Backie v. Cash9/20/2004
JUDGMENT: Affirmed
{ } Appellants appeal the October 7, 2003, decision of the Stark County Court of Common Pleas which ordering Appellants to pay to Appellee Monroe Guaranty the sum of $66,249.73 and Appellee Ohio Casualty Group the sum of $100,416.93.
STATEMENT OF THE FACTS AND CASE
{ } The following facts are pertinent to this appeal:
{ } The accident giving rise to this case occurred on March 26, 2000, when a pick up truck being operated by Robert Cash at a high rate of speed, broadsided the vehicle containing three teenagers: Teri M. Backie, Jasmine Backie and Jamie Marapao. Teri M. Backie was operating the vehicle and Jasmine Backie and Jamie Marapao were passengers in said vehicle. All three of the teenagers died as a result of the accident.
{ } At the time of the accident, Teri M. Backie lived with her parents, Vickie Backie and Terry B. Backie. Jamie Marapao was also living in the same household because Vickie Backie had legal custody of her. Jasmine Backie lived with her mother, Sharon Renee Hall, sister of Terry B. Backie.
{ } On September 20, 2000, Appellants filed a wrongful death complaint against the tortfeasor and numerous insurance companies, seeking, inter alia, UIM benefits based on Scott-Pontzer v. Liberty Mut. Fire Ins. Co. (1999), 85 Ohio St.3d 660, Sexton v. State Farm Mutual Auto Ins. Co. (1982), 69 Ohio St.2d 431, and Ezawa v. Yasuda Fire & Marine Ins. Co. of America (1999), 86 Ohio St.3d 557.
{ } Ultimately, the following three insurers paid claims:
{ } GEICO INSURANCE COMPANY: the insurer of the owner of the pick up truck driven by Robert Cash, with a $25,000/$50,000 split liability policy. Individual payments of $16,666.66 made to each of the three Estates.
{ } OHIO CASUALTY GROUP (OCG): Vicky Backie's personal automobile policy which contained Teri M. Backie as a named driver and listed her automobile as a listed insured vehicle. This policy provided $100,000/$300,000 personal UIM coverage.
{ } MONROE GUARANTY INSURANCE COMPANY: the corporate insurer of Vicky Backie and Jasmine Backie's employer, Altercare of Canton, Inc. Altercare was insured under a $1,000,000.00 Commercial Auto UIM Policy and a $6,000,000.00 Umbrella UIM policy.
{ } After filing of the lawsuit, OCG offered its policy limits of $300,000.00 to the Plaintiff Estates. OCG advanced $83,333.33 to each Estate, subject to prepayment if OCG was found to share the UIM loss pro-rata with other insurers.
{ } On October 10, 2001, releases were executed and the agreement between Plaintiffs and OCG was formalized. Said agreement provided that should Plaintiffs receive funds in excess of $83,333.33 per Estate, Plaintiffs would hold those excess funds in trust for the benefit of OCG and repay any overpayment of OCG's pro rata shares.
{ } Even though it had paid its limits, OCG stayed in the litigation in order to argue that other insurers should share its loss on a pro-rata basis.
{ } In an Order filed January 10, 2002, the trial court found that the Monroe Guaranty $1,000,000.00 Commercial Auto UIM Policy and Monroe Guaranty's $6,000,000.00 Umbrella UIM policy provided coverage to all three estates.
{ } In an Order filed July 18, 2002, the trial court determined that Monroe Guaranty's $1,000,000.00 Commercial Auto UIM Policy was primary and the Ohio Casualty Group $100,000/$300,000 policy and the Monroe Guaranty $6,000,000.00 Umbrella UIM Policy shared the excess loss pro-rata.
{ } These Orders were not appealed.
{ } On September 18, 2002, the Marapao Estate plaintiffs settled their
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