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Tharp v. Berdanier12/10/2003
Decision and Journal Entry
This cause was heard upon the record in the trial court. Each error assigned has been reviewed and the following disposition is made:
Plaintiffs-Appellants Bonnie Tharp, individually and as the executor of the estate of Robert Tharp, Sr., and Robert Tharp, Jr. (collectively "Appellants") have appealed from a decision of the Summit County Court of Common Pleas that granted the motions for summary judgment filed by Defendants-Appellees Continental Casualty Company, Erie Insurance Exchange, and National Union Fire Insurance Company of Pittsburgh. This Court affirms.
I.
On March 9, 2001, Robert Tharp, Sr. and his wife Bonnie Tharp were driving along Waterloo Road at Manchester Road, in Akron, Ohio, when their vehicle was struck by a vehicle driven by Alec A. Berdanier ("tortfeasor"). As a result of the accident, Robert Tharp, Sr. was killed and Bonnie Tharp sustained permanent injuries. At the time of the accident, Robert and Bonnie Tharp, Sr. were not acting within the course and scope of their employment nor were they driving a vehicle owned by the corporation. The Tharp's vehicle was insured under Bonnie Tharp's name; the vehicle was insured by Nationwide Insurance Company ("Nationwide"). The tortfeasor was insured under a personal automobile liability policy with Progressive Insurance Company with policy limits of $15,000 per person and $30,000 per accident. In addition, Robert Tharp, Sr.'s employer, Coca-Cola Enterprises, Inc., maintained an uninsured and underinsured ("UM/UIM") automobile policy with Continental Casualty Company ("Continental"). Bonnie Tharp's employer, Army Navy Union Garrison #250, maintained an insurance policy with Erie Insurance Exchange ("Erie").
Appellants filed a declaratory judgment action against the tortfeasor, Continental, Erie, and Nationwide seeking: 1) UIM coverage from Nationwide in the amount of the policy limits of $100,000 per person and $300,000 per accident; 2) a declaration that Appellants were "insureds" under the Continental insurance policy pursuant to Scott-Pontzer v. Liberty Mut. Fire Ins. Co. (1999), 85 Ohio St.3d 660 , and that they were therefore entitled to UM/UIM coverage; and 3) a declaration that Appellants were "insureds" under the Erie insurance policy pursuant to Scott-Pontzer, and that they were therefore entitled to UM/UIM coverage. Each insurance company answered Appellants' complaint. Nationwide filed a cross-claim against the tortfeasor, Continental and Erie, in which it sought a claim of subrogation against the tortfeasor and a declaration of the rights and duties of each insurance company.
After obtaining consent from Continental, Erie, and Nationwide, Appellants settled their claims against the tortfeasor for the limits of the tortfeasor's liability insurance policy.
On March 7, 2002, Continental filed a motion for summary judgment. Before the trial court could rule on Continental's motion for summary judgment, Appellants filed an amended complaint, whereby an additional party was added: National Union Fire Insurance Co. ("National Union").
On March 21, 2002, Appellants filed a motion to strike, wherein they moved the trial court to strike all references indicating that Bonnie Tharp and the decedent consumed alcohol prior to the automobile accident.
On April 8, 2002, Appellants filed a motion for partial summary judgment and brief in opposition to Nationwide's motion for summary judgment. Later, on May 3, 2002, Erie filed a motion for summary judgment. Appellants filed another motion for summary judgment and replied to Erie's motion for summary judgment on May 20, 2002.
On August 21, 2002,
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