Opinion
No. 2003CA00070.
DATE OF JUDGMENT ENTRY: July 19, 2004.
Hon. W. Scot Gwin, P.J., Hon. Sheila G. Farmer, J., Hon. John F. Boggins, J.
Appeal from the Court of Common Pleas, Case No. 01CV852.
Reversed.
Timothy J. Boone, 1349 East Broad Street, 2nd Floor, Columbus, OH 43205, F. Richard Heath, 26 South Main Street, Utica, OH 43080-0457, for Plaintiff-Appellee.
Nicholas E. Subashi, Lynnette Pisone Ballato, The Oakwood Building, 2305 Far Hills Avenue, Dayton, OH 45419, for Wausau Business Insurance Co.
James G. Peters, 6047 Frantz Road, #203, Dublin, OH 43017, for Community Health Plan.
OPINION JUDGMENT ENTRY
{¶ 1} On November 29, 1998, appellee, Theresa Sharp, sustained injuries when struck by a motor vehicle operated by her daughter. Appellee was standing in her garage, and was not acting within the scope and course of her employment.
{¶ 2} At the time of the accident, appellee was employed by the Licking County Board of Mental Retardation and Developmental Disabilities, insured under a business auto policy issued by Wausau Business Insurance Company.
{¶ 3} On September 21, 2001, appellee filed a complaint seeking underinsured motorists benefits from Wausau. Wausau filed a counterclaim for declaratory judgment.
{¶ 4} All parties filed motions for summary judgment. By judgment entry filed February 21, 2003, the trial court found appellee was entitled to underinsured motorists benefits under the Wausau policy. A nunc pro tunc judgment entry including Civ.R. 54(B) language was filed on August 5, 2003.
{¶ 5} Wausau filed an appeal and this matter is now before this court for consideration. Assignment of error is as follows:
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{¶ 6} "The trial court erred as a matter of law by denying wausau business insurance company's motion for summary judgment and granting the motions for summary judgment of appellees theresa sharp and community health plan of ohio."
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{¶ 7} Wausau claims the trial court erred in extending coverage under its business auto policy pursuant to Scott-Pontzer v. Liberty Mutual Fire Insurance Co., 85 Ohio St.3d 660, 1999-Ohio-292.
{¶ 8} The Wausau policy contained express uninsured/underinsured motorist coverage. The definition of an "insured" under the uninsured/underinsured motorist provisions of the policy is similar to the definition in Scott-Pontzer. See, Section B of the Ohio Uninsured Motorists Coverage — Bodily Injury, attached to Wausau's Answer as Exhibit A. Based upon the Supreme Court of Ohio's recent decision in Westfield Insurance Co. v. Galatis, 100 Ohio St.3d 216, 2003-Ohio-5849, we find appellee is not an insured under the policy.
{¶ 9} The sole assignment of error is granted.
{¶ 10} The judgment of the Court of Common Pleas of Licking County, Ohio is hereby reversed.
Farmer, J. Gwin, P.J. and Boggins, J. concur.
For the reasons stated in the Memorandum-Opinion on file, the judgment of the Court of Common Pleas of Licking County, Ohio is reversed.