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Mohlmaster v. State Farm Mutual Automobile Insurance Co.2/13/2002
DECISION AND JOURNAL ENTRY
This cause was heard upon the record in the trial court. Each error assigned has been reviewed and the following disposition is made:
Appellant, Ronald Case Mohlmaster, appeals from the judgment of the Summit County Court of Common Pleas granting summary judgment in favor of Appellee, State Farm Mutual Automobile Insurance Company. We affirm.
Appellant serves as the administrator of the estate of Marilyn Wagner, who was killed in a car accident involving a driver and vehicle covered by an insurance policy issued by Appellee. The policy contained bodily injury coverage limits of $100,000 per person and $300,000 per accident. Appellee offered to pay Appellant the per person bodily injury liability limit of $100,000, in settlement of the wrongful death claim which ensued. Appellant filed a declaratory action on behalf of the estate and the children of the deceased, seeking a total recovery of $300,000. Appellee moved for summary judgment. The trial court granted summary judgment in favor of Appellee, finding that R.C. 3937.44 applied to the insurance policy to limit recovery to the per person amount of coverage. Appellant timely appealed raising one assignment of error for review.
Assignment of Error
The trial court erred to the prejudice of Appellant in granting summary judgment for Appellee, holding that [R.C.] 3937.44 * was in effect at the time when the contract of insurance arose and holding that it is applicable to limit recovery instead of Savoie v. Grange Mut. Ins. Co. (1993), 67 Ohio St.3d 500.
In his sole assignment of error, Appellant argues that summary judgment was improper since the trial court erred in applying R.C. 3937.44, a provision of Am.Sub.S.B. No. 20 ("S.B. 20"), to the insurance policy in question. He contends that S.B. 20 was inapplicable and the reasoning contained in Savoie v. Grange Mut. Ins. Co. (1993), 67 Ohio St.3d 500 applies, resulting in a finding that the estate is entitled to the per accident aggregate limit of $300,000. We disagree.
Pursuant to Civ.R. 56(C), summary judgment is appropriate when: (1) No genuine issue as to any material fact remains to be litigated; (2) the moving party is entitled to judgment as a matter of law; and (3) it appears from the evidence that reasonable minds can come to but one conclusion, and viewing such evidence most strongly in favor of the party against whom the motion for summary judgment is made, that conclusion is adverse to that party. Temple v. Wean United, Inc. (1977), 50 Ohio St.2d 317, 327. To succeed on a summary judgment motion, the movant "bears the initial burden of demonstrating that there are no genuine issues of material fact concerning an essential element of the opponent's case." (Emphasis sic.) Dresher v. Burt (1996), 75 Ohio St.3d 280, 292. If the movant satisfies this burden, the non- moving party "must set forth specific facts showing that there is a genuine issue for trial." Id. at 293, quoting Civ.R. 56(E). An appellate court reviews a lower court's entry of summary judgment applying the de novo standard; thereby employing the same standard used by the trial court. See Klingshirn v. Westview Concrete Corp. (1996), 113 Ohio App.3d 178, 180.
In Savoie, the Ohio Supreme Court held as follows:
Each person who is presumed to have been damaged as a result of a wrongful death claim may, to the extent of his or her damages, collect from the tortfeasor's liability policy up to its per person limit subject to any per accident limit. Liability policy provisions which purport to consolidate wrongful death damages suffered by individuals into one "each person" policy limit are unenforceable.
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