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Kocel v. Farmers Insurance of Columbus3/7/1996
ARY JUDGMENT
Civ.R. 56 provides that a summary judgment may be granted only after the trial court determines: 1) no genuine issues 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 but to 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. Norris v. Ohio Std. Oil Co. (1982), 70 Ohio St.2d 1; Temple v. Wean United, Inc. (1977), 50 Ohio St.2d 317.
"Upon a motion for summary judgment pursuant to Civ.R. 56, the burden of establishing that the material facts are not in dispute and that no genuine issue of material fact exists is on the party moving for the summary judgment." Van Fossen v. Babcock & Wilcox Co. (1988), 36 Ohio St.3d 100, 117.
This court's analysis of an appeal from a summary judgment is conducted under a de novo standard of review. See Maust v. Bank One Columbus, N.A. (1992), 83 Ohio App.3d 103, 107; Howard v. Willis (1991), 77 Ohio App.3d 133. No deference is given to the decision under review, and this court applies the same test as the trial court. Bank One of Portsmouth v. Weber (Aug. 7, 1991), Scioto App. No. 1920, unreported.
C. THE TRIAL COURT DID NOT ERR IN GRANTING DEFENDANT-APPELLEE'S MOTION FOR SUMMARY JUDGMENT AND IN DENYING PLAINTIFF- APPELLEE'S SIMILAR MOTION.
The uninsured motorist provision at issue reads in pertinent part:
We will pay all sums which an insured person is legally entitled to recover as damages from the owner or operator of an uninsured motor vehicle because of bodily injury sustained by the insured person. The bodily injury must be caused by accident and arise out of the ownership, maintenance or use of the uninsured motor vehicle.
As used in this Part:
1. Insured person means:
a. You or a family member.
b. Any other person while occupying your insured car.
c. Any person for damages that person is entitled to recover because of bodily injury to you, a family member, or another occupant of your insured car.
In the case sub judice, there is no dispute that plaintiff- appellant's brother was not an "insured person" under the insurance policy. The issue here concerns the validity of the restriction: "We will pay all sums which an insured person is legally entitled to recover as damages from the owner or operator of an uninsured motor vehicle because of bodily injury sustained by the insured person." (Italics added.)
Plaintiff-appellant argues the condition is invalid and violates R.C. 3937.18. Plaintiff-appellant primarily relies upon Sexton v. State Farm (1982), 69 Ohio St.2d 431, Savoie v. Grange Mut. Ins. Co. (1993), 67 Ohio St.3d 500 and Martin v. Midwestern Group Ins. Co. (1994), 70 Ohio St.3d 478. For the following reasons, we disagree with plaintiff-appellant.
In Sexton, the court recognized that for policy limitations to be valid, they cannot be contrary to the uninsured motorist coverage mandated by R.C. 3937.18(A). Id. at 433. The court held to come within the meaning of the statute: 1) the claimant must be an insured, 2) the claimant is legally entitled to recover damages, 3) the damages result from injury , sickness, disease or death and 4) the tortfeasor must be the owner and/or operator of an uninsured motor vehicle. Id. at 434, 435.
In that case, the claimant qualified as an insured and was seeking damages he suffered as a result of his daughter's death at the hand of an uninsured motorist. The insurance comp
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