APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO CASE No. CV-2012-03-1255
WILLARD E. BARTEL and GEOFFREY HICKEY, Attorneys at Law, for Appellant.
DAVID G. UTLEY, Attorney at Law, for Appellee.
DECISION AND JOURNAL ENTRY
CARLA MOORE, PRESIDING JUDGE.
(¶1} Appellant, Thomas Darno, appeals the order of the Summit County Court of Common Pleas that granted summary judgment to Westfield Insurance Company. This Court reverses.
(¶2} Mr. Darno suffered injuries when struck by a car on State Route 45. According to his answers to the request for admissions propounded below, he and a friend had pushed their disabled vehicle off of the roadway when Mr. Darno heard his friend yell, "Run!" Mr. Darno ran, but a vehicle driving on the roadway struck him nonetheless. The responses do not contain any information about where Mr. Darno was with respect to his car, how much time had passed since he finished pushing the car, or how long or far he had run by the time the accident happened.
(¶3} Mr. Darno's vehicle was insured under an insurance policy issued by Westfield. He brought an action against Westfield seeking underinsured motorist coverage as a result of the accident, but Westfield maintained that he was excluded from coverage because he was "occupying" the vehicle within the meaning of his policy terms at the time of the accident. Westfield moved for summary judgment on the basis of Mr. Darno's responses to the request for admissions. The trial court granted Westfield's motion, and Mr. Darno appealed.
ASSIGNMENT OF ERROR
THE TRIAL COURT ERRED IN GRANTING WESTFIELD'S MOTION FOR SUMMARY JUDGMENT AS GENUINE ISSUES OF MATERIAL FACT REMAIN THAT MUST BE RESOLVED BY THE TRIER OF FACT.
(¶4} Although the proposition stated in Mr. Darno's assignment of error is that summary judgment was not proper because there are genuine issues of material fact, the substance of his argument is that summary judgment was improperly granted because Westfield did not meet its initial burden of demonstrating that it was entitled to summary judgment as a matter of law. More specifically, Mr. Darno has argued that the conclusory statements in the discovery responses are not enough to establish without further discovery whether he occupied the vehicle at the time of the accident. We agree.
(¶5} This Court reviews an order granting summary judgment de novo. Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105 (1996). Under Civ.R. 56(C), "[s]ummary judgment will be granted only when there remains no genuine issue of material fact and, when construing the evidence most strongly in favor of the nonmoving party, reasonable minds can only conclude that the moving party is entitled to judgment as a matter of law." Byrd v. Smith, 110 Ohio St.3d 24, 2006-Ohio-3455, ¶ 10. A party that moves for summary judgment must inform the trial court of the basis for the motion by demonstrating with reference to evidentiary materials in the record that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Dresher v. Burt, 75 Ohio St.3d 280, 292-293 (1996). "If the moving party fails to satisfy its initial burden, the motion for summary judgment must be denied." Id. at 293. The substantive law underlying the claims provides the framework for reviewing motions for summary judgment, both with respect to whether there are genuine issues of material fact and whether the moving party is entitled to judgment as a matter of law. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Burkes v. Stidham, 107 Ohio App.3d 363, 371 (8th Dist.1995).
(¶ 6} The policy at issue provides that Westfield "will pay all sums the 'insured' is legally entitled to recover as compensatory damages from the owner or operator of an * * * 'underinsured motor vehicle' because of 'bodily injury' sustained by the 'insured' and caused by an 'accident.'" The policy, however, excludes coverage for bodily injured sustained by "[a]n individual Named Insured while 'occupying' or when struck by any vehicle owned by that Named Insured that is not a covered 'auto' for * * * Underinsured Motor Coverage[.]" According to the policy, "'[o]ccupying' means in, upon, getting in, on, out or off of the vehicle. The question at ...