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Welsh v. Indiana Insurance Co.9/22/2003
JUDGMENT: Affirmed in part; Vacated in part; Reversed in part; and Remanded
Appellant OHIC Insurance Company ("OHIC") appeals the decision of the Stark County Court of Common Pleas which granted appellees Keith Welsh's, et al., motion for summary judgment and denied OHIC's motion for summary judgment. The following facts give rise to this appeal.
An accident occurred on January 7, 1997. At the time of the accident, Keith and Fannie Welsh resided with David and Cathleen Welsh, Keith Welsh's parents. Keith, Fannie and Cathleen were employees of Alliance Community Hospital. The accident occurred when Fannie Welsh was driving home from work, in an automobile owned by her husband, Keith Welsh. Angela Welsh, Fannie Welsh's daughter, was also a passenger in the vehicle. The accident was the result of the negligence of Thomas Sherwood. Following the accident, Fannie Welsh prematurely gave birth to Eleni Welsh. Eleni died a few hours after delivery.
Sherwood had automobile liability coverage with limits of $100,000 per person and $300,000 per accident. Keith Welsh, as the administrator of the Estate of Eleni Welsh, settled with the tortfeasor for the liability limits of $100,000. The Stark County Probate Court divided this settlement among Keith and Fannie Welsh, the parents of Eleni Welsh; and Cathleen and David Welsh, the paternal grandparents of Eleni Welsh. Veneta Lalli, the maternal grandmother of Eleni Welsh, did not receive any of the settlement proceeds nor did she attend the hearing in probate court.
On June 22, 2001, appellees filed a declaratory judgment action in the Stark County Court of Common Pleas, seeking coverage, under nine policies, pursuant to R.C. 3937.18 and the Ohio Supreme Court's decision in Scott-Pontzer v. Liberty Mut. Fire Ins. Co. (1999), 85 Ohio St.3d 660, 1999-Ohio-292. Alliance Community Hospital had the following policies in effect on the date of the accident: (1) a business auto policy providing UM/UIM coverage issued by Indiana; (2) a commercial general liability policy containing a non-owned and hired auto endorsement issued by OHIC; and (3) an umbrella policy issued by OHIC. Only appellees Keith, Fannie, Cathleen and David Welsh, in their individual capacities, and the Estate of Eleni Welsh sought damages under Indiana's policy.
David Welsh was employed by R. Kurtzman on the date of the accident. R. Kurtzman had the following policies in effect issued by The Insurance Company of the State of Pennsylvania ("ISOP"): (1) a business automobile policy; and (2) a commercial general policy.
Veneta Lalli was employed by Coastal Pet Products, Inc., ("Coastal Pet") on the date of the accident. Coastal Pet had the following policies in effect issued by Westfield Insurance Company ("Westfield"): (1) a business automobile policy providing UM/UIM coverage; (2) a commercial general liability policy; and (3) a commercial umbrella policy. Veneta Lalli also sought UIM benefits under her personal auto policy issued by Allstate Insurance Company ("Allstate").
Cathleen and David Welsh, as resident family members, sought UIM coverage under the business automobile policy issued by Indiana to Alliance Community Hospital, the commercial general liability policy and the umbrella policy issued by OHIC to Alliance Community Hospital. In their complaint for declaratory judgment, appellees requested the trial court order the parties to binding arbitration to determine the issue of total damages.
All parties filed motions for summary judgment. On October 18, 2002, the trial court filed its judgment entry granting appellees' motion for summary judgment, and denying ISOP, OHIC, Westfield,
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