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Nationwide Mutual Fire Insurance Co. v. Modroo9/3/2004
{ } Appellant, Nationwide Mutual Fire Insurance Company, appeals from the December 29, 2003 judgment entry of the Geauga County Court of Common Pleas, in which the trial court granted the motion to stay of appellee, Mary J. Modroo, individually and as administrator and personal representative of the estate of Mamie J. Hardy, deceased ("Hardy"). The trial court stayed the proceedings pending the disposition of Case No. DV-03-620 in the Montana Fourth Judicial District Court, Missoula County, Montana.
{ } This action originated with a complaint filed by appellee in the Montana Fourth Judicial District Court against Max Lemaire ("Lemaire") and appellant for claims arising from the accidental death of her daughter, Hardy, in Montana. Appellant filed a declaratory judgment action in Geauga County, Ohio, requesting a declaration that appellee was not entitled to coverage under one of two Nationwide policies at issue in Montana.
{ } In February 2003, Hardy, a student and employee of the University of Montana, was injured in an automobile accident in Montana due to the negligent driving of her boyfriend, Lemaire. She was a passenger in the car and died as a result of her injuries. At the time of the accident, Hardy had only been in Montana attending college for four months, was paying out-of-state tuition, maintained a valid Ohio driver's license, was covered under appellee's health insurance plan, and was claimed on appellee's tax return. Lemaire maintained a New Hampshire driver's license.
{ } Hardy's mother, appellee, and appellee's parents were partners in a farm, which was insured under a farmowner's policy by Nationwide Agribusiness Insurance Company, an Iowa subsidiary of Nationwide Insurance Company. Appellee and her parents had a commercial line policy that insured four farm vehicles. Appellee and her mother were also insured under an automobile policy issued by appellant.
{ } After Hardy's death, appellee, and Hardy's father, Cassius Hardy, a California resident, decided to probate her estate in Montana. Appellee was appointed as the personal representative of Hardy's estate. That action is currently pending in the Montana Fourth Judicial District Court. Additionally, on July 28, 2003, appellee filed a wrongful death action in the Montana Fourth Judicial District Court against Lemaire and Nationwide. Appellee sought redress from Lemaire, who was insured for $50,000, and appellant under the underinsured motorist coverage ("UIM") portion of her automobile policy and the UIM coverage under her farmowners' policy.
{ } On August 19, 2003, appellant filed a declaratory judgment action in the Geauga County Court of Common Pleas against appellee concerning the commercial lines policy. Although the Montana court issued an order retaining jurisdiction, it also issued an interlocutory decision on February 9, 2004, in which it determined that Ohio law applied to the personal lines policy and stated that Hardy was not an insured under the policy, nor was she in a covered car at the time of the accident. However, there are pending motions for reconsideration in the Montana court and the matter is on appeal.
{ } On October 22, 2003, appellee filed a motion to dismiss or stay the action in Ohio. On December 29, 2003, the trial court stayed the case pending the disposition of the Montana matter. It is from that entry that appellant timely filed the instant appeal and now assigns a single assignment of error for our review:
{ } "The trial court erred the prejudice of [appellant] by staying the Ohio action pending resolution of the Montana action."
{ } Preliminarily, we note that appellee filed a motion to dismiss f
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