Sarrough v. Budzar

• Decision Date: 10 September 2015
• Docket Number: No. 102422.,102422.
• Parties: May SARROUGH, Administrator of the Estate of Hanan Saah, Deceased, Plaintiff–Appellee v. Joel BUDZAR, et al., Defendants–Appellants.
• Court: Ohio Court of Appeals

38 N.E.3d 921

May SARROUGH, Administrator of the Estate of Hanan Saah, Deceased, Plaintiff–Appellee

v.Joel BUDZAR, et al., Defendants–Appellants.

No. 102422.

Court of Appeals of Ohio, Eighth District, Cuyahoga County.

Sept. 10, 2015.

Donald G. Drinko, Jay Clinton Rice, Gallagher Sharp, Cleveland, OH, for appellant.

W. Craig Bashein, Bashein & Bashein Co., L.P.A., Paul W. Flowers, Paul W. Flowers Co., L.P.A., Cleveland, OH, for appellee.

Before: CELEBREZZE, A.J., E.A. GALLAGHER, J., and S. GALLAGHER, J.

Opinion

EILEEN A. GALLAGHER

, J.

{¶ 1} In this insurance coverage dispute, defendant-appellant Peerless Indemnity Insurance Company (“Peerless”) appeals from the decision of the Cuyahoga County Court of Common Pleas granting the summary judgment motion of plaintiff-appellee May Sarrough, administrator of the estate of Hanan Saah (“Sarrough”), and denying Peerless's cross-motion for summary judgment on Sarrough's claim for breach of contract. Sarrough alleged that Peerless had breached its insurance contract with decedent Hanan Saah (“Saah”) by failing to pay underinsured motorist (“UIM”) benefits due under an automobile insurance policy Peerless had issued to Saah (the “policy”) following her involvement in a series of motor vehicle accidents.

{¶ 2} The parties disagree as to whether the sequence of events giving rise to Sarrough's claim constituted one “accident” or two “accidents” for purposes of determining Peerless' liability limits for UIM coverage under the policy. Peerless asserts that the trial court erred in interpreting the policy as providing a $600,000 limit (less setoff) for UIM coverage for two “accidents” and thereafter determining, as a matter of law, that Peerless must tender its policy limits (less setoff). Peerless contends that there was only one impact and thus “one accident” under the policy and that genuine issues of material fact remain for trial regarding comparative negligence, proximate cause and the damages resulting from each “accident.” For the reasons that follow, we affirm in part and reverse in part the trial court's judgment.

Procedural and Factual Background

{¶ 3} The material facts are undisputed. On February 20, 2011, at approximately 9:30 p.m., seventeen-year-old Brittini Meadows was driving a 2005 Chevrolet Cavalier owned by her mother, Donna Russo, eastbound on Interstate 90 toward Cleveland after picking up her boyfriend from work. Meadows testified that due to accumulations of water, snow and ice, she was traveling in the left lane of the highway at approximately 30 m.p.h. because she believed it was “[t]he clearest lane to drive in.” As she approached the Rocky River–Lakewood border, Meadows testified that she could hear “water and ice hitting up against the bottom of the car, like if you were driving through a little pond or something” and that her vehicle then began to hydroplane and spin to the right. The vehicle made at least one complete turn and traveled across the width of the highway before coming to a stop in the right lane, angled toward the middle lane. Her lights remained on, but her car was “dead” and would not start or move.

{¶ 4} A snow plow driver stopped behind Meadows and attempted to assist her by directing traffic around her vehicle. Although several vehicles were able to avoid her vehicle, within 20–30 seconds, Meadows vehicle was struck from behind by a car owned and driven by Sarah Owings. The impact caused Meadows vehicle to cross several lanes of traffic, ending up in the left lane of the highway. A Dodge Durango, driven by Benitza Montgomery and owned by Mark Montgomery, then stuck Meadows vehicle a second time.

The impact pushed Meadows vehicle to the right, into the right berm.

{¶ 5} At around this same time, Saah was driving a Chevrolet Impala eastbound on Interstate 90 in the right lane. Her son, Salem Saah (“Salem”), was sitting in the front passenger seat. Salem testified that it was snowing and the road was “a little bit icy” but that he could still see the cars in front of them. He testified that as they were proceeding down the highway, a car (i.e., Meadows vehicle) started to spin out in front of them from the left to the right, then came to a stop. Saah steered to the left and into the center lane to avoid the vehicle. As she did so, her vehicle started to slide. Saah's vehicle slid left and came to a stop, facing north toward the median, straddling the far left and center lanes. Once Saah's vehicle stopped, Salem looked around. He then looked at his mother and assured her that “everything was fine” and that they “didn't hit anything.” Five to ten seconds later, a 2002 Nissan X–Terra driven by Joel Budzar, struck Saah's vehicle.

{¶ 6} Budzar described the weather as “horrible” with lots of snow and ice on the road. Budzar testified that he was traveling in the right lane at a speed of 35–45 mph when he saw two vehicles on the highway, both of which appeared to be disabled. The first vehicle (Meadows car) was further east and was stopped sideways to the right of the right berm near the guardrail. The second vehicle (Saah's car) was turned sideways, facing north, blocking part of the center and right lanes and appeared to be moving slowly, coming to a stop. He testified that he intended to drive between the two vehicles, hoping that Saah's vehicle would create a path for him “[b]ecause there was no way I could stop.” However, Saah's vehicle did not move in time, and Budzar's vehicle struck the driver's-side door of Saah's vehicle. Saah died from the injuries she sustained in the incident. Saah was survived by her children, Salem, Samer Saah, Rana Zaboura and Rema Tadros, and her mother, Zuhdieh Kash.

{¶ 7} On May 31, 2012, Sarrough filed a complaint against Joel Budzar, Benitza Montgomery, Mark Montgomery, Sarah Owings, Brittini Meadows, Donna Russo and Peerless to recover damages for the fatal injuries Saah sustained in the February 20, 2011 incident. Salem, Samer Saah, Rana Zaboura, Rema Tadros and Zuhdieh Kash also asserted claims in the action. As to Peerless, Sarrough asserted a claim for breach of contract, alleging that Peerless had failed to pay the estate the UIM benefits to which it was entitled under Saah's automobile insurance policy with Peerless. Peerless filed an answer denying the material allegations of the complaint relating to the breach of contract claim and asserting various affirmative defenses.

{¶ 8} At the time of the incident, Meadows was insured under a policy issued by Century Insurance with $100,000/$300,000 liability limits, Budzar was insured by Peerless under a policy with $100,000/$300,000 liability limits and Saah was insured under a Peerless policy that included UIM coverage with a “single limit” of $300,000 for “[e]ach [a]ccident.” Under the terms of its policy with Saah, Peerless had a right of setoff against its limit of liability for “all sums paid because of ‘bodily injury’ by or on behalf of persons or organizations who may be legally responsible.”

{¶ 9} Settlement conferences were conducted in April and May 2013 during which the insurers for Meadows and Budzar each tendered their respective policy limits of $100,000, which were accepted subject to Peerless's approval. Peerless consented to the estate's acceptance of the $200,000 offered by Meadows and Budzar's insurers and tendered an additional $100,000, which it claimed was the balance of the $300,000 single limit UIM coverage available under Saah's policy after the setoff. All claims except the breach of contract claim between Saah and Peerless were settled and/or dismissed following the settlement conferences.

{¶ 10} On November 25, 2013, Peerless filed a motion for summary judgment, asserting that, based on the undisputed material facts, Peerless had fully satisfied its obligations under the automobile insurance policy it had issued to Saah and was, therefore, entitled to judgment as a matter of law on Sarrough's breach of contract claim. Peerless argued that there was only one “accident” that resulted in “bodily injury” to Saah and that because Peerless was entitled to set off any amounts paid by other tortfeasors under the policy, i.e., the $200,000 paid by Meadows and Budzar's insurers, Peerless had satisfied its obligations under the policy when it tendered $100,000 to the estate. In support of its motion, Peerless attached a certified copy of the policy and cited to deposition testimony from the parties and witnesses involved in the incident.

{¶ 11} A day later, Sarrough filed her own motion for partial summary judgment, seeking a judicial declaration that two “accidents” had occurred—one involving Meadows vehicle and one involving Budzar's vehicle—and that up to $400,000 in UIM coverage ($200,000 for each of the two accidents less the $200,000 the estate received from Meadows and Budzar's insurers) was available to the estate under the policy. In support of her motion, Sarrough attached copies of the policy and the traffic crash report from the February 20, 2011 incident and cited deposition testimony from the involved parties and witnesses. Each party opposed the summary judgment motion filed by the other party and filed replies in support of their own motions. Peerless also filed a motion to strike the traffic crash report attached to Sarrough's motion for partial summary judgment on the grounds that it was not properly authenticated, included inadmissible hearsay and did not otherwise constitute proper summary judgment evidence under Civ.R. 56(C)

. Sarrough did not file a separate opposition to the motion to strike but argued in her reply to her motion for partial summary judgment that “the witnesses were questioned at length about numerous aspects of these investigatory materials during their discovery depositions,” that “they all confirmed the same general version of the tragic episode” and that Peerless's objections were “immaterial” because “the necessary facts and circumstances [had] been established through deposition testimony.”

{¶ 12} On ...