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Thorley v. American States Preferred3/20/2002
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:
Plaintiff-Appellant Sarah Thorley has appealed an order of the Summit County Court of Common Pleas that granted summary judgment in favor of third party Defendant-Appellee Westfield Insurance Company ("Westfield"). This Court affirms.
I.
On October 7, 1998, Appellant's mother, Anna Helen Metheney, was killed in an automobile accident. Rebecca Rogers, the motorist responsible for the accident, was insured through Liberty Mutual Insurance. On June 19, 2000, Appellant entered into a settlement and release of Rogers for the $50,000.00 limit of Rogers' policy. Appellant subsequently brought a wrongful death suit against American States Preferred, a Safeco Company ("Safeco"), to recover under Safeco's uninsured/underinsured motorist coverage policy.
Safeco joined Westfield as a third party defendant under Scott-Pontzer v. Liberty Mut. Fire Ins. Co. (1999), 85 Ohio St.3d 660. At the time of the accident, Appellant was an employee of the University of Akron, which had a one million dollar commercial automobile policy with Westfield. On February 22, 2001, Appellee was notified of Appellant's uninsured/underinsured claim.
In June 2001, Westfield filed its motion for summary judgment. On October 10, 2001, the trial court granted summary judgment in favor of Westfield. Appellant has appealed the decision, asserting three assignments of error. For ease of discussion, Appellant's first and second assignments of error will be addressed simultaneously.
II.
An appellate court reviews a lower court's entry of summary judgment de novo, applying the same standard used by the trial court. Aufdenkamp v. Allstate (Jan. 19, 2000), Lorain App. No. 98CA007269, unreported. Pursuant to Civ.R. 56, summary judgment is appropriate when (1) there is no genuine issue as to any material fact; (2) the moving party is entitled to judgment as a matter of law; and (3) reasonable minds can come to but one conclusion, and that conclusion is adverse to the party against whom the motion for summary judgment is made, who is entitled to have the evidence construed most strongly in his favor. Harless v. Willis Day Warehousing Co. (1978), 54 Ohio St.2d 64, 66.
Assignment of Error Number One
The Court erred in ruling that [Appellant's] failure to notify Westfield prior to settlement with the tortfeasor destroyed Westfield's subrogation rights in violation of the policy, and entitled Westfield to summary judgment.
Assignment of Error Number Two
The Court erred in ruling that [Appellant's] "late notice" to Westfield violated the terms of the policy, and as a precondition, entitled Westfield to summary judgment.
In her first assignment of error, Appellant has argued that she is entitled to underinsured motorist coverage under Westfield's policy with the University of Akron despite the status of Westfield's subrogation rights because she asserts she could not have known about the possibility of Westfield's coverage when she settled with Rogers. Appellant has also asserted that subrogation violates the intent of R.C. 3937.18. In her second assignment of error, Appellant has argued that Westfield received prompt and reasonable notice under the circumstances and was not prejudiced by any notice delays. Appellant has asserted that she was not bound by the notice requirement in the policy because, at the time of the accident, she could not anticipate that Westfield would be liable. This Court finds no merit in Appellant's assertions
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