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Erie Ins. Group v. Nationwide Mut. Ins. Co.12/29/1989
HANDWORK, Presiding Judge.
This case involves an appeal and cross-appeal from a judgment entry of the Wood County Court of Common Pleas. All three parties in this case are insurance companies. At issue is which company or companies must provide coverage to insureds who have been named as defendants in a civil suit for injuries sustained as the result of an automobile accident.
On May 8, 1986, Ann Marie Ring (hereinafter referred to by her current last name, Leganik), then a student at Bowling Green University in Bowling Green, Ohio, went to Dishop Ford-Nissan, Inc., a local car dealer, and made arrangements to rent a car. Leganik planned to drive the car to Columbus, Ohio, the next day for a job interview. After renting the car, however, Leganik was offered a ride to Columbus and chose to accept the offer, rather than put mileage on the rental car. She asked a roommate, Julie Bartholomew (hereinafter referred to by her current last name, Fraser), to return the rental car to Dishop Ford-Nissan, Inc., the next day before 2:00 p.m. so Leganik could avoid being charged for another full rental day. Fraser agreed and in the process of returning the car on May 9, 1986, was involved in an automobile accident with a vehicle occupied by Barbara Jones. Jones brought suit in her individual capacity and as an executrix in the Wood County Court of Common Pleas for injuries sustained in the accident and named both Fraser and Leganik as well as Dishop Ford-Nissan, Inc. as defendants.
At the time of the accident, Leganik was covered under her father's policy with Nationwide Mutual Insurance Company ("Nationwide") as an additional insured. Accordingly, Nationwide was contacted when notice of the suit was obtained by Leganik and her parents.
Fraser was covered under a policy issued to her father by Erie Insurance Company ("Erie"). Erie was therefore contacted by its insured when Fraser and her father learned of the personal injury suit against Fraser.
Liberty Mutual Insurance Company ("Liberty") was contacted by Dishop Ford-Nissan, Inc., because under the terms of a policy Liberty issued to Ford Motor Company and Ford Rent-A-Car System, Dishop Ford-Nissan, Inc. had liability coverage from Liberty for the rental vehicle involved in the accident.
On June 15, 1988, Erie filed a complaint for declaratory judgment. In the complaint, Erie alleged that Nationwide, Liberty or both were responsible as primary insurers of Fraser or, in the alternative, that all three insurers stood in the same relationship to Fraser and had pro rata responsibility to provide a defense or to pay settlement or judgment.
Nationwide answered, alleging that Liberty was the primary insurer, and that the coverage provided to Leganik by Nationwide was secondary. Nationwide also asserted a counterclaim and cross-claim against Liberty, pleading the right to a declaratory judgment involving all three companies.
Liberty filed an answer and amended answer to Erie's complaint. Nationwide filed an amended answer, cross-claim and counterclaim. Liberty then filed an answer to Nationwide's amended cross-claim in which Liberty asserted the defense of failure to state a claim upon which relief can be granted.
Liberty then filed a motion for summary judgment instanter, pursuant to leave of court. The substance of the argument supporting Liberty's motion dealt with irregularities which appeared on the face of the car rental agreement completed by Leganik and Dishop Ford-Nissan, Inc., and whether those irregularities barred Leganik and Fraser from coverage under the Liberty policy.
On December 12, 1988, a hearing was cond
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