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Greene v. Westfield Insurance Co.11/12/2002
JUDGMENT: Affirmed in part, reversed in part and remanded
On July 28, 1991, Jeffrey Greene was operating a vehicle wherein his wife, Kande Greene, was a passenger. At the time, Mrs. Greene was seven and one-half months pregnant. A vehicle operated by James Wright struck the Greene vehicle. Several hours after the accident, Mrs. Greene gave birth by emergency C-Section to Nathaniel Greene. Nathaniel suffered brain damage, including cerebral palsy and delayed development.
At the time of the accident, Mrs. Greene was employed with Wadsworth Alert Laboratories, Inc., insured under a commercial automobile policy issued by Westfield Insurance Company and an umbrella policy issued by appellant, Cincinnati Insurance Company.
On May 31, 2001, appellee, Kande Greene, as mother and next friend of Nathaniel Greene, a minor, filed a complaint on behalf of Nathaniel seeking underinsured motorist coverage under the Westfield and Cincinnati policies. All parties filed motions for summary judgment. On December 19, 2001, Westfield settled and agreed to pay its $500,000 limit of underinsured motorist coverage to Nathaniel. By judgment entry filed April 1, 2002, the trial court found in favor of appellee under the Cincinnati policy, and referred the matter to binding arbitration.
Appellant filed an appeal and this matter is now before this court for consideration. Assignments of error are as follows:
I. "THE TRIAL COURT ERRED AS A MATTER OF LAW WHEN IT CONCLUDED THAT CINCINNATI'S STAND ALONE EXCESS POLICY PROVIDES UNINSURED/UNDERINSURED MOTORIST COVERAGE TO NATHANIEL GREEN."
II. "THE TRIAL COURT ERRED AS A MATTER OF LAW WHEN IT FAILED TO GIVE EFFECT TO THE NOTICE PROVISION IN CINCINNATI'S STAND ALONE POLICY."
III. "THE TRIAL COURT ERRED AS A MATTER OF LAW WHEN IT ORDERED ARBITRATION OF THE UIM CLAIM AGAINST CINCINNATI."
IV. "THE TRIAL COURT ERRED AS A MATTER OF LAW WHEN IT CONCLUDED THAT THE PLAINTIFF IS NOT JUDICIALLY ESTOPPED FROM BRINGING A UM/UIM CLAIM AGAINST CINCINNATI."
I.
Appellant claims the trial court erred in finding uninsured/underinsured motorist coverage to Nathaniel under its umbrella policy. We disagree.
It is undisputed that the underlying Westfield policy covered appellee pursuant to Scott-Pontzer v. Liberty Mutual Fire Insurance Co., 85 Ohio St.3d 660, 1999-Ohio-292. It is also undisputed that uninsured/underinsured motorist coverage arises under the umbrella policy by operation of law.
Appellant argues because the umbrella policy is a "stand alone" policy, appellee is not an insured under the policy's definition of "Who Is An Insured" and therefore is not entitled to coverage. Appellee argues if there is coverage under the underlying policy, there is coverage under the umbrella policy regardless of the umbrella policy's language. Appellee also argues the subject policy is not a "stand alone" policy. In support of this position, appellee points to the language contained in the policy at Part II - The Coverage, Section A, which states as follows:
"We will pay on behalf of the the (sic) Insured the ultimate net loss for occurrences during the policy period in excess of the underlying insurance or for occurrences covered by this policy which are either excluded or not covered by underlying insurance because of Personal Injury , Property Damage, or Advertising Liability anywhere in the world."
Appellant argues appellee is excluded as an insured under the policy pursuant to the definition of "Who Is An Insured" which states as follows:
"D. Who Is An Insured - Persons Or Orga
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