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Dickerson v. Thompson8/26/1993
JOHN F. CORRIGAN, Presiding Judge.
Defendant Ohio Insurance Guaranty Association ("OIGA") appeals from the judgment of the trial court which ordered it to pay four "covered claims" in connection with the death of Arthur Dickerson, Jr. For the reasons set forth below, we affirm in part and reverse in part.
On January 15, 1984, Dickerson ("decedent") was shot by a co-worker at his place of employment, National Engineering and Contracting Company ("NECO"). Dickerson later died from injuries, and his widow, Brenda Dickerson, subsequently brought a negligence action against the co-worker and NECO. The jury found both defendants negligent and NECO was ordered to pay a total of $3,945,000 in compensatory damages. Of this sum, $975,000 was awarded for the conscious pain and suffering of the decedent, and the remainder was awarded to the decedent's survivors for wrongful death. The jury further awarded Mrs. Dickerson $1,785,000 in punitive damages.
Thereafter, NECO's general liability insurer, United States Fidelity and Guaranty Company, paid Dickerson $1,125,000, the limits of its primary liability policy.
Dickerson sought further recovery from NE CO's excess liability insurer, Mission Insurance Company ("Mission"), which provided coverage up to $15,000,000. After learning that Mission was insolvent, Dickerson made four claims against OIGA: three wrongful death-related claims (for the decedent's wife and two minor children) and one for the decedent's pain and suffering. OIGA maintained, however, that Dickerson's death resulted in a single compensable claim and further asserted that it was entitled to set off against this claim the payment which Dickerson received from the primary insurer. Dickerson then filed a supplemental complaint against OIGA and the matter was submitted to the trial court upon the stipulations of the parties and the arguments and briefs of counsel. The trial court concluded that OIGA was liable for a total of four covered claims and that it was not entitled to a setoff for the amounts paid by the primary insurer. OIGA now appeals.
OIGA's first and second assignments of error state:
"The trial court erred in holding that each potential beneficiary of a wrongful death action may assert a separate 'covered' claim under R.C. 3955.01 when the single wrongful death arose from only one covered occurrence.
"The trial court erred in holding that the decedent's survivorship claim for conscious pain and suffering is a separate covered claim as defined by R.C. 3955.01."
Within these assignments of error, OIGA asserts that it is obligated to pay a single "covered claim" in connection with Dickerson's death.
OIGA was established pursuant to R.C. Chapter 3955 in order to pay "covered claims" which would otherwise be uncompensated due to the insolvency of the insurer. R.C. 3955.03.
"A covered claim" is defined as:
"* * * an unpaid claim, including one for unearned premiums, which arises out of and is within the coverage of an insurance policy to which sections 3955.01 to 3955.19 of the Revised Code apply, when issued by an insurer which becomes an insolvent insurer on or after September 4, 1970, and the claimant or insured is a resident of this state at the time of the insured event or the property from which the claim arises is permanently located in this state.
"'Covered claim' does not include any amount:
"(1) In excess of three hundred thousand dollars on any claim[.]" R.C. 3955.01(B).
Moreover, pursuant to R.C. 3955.04, this section is to be liberally construed
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