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Pallay v. Nationwide Insurance Co.10/31/2005
JUDGMENT: Reversed.
JUDGES: Hon. Cheryl L. Waite Hon. Gene Donofrio Hon. Joseph J. Vukovich
{ } Appellant Nationwide Mutual Insurance Company ("Nationwide") appeals a decision of the Mahoning County Court of Common Pleas to grant summary judgment to Appellee John S. Pallay, in a claim involving underinsured motorist ("UIM") insurance benefits.
{ } The record reflects Appellee was a passenger in a vehicle being driven by his wife. Appellee's wife caused an accident that resulted in injuries to Appellee. Appellee and his wife were covered by an automobile insurance policy issued by Nationwide (the "Policy"). Appellee settled with Nationwide for the $100,000 liability limits of the Policy due to his wife's liability for the accident. Appellee then filed a complaint to recover $52,894.87 in UIM benefits to compensate him for the amount of a Medicare statutory lien he was obligated to pay out of the proceeds of the settlement.
{ } The trial court ruled, pursuant to Littrell v. Wigglesworth (2001), 91 Ohio St.3d 425, 746 N.E.2d 1077, that Appellee's Medicare statutory lien is not an expense of an insured and should not act to reduce UIM benefits. However, this Court recently ruled otherwise in Mid-American Fire & Casualty Co. v. Broughton, 154 Ohio App.3d 728, 2003-Ohio-5305, 798 N.E.2d 1109. Perhaps more importantly, the clear language of the Policy prohibits a party from collecting both liability and UIM benefits for the same accident. Thus, the trial court should have granted Nationwide's motion to dismiss, and the decision of the trial court is hereby reversed and judgment entered for Appellant Nationwide.
PROCEDURAL HISTORY
{ } This appeal involves what purports to be a review of a summary judgment motion, but in reality seeks review of a decision on a motion to dismiss. Although the trial court did grant summary judgment to Appellee, there are no established facts of record in this case. The only "facts" referred to by the parties have been assumed for the sake of argument. Therefore, factual allegations in this matter must be viewed in the light of the aforementioned caveat.
{ } According to the complaint, Appellee was injured in an automobile accident in Colorado on March 6, 1998. His wife, Giselle Pallay, was driving. Appellee was a passenger in the vehicle. Appellee and his wife owned and were the named insured on a personal automobile liability insurance policy issued by Nationwide. The Policy had bodily injury liability limits of $100,000 per person, and $300,000 per occurrence. The Policy also provided $100,000/$300,000 in UIM coverage.
{ } On December 19, 2002, Appellee filed a complaint in the Mahoning County Court of Common Pleas. The complaint stated that Appellee had incurred more than $73,000 in medical bills, of which the amount of $52,894.87 had been paid by Medicare and was subject to a federal statutory lien. Appellee also alleged that he had received the $100,000 policy liability limit in a settlement with Nationwide, but that he reserved his right to pursue UIM benefits under the Policy. A copy of the "Release and Settlement" of the claim was attached to the complaint.
{ } On March 4, 2003, Nationwide filed a Civ.R. 12(B)(6) motion to dismiss. Nationwide argued that the terms of the Policy limited recovery to $100,000 per accident; that the UIM section of the Policy states that the UIM limits will be reduced "by any amount paid by or for any liable parties"; that it is established caselaw that a person cannot recover both the liability limits and the UIM limits from the same policy; that R.C. ยง3937.18(A)(2) requires that the UIM limits of an auto insurance policy
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