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Sarka v. Love12/1/2005
{ } AIU Insurance Company ("AIU") appeals from an order of the trial court denying its motion to set off the jury's award in favor of Julie Sarka, et al. AIU claims the trial court erred in failing to grant a setoff of the insurance monies already paid by primary insurance coverage, in denying its subsequent motion for a new trial, and in failing to grant its motion for a protective order. We affirm.
{ } The record reveals that in July 2000, Robert Sarka was traveling to Toledo on a business trip for his employer, Time Warner Home Video ("Time Warner"). Robert took his wife, Julie, and daughter, Susan, along for the trip, hoping to have some family time at Maumee State Park after finishing various business meetings.
{ } After stopping at a rest stop along the turnpike, Julie Sarka drove the family's car while Robert and Susan played a board game in the back seat. The Sarkas were driving westbound in the center lane on the Ohio turnpike when road construction began to slow traffic. The construction reduced the traffic flow from three to two lanes, and a motor vehicle accident one mile ahead of the Sarkas further contributed to the problem.
{ } As the Sarkas' car sat stopped on the turnpike, a motor home traveling at a high rate of speed collided first with another car, and then with the Sarkas' car. The driver, Sheldon Levinson, later claimed that a vehicle pulled in front of him, and that he attempted to stop his motor home when he struck the cars. The accident killed both Robert and Susan Sarka and left Julie seriously injured.
{ } In June 2002, Julie Sarka, as executrix for the Estate of Robert Sarka (referred to collectively as "Sarka") filed a complaint seeking damages against Lawrence Love, Esq. as administrator of the estate of Sheldon Levinson and several insurance companies, including Time Warner's umbrella policy carrier, AIU. In March 2003, Sarka amended the complaint and sought declaratory relief for Uninsured/Underinsured Motorist ("UM/UIM") coverage and monetary damages. The parties filed cross- motions for summary judgment to resolve the issue on UM/UIM coverage. In September 2003, the trial court granted AIU's motion for summary judgment, finding that there was no UIM coverage. Julie Sarka appealed, and this Court reversed the grant of summary judgment, finding that "Sarka was entitled to coverage by operation of law based on AIU's failure to offer UM coverage under the policy." Sarka v. Love, Cuyahoga App. No. 83446, 2004-Ohio-1911.
{ } The case proceeded to trial in December 2004, and a jury awarded $4,758,022.88 to Sarka against AIU. Sarka immediately moved for prejudgment interest. AIU moved for a new trial, enforcement of setoff or in the alternative for remittitur, and all three motions were denied by the court. Sarka then filed a notice of deposition and request for production of documents in connection with their claim for prejudgment interest. AIU moved for a protective order and claimed that the materials requested were subject to work product immunity and were privileged.
{ } The trial court denied the motion for a protective order, finding that any documents which AIU claimed as privileged should be submitted to the court for an in camera inspection. AIU now appeals from these collective orders in the assignments of error set forth in the appendix of this opinion.
I. Entitlement to a Setoff
{ } In its first assignment of error, AIU contends that its policy is properly classified as excess insurance coverage over the $2 million Primary Business Automobile Liability Insurance policy maintained by Time Warner with Travelers Insurance Company. It claims that under the clear and
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