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Bertsch v. Nationwide Mutual Insurance Co.3/6/2003
JUDGMENT: Affirmed
Appellant Nationwide Mutual Insurance Company ("Nationwide") appeals the decision of the Richland County Court of Common Pleas that found its policy was primary up to the policy limits of $100,000. The trial court also determined that policies issued by Federal Insurance Company ("Federal"), USF&G;Insurance Company, Inc. ("USF&G;), Travelers Property Casualty ("Travelers") and Preferred Risk Mutual Insurance Company ("Preferred Risk") provided UM/UIM coverage on a pro-rata basis excess of the primary coverage provided by Nationwide. The following facts give rise to this appeal.
Appellee Donald Bertsch filed this lawsuit following the death of his mother, Mary J. Shenberger, in an auto accident on January 22, 1998. On the day of the accident, the decedent was riding as a passenger in an automobile operated by Tonya Marvin. Ms. Marvin failed to yield the right-of-way when crossing an intersection at U.S. 30 and State Route 603 in Mifflin Township, Ashland County. As a result of Ms. Marvin's negligence, her vehicle was struck by an oncoming truck operated by Lowell Bishop.
Subsequently, Ms. Marvin's insurer, United Ohio Insurance Company, tendered to the estate of the decedent the liability limits of $50,000 per person, as well as $5,000 in medical payments, in exchange for a release of liability on behalf of Ms. Marvin. Sandra Mecurio, Administrator of the Estate of Mary Shenberger, executed the release on April 11, 2000. Out of these proceeds, appellee received $12,382.25.
On the date of the accident, appellee was insured under an automobile liability policy of insurance issued by Nationwide. The Nationwide policy contains UM/UIM coverage in the amount of $100,000 per person and $300,000 per occurrence. Also on the date of the accident, Jane Bertsch, appellee's wife, was employed at Liquibox. Federal issued a Business Auto policy, to Liquibox, which included an Ohio Uninsured Motorists Coverage endorsement with limits of $1,000,000 each occurrence. Wendy Bertsch, appellee's daughter, worked at Good Shepherd Home on the date of the accident. Preferred Risk issued a Business Auto policy to Good Shepherd Home which included an Ohio Uninsured Motorists Coverage Endorsement with limits of $1,000,000 per occurrence.Also on the date of the accident, Travelers had in effect a Commercial Automobile Insurance policy issued to appellee's employer, Pentair, Inc. The policy included $3,000,000 combined single limit liability coverage, but purportedly rejected Ohio Uninsured Motorists coverage. Appellee's daughter, Lori Bertsch, was employed by Discount Drug Mart, Inc. Discount Drug Mart, Inc. was insured under a policy of insurance issued by USF&G; which provided commercial auto coverage and UM/UIM coverage with a limit of liability of $1 million dollars.
Pursuant to the Ohio Supreme Court's holdings in Sexton v. State Farm Mut. Auto. Ins. Co. , Moore v. State Auto Ins. Co. , and Holt v. Grange Mut. Cas. Co. , appellee sought his own compensatory damages for the wrongful death of his mother under his own personal automobile policy issued by Nationwide. Upon request by Nationwide, appellee amended his complaint to include two insurance carriers, Federal and USF&G; Nationwide filed a third-party complaint against Travelers and Preferred Risk.
The parties stipulated that appellee's total damages were $100,000. Thereafter, Federal, Preferred Risk, Travelers and USF&G; referred to as the Scott-Pontzer carriers, moved for summary judgment on the ground that their respective policies did not provide underinsured motorist coverage. In addition, these parties argued that even if their policies provi
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