Harris v. Allstate Insurance Co.4/4/2005
JUDGMENT: Affirmed in part, reversed in part and remanded.
{ } Defendant-appellant Allstate Insurance Co. ("Allstate") appeals the June 30, 2004 Judgment Entry entered by the Stark County Court of Common Pleas, which granted summary judgment in favor of plaintiffs-appellees Mary Harris, et al., and which denied Allstate's motion for summary judgment.
STATEMENT OF THE FACTS AND CASE
{ } On September 24, 1995, Martin Harris, son of appellees Mary and Robert Harris, along with his friend Jeremy Schar and Greg Kneff died of carbon monoxide poisoning while sleeping in a motor home owned by Schar. Schar, the alleged tortfeasor, was uninsured at the time of the incident.
{ } On the date of incident, appellee Mary Harris, was a named insured under a personal automobile liability policy issued by Allstate (Policy No. 02643005809/15). The effective dates of the policy were September 15, 1995, to March 15, 1996. The policy provided UM/UIM coverage in the amount of $100,000/person and $300,000/accident. Appellee Amanda Harris, the sister of Martin Harris and the daughter of Mary Harris, was included under her mother's personal automobile liability policy. On the date of the incident, Sarah Harris, another sister of Martin Harris, was a named insured under a personal automobile liability policy also issued by Allstate (Policy No. 09233490108/12). The effective dates of this policy were August 12, 1995, to February 12, 1996. The policy provided UM/UIM coverage in the amount of $100,000/person and $300,000/accident. In addition, Martin Harris was a named insured under a personal automobile liability policy issued by Allstate (Policy No. 09218920006/06), effective June 6, 1995, to December 6, 1995. The policy provided UM/UIM coverage in the amount of $25,000/person and $50,000/accident.
{ } Martin Harris was employed by Bedford Anodizing, Inc., which was insured under three policies issued by Westfield Insurance Company, effective July 9, 1995, to July 9, 1996. The first policy, which was a commercial automobile liability policy, provided UM/UIM coverage in the amount of $500,000/accident. The second policy was a commercial umbrella with a $1,000,000 liability limit. The third policy was a commercial general liability policy with a $1,000,000 liability limit. The estate of Martin Harris pursued Scott-Pontzer claims against Westfield, which resulted in a settlement agreement between the parties in the amount of $265,000.
{ } On August 6, 2002, appellees filed a Complaint for Declaratory Judgment and UM/UIM benefits, naming Allstate and Westfield as defendants. The UM/UIM claims against Allstate were based upon Sexton and Moore theories of recovery. As noted supra, appellees settled their claims against Westfield for $265,000. Westfield was then dismissed via Judgment Entry filed June 9, 2004.
{ } On February 2, 2004, Allstate filed a Motion for Summary Judgment. Appellees filed a Cross-Motion for Partial Summary Judgment on February 22, 2004. Via Judgment Entry filed June 30, 2004, the trial court granted partial summary judgment in favor of appellees and denied Allstate's motion for summary judgment. The trial court specifically found appellees' derivative claims were separately subject to the "each person" limit of the policy, with the total of all claims subject to the "each accident" limit. The trial court further found Allstate was not entitled to set-off any amounts received by the Estate from Westfield. The trial court included Civ. R. 54(B), "no just cause for delay" language in the entry.
{ } It is from the June 30, 2004 Judgment Entry Allstate appeals, raising the following assignments of error:
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