Campbell v. Great Northern Ins. Co., (Ohio 2003)

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Scott-Pontzer; Galatis

Summary

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Scott-Pontzer; Galatis

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[Cite as Campbell v. Great Northern Ins. Co., 2003-Ohio-6362.]

COURT OF APPEALS STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT

RIC CAMPBELL, AS EXECUTOR OF THE ESTATE OF BRANDON D. CAMPBELL, ET AL.

Plaintiffs-Appellees vs.

GREAT NORTHERN INSURANCE COMPANY, ET AL.

Defendants-Appel ants

: JUDGES: :

Hon. William B. Hoffman, P.J. :

Hon. Sheila G. Farmer, J. :

Hon. John W. Wise, J. :

: Case No. 2003CA00060 :

: OPINION CHARACTER OF PROCEEDING: Appeal from the Court of Common Pleas, Case No. 2002CV1975

JUDGMENT: Reversed DATE OF JUDGMENT ENTRY: November 24, 2003

APPEARANCES: For Plaintiffs-Appellees For Great Northern Insurance Co.

STANLEY R. RUBIN JAY CLINTON RICE 437 Market Avenue North RICHARD J. SCISLOWSKI Canton, OH 44702 JULIE L. JUERGENS

1501 Euclid Avenue

7th Floor, Bulkley Building

Cleveland, OH

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Farmer, J.

On May 30, 1996, Brandon Campbel sustained fatal injuries in a motor vehicle accident while at work for Briarwood Landscape Nursery, caused by the negligence of a co-worker.

At the time of the accident, Brandon's mother, Carol Campbell, was employed by Ohio Kentucky Oil, insured under a business auto policy issued by Great Northern Insurance Company.

On June 7, 2002, Brandon's father, Ric Campbell, individually and as executor of the estate of Brandon Campbel , together with other next of kin, filed a complaint for declaratory judgment seeking underinsured motorists benefits from various insurance companies. Great Northern was added as a party on October 9, 2002.

All parties filed motions for summary judgment. By judgment entry filed January 17, 2003, the trial court found appellees were entitled to underinsured motorists benefits under the Great Northern policy.

Great Northern filed an appeal and this matter is now before this court for consideration. Assignments of error are as follows: I

"THE TRIAL COURT ERRED IN FINDING THAT PLAINTIFF IS ENTITLED TO UM/UIM COVERAGE UNDER GREAT NORTHERN'S BUSINESS AUTO POLICY ISSUED TO OHIO KENTUCKY OIL." II

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"THE TRIAL COURT ERRED IN FAILING TO HOLD THAT GREAT NORTHERN IS ENTITLED TO A $515,000 SET OFF." I

Great Northern claims the trial court erred in extending coverage under its business auto policy pursuant to Scott-Pontzer v. Liberty Mut. Fire Ins. Co., 85 Ohio St.3d 660, 1999-Ohio-292, and Ezawa v. Yasuda Fire & Marine Ins. Co., 86 Ohio St.3d 557, 1999-Ohio-124.

The Great Northern 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 Plaintiffs' Complaint as Exhibit B. Based upon the Supreme Court of Ohio's recent decision in Westfield Insurance Co. v. Galatis, 100 Ohio St.3d ___, 2003-Ohio-5849, we find appellees are not insureds under the policy.

Assignment of Error I is granted. Assignment of Error II is moot.

The judgment of the Court of Common Pleas of Stark County, Ohio is hereby reversed.

By Farmer, J.

Hoffman, P.J. and Wise, J. concur.

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