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Indiana Insurance Co. v. Farmers Insurance of Columbus9/9/2003
TS RIGHT TO LITIGATE COVERAGE DEFENSES UNDER FEDERAL'S BUSINESS AUTO AND COMMERCIAL UMBRELLA POLICIES WAS NOT ERRONEOUS AS A MATTER OF LAW ON THE FACTS PRESENTED, A GENUINE ISSUE OF MATERIAL FACT WAS PRESENTED BY FEDERAL REGARDING THE (SIC) WHETHER FEDERAL WAIVED ITS RIGHT TO A JUDICIAL DETERMINATION OF COVERAGE UNDER ITS POLICIES."
Further, appellees filed a cross-appeal and set forth the following cross-assignments of error for our consideration:
"I. THE TRIAL COURT ERRED IN NOT GRANTING THE ESTATE OF JOHN MCDONALD JUDGMENT IN THE FULL AMOUNT AS AGAINST CROSS-APPELLEE FEDERAL INSURANCE COMPANY.
"II. THE TRIAL COURT ERRED IN NOT AWARDING PREJUDGMENT INTEREST AGAINST CROSS-APPELLEE FEDERAL INSURANCE COMPANY IN THE CASE AT BAR."
"Summary Judgment Standard"
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. As such, we must refer to Civ.R. 56 which provides, 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 summary judgment if it appears a material fact is genuinely disputed. The party moving for summary judgment bears the initial burden of informing the trial court of the basis for its motion and identifying those portions of the record that demonstrate the absence of a genuine issue of material fact. The moving party may not make a conclusory assertion that the non-moving party has no evidence to prove its case. The moving party must specifically point to some evidence which demonstrates the non-moving party cannot support its claim. If the moving party satisfies this requirement, the burden shifts to the non-moving party to set forth specific facts demonstrating there is a genuine issue of material fact for trial. Vahila v. Hall, 77 Ohio St.3d 421, 429, 1997-Ohio-259, citing Dresher v. Burt, 75 Ohio St.3d 280, 1996-Ohio-107.
It is based upon this standard that we review Federal's assignments of error and appellees' cross-assignments of error.
I.
Federal's First Assignment of Error concerns its business auto policy. Federal maintains, under this assignment of error, that the "Drive Other Car Broadened Coverage" endorsement contained in its business auto policy extends UM/UIM coverage to identified individuals and therefore, distinguishes this policy from the policy considered in Scott-Pontzer. We disagree.
Federal's "Ohio Uninsured Motorists Coverage - Bodily Injury " endorsement in its business auto policy defines "Who Is An Insured" as follows:
"1. You.
"2. If you are an individual, any `family member.'
"3. Anyone else `occupying' a covered `auto' or a temporary substitute for a covered `auto.' * * *
"4. Anyone for damages he or she is entitled to recover becaus
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