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Thorley v. American States Preferred3/20/2002
(Nov. 17, 1995), Lucas App. No. L-95-032, unreported, 1995 Ohio App. LEXIS 5096 at 9. Appellant's failure to notify Westfield of the settlement with Rogers is a material breach of the insurance contract and relieves Appellee of the duty to provide insurance benefits. Id.; see, also, Zinader v. Copley-Fairlawn City School Dist. (1994), 95 Ohio App.3d 623, 627-628; Green v. The Cincinnati Ins. Co. (Dec. 7, 2001), Huron App. No. H-01-018, unreported, 2001 Ohio App. LEXIS 5409 (Upholding summary judgment for insurance carrier where accident occurred pre-Scott-Pontzer, settlement occurred post-Scott-Pontzer, and insured did not inform insurance carrier until after settlement; the insured's failure to provide the contractually required notice prior to settlement with the tortfeasor released the insurance carrier from providing underinsured motorist coverage).
For the foregoing reasons, this Court finds that summary judgment in favor of Westfield was appropriate. First, the record reflects that no genuine issues of material fact exist and that Appellant failed to meet her burden of rebutting Westfield's demonstration that no such issues exist. Second, Westfield is entitled to judgment as a matter of law because Appellant breached the insurance contract by failing to provide notice within a reasonable time and by destroying Westfield's subrogation rights by settling with Rogers and releasing her from further liability before providing notice. Finally, reasonable minds can come to only one conclusion- that Appellant's failure to provide notice to Westfield, as required by the insurance contract, of the accident, the settlement, and the underinsured motorist claim prior to February 22, 2001, entitles Westfield to summary judgment. Accordingly, Appellant's first and second assignments of error are overruled.
Assignment of Error Number Three
The Court erred in ruling that [Appellant] is not "legally entitled to recover" from [Appellee] Westfield and is entitled to summary judgment.
Appellant's third assignment of error is rendered moot by our resolution of Appellant's first and second assignments of error. App.R. 12(A)(1)(c).
III.
Appellant's first and second assignments of error are overruled and Appellant's third assignment of error is moot. The judgment of the trial court is affirmed.
Judgment affirmed.
The Court finds that there were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period for review shall begin to run. App.R. 22(E). The Clerk of the Court of Appeals is instructed to mail a notice of entry of this judgment to the parties and to make a notation of the mailing in the docket, pursuant to App.R. 30.
Costs taxed to Appellant.
Exceptions.
SLABY, P. J., CARR, J., CONCUR
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