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Carroll v. Allstate Insurance Co.6/14/2002
JUDGMENT: Reversed and Remanded
Appellant Nationwide Mutual Insurance Company ("Nationwide") appeals from the judgment of the Holmes County Court of Common Pleas that granted Allstate Insurance Company's motion for summary judgment on its cross-claim against Nationwide and denied Nationwide's motion for summary judgment against Allstate. The following facts give rise to this appeal.
On April 27, 1997, Vera Carroll sustained fatal injuries in an automobile accident on U.S. 62 in Berlin Township. At the time of the accident, the decedent was riding as a passenger in a vehicle owned by her husband, Ivan Carroll. The decedent's daughter, Marline Carroll, was driving the vehicle when Nancy Weibrecht negligently crossed left of center and struck the decedent's vehicle. Weibrecht was insured by State Farm Insurance Company and had liability limits of $100,000 per person and $300,000 per accident. State Farm Insurance Company paid its entire $100,000 per-person accident limits, which the Stark County Probate Court determined should be disbursed to Ivan Carroll.
At the time of her death, the decedent had a policy of insurance with Nationwide. The Nationwide policy provided uninsured motorist coverage of $100,000 per person and $300,000 per accident. Also on the date of the accident, appellee Allen Carroll, the adult nonresident son of the decedent, had a policy of insurance with Allstate. This policy provided uninsured motorist coverage of $100,000 per person and $300,000 per accident. Allstate originally denied coverage to appellee Carroll but subsequently paid to him its per-person limits of $100,000.
On September 18, 2000, appellee Carroll filed this declaratory judgment action, against Nationwide and Allstate, asking the Holmes County Court of Common Pleas to declare that he is entitled to underinsured coverage for the wrongful death of his mother under both the Nationwide policy issued to his parents and the Allstate policy issued directly to him. Allstate filed a cross-claim against Nationwide alleging Nationwide's underinsured coverage was primary to its own.
All parties filed cross-motions for summary judgment. The trial court granted Appellee Carroll's motion for summary judgment and denied Nationwide's motion for summary judgment. The trial court concluded Appellee Carroll was entitled to underinsured coverage of $100,000 under the Allstate policy and $100,000 under the Nationwide policy. Judgment Entry, Sept. 26, 2001, at 2. The trial court also concluded Nationwide's coverage is primary and Allstate's coverage is excess. Id. Finally, the trial court granted Allstate's motion for summary judgment on its cross-claim against Nationwide and declared Allstate subrogated against Nationwide to the extent of the $100,000 paid under the Allstate policy. Id.
Nationwide timely filed a notice of appeal and sets forth the following assignments of error for our consideration:
"I. The trial court erred in granting summary judgment for plaintiff because he was neither an `insured' under his parents' Nationwide policy, nor an `uncompensated' wrongful death statutory beneficiary.
"II. The trial court erred in granting summary judgment for plaintiff and holding that the Nationwide policy does not clearly and unambiguously limit all derivative claims for the wrongful death of Vera Carroll to a single `per person' limit as permitted by R.C. ยง3937.18(H).
"III.The trial court erred in granting summary judgment for plaintiff and refusing to permit nationwide to set off against its UM/UIM limits, the amount paid by the tortfeasor and collectively received by Vera Carroll's statutory benefic
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