Rose v. Natl. Mut. Ins. Co.

134 Ohio App.3d 229

730 NE 2d 1014

ROSE, Appellee, v. NATIONAL MUTUAL INSURANCE COMPANY et al.; Westfield Companies, Appellant.

No. 97 BA 48.

Court of Appeals of Ohio, Seventh District, Belmont County.

Decided August 30, 1999.

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Charles H. Bean, for appellee.

Isaac, Brant, Ledman & Teetor and Steven G. LaForge, for appellant.

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WAITE, Judge.

This appeal arises out of a trial court decision granting appellee Kyle Rose's motion for summary judgment against appellant, Westfield Companies, awarding appellee $200,000 plus prejudgment and postjudgment interest from the date of the accident, and subsequently overruling appellant's motions for reconsideration and summary judgment. For the following reasons, this court affirms the trial court judgment.

In January 1990, appellee's mother and father, Linda Fuchs (formerly Linda Rose) and David Rose, had their marriage dissolved. The court awarded custody of appellee and his two siblings to Linda Fuchs, and they remained in the family home. In the fall of 1990, appellee began college at Mercer University in Georgia and stayed there in a college dormitory during the school year but came home for holidays and school vacations. In the summer of 1991, appellee came home for summer break and returned to school in the fall.

In October 1991, while appellee was away at school, his mother moved in with her parents in Clarington, Ohio, and put the family home up for sale. Fuchs moved all of her and her children's belongings, including appellee's, into her parents' house. An unfinished garage was converted into a bedroom for appellee and his brother Casey to stay in when they returned from college. It was to his grandparents' residence that appellee returned when he came home for the Thanksgiving break in November 1991.

On December 14, 1991, appellee and Casey returned home from college on Christmas break. They visited their father and then drove to their maternal grandparents' house, where their mother was also residing, to drop off their belongings and have dinner. Appellee was driving a car given to him by his father for his use while at college. While appellee and his brother were out that evening, appellee went to a local bar, where he met an acquaintance, Renee Brown. Appellee was inside Brown's car talking when Brown began to drive after another friend. Brown subsequently lost control of her car. Ms. Brown was killed in the accident, and appellee suffered a severed spinal column, resulting in permanent paraplegia.

On December 8, 1993, appellee filed a declaratory judgment action to determine his rights against certain insurance companies that were at the time insuring Brown, his mother, his father, and his maternal grandparents. Appellee represented that he had received the liability limits of $100,000 from Brown's insurance company, the National Mutual Insurance Company ("NMIC"), but had also requested medical payments from the policy. Appellee also sought uninsured/underinsured motorist coverage under his father's policy with appellant and sought recovery under the uninsured/underinsured motorist provisions of his mother's insurance policy with Great American Insurance Companies (Eagle American Insurance Company) ("GAIC"). All of these claims were either settled or dismissed by judgment entry. The procedural posture of these claims will not be further addressed except as necessary.

Relevant to the present appeal, appellee also sought the limits of the uninsured/underinsured motorist provisions under a policy of insurance issued by appellant to appellee's maternal grandparents. Appellee alleged that at the time of the accident, he was a resident of his grandparents' household and had complied with all of the policy provisions entitling him to the underinsured motorist policy limits. Appellant denied the claim. Appellee requested declaratory judgment in his favor, seeking the policy limits of $200,000 plus interest and costs against appellant.

Appellee asserted in his complaint that as a result of the automobile accident, he had incurred medical expenses in excess of $400,000 to date. Appellee attached copies of the relevant insurance policies. Excluded from his attachment was the maternal grandparents' policy, as appellee alleged that it was identical to his father's policy with appellant, which was attached.

On January 6, 1994, appellant filed an answer addressing the claims against its uninsured/underinsured motorist provisions under both appellee's father's and maternal grandparents' policies. Appellant generally denied the allegations in the complaint but admitted that appellee had suffered a severed spinal column and that expenses had been incurred as a result. Appellant denied for lack of knowledge the alleged amount of the expenses. Appellant also admitted that appellee "was a member of some household which included Linda Rose, his mother, and his grandparents, Vernon N. Kanzigg and Twila M. Kanzigg, in the Village of Clarington, Ohio." Appellant initially denied that the terms of the maternal grandparents' and the father's policies were the same but later agreed that they were. Appellant demanded a trial to the court to determine the rights of the parties.

On August 26, 1996, appellee filed an amendment to his demand for judgment, requesting, among other relief, judgment in the amount of $200,000 plus prejudgment and postjudgment interest and attorney fees and costs against appellant under his grandparents' policy.

On August 27, 1996, appellee filed a motion for summary judgment against both appellant and GAIC. The parties agreed to continue the matter against GAIC pending settlement negotiations. Appellee asserted that he was entitled to judgment against appellant as a matter of law because he met the definition of "insured" under appellant's policy, a copy of which was attached to the motion. "Insured" was defined as "you or any family member." "Family member" was defined as a "person related to you by blood, marriage or adoption, who is a resident of your household."

Appellee asserted that he was a family member and therefore an insured because he was unquestionably related by blood to his maternal grandparents and was also a resident of their household. Appellee submitted that as the term "resident" was not defined in the policy, it was ambiguous and should therefore be construed against appellant and in his favor. Appellee set forth caselaw rejecting the definition of "resident" as it refers to domicile and holding that one who lives in the home of the named insured need not live there permanently but must not be a temporary or transient visitor. Farmers Ins. of Columbus, Inc. v. Taylor (1987), 39 Ohio App.3d 68, 528 N.E.2d 968. Appellee contended that he was a resident of his grandparents' home because his mother lived there and he had lived with his mother all of his life, his belongings were kept in a garage converted into a bedroom for his use when he was home from college, and he returned to his grandparents' home during all holidays and school vacations. Appellee also cited caselaw holding that a college student is not considered to be a resident, in the permanent sense, of his school habitation. Appellee alternatively asserted that appellant should be estopped from denying coverage because appellant's answer to his complaint admitted that appellee was a resident of the household and appellant's claims examiner believed appellee to be an insured, as she repeatedly requested authorization to pay the policy limits to appellee after her investigation. Appellee further argued that he should be able to collect attorney fees, costs, and prejudgment and postjudgment interest from the date of the accident for appellant's failure to pay appellee's claim.

Appellant submitted nothing in response to appellee's motion for summary judgment. On September 23, 1996, the court held a hearing on the summary judgment motion. Counsel for appellant was present at this hearing. Appellant's counsel indicated at the hearing that it had not responded to the motion and that it had no other issues or other matters to raise before the court. On September 24, 1996, the trial court issued its entry summarily sustaining appellee's motion for summary judgment against appellant.

On October 24, 1996, appellant filed an appeal of the trial court's judgment entry. On the same date, appellee's attorney filed a motion seeking approval of a proposed judgment entry granting the motion for summary judgment. The court signed the judgment entry. The judgment entry stated that the motion for summary judgment was pending before the court and that appellant had filed nothing in opposition. The entry also stated that appellee was entitled to the $200,000 limits of the uninsured/underinsured motorist policy, prejudgment and postjudgment interest in the amount of ten percent from the date of the accident, attorney fees, and court costs. The entry further provided that the case against GAIC was continuing.

While its appeal was pending, appellant filed a motion for reconsideration and its own motion for summary judgment in the trial court. These were filed on December 3, 1996. Appellant argued that the court had inherent authority to reconsider its grant of summary judgment, since the claim against GAIC was still pending under identical facts. Appellant cited caselaw and asserted that appellee was not a resident of his grandparents' household pursuant to the policy, because he stayed there only on breaks from school and he and his mother intended to live there only until his mother sold her house. Appellant also raised for the first time the argument that its policy language contained an excess-insurance clause and an other-insurance clause limiting the stacking of uninsured/underinsured motorist coverages. Appellant argued that the court could not award a monetary judgment in...