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Harris v. Allstate Insurance Co.4/4/2005
ects a substantial right made in a special proceeding or upon a summary application in an action after judgment"
{ } This Court has previously held a declaratory judgment action is a special proceeding, and has further held a judgment entry in a declaratory judgment action which affects the substantial rights of the parties may be immediately appealed under R.C. ยง2505.02(B)(2). Shirley v. Republic Franklin Ins. Co., 5th Dist. No.2002CA00261, 2003-Ohio 4116. Accordingly, we find the trial court's June 30, 2004 Judgment Entry, in which the trial court determined Allstate was not entitled to a set-off, constitutes a final appealable order.
{ } Allstate's first assignment of error is overruled.
II.
{ } In its second assignment of error, Allstate asserts the trial court erred in finding appellees' derivative claims to be separately subject to the "per person" limit of the policies at issue.
{ } In Saunders v. Mortensen, 101 Ohio St.3d 86, 2004-Ohio-24, the Ohio Supreme Court stated: "Former R.C. 3937.18(H) as amended by Am.Sub.S.B.No. 20 in 1994, 145 Ohio Laws, Part I, 204, 212, permitted automobile liability insurers to include provisions in insurance policies that consolidate all claims arising out of any one person's bodily injury into a single claim. Although a policy need not use the exact wording of R.C. 3937.18(H), the language must clearly and unambiguously consolidate such claims in order to give effect to the limit. Clark v. Scarpelli (2001), 91 Ohio St.3d 271, 282, 744 N.E.2d 719." Id. at para. 14.
{ } Allstate's UM/UIM provisions read, in pertinent part:
{ } "Limits of Liability
{ } "The Uninsured Motorist Coverage - Bodily injury limit stated on the Policy Declarations is the maximum amount payable for this coverage by this policy for any one accident. This means that the insuring of more than one auto for other coverages afforded by this policy will not increase our limit of liability beyond the amount shown on the Policy Declarations.
{ } "Regardless of the number of insured autos under this coverage, the specific amount shown on the Policy Declarations for:
{ } "1. 'each person' is the maximum that we will pay for damages arising out of bodily injury to one person in any one motor vehicle accident, including damages sustained by anyone else as a result of that bodily injury.
{ } "2. 'each accident' is the maximum that we will pay for damages arising out of bodily injury to two or more persons in any one motor vehicle accident. This 'each accident' limit is subject to the 'each person' limit."
{ } Bodily injury is defined as "Bodily injury, bodily sickness, bodily disease, or death."
{ } Appellees maintain the aforequoted language does not clearly and unambiguously consolidate all claims under the single per person limit of coverage. We disagree.
{ } "Where provisions of a contract of insurance are reasonably susceptible of more than one interpretation, they will be construed strictly against the insurer and liberally in favor of the insured." King v. Nationwide Ins. Co. (1988), 35 Ohio St.3d 208, syllabus; Clark v. Scarpelli (2001), 91 Ohio St.3d 271, 282. A contract is to be read as a whole and the intent of each part gathered from a consideration of the whole. Foster Wheeler Enviresponse, Inc. v. Franklin Cty. Convention Facilities Auth. (1997), 78 Ohio St.3d 353, 361. If it is reasonable to do so, we must give effect to each provision of the contract. Expanded Metal Fire-Proofing Co. v. Noel Constr. Co. (1913), 87 Ohio St. 428.
{ } With these principles in mind, reading the provision in its entir
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