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Radenbaugh v. Motorists Ins. Cos.3/24/1993
SHAW, Judge.
Defendant-appellant, Motorists Insurance Companies ("Motorists"), appeals the summary judgment entered against it in the Putnam County Common Pleas Court whereby defendant was ordered to pay $200,000 to plaintiffs-appellants, Ernest D. and Marie Radenbaugh, pursuant to the underinsured motorist clause of the Radenbaughs' automobile insurance policy, which was issued by Motorists.
On February 13, 1991, the car driven by Ernest Radenbaugh, and in which his wife, Marie, was a passenger, was hit by a car negligently operated by one Kenneth Wright. Both Ernest and Marie sustained serious injuries.
At the time of the accident, Kenneth Wright, the tortfeasor, was insured by Grange Mutual Insurance Company and had liability insurance coverage of $100,000 per person and $300,000 per accident. Grange Mutual Insurance Company paid $100,000 to Ernest Radenbaugh and $100,000 to Marie Radenbaugh, in accordance with the policy limit.
At the time of the accident, the Radenbaughs were insured by defendant Motorists Insurance Companies. Pursuant to an underinsured motorist clause in their policy, the Radenbaughs submitted an underinsured motorist claim to Motorists. Motorists thereafter paid $300,000 to the Radenbaughs, allocatins$50,000 to Ernest's claim and $250,000 to Marie's claim. Motorists maintained that the $300,000 was the maximum amount recoverable under the Radenbaughs' underinsured motorist policy.
On August 3, 1992, the Radenbaughs initiated this action against Motorists, seeking to have the trial court determine the amount, if any, of additional underinsured motorist coverage available under the policy, over and above the payments already made by Motorists and by the tortfeasor's insurance company. The Radenbaughs sought a judgment against Motorists in the amount of $200,000.
There being no real issue of fact, both sides filed motions for summary judgment. On December 1, 1992, the trial court granted summary judgment in favor of the Radenbaughs, determining that there was $200,000 of underinsured motorist coverage still available to the Radenbaughs pursuant to their policy.
Motorists thereafter brought the instant appeal, raising the following assignment of error:
"The court below erred to the prejudice of Appellant and disregarded the set-off language of the policy of insurance by holding that Appellees, who purchased underinsured coverage in the amount of $500,000 and who had already received $500,000, are entitled to an additional $200,000 in underinsured motorist coverage from Appellant."
The underinsured motorist clause of the policy at issue here provides single-limit coverage of $500,000, which means the per person limit of coverage or liability is the same as the per accident limit. The policy also includes the following setoff clause:
"B. Any amounts otherwise payable for damages under this [underinsured motorist] coverage shall be reduced by all sums:
"1. Paid because of the bodily injury by or on behalf of persons or organizations who may be legally responsible." (Emphasis deleted.)
The sole issue before the trial court, and now the sole issue on appeal, is how the settlement obtained from the tortfeasor's insurance company by the Radenbaughs should be set off from the $500,000 policy limit of the underinsured motorist coverage in determining the amount of underinsured motorist coverage available to the Radenbaughs.
Motorists argues that, pursuant to the setoff clause, the total amount received from the tortfeasor's insurance ($200,000) may be subtracted from the total liability cap under t
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