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Hiner v. Nationwide Mutual Insurance Co.12/13/2005
JUDGMENT: Affirmed
{ } Plaintiff-appellant Mark Hiner appeals from the January 18, 2005, Judgment Entry of the Stark County Court of Common Pleas denying his Motion for a New Trial.
STATEMENT OF THE FACTS AND CASE
{ } On January 26, 2001, appellant Mark Hiner's grandmother, Ann Hiner, was killed in an automobile accident. At the time of the accident, appellant had an automobile liability insurance policy with appellee Nationwide Mutual Insurance Company which contained underinsured motorist coverage in the amount of $12,500.00 per person.
{ } On January 23, 2004, appellant filed a complaint against appellee, alleging that he was entitled to "the $12,500.00 underinsured motorist coverage for the wrongful death of Ann E. Hiner." Appellant specifically sought damages under R.C. 2125.02, the wrongful death statute. A jury trial commenced on October 13, 2004, to determine appellant's damages.
{ } At trial, appellant's mother, Jane Hiner, testified that Ann Hiner [hereinafter "the decedent"] was her mother-in-law and that after her husband, the decedent's son, was injured in an accident twenty four years earlier and was permanently and totally disabled, the decedent "stepped up to be like she was like a second mother to my children, and she was there when I couldn't be because of all the rehab and stuff that my husband experienced." Transcript at 159. At the time of his father's accident, appellant was twelve years old. According to Jane Hiner, after the accident, the decedent would cook for her grandchildren and counsel them and would take them to school events and church. Jane Hiner further testified that her mother-in-law planned her grandchildrens' weddings and gave them money to purchase their first homes and was very close to her great grandchildren.
{ } During direct examination, Jane Hiner further testified that the decedent was the matriarch of the family and that the family frequently got together for birthdays and holidays. When asked about the decedent's relationship with appellant, Jane Hiner testified that appellant, who was the first born grandchild, was the decedent's favorite grandchild and that the decedent spoiled him and would always give him money. At trial, Jane Hiner was also questioned about her mother-in-law's health. Jane Hiner testified that the decedent had a mastectomy three years prior to the accident that killed her and that "the cancer had returned with a vengeance and she was undergoing chemotherapy." Transcript at 165. According to Jane Hiner, the cancer had spread to the decedent's lungs and brain, and at the time of her death, the decedent was still undergoing chemotherapy. The following testimony was adduced when Jane Hiner was asked whether the decedent was still there for her grandchildren at the time of her illness:
{ } "A. Oh yes, all the time. She would, uh, have me bring them over - - well, they live on a lake so that was an incentive, you know, especially in the warm weather, they had the beach and stuff. She always went on picnics, and she like, she liked, uh - -Christmastime was her favorite. You know, she would decorate a bulb for each grandchild or child and - - she was definitely the hub of the family." Transcript at 166-167. Hiner further testified that appellant took the decedent to chemotherapy four times a week and was the decedent's handyman.
{ } At trial, Jane Hiner testified that the decedent had left for Florida on November 15, 2000, to stay with her daughter for a few months and that, in January of 2001, she and her husband flew down to Florida to pick the decedent up and bring her home. The decedent was killed instantly due to an accident on the way
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