King v. W. Res. Group12/1/1997
GENE DONOFRIO, Presiding Judge.
Western Reserve Group, appellant, appeals the order of the Monroe County Court of Common Pleas granting summary judgment in a declaratory judgment action in favor of appellees, Betty King, Clyde King, Joanie King, and the estate of Melania King, pertaining to the issue of underinsured motorist coverage.
Betty King and Clyde King were the parents of five children, Joanie, Stephen, Michael, Clayton, and Melania. Melania and Joanie resided with their parents, while the three brothers lived outside the household. The parents, Betty and Clyde, along with Melania and Joanie were all named insureds on an insurance policy issued by Lightning Rod Mutual Insurance Company, a subsidiary of appellant, Western Reserve Group. The policy provided for uninsured motorist coverage in the amount of $100,000 per person and $300,000 per accident.
On November 9, 1995, Melania King was killed in an automobile accident while riding as a passenger in a vehicle driven by Amy Conley. Conley was insured by the Horace Mann Insurance Company under a policy with a liability limit os$300,000 per accident. Because various other individuals were passengers in Conley's car at the time of the accident, Horace Mann instituted an interpleader action in the Circuit Court of Brooke County, West Virginia, joining as one of the defendants Betty King in her capacity as administrator of Melania's estate. On March 27, 1997, Betty King, as administrator of the estate of Melania King, filed art application in the Monroe County Probate Court for approval of the proposed wrongful death settlement in the Brooke County case. As a result of the agreed division of the Horace Mann liability policy, the estate of Melania King received $62,500. The Monroe County Probate Court approved the settlement, and after payment of expenses, the remainder of the $62,500 was distributed to Stephen King, Michael King, and Clayton King, all brothers of the deceased. None of the proceeds were paid to Clyde King, Betty King, or Joanie King, although all had consented to the distribution.
Following the settlement, appellees sought to recover underinsured motorist benefits under the Lightning Rod policy. On June 4, 1996, Lighting Rod offered to pay $37,500 to the estate of Melania King, which represented the $100,000 per-person limit of the policy, less a setoff of the $62,500 paid by Horace Mann on behalf of Conley. Appellees then instituted a declaratory judgment action seeking a determination that each appellee had a separate claim, that such claims were collectively subject to the per-person limit of the policy, and that appellant was not entitled to offset any amounts paid by Horace Mann to claimants other than appellees.
On December 12, 1996, the trial court ruled that appellees had four separate claims, each subject to a $100,000 limit, but limited to a total recovery of $100,000 collectively. The trial court also found that appellant was not entitled to set off against its policy limits any amounts not actually received by appellees. From that order, appellant brings three assignments of error. Because we believe it is a predicate to the resolution of the others, we will first consider appellant's second assignment of error, which states:
"The uninsured-motorist provision of the Lightning Rod policy defined an insured as anyone legally entitled to recover damages for bodily injury, including death, sustained by the family member of the named insured as a result of an accident caused by an underinsured motorist. Were the brothers of Melania King legally entitled to recover as beneficiaries in an action against the tortfeasor for wrongful death o
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