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Griewahn v. United States Fidelity & Guaranty Co.3/28/2005
JUDGMENT: Reversed. Judgment Granted to United States Fidelity & Guaranty Company
JUDGES: Hon. Mary DeGenaro Hon. Gene Donofrio Hon. Joseph J. Vukovich
{ } This timely appeal comes for consideration upon the record in the trial court, the parties' briefs, and their oral arguments before this court. Defendant-appellant, United States Fidelity & Guaranty Company, appeals the decision of the Mahoning County Court of Common Pleas to deny USF&G's motion for summary judgment in a declaratory judgment action. USF&G raises two issues on appeal.
{ } First, USF&G contends that an excess insurance contract is not an "automobile liability or motor vehicle liability policy of insurance." The applicable version of R.C. 3937.18 defines an "automobile liability or motor vehicle liability policy of insurance" as either an umbrella policy or a policy that serves as proof of financial responsibility. This policy does neither. Thus, it is not an "automobile liability or motor vehicle liability policy of insurance" and is not subject to the mandates of R.C. 3937.18.
{ } Second, USF&G argues that its policy does not provide underinsured motorist coverage until a condition precedent is met even if its policy is subject to R.C. 3937.18. This issue is relevant only if we found USF&G's arguments in the first issue meritless. Because those arguments are meritorious, these issues are moot. The judgment of the trial court is reversed, and judgment is granted to USF&G.
Facts
{ } In January 2001, Sean Griewahn was injured in an automobile accident while he was a passenger in a vehicle owned by his employer, Rural Metro Corporation. At the time of his accident, Sean was acting in the course and scope of his employment. Rural Metro was self-insured for $250,000 and had an excess insurance policy with USF&G covering the time when Sean was injured.
{ } Sean and his wife, Jennifer, subsequently filed a complaint seeking a declaratory judgment that he was an insured under USF&G's policy with Rural Metro and that the policy provides underinsured motorist coverage. They also sought judgment against USF&G in excess of $250,000 on an underinsured motorist claim.
{ } USF&G moved for summary judgment in this declaratory action, arguing that the policy was governed by Arizona law and that Arizona law did not require USF&G to offer underinsured motorist coverage on an excess policy. In the alternative, USF&G argued that an excess insurance contract is not an automobile liability or motor vehicle liability policy under Ohio law and, therefore, that it did not need to offer underinsured motorist coverage, that its policy complied with the statute governing underinsured motorist coverage, and that the Griewahns were not entitled to coverage until after they proved their damages exceeded Rural Metro's self-insurance limits. The Griewahns filed a brief opposing the motion for summary judgment, but did not file their own motion for summary judgment.
{ } On November 21, 2003, the trial court filed a judgment entry denying USF&G's motion for summary judgment. USF&G filed a motion for reconsideration of that judgment. On July 30, 2004, the trial court entered another judgment more fully explaining its reasons for denying the motion for summary judgment. In its July 30 judgment, the trial court found there was no just reason for delay. It is from this judgment that USF&G timely appeals.
Jurisdiction
{ } As a preliminary matter, we must explain why we have jurisdiction to hear this appeal. Normally, an order denying summary judgment is not a fin
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