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Weiker v. Motorists Mutual Insurance Co.6/17/1998
Insurance - Motor vehicles - Underinsured motorist coverage - Wrongful death beneficiary not precluded from underinsured motorist coverage because of failure to notify insurer of a wrongful death settlement.
Submitted February 3, 1998
On August 14, 1993, James N. Pettit was killed in an automobile collision caused by a negligent motorist. April S. Pettit, his daughter, was appointed as administrator of his estate by the Fulton County Probate Court. As administrator and personal representative of the beneficiaries, April entered into a settlement with the tortfeasor for the wrongful death of the decedent, pursuant to R.C. 2125.01 et seq., which was approved by the probate court in September 1994. The release was made by the administrator on behalf of "the other heirs and next of kin of James N. Pettit." James Pettit's children, as well as his mother, consented in writing to the distribution of the proceeds. The probate court approved the wrongful death settlement in the amount of $250,000, the liability limit of the tortfeasor's policy.
Joyce Ann Weiker, appellant, was the sister of the decedent, James Pettit. She was never notified by the court that the probate of James Pettit's estate had commenced. Through conversations with her niece April and her mother, Weiker was aware of the probate proceedings, but thought that they were only for the benefit of her mother and brother's children. Joyce's mother told her that according to the administrator's lawyer, Joyce did not have a claim. Furthermore, Weiker was never aware that the probate court eventually approved a proposed settlement between the administrator and the tortfeasor.
Weiker eventually consulted an attorney and realized that she could present a claim for wrongful death. In June 1995, she filed a motion with the probate court to vacate the release as to her and her brother, Donald Pettit. However, the probate court denied the motion on August 4, 1995.
Weiker then submitted a claim to her own insurance company, Motorists Mutual Insurance Company ("Motorists"), appellee, for underinsured motorist benefits, since she failed to receive a portion of the wrongful death settlement. Weiker had two policies with her insurer, one personal, and the other, commercial. When Motorists failed to acknowledge coverage, Weiker filed a complaint against Motorists seeking underinsured motorist coverage, alleging that she had suffered the loss of society and companionship of her brother, the decedent, and had experienced severe emotional anguish over his death.
Both parties filed motions for summary judgment. The trial court granted appellee's summary judgment motion, finding that Weiker's rights were extinguished by the wrongful death settlement, and that she failed to protect her insurer's subrogation rights by not promptly notifying Motorists of her claim until after the settlement had been approved by the probate court. The court of appeals affirmed.
The cause is now before this court upon the allowance of a discretionary appeal.
Rogers & Godbey Co., L.P.A., and George C. Rogers, for appellant.
Jones & Bahret Co., L.P.A., Robert J. Bahret and Keith J. Watkins, for appellee.
Francis E. Sweeney, Sr., J. The issue in this is case is whether a wrongful death beneficiary is precluded from underinsured motorist coverage because of her failure to notify her insurer of a proposed wrongful death settlement. Because we find that appellant did not violate the terms of her personal insurance policy, she is entitled to underinsured motorist coverage from her insurance provider.
Weiker's personal automobile insurance policy with
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