Opinion
Case No. 98-L-153.
October 22, 1999.
CHARACTER OF PROCEEDINGS: Civil Appeal from the Court of Common Pleas, Case No. 96-CV-000636
ATTY. MICHAEL A. HIENER, For Plaintiff-Appellant
ATTY. WILLIAM E. RIEDEL, For Defendant-Appellee, Erie Insurance Group
ATTY. HENRY A. HENTEMANN, For Defendant-Appellee, State Farm Mutual Automobile Insurance Company
ATTY. MARTIN J. MURPHY, For Defendant-Appellee, Westfield National Insurance Company
JUDGES: HON. ROBERT A. NADER, P.J., HON. EDWARD J. MAHONEY, J., Ret., Ninth Appellate District, sitting by assignment, HON. JOHN R. EVANS, Ret., Third Appellate District, sitting by assignment.
On January 25, 1995, Patricia S. Stocklas was killed in an auto accident that was allegedly caused by the negligence of James Kephart. Mrs. Stocklas and one other passenger were riding in a car driven by Dianne M. Sidoti. Mrs. Stocklas was insured by State Farm Insurance Co. ("State Farm"); Mrs. Stocklas's son, David, who was not in the accident and did not live with her, had automobile insurance with the Erie Insurance Group ("Erie"); Mrs Sidoti's car was insured by Westfield Insurance Co. ("Westfield"); and, Mr. Kephart was insured by Motorist Mutual ("Motorist").
On May 6, 1996, Mrs. Stocklas's estate and various members of her family, who are the appellants in this matter, filed a complaint for declaratory judgment against Erie, State Farm, and Westfield to determine their coverage under these policies. They had previously had claims for underinsured motorist benefits denied.
Mr. Kephart was insured by Motorist for liability up to $300,000. Mrs. Sidoti's vehicle had $500,000 in underinsured motorist coverage from Westfield. Of the $300,000 of liability insurance from Mr. Kephart's policy, Motorist paid Mrs. Stocklas's estate $260,175.70. Westfield set off the $260,175.70 paid by Motorist against its $500,000 underinsured liability limit and paid the estate $239,824.30.
The Erie policy provided that "[d]isagreement over the legal right to recover damages from the owner or operator of an uninsured motor vehicle or underinsured motor vehicle or the amount of damages shall be settled by arbitration." David Stocklas was a resident of Pennsylvania and the insurance contract with Erie was executed in Pennsylvania. The accident occurred in Ohio, and both Mrs. Stocklas and Mr. Kephart lived in Ohio at the time of the accident. On October 22, 1996, the trial court granted a motion to dismiss, filed by Erie, for lack of subject matter jurisdiction, which was appealed to this court. We reversed and remanded. Stocklas v. Erie Insurance Group (Oct. 10, 1997), Lake App. No. 96-L-186, unreported.
On June 11, 1998, the trial court: granted summary judgment to State Farm; granted Erie's motion to stay the proceedings against it pending arbitration; granted summary judgment to Westfield because it determined that Westfield had paid the limit of its liability; and, denied appellants' motions for summary judgment, filed against Westfield and State Farm. Appellants appeal and raise the following assignments of error for our review:
"[1.] The trial court erred when it granted Westfield National Insurance Company's motion for summary judgment and denied appellants' motion for summary judgment.
"[2.] The trial court erred in granting State Farm's motion for summary judgment and denying appellants' motion for summary judgment.
"[3.] The trial court erred in referring the claim under appellee Erie Insurance Group's policy to arbitration and doing so without deciding the applicable law to be applied by the arbitrators."
Appellants and State Farm have settled and dismissed their claim. Therefore, appellants' second assignment of error is moot.
In its decision, the trial court concluded that because the accident occurred after R.C. 3937.18 was amended, the amended R.C. 3937.18 is the law applicable to this case, even though the insurance policies were executed prior to the amendment. However, since the decision of the trial court, the Ohio Supreme Court decided Ross v. Farmers Ins. Group (1998), 82 Ohio St.3d 281, 695 N.E.2d 732, which held that the law in effect on the date of the policy renewal is the law that controls recovery. Thus, this case is controlled by former R.C. 3937.18 as interpreted by the holding in Savoie v. Grange Mutual Ins. Co. (1993), 67 Ohio St.3d 500, 620 N.E.2d 809.
In appellants' first assignment of error, they assert that the trial court erred by applying the wrong law when granting summary judgment to Westfield and by crediting the amount owed by Westfield with the amount paid by the tortfeasor's insurance company, Motorist. The trial court granted summary judgment because Westfield had already paid what it considered to be the limit of its policy. Rather than filing an appellee's brief, Westfield filed a document entitled "[p]osition of Defendant-Appellant Westfield National Insurance Company." Westfield's position is that it agrees that the Ross decision should be applied to the case and that the entry of summary judgment against appellants should be reversed and remanded to the trial court.
Even though Westfield supports appellants' contention that we should reverse and remand this case, in Savoie, the court held that: "underinsured motorists * * * are entitled to collect up to the full amount of their underinsured policy to the extent that their damages exceed the amounts which the tortfeasor's insurer has already paid to them." Id. at 508. Thus, even under Savoie, the estate was not entitled to more than the total of $500,000, which it received from Westfield and Motorist, combined. The same result would have been reached under both the old and new versions of R.C. 3937.18. Although it applied the wrong version of R.C. 3937.18, the trial court reached the proper result; therefore, the trial court did not err by granting summary judgment. Appellants' first assignment of error is without merit.
In their third assignment of error, appellants assert that the trial court erred by staying proceedings pending arbitration without deciding if the appropriate issues were in dispute and without determining whether a conflict of law existed between Ohio and Pennsylvania.
R.C. 2711.02 provides that: "[a]n order under this section that grants or denies a stay of a trial of any action pending arbitration * * * is a final order and may be reviewed, affirmed, modified, or reversed on appeal." Thus, the trial court's order is an appealable order.
In Stocklas at 6, we directed the trial court that "[s]hould [it] conclude the case involves a determination of either appellant's right to recover from the alleged tortfeasor or the amount of damages, the court should stay the proceedings[.]" The current complaint by appellants is for a declaratory judgment and merely prays for the court to declare that David Stocklas is provided coverage under his policy. Appellants' complaint does not pray for the court to determine whether the tortfeasor is liable for the damages or in what amount. If David Stocklas is not entitled to coverage under this policy, arbitration is unnecessary. Therefore, the issues discussed in the Stocklas appeal were not before the trial court. The trial court erred by staying the proceedings without determining whether David Stocklas was entitled to coverage; appellants' third assignment of error has merit.
For the foregoing reasons, we affirm the judgment of the trial court on appellant's first assignment of error and reverse and remand the judgment of the trial court on appellant's third assignment of error.
_______________________ JUDGE ROBERT A. NADER
MAHONEY (EDWARD), J., Ret., Ninth Appellate District, sitting by assignment, EVANS, J., Ret., Third Appellate District, sitting by assignment, concur.