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Bernabei v. Cincinnati Insurance Cos.9/20/2004
JUDGMENT: 2002CA00078 - Affirmed.
2002CA00073 - Reversed.
{ } On September 24, 1998, Richard Bernabei was killed when his motorcycle was struck by an automobile driven by Michelle Kellogg, who was an underinsured motorist ("UIM"). Richard Bernabei was survived by his parents, Appellees Robert and Shirley Bernabei, and by his wife Appellee Tamara Bernabei. Appellees Robert and Shirley Bernabei owned a personal automobile insurance policy (the "Personal Auto policy") No. HRA 696 49 73, issued by Appellant Cincinnati Insurance Companies ("Appellant"). Richard Bernabei was also a member of a union, IBEW Local 540, which owned insurance policy No. CAP 500 9118 C1 (the "IBEW policy"), also issued by Appellant. On February 6, 2002, the Stark County Court of Common Pleas filed two judgment entries which held that there was valid UIM coverage under both insurance policies. The judgment entries were appealed to the Fifth District Court of Appeals in two separate appeals. Three judges from the Seventh District Court of Appeals are sitting by assignment to hear these two appeals.
{ } Appeal No. 2002CA00073 challenges the trial court's decision to grant coverage to Richard Bernabei under his union's automobile policy. As we will explain below, the trial court's judgment as regards to the IBEW policy must be reversed based on the recent holding of Westfield Ins. Co. v. Galatis, 100 Ohio St.3d 216, 2003-Ohio-5849, 797 N.E.2d 1256. Appeal No. 2002CA00078 asks this Court to determine whether the holding of Sexton v. State Farm Mut. Auto. Ins. Co. (1982), 69 Ohio St.2d 431, 23 O.O.3d 385, 433 N.E.2d 555, should be applied to a 1997 version of R.C. ยง3937.18(A). The trial court correctly applied Sexton and properly granted UIM coverage to Appellees pursuant to their Personal Auto policy. Thus, we reverse the trial court decision in Appeal No. 2002CA00073, and affirm the decision of the trial court in Appeal No. 2002CA00078.
FACTS AND PROCEDURAL HISTORY
{ } On September 25, 2000, Appellee Tamara Bernabei filed a declaratory judgment and breach of contract complaint against four insurance companies, including Appellant. Her claim against Appellant sought to have the trial court declare that UIM coverage existed under the IBEW policy.
{ } On January 16, 2001, five other members of the Bernabei family filed a declaratory judgment action against Appellant and three additional insurance companies. Their claim against Appellant involved UIM coverage allegedly arising out of the Personal Auto policy issued to Robert and Shirley Bernabei. The two cases were later consolidated by the trial court.
{ } On May 31, 2001, parent Appellees filed a motion for summary judgment regarding the Personal Auto policy. The next day, Appellee Tamara Bernabei filed a motion for summary judgment regarding the IBEW policy. On June 29, 2001, Appellant filed a cross-motion for summary judgment regarding the Personal Auto policy. Three days later, Appellant filed a cross-motion for summary judgment as regards the IBEW policy. The trial court ruled on all of these motions on February 6, 2002.
{ } The trial court granted summary judgment to Appellee Tamara Bernabei, holding that the decedent was an insured under the IBEW policy pursuant to the principles set forth in Scott-Pontzer v. Liberty Mut. Fire Ins., Co. (1999), 85 Ohio St.3d 660, 710 N.E.2d 1116. The trial court based this decision on its finding that the decedent's status as a member of the union gave him the same rights under Scott-Pontzer as an employee of a corporation attempting to claim UIM benefits under a corporate automobile liability policy. The remaining issue of damages was submitted
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