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Akron General Medical Center v. James

Court of Appeals of Ohio, Fifth District

March 25, 2003

AKRON GENERAL MEDICAL CENTER, [*] Plaintiff
v.
JOHN JAMES, Defendant/Third Party Plaintiff-Appellant
v.
CONTINENTAL CASUALTY COMPANY, Third Party Defendant-Appellee and ALLEN SCHLABACH, et al., Defendants.

Civil Appeal from Holmes County Court of Common Pleas Case 00CV089

For Plaintiffs-Appellants: TIMOTHY H. HANNA.

For Defendant-Appellee IRENE C. KEYSE-WALKER.

JUDGES: Hon. Sheila G. Farmer, P.J. Hon. John W. Wise, J. Hon. John F. Boggins, J.

OPINION

Boggins, J.

{¶1} Defendant /Third-Party Plaintiff-Appellant John James appeals from the October 10, 2001, May 14, 2002, and May 21, 2002, Judgment Entries of the Holmes County Court of Common Pleas entering summary judgment in favor of Third-Party Defendant- Appellee Continental Casualty Company.

STATEMENT OF THE FACTS AND CASE

{¶2} On October 26, 1999, Defendant/Third-Party Plaintiff Appellant John James was injured when the motorcycle he was driving on personal business was struck by another vehicle driven by Defendant Allen Schlabach. Defendant Schlabach admitted negligence. As a result of the above accident, appellant John James sustained substantial injuries.

{¶3} This lawsuit originated as a case filed by Akron General Medical Center to recover medical expenses. James filed third party claims against Schlabach, Continental Casualty Company and The Gerstenslager Company Employee Group Benefit plan. At the time of the collision, James was an employee of the Gerstenslager Company, a wholly owned subsidiary of Worthington Industries, Inc.

{¶4} James specifically sought uninsured/underinsured motorist coverage from appellee Continental Casualty Company for the accident. Appellee Continental Casualty Company had issued a comprehensive general liability (CGL) policy and a business auto policy to Worthington Industries, Inc. which was in effect at the time of the accident.

{¶5} Subsequently, James and Continental moved for summary judgment. Continental argued that James was not an insured under the comprehensive general liability policy issued to Worthington and that such policy did not include uninsured/underinsured coverage because it was not a motor vehicle liability policy.

{¶6} As memorialized in its Judgment Entry filed on October 10, 2001, the trial court granted Continental's motion for summary judgment as to the Business Auto policy. The trial court further found that James was not an insured under the policy as he was not working within the scope of his employment at the time of the occurrence of the accident which gave rise to the injuries in question.

{¶7} On March 15, 2002, the trial court entered summary judgment in favor of James on the CGL policy.

{¶8} On March 28, 2002, Continental filed a motion to reconsider.

{¶9} On May 14, 2002, the trial court granted Continental's motion to reconsider.

{¶10} On May 21, 2002, the trial court filed a judgment entry granting Continental's motion for summary judgment stating that the Continental policy could not serve as proof of financial responsibility and did not specifically identify vehicles.

{¶11} Appellant John James now prosecutes this appeal, raising the following assignments of error:

ASSIGNMENTS OF ERROR

I.

{¶12} "THE TRIAL COURT ERRED TO THE PREJUDICE OF THE DEFENDANT/THIRD PARTY PLAINTIFF-APPELLANT, JOHN JAMES, BY ENTERING SUMMARY JUDGMENT IN FAVOR OF THE THIRD-PARTY DEFENDANT-APPELLEE, CONTINENTAL CASUALTY COMPANY, UNDER THE BUSINESS AUTO POLICY."

II.

{¶13} "THE TRIAL COURT ERRED TO THE PREJUDICE OF THE DEFENDANT/THIRD PARTY PLAINTIFF-APPELLANT, JOHN JAMES, BY ENTERING SUMMARY JUDGMENT IN FAVOR OF THE THIRD-PARTY DEFENDANT-APPELLEE, CONTINENTAL CASUALTY COMPANY, UNDER THE CGL POLICY."

STANDARD OF REVIEW

{¶14} Summary judgment proceedings present the appellate court with the unique opportunity of reviewing the evidence in the same manner as the trial court. Smiddy v. TheWedding Party, Inc. (1987), 30 Ohio St.3d ...


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