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Wilson v. Smith2/2/2005
DECISION AND JOURNAL ENTRY
This cause was heard upon the record in the trial court. Each error assigned has been reviewed and the following disposition is made:
{ } Appellant, Loutan Mills, f.k.a. Loutan Wilson, appeals from the judgment of the Summit County Court of Common Pleas which granted summary judgment to Appellee, GEICO General Insurance Company. We affirm in part, reverse in part, and remand.
{ } In November 2001, Appellant's son, Titus Wilson, passed away from injuries sustained as a result of a car accident. Appellant and her son's wife, Luciana Wilson, filed suit against the driver of the vehicle, Appellee, and various John Doe Defendants. Appellant claimed the right to UIM coverage under her policy with Appellee for damages she sustained arising out of her son's death. The driver's estate settled all claims with Luciana, paying her the policy limits of the driver's insurance. Luciana also received additional money under the UIM provisions of her mother's insurance policy, leaving Appellant's UIM claim as the sole remaining issue in the pending lawsuit.
{ } Appellee filed a motion for summary judgment on March 23, 2004, asserting that the UIM provisions covered only damages for bodily injury suffered personally by an insured. Appellant challenged the motion, arguing that she was entitled to recover UIM damages under the policy irrespective of whether she personally suffered bodily injury, and that her son was a household member at the time of the accident such that he was also an insured under the policy. The trial court granted summary judgment to Appellee. Appellant timely appealed, raising two assignments of error for our review. For ease of discussion, we will address both assignments of error together.
ASSIGNMENT OF ERROR I
"The Trial Court committed prejudicial error in granting [Appellee's] Motion for Summary Judgment, by ruling, as a matter of law, that [Appellant] is not entitled to UIM coverage pursuant to her policy issued by [Appellee]."
ASSIGNMENT OF ERROR II
"The Trial Court committed prejudicial error in granting [Appellee's] Motion for Summary Judgment, by ruling that [Appellee] has carried its burden to prove that decedent Titus L. Wilson, [Appellant's] son, was not a member of his mother's household at the time of the subject collision, and was therefore not an insured under the subject policy."
{ } In her assignments of error, Appellant argues that the trial court erred by granting summary judgment to Appellee on two bases. First, she asserts that she is entitled to UIM coverage under the policy of insurance, regardless of whether she personally suffered bodily injury, even if her son was not an insured. Second, she alleges that Appellee failed to offer evidence showing that her son was not a resident of her household, thus rendering improper the trial court's finding on summary judgment that her son was not an insured. We agree in part with Appellant's assertions.
A. Summary Judgment Standard
{ } Summary judgment is proper under Civ.R. 56(C) if:
"(1) No genuine issue as to any material fact remains to be litigated;
(2) the moving party is entitled to judgment as a matter of law; and
(3) it appears from the evidence that reasonable minds can come to but one conclusion, and viewing such evidence most strongly in favor of the party against whom the motion for summary judgment is made, that conclusion is adverse to that party." Temple v. Wean United, Inc. (1977), 50 Ohio St.2d 317, 327.
This court reviews the trial court's grant of summary judgment de novo. Grafton v. Ohio Edis
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