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Nationwide Mutual Fire Insurance Co. v. Modroo4/29/2005
{ } The following is an accelerated calendar appeal submitted on the briefs of the parties. Appellant, Nationwide Mutual Fire Insurance Company, appeals from a March 1, 2004 judgment entry of the Geauga County Court of Common Pleas, granting the motion to stay of appellee, Mary J. Modroo, individually and as administrator and personal representative of the estate of Mamie J. Hardy ("Mamie"), deceased. The trial court stayed the proceedings pending the disposition of case number DV-03-620 in the Montana Fourth Judicial District Court, Missoula County, Montana. For the reasons that follow, we affirm.
{ } The record discloses the following facts. In February 2003, Mamie, a student and employee of the University of Montana, was injured in an automobile accident in Montana. The accident was due to the negligent driving of her boyfriend, Lemaire. She was a passenger in the car and died as a result of her injuries.
{ } At the time of the accident, appellee, Mamie's mother and an Ohio resident, was insured under a farmowner's insurance policy issued by Nationwide Agribusiness Insurance Company, an Iowa subsidiary of Nationwide Insurance Company. Appellee was also insured under an automobile policy issued by appellant, an Ohio based insurance company.
{ } After Mamie's death, appellee and Cassius Hardy, Mamie's father and a California resident, decided to probate her estate in Montana. On July 28, 2003, appellee filed a wrongful death action in the Montana Fourth Judicial District Court against Lemaire, appellant, and Nationwide Agribusiness Insurance Company, under case number DV-03-620. Appellee's action sought compensation from Lemaire, who had an insurance coverage limit of $50,000. The action also sought compensation from the underinsured motorist coverage provided by both the farmowner's policy and appellant's automobile policy.
{ } While the Montana wrongful death action was still pending, appellant filed two separate complaints for declaratory judgment with the Geauga County Court of Common Pleas. First, on August 19, 2003, appellant filed its initial complaint for declaratory judgment under case number 03 M 804. The August 19, 2003 declaratory judgment action concerned coverage under the farmowner's policy. Shortly thereafter, on November 1, 2003, appellant filed its second complaint for declaratory judgment under case number 03 M 1141. The November 1, 2003 declaratory action was the origination of the current appeal and it requested various declarations with respect to appellant's automobile policy coverage.
{ } Appellee filed a motion to dismiss or stay the August 19, 2003 declaratory action. On October 29, 2003, the trial court stayed the August 19, 2003 declaratory judgment, pending the disposition of case number DV-03-620 in Montana. From this judgment, appellant filed a timely appeal, and we affirmed the court's October 29, 2003 stay in Nationwide Mut. Fire Ins. Co. v. Modroo, 11th Dist. No. 2004-G-2557, 2004-Ohio-4697 ("Nationwide I").
{ } Prior to our decision in Nationwide I, appellee also filed a motion to dismiss or stay the November 1, 2003 declaratory action. The trial court issued a March 1, 2004 judgment entry which stayed the November 1, 2003 declaratory action, pending the disposition of case number DV-03-620 in Montana.
{ } While our decision in Nationwide I was still forthcoming, appellant filed a timely notice of appeal from the March 1, 2004 stay and now sets forth the following assignment of error:
{ } "The trial court erred the prejudice of plaintiff-appellant by staying this action pending resolution of the Montana action."
{ } We will first set forth the appro
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