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Piergallini v. Brister6/11/2002
. This matter comes for consideration upon the record in the trial court, the parties' briefs, and their oral argument before this court. Plaintiffs-Appellants, Henry and Juanita Piergallini (hereinafter "the Piergallinis"), appeal the judgment of the Belmont County Court of Common Pleas dismissing Mrs. Piergallini's claim for loss of consortium in favor of Defendant-Appellee, Lena Brister (hereinafter "Brister"). The issue we must address is whether the automobile insurance policy covering Brister at the time of the incident which provides coverage for a loss of consortium claim, is either subject to a separate per person limit, or is included in the per person limit covering the injured party. Because the Piergallinis failed to present the insurance policy for the first year of the two year guarantee period provided for by R.C. 3937.31, they could not argue the loss of consortium claim was subject to a separate per person limit by operation of law. As the only policy in evidence specified derivative claims were subject to the per person limit covering the injured party, the trial court properly granted State Farm summary judgment. For the following reasons, the decision of the trial court is affirmed.
On November 6, 1996, Mr. Piergallini was crossing the street when he was struck by a vehicle driven by Brister. The Piergallinis filed suit against Brister to recover for both Mr. Piergallini's personal injuries and Mrs. Piergallini's loss of consortium. At the time of the incident, Brister was insured by State Farm Insurance Company. The liability policy of automobile insurance (hereinafter "1996 policy") had an inception date of February 1, 1996, with $100,000 per person and $300,000 per accident limits. Notably, the language of this policy limits all claims arising out of one injury to a single per person limit of $100,000.
. Although the parties disputed coverage of the loss of consortium claim, they mutually agreed to settle and release Mr. Piergallini's claims for policy limits of $100,000. The Piergallinis reserved the right to go forward with the loss of consortium claim, stipulating that if a court determined the State Farm insurance policy did not provide separate coverage for the remaining claim, they would not pursue Brister personally. Brister filed a motion for summary judgment asserting Mrs. Piergallini's loss of consortium claim should be dismissed because the liability policy term limits of $100,000 per person had already been paid to the Piergallinis as and for Mr. Pergallini's personal injury claim, thereby exhausting coverage and the policy explicitly provides a loss of consortium claim is subject to that per person limit.
. In response, the Piergallinis argued a review of the declaration page and policy in effect at the time of the accident revealed the 1996 policy was not the first policy issued to Brister. Instead, it was a replacement of a prior policy which, they contend, may provide for separate limits for such claims, entitling the Pergallinis to recover by operation of law, specifically R.C. 3937.31. The Piergallinis continued in their argument opposing summary judgment that they did in fact request a copy of the policy in effect immediately preceding the 1996 policy, but, without any further explanation, claim they were never given a copy of that policy. The Piergallinis were, however, provided with a copy of the policy which covered Brister from February 1, 1993 to February 1, 1995. The policy which is apparently missing would purportedly cover Brister from February 1, 1995 to February 1, 1996.
On February 23, 2001, the trial court granted Brister's motion for summary judgment reasoning "the plaintiff cannot rely upon missing in
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