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Rudish v. Jennikngs3/10/2003
Appellant The Cincinnati Insurance Company (CIC) appeals the November 21, 2001, summary judgment of the Court of Common Pleas of Stark County, Ohio, entered in favor of Appellee American Family Insurance (AFI) declaring that CIC's commercial umbrella liability policy "drops down" to provide primary UM/UIM coverage and in finding that the "other insurance" clause is unenforceable when UM/UIM coverage is imposed by operation of law.
STATEMENT OF THE FACTS AND CASE
On May 19, 2001, plaintiff Mike Rudish was involved in a motorcycle-automobile accident with defendant Richard Jennings, an uninsured motorist.
At the time of the accident, Plaintiff was insured under a policy of insurance issued by AFI with a limit of $50,000.00. Said policy provided UM/UIM coverage. It is undisputed that this coverage is direct and primary.
Plaintiff was employed by Gentzler Tool & Die Corp. which carried various policies of insurance through CIC including a general liability policy, a personal umbrella liability policy and a commercial umbrella liability policy.
It is undisputed that UM/UIM coverage is imposed under the commercial umbrella liability policy by operation of law.
The trial court found, and AFI did not dispute, that Plaintiff was not entitled to coverage under the commercial general liability policy or the personal umbrella liability policy.
As to the remaining commercial umbrella liability policy, the trial court found such to provide primary UM/UIM coverage in the amount of $4 million, the amount of its liability limits.
It is undisputed that Plaintiff was not acting in the course and scope of his employment when the accident occurred.
Appellant assigns a single error to the trial court:
ASSIGNMENT OF ERROR
"THE TRIAL COURT ERRED IN DENYING THE MOTION FOR SUMMARY JUDGMENT OF DEFENDANT-APPELLANT, THE CINCINNATI INSURANCE COMPANY, AS TO ITS COMMERCIAL UMBRELLA LIABILITY POLICY OF INSURANCE." 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. 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, 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 from the evidence or stipulation, 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, that party being entitled to have the evidence or stipulation construed most strongly in the party's 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 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 clai
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