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Welsh v. Indiana Insurance Co.9/29/2003
Defendant-appellant The Insurance Company of Pennsylvania ("ISOP") appeals the October 18, 2002 Judgment Entry of the Stark County Court of Common Pleas which granted summary judgment in favor of plaintiff-appellee David Welsh and denied ISOP's motion for summary judgment.
STATEMENT OF THE FACTS AND THE CASE
On January 7, 1997, 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 resulted from the negligence of Thomas Sherwood. Following the accident, Fannie Welsh prematurely gave birth to Eleni Welsh. Eleni died a few hours after delivery.
Mr. 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 $100,000 liability limit. The Stark County Probate Court divided the 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 probate court hearing.
At the time of the accident, Keith and Fannie Welsh resided with David and Cathleen Welsh, Keith's parents. Keith, Fannie and Cathleen were employees of Alliance Community Hospital. Alliance Community Hospital had in effect a business auto policy providing UM/UIM coverage issued by Indiana Insurance Company; a commercial general liability policy issued by OHIC Insurance Company; and an umbrella policy issued by OHIC.
On the date of the accident, David Welsh was employed by R. Kurtzman. The Insurance Company of the State of Pennsylvania ("ISOP") issued a commercial automobile policy and a commercial general liability policy to R. Kurtzman, which policies were in effect at the time of the accident.
Veneta Lalli was employed by Coastal Pet Products, Inc. on the date of the accident. Coastal Pet was insured by Westfield Insurance Company under a business automobile policy providing UM/UIM coverage; a commercial general liability policy; and a commercial umbrella policy. Veneta also had in effect her own personal auto policy issued by Allstate Insurance Company.
On June 22, 2001, appellees filed a declaratory judgment action in the Stark County Court of Common Pleas seeking coverage under the nine separate policies of insurance noted above. All of the parties filed a motion for summary judgment. Via Judgment Entry filed October 18, 2002, the trial court granted appellees' motion for summary judgment and denied ISOP, OHIC, Westfield, Indiana and Allstate's motions for summary judgment. The trial court ordered all parties to arbitration to determine the issue of total damages. The trial court did not determine whether the insurers must pay on a primary, excess or pro rata basis.
Indiana, OHIC, Westfield and ISOP all filed separate notices of appeal. The matter currently under consideration concerns the appeal filed by ISOP. ISOP raises the following assignments of error for our consideration:
"I. THE TRIAL COURT IMPROPERLY GRANTED APPELLEE'S MOTION FOR SUMMARY JUDGMENT AND DENIED ISOP'S MOTION FOR SUMMARY JUDGMENT BECAUSE DAVID WELSH'S FAILURE TO PROVIDE PROPER TIMELY NOTICE OF HIS UM/UIM CLAIM ACTUALLY PREJUDICED ISOP.
"II. THE TRIAL COURT IMPROPERLY GRANTED APPELLEE'S MOTION FOR SUMMARY JUDGMENT AND DENIED ISOP'S MOTION FOR SUMMARY JUDGMENT BECAUSE CGL POLICY DOES NOT PROVIDE UM/UIM COVERAGE.
"III. THE COURT NEEDS TO DETE
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