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National Mutual Insurance Co. v. Gano

Court of Appeals of Ohio, Twelfth District

August 5, 2013

NATIONAL MUTUAL INSURANCE CO., Plaintiff-Appellant,
v.
GAGE P. GANO, et al., Defendants-Appellees.

CIVIL APPEAL FROM MADISON COUNTY COURT OF COMMON PLEAS Case No. CV2012-0021

Les Chambers, for plaintiff-appellant. National Mutual Insurance Company

Joyce V. Kimbler, for defendant-appellee. Nationwide Mutual Fire Insurance Company

OPINION

HENDRICKSON, P.J.

{¶ 1} Plaintiff-appellant, The National Mutual Insurance Company (National Mutual), appeals from a decision of the Madison County Court of Common Pleas awarding summary judgment to defendant-appellee. Nationwide Mutual Fire Insurance Company (Nationwide).[1] For the reasons discussed below, we affirm the judgment of the trial court.

{¶ 2} On June 17, 2012, National Mutual filed a complaint against defendants Gage Gano and Nationwide, seeking contribution for sums paid by National Mutual to its insured, Caitlin Purk, for injuries sustained in a motor vehicle accident.[2] The accident occurred on January 14, 2010 on State Route 29 in Madison County, Ohio. Caitlin was a passenger in a 1999 Honda Civic being driven by Shelby Siegenthaler when the vehicle was struck by a 2005 Honda Civic being driven by Gano. Gano claimed that the collision was precipitated by a "phantom vehicle" striking his vehicle, which in turn caused him to crash into Siegenthaler's vehicle.

{¶ 3} At the time of the accident, Siegenthaler's vehicle was an insured vehicle under an insurance policy issued by Nationwide. The Nationwide policy provided bodily injury liability limits of $100, 000 per person and $300, 000 per accident. Caitlin was listed as an insured driver on a policy issued by National Mutual to William Purk. The National Mutual policy provided bodily injury liability limits of $250, 000 per person and $500, 000 per accident.

{¶ 4} Caitlin suffered damages from the accident and made claims for uninsured motorist coverage to both National Mutual and Nationwide. National Mutual settled Caitlin's claim for $140, 000 and obtained a release and assignment from her for any and all claims she had against Gano and Nationwide. National Mutual then filed suit, seeking contribution from Nationwide in the amount of $39, 900, or 28.5 percent of the $140, 000 it paid to Caitlin, which National Mutual believed was Nationwide's pro rata share.[3]

{¶ 5} In January 2013, Nationwide and National Mutual filed competing motions for summary judgment. Nationwide argued that its policy "clearly and specifically expressed its intent that where Nationwide provides insurance for use of a covered auto by a person other than [a named insured], Nationwide's insurance would be excess to other insurance." Because Caitlin is not a named insured under Nationwide's policy, Nationwide would only provide "excess insurance" for the injuries she sustained. As Caitlin's damages were less than National Mutual's coverage limit of $250, 000, Nationwide contends its excess clause was not triggered and that it was not required to pay any amount towards her damages. National Mutual, however, argued that its policy also contained an excess insurance clause, and that its excess clause and Nationwide's excess clause were "mutually repugnant as a matter of law" such that neither companies' policy could be considered "primary" and each company would therefore be required to respond to the loss on a pro rata basis.

{¶ 6} On March 28, 2013, the trial court issued a decision denying National Mutual's motion for summary judgment and granting Nationwide's motion for summary judgment. The trial court determined that the express terms of National Mutual's policy offered primary coverage to Caitlin for the injuries she sustained. In reaching this determination, the trial court stated that "[t]here [was] no need to apply case law relevant to mutually repugnant excess clauses because there is only one excess clause at issue in this case. [National Mutual's] assertion that its policy offers excess coverage in this situation is not persuasive."

{¶ 7} National Mutual timely appealed the trial court's decision denying its motion for summary judgment and granting Nationwide's motion for summary judgment, raising as its sole assignment of error the following:

{¶ 8} THE TRIAL COURT ERRED AND IMPROPERLY GRANTED SUMMARY JUDGMENT TO [NATIONWIDE] AND DENIED SUMMARY JUDGMENT TO [NATIONAL MUTUAL] BY FINDING THAT [NATIONAL MUTUAL'S] UNDERINSURED MOTORIST COVERAGE WAS PRIMARY AND FINDING THAT [NATIONWIDE] DID NOT SHARE UIM COVERAGE ON A PRO RATA BASIS WITH NATIONAL MUTUAL.

{¶ 9} National Mutual contends that the trial court erred in finding that its uninsured motorist coverage for Caitlin was primary and Nationwide's uninsured motorist coverage was excess. National Mutual contends that both companies' excess clauses were "triggered, " thereby requiring each company to respond to Caitlin's loss on a pro rata basis. In support of its argument, National Mutual cites to Buckeye Union Ins. Co. v. State Auto. Mut. Ins. Co., 49 Ohio St.2d 213 (1977), syllabus, which states that "[w]here two insurance policies cover the same risk and both provide that their liability with regard to that risk shall be excess insurance over other valid, collectible insurance, the two insurers become liable in proportion to the amount of insurance provided by their respective policies."

{¶ 10} This court's review of a trial court's ruling on a motion for summary judgment is de novo. Grizinski v. Am. Express Fin. Advisors, Inc., 187 Ohio App.Sd 393, 2010-Ohio-1945, ¶14 (12th Dist.). "De novo review means that this court uses the same standard that the trial court should have used, and we examine the evidence to determine whether as a matter of law no genuine issues exist for trial." Morris v. Dobbins Nursing Home, 12th Dist. Clermont No. CA2010-12-102, 2011-Ohio-3014, ¶ 14, citing Brewer v. Cleveland Bd. Of Edn., 122 Ohio App.3d 378, 383 (8th Dist. 1997). Summary judgment is appropriate when there are no genuine issues of material fact to be litigated, the moving party is entitled to judgment as a matter of law, and reasonable minds can come ...


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