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Stanich v. Ohio Insurance Guaranty Association9/25/2002
JUDGMENT: Affirmed.
. Appellant/cross-appellee, Michael P. Stanich, appeals the judgment entry of the Mahoning County Court of Common Pleas affirming the decision of appellee/cross-appellant, the Ohio Insurance Guaranty Association ("OIGA").
. On January 17, 1997, appellant was sued for medical malpractice. Appellant was insured by PIE Mutual Insurance Company ("PIE"). PIE had issued appellant two policies of insurance on August 8, 1996, insuring appellant against claims for medical professional liability. Both the primary and excess policies were for $1,000,000. PIE originally defended appellant in his medical malpractice lawsuit, but PIE was later declared insolvent and liquidated. OIGA is a company that was formed to pay covered claims under insolvent insurers' contracts. Hence, when PIE became insolvent, OIGA assumed the obligation of defending appellant pursuant to R.C. 3955.01, et seq.
. On August 7, 2000, appellant filed a complaint for declaratory judgment against OIGA, Ronald Morgan individually and as administrator of the estate of Leigh Morgan ("the deceased"), John Delliquadri, D.O. ("Delliquadri"), and James Essad, D.O. ("Essad"). In that complaint, appellant's prayer for relief was for the court to determine his right to coverage by OIGA and declare the maximum amount of coverage that OIGA must provide for his benefit pursuant to the laws of Ohio and the provisions of the insurance contracts with PIE. Appellant contends that OIGA must insure him for up to $300,000 on each covered claim.
. On August 24, 2000, OIGA filed an answer admitting that appellant was insured by PIE and denying that he was covered by two separate insurance contracts. OIGA averred that one policy provided primary coverage, and the other one provided excess coverage. Thus, the two policies were contingent upon each other and could not be considered separate.
. On November 2, 2000, appellant filed a motion for summary judgment, and on November 16, 2000, OIGA filed a motion for summary judgment with a reply to appellant's motion. On May 4, 2001, the trial court denied appellant's motion for summary judgment and stated that "OIGA entitled to a finding that [appellant] ha a single claim against OIGA for a maximum payment by OIGA of $300,000 under the PIE Policies (in the event of judgment in that amount or more)." Thereafter, on May 11, 2001, the trial court concluded that since it had denied appellant's motion and entered a judgment that adjudicated his claims, "there no just reason for delay and [appellant's] action is dismissed." On May 24, 2001, appellant filed an appeal from both the May 4 and May 11 orders and now advances a single assignment error:
. "The Court of Common Pleas erred in denying [appellant's] motion for ummary udgment and in finding in favor of [OIGA] and in dismissing ppellant's omplaint for eclaratory udgment."
. In response, OIGA filed a cross-appeal, and makes the following assignment of error:
. "The trial court erred as a matter of law when it failed to find that appellant has no viable claim against [OIGA] until all recoverable insurance applicable to the loss has been exhausted."
. We note that this case was remanded to the trial court. On December 12, 2001, this court determined that the matter was not ripe for determination. Thereafter, on January 10, 2002, the trial court issued a judgment entry in which it indicated that "all other applicable insurance coverage available from all solvent insurance companies insuring the parties in the matter must be exhausted before [OIGA] or [appellant] shall have any liability." This court also remanded the matter t
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