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Smith v. Colonial Insurance Co. of California9/25/2000
CHARACTER OF PROCEEDINGS: Civil Appeal from Common Pleas Court.
JUDGMENT: Judgment affirmed.
Plaintiffs-appellants, Helen M. Smith, individually and as a representative of the Estate of Selina A. Cavin, her decedent daughter, Thornton Butler, decedent's brother, and Nikol M. Rivera, decedent's minor daughter by her next friend and guardian Helen M. Smith, appeal from the judgment of the Defiance County Court of Common Pleas which granted summary judgment in favor of defendant-appellee, Colonial Insurance Company of California.
On October 23, 1994, Casey R. Lindberg, the driver of a Ford Mustang LX and Selina A. Cavin ("decedent"), a passenger in the vehicle, were killed in a one-car accident. Two other passengers, Catina A. Keck and David P. Erman, were also injured as a result of the accident. The vehicle operated by Lindberg was owned by Linda Weisenburger and insured by The Cincinnati Insurance Company. The Cincinnati policy coverage limits were $100,000 per person and $300,000 per accident. Weisenburger was also insured by Cincinnati under a commercial umbrella liability policy. After filing a wrongful death and survivorship action arising from this accident, appellant Smith agreed to settle and release all claims against Lindberg, Weisenburger and Cincinnati for $150,000 of $205,000 in available policy limits.
On May 4, 1998, appellants filed the instant action against Colonial. An amended complaint sought both uninsured and underinsured motorists benefits under a Colonial policy issued to appellant Smith. This policy provided uninsured/underinsured coverage limits in the amount of $12,500 per person and $25,000 per accident.
Both Colonial and appellants filed motions for summary judgment. The trial court granted Colonial's motion and denied the motion filed by appellants. In its entry, the trial court determined that by receiving the settlement of $150,000 of liability insurance proceeds, appellants were precluded from claiming that they were entitled to uninsured motorist coverage under the Colonial policy. The trial court further found that this settlement of approximately $205,000 in remaining liability limits under the Cincinnati policy did not amount to substantial exhaustion or receipt of the policy limits for practical purposes. The court therefore held that appellants' underinsured motorist claim was barred. Appellants now appeal from this decision and raise the following three assignments of error:
The trial court erred when it found that appellants' receipt of money in settlement bars their claim for uninsured motorist coverage under their insurance policy with appellee. At the very least there is a genuine issue of material fact as to whether the tortfeasor was insured thus precluding summary judgment.
The trial court erred when it found that appellee, when authorizing settlement in appellants' claim against the tortfeasor, did not waive or abandon the defense of substantial exhaustion thus precluding it from denying appellants' claim for underinsurance coverage under their insurance policy with appellee.
The trial court erred when it found that appellants did not substantially exhaust the tortfeasor's purported liability coverage thereby disallowing appellants' claim for underinsurance coverage under their insurance policy with appellee.
In their first assignment of error, appellants argue that payment of a settlement by Cincinnati is not determinative of whether they should be entitled to recover under the uninsured motorists provisions of the policy with Colonial. Appellants assert that payment under a policy is not an admission of liability or coverage for the tor
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