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Hines v. Continental Casualty Co.

Court of Appeals of Ohio, Fifth District

January 7, 2004

MARY LOU HINES Plaintiff-Appellant
v.
CONTINENTAL CASUALTY CO., ET AL. Defendant-Appellees

Appeal from the Perry County Court of Common Pleas, Case No. 01-CV-00472

For Plaintiff-Appellant JAMES W. RANSBOTTOM, STEPHEN R. MCCANN

For Defendant-Appellees WILLIAM SCOTT LAVELLE 175 South Third Street

Hon. William B. Hoffman, P.J. Hon. John W. Wise, J. Hon. John F. Boggins, J.

OPINION

Hoffman, P.J.

{¶1} Plaintiff-appellant Mary Lou Hines appeals the April 10, 2003 Entry of the Perry County Court of Common Pleas, which granted summary judgment in favor of defendant-appellee Continental Casualty Company.

STATEMENT OF THE FACTS AND CASE

{¶2} Jerry Hines was fatally injured as a result of an automobile accident occurring on December 21, 1986. The accident was caused by the negligent driving of Randall K. Hill, an underinsured motorist.

{¶3} At the time of the accident, Mr. Hines was an employee of The Kroger Company and was on his own personal business, i.e., he was not within the course and scope of his employment. Appellee insured The Kroger Company under a commercial auto policy.

{¶4} Appellant is Mr. Hines' mother and the administrator of his estate. Appellant has never been an employee of The Kroger Company. Mr. Hines' estate settled with Mr. Hill's insurance carrier for $50, 000.

{¶5} Appellant filed her complaint against appellee and TIG Insurance Company[1], seeking a declaration of the availability of underinsured motorist coverage under the commercial auto policy issued by appellee to The Kroger Company, pursuant to the Ohio Supreme Court decision in Scott-Pontzer v. Liberty Mut. Fire Ins. Co. (1999), 85 Ohio St.3d 660. The parties moved for summary judgment. Via Entry filed April 10, 2003, the trial court granted appellee's motion for summary judgment. It is from that entry appellant prosecutes this appeal, assigning as error:

{¶6} "THE TRIAL COURT ERRED TO THE PREJUDICE OF PLAINTIFF-APPELLANT IN DENYING HIS MOTION FOR SUMMARY JUDGMENT AND IN GRANTING SUMMARY JUDGMENT IN FAVOR OF DEFENDANT-APPELLEE BECAUSE THE CONTINENTAL BUSINESS AUTO POLICY PROVIDES UNDERINSURED MOTORIST COVERAGE BY OPERATION OF LAW.

{ΒΆ7} "II. THE TRIAL COURT ERRED TO THE PREJUDICE OF PLAINTIFF-APPELLANT IN DENYING HIS MOTION FOR SUMMARY JUDGMENT AND IN GRANTING SUMMARY JUDGMENT IN FAVOR OF DEFENDANT-APPELLEE BECAUSE PLAINTIFF-APPELLANT IS AN ...


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