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Gilkey v. Progressive Insurance Co.9/28/2000
APPEAL from the Franklin County Court of Common Pleas.
On December 20, 1996, Dennis Gilkey was killed as a result of an automobile accident involving vehicles driven by Dennis Gilkey and a drunk driver, John Gibson. Gibson was at fault. At the time of the accident, Saturn Alarm Systems, a corporation formed by Dennis Gilkey's brother, Joey Gilkey, employed Dennis. (Depo. of Joey Gilkey at 5.) In 1997, Dennis Gilkey's surviving family members filed suit against defendant-appellee, Progressive Insurance Company ("Progressive"), and others, seeking declaratory judgment and damages under different theories of liability arising from the same accident. ("Gilkey I"). The plaintiffs in Gilkey I were: Betty J. Gilkey, (decedent's mother), individually and as administratrix of the estate of Dennis Gilkey; Howard D. Gilkey (decedent's father), Jennifer D. Gilkey (decedent's daughter), by and through her next friend, Carolyn S. Gilkey; and Joey J. Gilkey (decedent's brother) individually and as next friend of Jocelyn Gilkey and Natalie Gilkey (Joey Gilkey's daughters).
In Gilkey I, only Joey Gilkey and his daughters asserted a claim against Progressive. The complaint alleged that Progressive had issued a commercial automobile insurance policy to Joey Gilkey, and that Joey Gilkey was an insured under the policy. Plaintiffs Joey Gilkey, Jocelyn Gilkey, and Natalie Gilkey demanded judgment against Progressive pursuant to the terms of the underinsured motorist coverage in an amount commensurate with his uninsured damages, plus interest, prejudgment interest, and costs. (Complaint in Franklin County Court of Common Pleas action 97CVC01-2259.)
The trial court granted summary judgment to Progressive on this claim on the grounds that the Progressive policy required the insured to sustain "bodily injury" and that Joey Gilkey was not entitled to coverage as he was not bodily injured as a result of the wrongful death of his brother. This court affirmed the judgment of the trial court, and the Ohio Supreme Court overruled a motion to certify. But, see, Moore v. State Auto. Mut. Ins. Co. (2000), 88 Ohio St.3d 27 (holding that R.C. 3937.18 does not permit an insurer to limit uninsured motorist coverage in such a way that an insured must suffer bodily injury in order to recover damages from the insurer).
On December 18, 1998, appellants, the same plaintiffs as in Gilkey I , filed the instant action, a complaint for declaratory judgment and breach of contract, against Progressive only ("Gilkey II"). Appellants' theory in Gilkey II is that the decedent, Dennis Gilkey, was an insured under Progressive's policy and, therefore, as wrongful death beneficiaries, they are entitled to recover for Dennis Gilkey's bodily injury. See, generally, Scott-Pontzer v. Liberty Mut. Fire Ins. Co. (1999), 85 Ohio St.3d 660. The parties filed cross-motions for summary judgment, Progressive arguing that under the doctrine of claim preclusion, the judgment rendered in Gilkey I precluded the claims raised in Gilkey II. The trial court granted Progressive's motion and entered judgment on January 6, 2000.
On appeal, appellants assert the following as error:
First Assignment of Error:
The Trial Court erred in granting Appellee Progressive Insurance Company's Motion for Summary Judgment based on the doctrine of res judicata.
Second Assignment of Error:
The Trial Court erred in failing to grant Appellants' Cross-Motion for Summary Judgment based on facts similar or identical to those present in the recently decided case of Scott-Ponzer v. Liberty Mut. Fire Ins. Co. (1999), 85 Ohio St.3d 660.
In their first assignment of erro
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