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Rogers v. Owners Insurance Co.7/11/2005
JUDGMENT: Judgment Affirmed
{ } Plaintiffs-appellants, Louise Rogers, et al., appeal the January 4, 2005 judgment of the Court of Common Pleas of Allen County, Ohio granting summary judgment in favor of the defendant-appellee, Owners Insurance Company ("Owners").
{ } In March of 1994, Louise Rogers had an automobile insurance policy with Owners that included uninsured/underinsured motorist coverage. The UM/UIM coverage included the following language: "We give this same protection to any relative living with you who does not own a car." Three of Louise's grandchildren, Michael Rogers, Martice White, and William Rogers, resided with her on at least a part-time basis at this time.
{ } On March 8, 1994 Michael was a passenger in a vehicle that was involved in a single car accident. The vehicle, a 1991 Honda Civic owned by Rhett Hause, was being driven by Michael's cousin, Sean Rogers. Sean told the police that he lost control of the vehicle as it was coming around a turn and the vehicle skidded off of the road into a utility pole. Michael was injured in the accident, and died three days later from his injuries.
{ } After the accident, neither Louise nor her grandchildren, Martice and William, notified Owners of the accident. However, Louise filed several lawsuits as administratix of Michael's estate, including an action against Allstate Insurance, the insurer for the owner of the vehicle, and a medical malpractice suit against the doctors who treated Michael. The lawsuit against Allstate was dismissed following a settlement, and the medical malpractice suit was dismissed without prejudice and never re-filed. However, it was not until August 5, 2002, when Louise's new counsel sent a letter to Owners, that Owners was notified of the accident and of Louise's claim under the policy.
{ } In the trial court proceedings, William and Martice filed a partial motion for summary judgment asking the court to determine that they are wrongful death beneficiaries to Michael and that they were insured under the UM/UIM coverage in Louise's policy. Owners also submitted a motion for summary judgment, asserting several justifications for why plaintiff's were not entitled to coverage under the policy. In its January 4, 2004 judgment entry, the court denied William and Martice's motion for partial summary judgment and entered summary judgment in favor of Owners on the ground that the eight year delay before notifying Owners of the accident precluded plaintiffs' ability to recover under the policy. Plaintiffs' now appeal, asserting two assignments of error:
THE TRIAL COURT ERRED IN DETERMINING THAT THE EVIDENCE IN THE RECORD BEFORE IT SHOWED THAT OWNERS INSURANCE COMPANY HAD BEEN PREJUDICED BY "LATE NOTICE" OF THE UNINSURED MOTORIST CLAIM, AND IN GRANTING OWNERS INSURANCE COMPANY'S MOTION FOR SUMMARY JUDGMENT.
THE TRIAL COURT ERRED IN FAILING TO DETERMINE FROM THE EVIDENCE IN THE RECORD THAT NO PREJUDICE OCCURRED TO OWNERS INSURANCE COMPANY FROM "LATE NOTICE" OF THE UNINSURED MOTORIST CLAIMS OF PLAINTIFFS, AND ERRED BY FAILING TO SO DECLARE IN GRANTING PLAINTIFFS' MOTION FOR PARTIAL SUMMARY JUDGMENT.
{ } In their two assignments of error, plaintiffs argue that the trial court erred by granting Owners' motion for summary judgment. The standard of review for a grant of summary judgment is de novo. Lorain Natl. Bank v. Saratoga Apts. (1989), 61 Ohio App.3d 127, 129. Thus, a grant of summary judgment will be affirmed only when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Civ.R. 56(C). In addition, summary judgment is not proper unless reasonable minds can come to but
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