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McCollam v. American & Foreign Insurance Company11/24/2003
Defendant-appellant Motorists Mutual Insurance Company [hereinafter appellant] appeals from the February 3, 2003, Judgment Entry of the Stark County Court of Common Pleas which denied appellant's motion for summary judgment and granted summary judgment in favor of plaintiffs-appellees Lillian and Herbert Benedict [hereinafter appellees].
STATEMENT OF THE FACTS AND CASE
This case arises out of an accident which occurred on March 24, 1996, which resulted in the death of Thomas H. Benedict, Jr. The deceased, then 19 years of age, was survived by his mother, Peggy McCollam, his father, Thomas Benedict, Sr. and his grandparents, Lillian and Herbert Benedict (appellees).
At the time of the accident, Benedict was a passenger on the back of a motorcycle operated by Wesley Bennett. The motorcycle was owned by Sean Goodrich. Appellees alleged that Bennett was operating the motorcycle at an excessive speed when another tortfeasor, John Alge failed to yield the right-of-way and pulled his motor vehicle into the path of the motorcycle. Thus, appellees contend that both Bennett and Alge were negligent and that the negligence directly and proximately caused the accident and the resulting death of Thomas Benedict, Jr.
Bennett was uninsured at the time of the motorcycle accident. Goodrich did not have any liability insurance. Alge was covered under a liability policy of insurance at the time of the accident issued by Westfield Insurance Company with a liability limit of $100,000.00. Peggy Sue McCollam was appointed Administratrix of the Estate of Thomas Benedict, Jr. McCollam, as Administratrix, asserted a claim against Alge and Westfield. Ultimately, Westfield paid $100,000.00 to the Estate. Upon payment of the $100,000.00 by Westfield, the Administratrix signed a release in favor of Alge on May 7, 1997.
Appellees did not receive any part of the $100,000.00 obtained from Alge and Westfield. According to McCollam, appellees wanted the settlement proceeds to be paid to the mother and father, namely, Peggy Sue McCollam and Thomas H. Benedict, Sr.
At the time of the accident, appellees were insured under a personal auto policy issued by appellant to Herbert W. Benedict. The personal auto policy contained a prompt notice provision, a subrogation clause and a consent to settle clause regarding tentative settlements with the tortfeasors.
On July 5, 2002, plaintiffs Peggy McCollam, individually and as Executor of the Estate of Thomas H. Benedict, Jr., Deceased, Thomas H. Benedict, Sr., Herbert W. Benedict and Lillian Benedict filed a complaint for declaratory judgment against six insurance companies, including appellant. The only claim against appellant Motorists was asserted by appellees under their personal auto policy. Appellees asserted a Sexton claim pursuant to Sexton v. State Farm Mutual Automobile Ins. Co. (1982), 69 Ohio St.2d 431, 433 N.E.2d 555, and Moore v. State Automobile Mut. Ins. Co. (2000), 88 Ohio St.3d 27, 2002-Ohio-264, 723 N.E.2d 97.
On December 13, 2002, appellant filed a motion for summary judgment. Subsequently, appellees filed a brief in opposition and a cross motion for summary judgment. In a Judgment Entry filed February 3, 2003, the trial court granted appellees' motion for summary judgment and overruled appellant's motion for summary judgment. In the Judgment Entry, the trial court held that appellees were entitled to recover benefits under their personal auto policy issued by appellant for injuries they received individually for the loss of their grandson.
It is from the February 3, 2003, Judgment Entry that appellant appeals, raising the following assignments of
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