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Harris v. Allstate Insurance Co.4/4/2005
ety and giving effect to all parts, we agree with Allstate the UM/UIM Endorsement clearly and unambiguously limits all claims derived from one person's bodily injury to the single per-person limit of the policy. The plain language of the provision states " 'each person' is the maximum that we will pay for damages arising out of bodily injury to one person * * * including damages sustained by anyone else as a result of that bodily injury." (Bold emphasis in original. Underline emphasis added). Although the types of bodily injury are defined elsewhere in the Endorsement, the provision consolidates damages sustained by anyone else as a result into a single claim. Because "death" is included in the definition of "bodily injury", a wrongful death claim would be consolidated into a single claim. The fact the policy uses a broad boundary, "damages sustained by anyone else as a result", rather than specifically denoting wrongful death claims/damages does not make the language unclear or ambiguous. In accord: Carroll v. Allstate, 148 Ohio App.3d 413, 2002-Ohio-3074.
{ } Accordingly, we find the trial court erred in finding appellees' derivative claims to be separately subject to the per person limit of the policy. Allstate's second assignment of error is sustained.
III.
{ } In its final assignment of error, Allstate asserts the trial court erred in finding it was not entitled to a set-off by the Westfield settlement.
{ } The policy language at issue herein provides:
{ } "Any amount payable to or for an insured person or additional insured person under this coverage will be reduced by all amounts paid by the owner or operator of the underinsured auto or anyone else legally responsible. This includes all sums paid under the bodily injury liability coverage of this or any other auto policy.
{ } Allstate maintains Martin Harris' employer and its insurance company, Westfield, were parties legally responsible; therefore, the Allstate UM/UIM policy should be set-off by the Westfield settlement. Appellees counter the aforementioned policy language relates to payments by tortfeasors or others on the tortfeasor's behalf and does not relate to payments made by other insurance companies. Appellees asserts the set-off provision is inapplicable to the Westfield settlement in the instant action.
{ } This Court recently addressed this issue in Savage v. Encompass Ins. Co., Fairfield App. No. 04CA39, 2005-Ohio-248. Therein, we analyzed similar language in R.C. 3937.18 and determined it does not require a UM/UIM policy be set-off by amounts available under any other applicable uninsured motorist policy. Id. at para. 25. However, we noted the statute also did not prohibit policy language from requiring such a set-off. Id. at para. 26. Analyzing the policy at issue therein, we found the "by or on behalf of persons or organizations who may be legally responsible" language referred to persons legally liable for the accident. Id. We concluded the policy did not require a set-off of amounts available under other underinsured motorist policies. Id. Analyzing the Allstate policy in the case sub judice, we likewise find it does not specifically provide for set-off of the amount paid by anyone other than those on behalf of the tortfeasor. Accordingly, the trial court did not err in not setting off the Westfield settlement.
{ } In accordance with Savage, we overrule Allstate's third assignment of error.
{ } The judgment of the Stark County Court of Common Pleas is affirmed in part, reversed in part and remanded.
By: Hoffman, J., Gwin, P.J. and Edwards, J. concur
JUDGMENT ENTRY
For the reason
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