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Stover v. State Farm Ins. Co.5/21/1998
"(2) if the person to or for whom we have made payment has not recovered from the party at fault, he or she shall:
"(a) keep those rights in trust for us;
"(b) execute any legal papers we need; and
"(c) when we ask, take action through our representative to recover our payments."
We have previously found that appellee never refiled her loss-of-consortium claim, thereby allowing the statute of limitations to lapse. Accordingly, we find that, in doing so, appellee failed to fulfill her obligation under the subrogation clause. Therefore, we find that the trial court again erred in finding that she is legally entitled to collect underinsured motorist benefits.
Summary judgment is appropriate when (1) there is no genuine issue of material fact; (2) the moving party is entitled to judgment as a matter of law; and (3) reasonable minds can come to but one conclusion, and that conclusion is adverse to the party against whom the motion for summary judgment is made. State ex rel. Howard v. Ferreri (1994), 70 Ohio St.3d 587, 589, 639 N.E.2d 1189, 1192-1193; State ex rel. Parsons v. Fleming (1994), 68 Ohio St.3d 509, 511, 628 N.E.2d 1377, 1379-1380; Turner v. Turner (1993), 67 Ohio St.3d 337, 339-340, 617 N.E.2d 1123, 1125-1126.
For the aforementioned reasons, we find that appellee is not legally entitled to collect underinsured motorist benefits. Therefore, we find that appellant's summary judgment motion should have been granted and that appellee's summary judgment motion denied.
Accordingly, we sustain appellant's first assignment of error and reverse the trial court's judgment.
"The trial court erred in holding that Angeline Stover is entitled to assert a claim for underinsured motorist coverage for the additional reason that plaintiffs/appellees have already entered into a full and final settlement pursuant to which they released any and all further claims that they had or may have had against both the tortfeasor and State Farm."
In its second assignment of error, appellant claims that appellee waived her rights to any underinsured motorist benefits when the 1991 settlement was signed. Specifically, appellant asserts that in signing the settlement agreement, appellee breached her policy's subrogation clause.
However, we have reviewed the settlement release in question. We find that appellee signed the release only in her capacity as Leo's legal guardian. Therefore, she never released her own rights against the tortfeasor.
Accordingly, we overrule appellant's second assignment of error.
Judgment affirmed in part, reversed in part and cause remanded.
SHAW, P.J., and EVANS, J., concur.
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