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Harvey v. Western Reserve Mutual Casualty Co.4/12/2005
JUDGMENT: Affirmed
{ } Plaintiff-appellant Tracy J. Miller appeals from the June 10, 2004, Judgment Entry of the Ashland County Court of Common Pleas which granted Summary Judgment in favor of defendant-appellee Erie Insurance Company.
STATEMENT OF THE FACTS AND CASE
{ } On October 8, 2002, Pamela J. Miner was a passenger in her own vehicle which was operated by her husband, David L. Miner. They were both killed as a result of an automobile accident. The tortfeasor, Venita C. Ellis, and a passenger in her vehicle, were also killed.
{ } Tracy J. Miller [hereinafter appellant] was Pamela's adult daughter who lived with Pamela and David, her stepfather. Pamela was also survived by two other adult children. Pamela's sister, Kimberly Harvey, was appointed Executrix of Pamela's Estate.
{ } The tortfeasor had automobile liability insurance coverage of $50,000 per person and $100,000 per accident. The various wrongful death claims resulting from the accident were settled for the tortfeasor's policy limits. The Estate of Pamela J. Miner received $25,000 from the $100,000 settlement. The Estate of David L. Miner also received $25,000 from the $100,000. Appellant received money from the Estate but less than $25,000.
{ } At the time of the accident, appellant had a separate policy with defendant-appellee Erie Insurance Company [hereinafter Erie] on her own vehicle. That policy provided for underinsured motorist coverage with limits of $25,000.00 per person and $50,000.00 per accident. Appellant notified Erie of an underinsured claim. Erie gave its permission to settle with the tortfeasor and waived its subrogation rights. However, Erie denied appellant any underinsured motorist benefits claiming setoff of the amount paid by the tortfeasor's policy to the Estate of Pamela Miner.
{ } On May 28, 2002, appellant filed a suit against Erie seeking $18,949.93, or the difference between her policy limit of $25,000 and the amount appellant claimed that she had received from the Estate of Pamela Miner, $6,050.07, plus interest and costs. Subsequently, Erie filed a Motion for Summary Judgment. The basis for the Motion for Summary Judgment was that the $50,000 paid by the tortfeasor's liability insurance carrier to each of the Estates of Pamela and David Miner, who were insureds under the terms of the policy, completely setoff the $25,000 UM/UIM coverage available under the Erie policy.
{ } By Judgment Entry filed June 10, 2004, the trial court granted Summary Judgment in favor of Erie. The trial court agreed with Erie and found that appellant was not entitled to receive any payments due to the setoff, as required under the cases of Littrell v. Wigglesworth, 91 Ohio St.3d 425, 2001-Ohio-87, 746 N.E.2d 1077 and Stickney v. State Farm Mut. Auto Ins. Co., 91 Ohio St.3d at 433.
{ } It is from this grant of Summary Judgment that appellant appeals, raising the following assignment of error:
{ } "THE TRIAL COURT ERRED BY GRANTING SUMMARY JUDGMENT TO APPELLEE, ERIE INSURANCE COMPANY, WHERE THE AMOUNT AVAILABLE FOR PAYMENT TO APPELLANT FOR WRONGFUL DEATH DAMAGES FOR SETOFF PURPOSES WAS LESS THAN THE UNDERINSURED MOTORIST'S COVERAGE IN ERIE'S POLICY ISSUED TO APPELLANT."
{ } This matter reaches us upon a grant of summary judgment. Summary judgment proceedings present the appellate court with the unique opportunity of reviewing the evidence in the same manner as the trial court. Smiddy v. The Wedding Party, Inc. (1987), 30 Ohio St.3d 35, 36, 506 N.E.2d 212. As such, we must refer to Civ.R. 56(C) which provides the following, in pertinent part: "Summary judgment shall be rendered forthwith if
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