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Fish v. Ohio Casualty Insurance Co.3/7/2005
JUDGMENT: Affirmed
{ } Appellant Karen Fish, as the Administrator of the Estate of Kenneth Fish ("appellants"), appeals the decision of the Stark County Court of Common Pleas on the basis that it improperly applied the Galatis decision to preclude coverage under an automobile liability policy issued by Appellee Ohio Casualty Insurance Company ("Ohio Casualty") to the decedent's employer. The following facts give rise to this appeal.
{ } On June 22, 2001, pursuant to the Ohio Supreme Court's decision in Scott-Pontzer, Appellant Karen Fish initiated a declaratory judgment action against Ohio Casualty, the automobile insurer of the decedent's employer. The sole issue, in the declaratory judgment action, was whether the decedent and his estate were entitled to UIM coverage under the automobile liability policy issued by Ohio Casualty.
{ } In a judgment entry filed on December 17, 2002, and in a nunc pro tunc judgment entry filed on December 19, 2002, the trial court concluded that appellants were not entitled to UIM coverage under Ohio Casualty's automobile liability policy. Appellants appealed to this court and on August 18, 2003, we reversed the trial court's ruling and remanded the matter to the trial court for further proceedings consistent with our opinion. In doing so, we held that the decedent and his estate were entitled to UIM coverage by operation of law because Ohio Casualty failed to make a valid offer of coverage and obtain a valid rejection of said coverage. See Fish, et al. v. Ohio Cas. Ins. Co., et al., Stark App. No. 2003CA00036, 2003-Ohio-4381.
{ } Thereafter, on October 1, 2003, Ohio Casualty filed an appeal to the Ohio Supreme Court. While this matter was pending, the Ohio Supreme Court issued its decision in Galatis. On February 4, 2004, the supreme court declined jurisdiction over Ohio Casualty's discretionary appeal. See Fish, et al v. Ohio Cas. Co., et al., 101 Ohio St.3d 1210, 2004-Ohio-224. Subsequently, on February 12, 2004, Ohio Casualty filed a motion for hearing and/or leave to file a motion for summary judgment. Appellants requested more time to respond to Ohio Casualty's motion. The trial court declined appellants' request and on February 20, 2004, the trial court issued a judgment entry in which it applied Galatis and denied appellants coverage under Ohio Casualty's automobile liability policy.
{ } Appellants filed a motion to vacate the trial court's judgment entry on February 25, 2004. The trial court denied appellants' motion on March 8, 2004. Appellants timely filed a notice of appeal and set forth the following assignments of error for our consideration:
{ } "I. THE TRIAL COURT ERRED IN RECONSIDERING THE ISSUE OF UIM COVERAGE, WHICH WAS BARRED BY RES JUDICATA, BECAUSE THIS COURT'S DETERMINATION THAT FISH WAS ENTITLED TO UIM COVERAGE BECAME FINAL ONCE THE SUPREME COURT REJECTED OHIO CASUALTY'S DISCRETIONARY APPEAL.
{ } "II. THE TRIAL COURT ERRED IN RECONSIDERING THE ISSUE OF UIM COVERAGE BECAUSE THIS COURT'S DECISION REGARDING SAID COVERAGE BECAME THE LAW OF THE CASE ONCE THE SUPREME COURT REFUSED JURISDICTION OVER OHIO CASUALTY'S DISCRETIONARY APPEAL.
{ } "III. THE TRIAL COURT ERRED IN DENYING FISH'S MOTION TO VACATE THE FEBRUARY 20, 2004 JUDGMENT ENTRY IN ACCORDANCE WITH CIV.R. 60(B)."
I.
{ } In their First Assignment of Error, appellants maintain the trial court erred when it reconsidered the issue of UIM coverage, which was barred by res judicata, because our determination that appellants were entitled to UIM coverage became final once the Ohio Supreme Court rejected Ohio Casualty's discretionary appeal. We disagree.
{ }
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