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Risner v. Erie Ins. Co.11/12/1993
SHAW, Judge.
Defendant-appellant, Erie Insurance Company ("Erie"), appeals the summary judgment granted in favor of plaintiff-appellee, Anne M. Risner, by the Court of Common Pleas of Seneca County, in this declaratory judgment action over the insurance company's subrogation right to certain proceeds of a personal injury settlement.
On August 6, 1990, Risner was in a car accident which resulted in her sustaining various injuries. The other car involved in the accident was driven bsChristopher Daniel. At the time of the accident, Risner was insured by Erie. Erie subsequently advanced to Risner a total of $12,168.85, the policy limit, for the payment of medical expenses.
On February 27, 1992, Risner filed suit against Daniel in the Seneca County Common Pleas Court. Erie was not a party to that action. Risner subsequently settled that suit for $133,000, which was paid by Westfield Insurance Company, Daniel's insurer at the time of the accident. As part of the settlement, Westfield issued a check for $12,168.85, made jointly payable to Risner and to Erie, in apparent recognition of a subrogation right asserted by Erie as to the sum advanced by Erie for Risner's medical expenses.
On November 19, 1992, Risner filed the instant action against Erie, over the $12,168.85 check. On the theory of quantum meruit, the complaint sought a judgment declaring that Risner was entitled to retain a portion of the $12,168.85 check, as reimbursement for attorney fees and litigation expenses paid by her. The complaint alleged that Erie had not participated in any way in the litigation against Daniel and asserted that it would be inequitable for Erie to receive the entire $12,168.85, to which Erie claimed it was entitled due to a right of subrogation. The complaint further alleged that, as a result of the accident, Risner incurred a total of $14,751.25 in medical expenses, that Risner suffered other damages totaling $356,512, and that Risner had settled her claim against Daniel for an amount less than that which would fully compensate her for her damages.
Both parties filed motions for summary judgment, which were heard by the trial court on March 30, 1993. At that time, in addition to her quantum meruit argument, Risner argued that she was entitled to keep the full $12,168.85 on the theory that an insurer may not be reimbursed pursuant to its subrogation rights unless the insured has received full compensation from the tortfeasor for the insured's damages.
On May 19, 1993, the trial court granted summary judgment in favor of Risner. The trial court found that Risner had not been fully compensated for her injuries and ruled that Risner was therefore not required to pay any portion of the check to Erie.
Erie thereafter brought the instant appeal, raising the following sole assignment of error:
"The trial court erred as a matter of law in granting summary judgment in favor of the plaintiff/appellee and ruling that a subrogated insurer may not recover its subrogated interest from its insured where its insured claims to have been undercompensated relative to her settlement with the tortfeasor."
In ruling that Erie was not entitled to subrogation for the $12,168.85 it had paid to Risner, the trial court relied on the following language from James v. Michigan Mut. Ins. Co. (1985), 18 Ohio St.3d 386, 388, 18 OBR 440, 441-442, 481 N.E.2d 272, 273-274, as quoted in Blackburn v. Hamoudi (Sept. 18, 1990), Franklin App. No. 89AP-1102, unreported, 1990 WL 136045:
" 'An established, general rule of subrogation is that where an insured has not interfered with an insurer's subrogation rights, t
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