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Gordon v. Continental Cas. Co.12/11/1997
CLOSE, Judge.
This is an appeal from a decision of the Franklin County Court of Common Pleas, denying plaintiffs-appellants, James H. Gordon, executor of the estate of Lydia K. Gordon, et al., prejudgment interest on an arbitration award.
On September 3, 1990, an automobile accident occurred which resulted in the death of Lydia K. Gordon, who was insured under a policy issued by defendant-appellee, Continental Casualty Company. This case began as an action for wrongful death arising out of that accident and, as a result, coverage issues arose. Appellants filed a declaratory judgment action seeking coverage determinations relating to two insurance policies issued by appellee. One was an underlying liability policy and the other was an excess liability (umbrella) policy. The parties filed cross-motions for summary judgment in August and September 1993.
The court was asked to determine the limits of uninsured and underinsured motorist coverage under the two policies for the insureds, Mr. & Mrs. Gordon and their two children. The Franklin County Court of Common Pleas rendered a decision on November 3, 1993, which denied appellants' summary judgment motion on the issue of whether each claimant could collect an award up to ths$500,000 policy limit and on the stacking issue. The court granted appellants' motion for summary judgment relating to the umbrella coverage. The court found that there was an additional $1,000,000 available to the wrongful death beneficiaries under the umbrella policy. On December 27, 1997, the trial court modified its prior ruling on the umbrella issue, finding that this coverage was not available. The court upheld its ruling on the other two issues. Thus, summary judgment was granted to appellee on all issues.
Appellants appealed the decision of the Franklin County Court of Common Pleas granting the summary judgment motion of appellee and, on December 22, 1994, this court rendered an opinion which reversed the trial court's decision as to the umbrella policy coverage. Pursuant to the terms of the policy, the parties eventually submitted the issue of the value of the wrongful death claims to arbitration. The arbitration panel awarded the $1,000,000 limits of the policy on April 19, 1996. The additional $1,000,000 was paid by appellee on May 23, 1996, for which a release was given. However, appellants' right to pursue a claim for prejudgment interest was preserved.
On April 30, 1996, appellants filed a motion for prejudgment interest and costs, and a request for oral hearing. Appellants' application for prejudgment interest was met with appellee's motion to vacate, modify or correct the arbitration award. Pursuant to appellants' motion, and over the objection of appellee, this award was reduced to judgment by a decision issued by the Franklin County Court of Common Pleas on August 5, 1996.
The Franklin County Court of Common Pleas' decision rendered February 27, 1997, addressed the issue of whether prejudgment interest can be awarded on an arbitration award. The trial court held that an action brought against one's own insurer seeking recovery based on the uninsured/underinsured motorist provisions of an insurance policy is one which is based in contract, not tortious conduct, thus denying the award of prejudgment interest pursuant to R.C. 1343.03(C).
Appellants appeal that decision and bring the following assignment of error:
"The trial court erred to the prejudice of plaintiff by ruling as a matter of law, without a hearing, that plaintiff was not entitled to prejudgment interest under O.R.C. 1343.03."
The actual issue raised by the assignment of
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