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Kocel v. Farmers Insurance of Columbus3/7/1996
JUDGMENT: AFFIRMED.
Stanley Kocel, plaintiff-appellant, appeals the decision of the Cuyahoga County Court of Common Pleas granting Farmers Insurance of Columbus, Inc.'s, defendant-appellee's, motion for summary judgment and denying plaintiff-appellant's similar motion. Plaintiff- appellant raises two errors for review. This court, finding no error, affirms the decision of the trial court.
I. STATEMENT OF FACTS
On October 26, 1993, Mark Kocel was killed by a vehicle driven by an uninsured motorist. Stanley Kocel, plaintiff-appellant, was at that time the sole surviving sibling of the deceased. Plaintiff-appellant, at the time of the unfortunate accident, maintained automobile insurance through Farmers Insurance of Columbus, Inc., defendant-appellee. Plaintiff-appellant filed an uninsured motorist claim for injuries he suffered due to the death of his brother. Defendant-appellee refused to provide such coverage.
On August 15, 1994, plaintiff-appellant filed a complaint claiming defendant-appellee breached its automobile insurance contract by failing to provide uninsured motorist coverage to plaintiff-appellant for damages he sustained as a result of his brother's death. The claimed damages are those of a surviving brother as provided by the Ohio Wrongful Death Statute, R.C. 2125.02.
Farmers Insurance of Columbus, Inc., defendant-appellee, filed a motion for summary judgment arguing uninsured motorist coverage under the insurance policy requires bodily injury be to an "insured person." Since the deceased does not qualify as an "insured person" under the policy, plaintiff-appellant was not entitled to coverage.
Stanley Kocel, plaintiff-appellant, responded by filing his own motion for summary judgment and brief in opposition. Plaintiff- appellant argued that uninsured motorist coverage is personal to insureds. Since he is an insured under the policy, plaintiff- appellant argues the coverage extends to derivative, Wrongful Death Statute damages such as those he sustained by his brother's death. Moreover, plaintiff-appellant argues the limitations urged by defendant-appellee are impermissible under the requirements of R.C. 3937.18.
On April 25, 1995, the trial court granted defendant-appellee's motion for summary judgment and denied plaintiff-appellant's similar motion. Plaintiff-appellant timely filed this appeal.
II. FIRST AND SECOND ASSIGNMENT OF ERROR
Since Stanley Kocel's, plaintiff-appellant's, first and second assignments of error contain similar issues of law and fact, this court will consider them concurrently.
I. THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT IN FAVOR OF DEFENDANT-APPELLEE, FARMERS INSURANCE OF COLUMBUS.
II. THE TRIAL COURT ERRED IN DENYING SUMMARY JUDGMENT FILED BY PLAINTIFF- APPELLANT, STANLEY KOCEL.
A. ISSUE RAISED: WHETHER THE TRIAL COURT ERRED IN GRANTING DEFENDANT-APPELLEE'S MOTION FOR SUMMARY JUDGMENT.
Plaintiff-appellant argues the trial court erred in granting defendant-appellee's motion for summary judgment and in denying plaintiff-appellant's similar motion. Specifically, plaintiff- appellant argues that as an insured, he is entitled to coverage for injuries he received which are recognized by R.C. 2125.02. Moreover, plaintiff-appellant argues recent Ohio Supreme Court decisions not only mandate coverage, but also prohibit the type of restriction on uninsured motorist coverage as being violative of R.C. 3937.18, i.e., requiring bodily injury to the insured.
Plaintiff-appellant's first and second assignments of error are not well taken.
B. STANDARD OF REVIEW: SUMM
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