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Armentrout v. Bolden6/28/2002
d debilitating." Appellants were required to do more than make mere allegations to support their opposition to Progressive's motion for summary judgment and/or their motion for partial summary judgment against Progressive. See Civ.R. 56(C) and (E). As such, appellants' claims of severe emotional distress do not survive summary judgment.
. Finally, appellants' contend the $50,000 paid by Progressive was allocated among the three of them in the following manner: $5,000 to appellant Ronald, $22,500 to appellant Elizabeth, and $22,500 to appellant Robert. Appellants argue that, even assuming the $100,000 "per person" limitation applied, they were entitled to an additional $95,000 to appellant Ronald, $77,500 to appellant Elizabeth, and $77,500 to appellant Robert. First, the record does not indicate that such an allocation was ever made. Rather, the settlement and conditional release agreement that appellants entered into with Progressive simply states that Progressive was issuing appellants $50,000. Next, as explained above, all of appellants' claims fall within the "per person" limit of liability. Appellant Ronald's bodily injury claims and the loss of consortium claims by appellants Elizabeth and Robert fall within the $100,000 "per person" limit under the uninsured/underinsured motorist coverage of the policy.
. Appellants received $50,000 from Westfield as to Fresch's policy. However, appellants' uninsured/underinsured motorist coverage with Progressive provides for a set off. In particular, the policy states:
. "The Limits of Liability under this Part III shall be reduced by all sums:
. "1. paid because of bodily injury or property damage by or on behalf of any persons or organization who may be legally responsible *."
. Clearly and unambiguously the policy allows Progressive to set off the $50,000 received from Westfield against the $100,000 "per person" limit of liability owed to appellant under their uninsured/underinsured motorist coverage. As to the remaining balance of $50,000, pursuant to the settlement and conditional release entered into between appellants and Progressive, appellants received $50,000. Thus, Progressive tendered the amount owed to appellants.
. Upon conducting an independent examination of the record, viewing the evidence most strongly in favor of appellants, reasonable minds can come to but one conclusion as to Progressive's motion for summary judgment on appellants' claims for uninsured/underinsured motorist coverage under their policy. This conclusion is adverse to appellants. Appellants' second assignment of error is without merit.
. Appellants' final assignment of error provides:
. "[3.] The Trial Court erred in granting Appellee Westfield Insurance Company's motion for summary judgment on Appellants' claims for underinsured motorist coverage under the policies issued by Appellee Westfield Insurance Company to Don Joseph Toyota."
. In their final assignment of error, appellants aver they are entitled to uninsured/underinsured coverage under the policy issued to Don Joseph, Inc. Appellants claim the policy did not provide such coverage; therefore, such coverage arose by operation of law with limits matching the liability coverage of $1,000,000. Appellants contend appellant Ronald was operating the vehicle under permission of Don Joseph Toyota since the lease had expired. Appellants assert the policy defines an insured as anyone occupying a covered auto, which includes the leased vehicle driven by appellant Ronald. Appellants contend that there is also uninsured coverage, arising by operation of law, under the umbrella policy since it is not provided. Appella
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