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United States Fid. & Guar. Co. v. Kammeyer9/16/1994
SHERCK, Judge.
This is an appeal from orders of the Ottawa County Court of Common Pleas which granted summary judgment to two insurance companies in a declaratory action. Because we find that appellee USF & G failed to establish a knowing and express waiver of underinsured motorists coverage and that appellee Nationwide is obligated by its insurance contract to provide underinsured motorists coverage, we reverse the trial court's decisions.
Appellants are Beverly J. Kammeyer (individually and as administrator of the estate of her son, David Kammeyer) and Gene Kammeyer, who is David Kammeyer's father. On April 3, 1990, David and Gene Kammeyer were returning from a job site in a truck owned by their employer, Mack Iron Works, Inc. ("Mack Iron"), when another vehicle crossed into their lane, striking them head-on. As a result of this collision, Gene Kammeyer was seriously injured; David Kammeyer was killed.
Because the amount of liability insurance on the tortfeasor's vehicle proved to be insufficient to compensate them for their damages, appellants filed an underinsurance claim with Mack Iron's insurer, appellee United States Fidelity and Guaranty Company ("USF & G"). Appellants also sought underinsured motorists ("UM") coverage for damages arising from David Kammeyer's death from their own insurer, appellee Nationwide Insurance Company ("Nationwide").
On June 19, 1992, appellee USF & G filed suit seeking a declaration that appellants were entitled to no more than $25,000 pursuant to the terms of the policy it had issued to Mack Iron. On appellants' motion, appellee Nationwide was joined as a party defendant. Following discovery, all parties moved for summary judgment. The trial court denied appellants' motion, but it granted those motions filed by appellees. It is from these judgments that appellants bring this appeal.
Appellants denominate no formal assignments of error. We shall, however, construe the following statements as assignments of error:
"Facts relevant to USF & G
"I. The court erred in granting summary judgment to USF & G. There was no proof of the knowing, explicit waiver required by law. The court incorrectly shifted the burden of proof to the defendant.
"II. The documents produced by USF & G did not show any waiver of coverage, much less the knowing and explicit waiver required by law.
"III. The testimonial evidence brought by USF & G is insufficient to show the knowing, explicit waiver of uninsured and underinsured coverage required by law.
"IV. No knowing, explicit waiver of underinsured coverage was proven.
"V. The documents and testimony show unequivocally that uninsured and underinsured coverage was never offered or rejected in connection with the umbrella policy sold by USF & G to Mack Iron. This dispositive evidence was ignored by the court.
"VI. The court erred in considering the bargaining power of the parties to the contract and ignoring the claimant.
"Facts relevant to Nationwide Insurance Company
"I. There was no need for the court to resort to Rotsinger and Hill to `interpret' the insurance contract. The insurance contract plainly provided coverage regardless of whether the decedent was an `insured' or not.
"II. Even if the policy language did not unambiguously provide coverage regardless of the `insured' status of the victim, the trial court erred by failing to apply Ohio Revised Code 3937.18 correctly.
"III. The court should not have considered itself constrained by Rotsinger v. State Farm Insurance Co., 7
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