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McDaniel v. Rollins6/20/2005
JUDGMENT: Judgment affirmed.
{ } Plaintiffs-Appellants, Jeannine McDaniel and Freddie McDaniel, Senior (hereafter collectively referred to as the "McDaniels"), individually and as administrators of Freddie McDaniel, Junior's estate, appeal from the decision of the Allen County Common Pleas Court granting summary judgment to Defendants-Appellees, Progressive Preferred Insurance Company ("Progressive") and Universal Underwriters Insurance Company ("Universal"). In addition, Universal has filed a cross-appeal from the decision of the trial court.
{ } In their first assignment of error, the McDaniels contend that the trial court erred by finding that they were not entitled to recover under the uninsured/underinsured motorist ("UM/UIM") provisions of their Progressive automobile insurance policy for the wrongful death losses they suffered as the result of their son's death. In their second assignment of error, the McDaniels assert that the trial court erred by finding that their son was not an insured under the terms of the automobile insurance policy issued by Universal to Niswonger Chevrolet Incorporated ("Niswonger"). On cross-appeal, Universal maintains that the trial court erroneously found that the automobile insurance policy it had issued to Niswonger provided the McDaniels with conditional coverage.
{ } After reviewing the entire record, we find that the unambiguous terms of the Progressive policy properly limited the McDaniels' UM/UIM coverage to situations where an insured suffers bodily harm. Accordingly, because the McDaniels' claim against Progressive was based on wrongful death losses and not bodily harm suffered by an insured, we find the trial court did not err in granting Progressive summary judgment. With regard to the Universal policy, we find that the trial court erred by finding even conditional coverage under the policy. Nevertheless, the trial court correctly granted Universal summary judgment. As such, both of the McDaniels' assignments of error are overruled, Universal's sole assignment of error is sustained, and the judgment of trial court is affirmed.
{ } On March 11, 2001, the McDaniels' son, Freddie McDaniel, Junior ("Freddie"), was killed in an automobile accident. Shawn Rollins ("Rollins") was in the car with Freddie at the time of the accident. It is unclear from the record whether Freddie or Rollins was operating the car at the time of the accident, and this issue was contested by the parties below and on appeal. It is, however, uncontested that the car in which Rollins and Freddie were riding was owned by Niswonger and had been loaned to Freddie by Niswonger while the dealership was repairing Freddie's personal vehicle.
{ } As a result of the accident, the McDaniels, in both their individual capacity and as the administrators of Freddie's estate, brought suit against Rollins and numerous insurance carriers. Eventually, all of the insurance carriers except Progressive and Universal were dismissed from the case. Rollins is still a defendant in this matter, but the case against him has been stayed pending this appeal. Rollins is not a party to this appeal.
{ } The McDaniels' cause of action against Progressive arises out of a Progressive automobile insurance policy that lists both of the McDaniels as named insureds. It should be noted that Freddie is not a named insured under this policy. The McDaniels claim Freddie's death was caused by an uninsured/underinsured motorist and that they suffered a wrongful death loss as a result. Consequently, they claim that they are entitled to UM/UIM coverage for this loss under their Progressive policy.
{ } The McDaniels claim against Universal originates from t
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