 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Pallay v. Nationwide Insurance Co.10/31/2005
e complaint, a court must presume all factual allegations contained in the complaint to be true and make all reasonable inferences in favor of the nonmoving party. Mitchell v. Lawson Milk Co. (1988), 40 Ohio St.3d 190, 192, 532 N.E.2d 753. " s long as there is a set of facts, consistent with the plaintiff's complaint, which would allow the plaintiff to recover, the court may not grant a defendant's motion to dismiss." York v. Ohio State Hwy. Patrol (1991), 60 Ohio St.3d 143, 145, 573 N.E.2d 1063.
{ } Summary judgment is also reviewed under a de novo standard of review. In accordance with Civ.R. 56, summary judgment is appropriate when, "(1) there is no genuine issue of material fact, (2) the moving party is entitled to judgment as a matter of law, and (3) reasonable minds can come to but one conclusion and that conclusion is adverse to the nonmoving party, said party being entitled to have the evidence construed most strongly in his favor. Horton v. Harwick Chem. Corp. (1995), 73 Ohio St.3d 679, 653 N.E.2d 1196, paragraph three of the syllabus. The party moving for summary judgment bears the burden of showing that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law. Dresher v. Burt (1996), 75 Ohio St.3d 280, 292-293, 662 N.E.2d 264, 273-274." Zivich v. Mentor Soccer Club (1998), 82 Ohio St.3d 367, 369-370, 696 N.E.2d 201.
{ } If the moving party meets its initial burden of production, the nonmoving party bears a reciprocal burden to produce evidence on any issue for which that party bears the burden of proof at trial. Dresher, 75 Ohio St.3d at 293, 662 N.E.2d 264.
{ } Nationwide presents three subissues for our review under its sole assignment of error.
{ } "1. Pallay Cannot Recover The Full Per Person Limit Under The Liability And UM/UIM Coverage Of His Own Policy."
{ } Nationwide argues that the Policy does not contemplate a situation in which an insured may be able to collect the maximum limit of liability coverage and also collect UIM benefits above and beyond that maximum amount, which in this case is $100,000. The Policy contains a "Limits of Payment" section, as part of UM/UIM provisions, that states: "The limits of this coverage will be reduced by any amount paid by or for any liable party." Nationwide asserts that this unambiguous limitation prevents Appellee from using the UIM provisions to collect more than the $100,000 per person limit of the Policy.
{ } Appellant cites only one case under this subissue. The case is Viccarone v. Colonial Penn Ins. Co. (Feb. 23, 1995), 8th Dist. No. 66822, which held that an auto insurance policy could provide for a setoff from UIM coverage for any recovery made under the liability provisions of the same policy. The legal analysis of Viccarone, though, was specifically rejected by the Supreme Court. Keppel v. Keppel Estate (1996), 76 Ohio St.3d 231, 667 N.E.2d 360. That said, these cases are not particularly relevant at this point in time, because Viccarone and Keppel were interpreting much earlier versions of R.C. §3937.18, and were based on prior caselaw that has since been superseded by statutory changes. Most importantly, Keppel was based on the analysis of Savoie v. Grange Mut. Ins. Co. (1993), 67 Ohio St.3d 500, 620 N.E.2d 809, which was specifically and expressly superseded by the legislature in later versions of R.C. §3937.18.
{ } The issue at the heart of this subissue is usually referred to as intrapolicy stacking, which refers to an attempt to obtain multiple coverage from two distinct sections of the same insurance policy. The Savoie case had held that anti-stacking provisions in an auto insurance policy could not be enforced
Page 1 2 3 4 5 6 7 8 9 Ohio Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|