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Turvey v. Ocheltree2/10/2004
JUDGMENT: Affirmed
Plaintiffs-appellants the Estate of Clyde D. Shaffer and the Estate of Katherine I. Shaffer appeal the June 6, 2003 Judgment Entry of the Tuscarawas County Court of Common Pleas, which granted summary judgment against them, and in favor of defendants-appellees Erie Insurance Exchange and Erie Insurance Company (collectively "Erie").
STATEMENT OF THE FACTS AND CASE
On December 24, 2000, Clyde and Katherine Shaffer were involved in an automobile accident, while operating a vehicle owned by Katherine. Daniel C. Ocheltree operated the other vehicle involved in the accident. As a result of the accident, both Clyde and Katherine sustained injuries ultimately resulting in their deaths. At the time of his death, Clyde was a trustee of Warren Township.
On the date of the accident, Erie had in effect two polices of insurance issued to the Warren Township Trustees as the named insured: a business auto policy, Policy No. Q06-6400131 ("the Commercial Auto Policy"), in effect from June 14, 2000 to June 14, 2001, and a commercial general liability policy ("the CGL Policy"), Policy No. Q42 1450374, in effect from June 14, 2000 to June 14, 2001. The Shaffers are each insureds under both policies.
The Executrix of the Estates of Katherine Shaffer and Clyde Shaffer filed actions on behalf of the decedents and their surviving wrongful death beneficiaries against Daniel Ocheltree, Rebecca Ocheltree, State Farm Insurance Companies and Erie Insurance Exchange and Erie Insurance Company. Erie filed a motion for summary judgment, and appellants filed a cross-motion for summary judgment. Via a June 6, 2003 Judgment Entry the Tuscarawas County Court of Common Pleas sustained Erie's motion, denying appellants' cross-motion for summary judgment. It is from this Judgment Entry appellants now appeal raising the following as assignments of error:
"I. THE TRIAL COURT ERRED IN SUSTAINING APPELLEE ERIE'S MOTION FOR SUMMARY JUDGMENT AND OVERRULING APPELLANTS' MOTION FOR SUMMARY JUDGMENT DECLARING THAT THE ERIE INSURANCE COMPANY COMMERCIAL AUTO POLICY DOES NOT PROVIDE UNDERINSURED MOTORIST COVERAGE TO PLAINTIFFS.
"II. THE TRIAL COURT ERRED IN SUSTAINING APPELLEE ERIE'S MOTION FOR SUMMARY JUDGMENT AND IN OVERRULING APPELLANTS' CROSS-MOTION FOR SUMMARY JUDGMENT IN DECLARING THAT THERE IS NO UNDERINSURED MOTORIST COVERAGE AND CLAIM BY APPELLANTS UNDER THE ERIE COMPREHENSIVE GENERAL LIABILITY POLICY."
Summary judgment proceedings present the appellate court with the unique opportunity of reviewing the evidence in the same manner as the trial court. Smiddy v. The Wedding Party, Inc. (1987), 30 Ohio St.3d 35, 36.
Civ.R. 56(C) states, in pertinent part:
"Summary Judgment shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, written admissions, affidavits, transcripts of evidence in the pending case, and written stipulations of fact, if any, timely filed in the action, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law....A summary judgment shall not be rendered unless it appears from such evidence or stipulation and only therefrom, that reasonable minds can come to but one conclusion and that conclusion is adverse to the party against whom the motion for summary judgment is made, such party being entitled to have the evidence or stipulation construed most strongly in his favor."
Pursuant to the above rule, a trial court may not enter a summary judgment if it appears a material fact is genuinely disputed. The party moving for summary judgment bears the i
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