Nationwide Ins. Co. v. Tobler6/8/1992
Per Curiam.
Defendants-appellants, Rosalie Tobler, administrator of the estate of Shawn Kelly, Ellen Tye, administrator of the estate of Eric Lilze, and Russell Tye, appeal a decision of the Warren County Court of Common Pleas in favor of plaintiff-appellee, Nationwide Insurance Company ("Nationwide").
On March 12, 1988, Russell Tye was the named insured in an automobile insurance policy issued by Nationwide. The policy insured two automobiles owned by Russell Tye, including a 1975 Ford Mustang, for liability and uninsured motorist coverage. Russell Tye paid a substantial additional premium on the policy because his twenty-year-old grandson, Eric Lilze, was a "rated driver" under the policy.
On March 12, 1988, at approximately 3:00 p.m., Russell Tye gave Lilze, who lived in the Tye household, permission to drive the Mustang to a job interview in Mt. Carmel, Ohio, which was a short distance from the Tye residence. However, Lilze did not return directly home after the interview. Instead, Lilze drove to Morrow, Ohio, to visit Jennifer Seebree and Seebree's six-year-old son, Shawn Kelly. Subsequently, they were joined by Seebree's friend Glenna Hawk.
At approximately 6:00 p.m., Lilze called the Tye residence and informed his grandmother, Frances Tye, the insured's spouse, that he would be late but would be home for dinner. Frances Tye was aware that Eric was driving the Mustang and was calling from outside the Mt. Carmel area. Russell Tye was present in the room when Lilze called.
Lilze and Seebree apparently spent several hours consuming alcoholic beverages. Subsequently, Lilze, Seebree, Hawk and Kelly went for a drive in the Mustang. Lilze originally drove the car. However, at some point, Seebree asked if she could drive and Lilze turned the keys over to her. While Seebree was driving, she lost control of the vehicle, causing it to run off the road. The resulting crash killed Lilze, Seebree and Kelly and injured Hawk. An autopsy report revealed that Seebree's blood alcohol level was .25.
On November 15, 1989, Kelly's estate filed a complaint for wrongful death against Seebree's estate. Subsequently, Kelly's estate filed an amended complaint naming Lilze's estate as an additional defendant. Lilze's estate then filed a cross-claim against Seebree's estate for the wrongful death of Lilze.
On April 2, 1990, Nationwide filed a complaint for declaratory judgment against the estates of Kelly, Seebree and Lilze and against Russell Tye. In itscomplaint, Nationwide asked the court to declare that it did not have to provide coverage under Russell Tye's policy for the claims of the estates of Lilze, Seebree and Kelly. After a bench trial, the trial court concluded that, because Lilze and Seebree drove the vehicle without permission at the time of the accident, Nationwide was not obligated to furnish coverage under either the liability or uninsured motorist coverage of Russell Tye's policy. Kelly's estate, Lilze's estate, and Russell Tye filed a timely appeal.
Kelly's estate presents two assignments of error for review, as follows:
"The trial court erred as a matter of law in holding no coverage existed under the policy of insurance in question for any liability incurred by the Estate of Eric Lilze to the Estate of Shawn Kelly due to Lilze's negligence."
"The trial court's finding that Eric Lilze's use of the covered vehicle was outside the scope of the named insured's permission was against the manifest weight of the evidence."
Lilze's estate and Russell Tye collectively ("Lilze's estate") present two assignments of error
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