleas Case No. 111,857.

Connie M. Wymer, Cleveland, for plaintiff-appellee.

John J McCarthy, Joel Levin, Jeffrey A. Leikin, Cleveland, for defendant-appellants.



Defendants Martha and Frank McKinley appeal from an order of the Cuyahoga County Common Pleas Court that granted plaintiff Lumberman's Mutual Casualty Company's motion for summary judgment on the defendants' claim for uninsured motorist coverage. The record discloses the following facts:

On February 5, 1982, defendant Martha McKinley was injured as a result of a slip and fall in the parking lot of the Rockport Shopping Center in Rocky River, Ohio. Mrs. McKinley stated that she slipped when she stepped out of the path of a vehicle that was travelling toward her at a rapid rate of speed. The vehicle was operated by Bonnie Gruey, an uninsured motorist. Mrs. McKinley sustained a fractured hip and has required multiple surgeries.

After retaining an attorney, the McKinleys negotiated a settlement with the Rockport Shopping Center. The McKinleys received $18,000 in exchange for a release of the Rockport Shopping Center.®1¯

According to Mrs. McKinley, she telephoned her insurance agent in 1982 sometime after executing the settlement with the Rockport Shopping Center. After Mrs. McKinley inquired whether she could make an uninsured motorist claim with Lumberman's, she was report-reportedly told that she could not make a claim under her policy because there had been no contact between Mrs. McKinley and the uninsured motor vehicle.

The McKinleys eventually retained new counsel. Subsequently, in July 1985, the McKinleys asserted an uninsured motorist claim with the plaintiff Lumberman's Mutual Casualty Company.

The plaintiff denied the McKinleys' claim and commenced this declaratory judgment action against the McKinleys on April 23, 1986. The McKinleys answered and filed a counterclaim to recover under their uninsured motorist policy.

On December 12, 1986, plaintiff filed a motion for summary judgment. The motion asserted that Mrs. McKinley's injury did not fall within the scope of the McKinleys' uninsured motorist coverage and that the McKinleys failed to give plaintiff timely notice of their claim. The motion further asserted that the McKinleys were precluded from recovering after they settled with one of the tortfeasors without first obtaining the plaintiff's consent. The McKinleys opposed the plaintiff's motion on January 20, 1987.

On May 11, 1987, the trial court journalized an order granting plaintiff's motion for summary judgment. The journal entry stated:

Plaintiff's Motion for Summary Judgment is granted upon the grounds that there has not been full compliance with all the terms of the policy. Defendants are not entitled to coverage since defendants, prior to notifying plaintiff of the loss, settled the bodily injury claim against Rockport Shopping Center without plaintiff's consent. This case is dismissed with prejudice.

This appeal followed, and the McKinleys asserted a single assignment of error:


Although the McKinleys' assignment of error challenges the reasoning of the trial court in granting summary judgment, the underlying issue in this appeal is whether the plaintiff, Lumberman's Mutual Casualty Company, was entitled to summary judgment under the circumstances of this case. Part I of this journal entry and opinion will consider if plaintiff is entitled to summary judgment on the issues of whether the McKinleys' claim falls within the scope of the plaintiff's insurance coverage and whether the McKinleys gave the plaintiff sufficient notice of their uninsured motorist claim. Part II of this journal entry will address whether Lumberman's was discharged of its obligation to provide uninsured motorist coverage when the McKinleys settled their claim against the Rockport Shopping Center without first obtaining the consent of their insurer, Lumberman's. For the reasons that follow, we conclude that the trial court erred in entering summary judgment in favor of the plaintiff Lumberman's Mutual Casualty Company, so the assignment of error is well taken.

We note at the outset that under Civ.R. 56(C), a court may not grant a motion for summary judgment unless the moving party demonstrates that there are no genuine issues of material fact and that that party is entitled to judgment as a matter of law. Summary judgment shall not be entered unless, after viewing the evidence in the light most favorable to the non-moving party, reasonable minds can come to but one conclusion, and that conclusion is adverse to the non-moving party. See Harless v. Willis Day Warehousing Co. (1978), 54 Ohio St.2d 64. With this in mind, we proceed to address the grounds asserted in support of plaintiff's motion for summary judgment.


Lumberman's maintains that it was entitled to summary judgment on several grounds. It contends that there is no uninsured motorist coverage in this case because the McKinleys' claim did not arise out of the ownership, maintenance or use of an uninsured motor vehicle. It also contends that the McKinleys gave inadequate notice of their uninsured motorist claim. Construing the evidence most strongly in favor of the McKinleys, as required by Civ.R. 56(C), we think reasonable minds could reach different conclusions on each of these two issues, so Lumberman's was not entitled to summary judgment on these grounds.

Lumberman's insurance policy provides uninsured motorist coverage as follows:

We will pay damages which a covered person is legally entitled to recover, from the owner or operator of an uninsured motor vehicle because of bodily injury:

1.Sustained by a covered person; and

2.Caused by an accident.

The owner's or operator's liability for these damages must arise out of the ownership, maintenance or use of the uninsured motor vehicle.


Lumberman's asserts that there is no uninsured motorist coverage here because Mrs. McKinley's injuries arose solely from her slip and fall and did not result from the ownership, maintenance or use of an uninsured vehicle. Lumberman's relies on Kish v. Central National Insurance Group (1981), 67 Ohio St.2d 41, where the court held that the shotgun slaying of an insured following an accidental automobile collision did not "arise out of the ownership, maintenance or use of an uninsured vehicle" for purposes of uninsured motorist coverage. To determine whether an injury arose from the ownership, maintenance or use of an uninsured vehicle, the Kish court stated: "The relevant inquiry is whether the chain of events resulting in the accident was unbroken by the intervention of any event unrelated to the use of the vehicle." Kish, 67 Ohio St.2d at 50. Under the facts of Kish, the intentional murder of the insured following the collision was an intervening cause of injury unrelated to the use of the vehicle. "[T]he death resulted from an act wholly disassociated from and independent of the use of the vehicle as such." Id. at 50.

In the instant case, by contrast, we cannot say that reasonable minds could only conclude that Mrs. McKinley's injury occurred solely as a result of the snow and ice in the parking lot. The facts of this case indicate that Mrs. McKinley fell when she attempted to step out of the way of an oncoming uninsured vehicle travelling toward her at a rapid rate of speed. This evidence suggests that the snowy conditions of the parking lot were not an independent intervening cause bearing no relation to the use of an uninsured vehicle. Instead, this record suggests concurrent negligence by the uninsured motorist and the shopping center. A covered loss may arise out of concurrent acts of negligence by two or more tortfeasors where one of the tortfeasors owned, maintained or used an uninsured vehicle. See, e.g., Motorists Mutual Ins. Co. v. Tomanski (1971), 27 Ohio St.2d 222. Under the facts of this case, we cannot say as a matter of law that Mrs. McKinley's injury was so disassociated from the use of an uninsured vehicle that Lumberman's may deny coverage under the uninsured motorist policy. Accordingly, Lumberman's was not entitled to summary judgment on this ground.

Lumberman's also contends that reasonable minds could only conclude that the McKinleys failed to provide adequate notice of their uninsured motorist claim. It contends that the McKinleys' notice was untimely and lacked particularity. We do not agree.

The insurance contract in this case provides:

We must be notified promptly of how, when and where the accident or loss happened. Notice should also include the names and addresses of any injured persons and of any witnesses.

In Braden v. State Farm Mutual Insurance (June 6 1985), Cuyahoga App. No. 48961, unreported, this Court held that "where an insurance policy requires that notice of an accident be given as soon as practicable after the accident occurs, the insurance company may deny coverage only where such notice was not given within a reasonable time and the delay prejudiced the insurer in protecting its interests." Id., slip op. at 3. Where conflicting inferences may be drawn from the evidence of notice, the issue...

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