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Zirger v. Ferkel6/6/2002
JUDGMENT: Judgment reversed and cause remanded.
. This appeal is brought by Nationwide Agribusiness Insurance Company from the judgment of the Court of Common Pleas, Seneca County, denying their motion for summary judgment and in turn granting summary judgment to plaintiff-appellees Kay and Frederick Zirger. For the following reasons, we reverse the trial court's decision and grant summary judgment to the Appellant.
. On December 13, 1999, Kay A. Zirger, while driving a vehicle owned by her husband Frederick A. Zirger, was involved in a traffic accident with a motor vehicle driven by Richard C. Ferkel and owned by Richard L. Ferkel (the Ferkels). On January 12, 2001, Kay and Richard Zirger (the Zirgers) filed suit in the Seneca County Court of Common pleas naming Richard C. Ferkel, Richard L. Ferkel, United Ohio Insurance Company, and Nationwide Agribusiness Insurance Company as defendants and alleging the liability of each party for damages in excess of $25,000.00.
. On February 4, 2001 the parties stipulated that, inter alia, the motor vehicle accident was solely and proximately caused by the negligence of Richard C. Ferkel and or Richard L. Ferkel and that the Zirgers had suffered a combined total of $400,000.00 in damages. Furthermore, the parties stipulated that the Zirgers settled their claim with the Ferkels, through which the Zirgers received $100,000.00 from a liability insurance policy issued by the Ferkel's insurance provider. Neither the tortfeasors nor their insurance provider are a party to this appeal.
. At the time of the motor vehicle accident, the Zirgers were insured under a personal auto policy issued by the co-defendant United Ohio Insurance Company (United) that included uninsured/underinsured motorist coverage with a limit of $300,000.00. The availability of these funds remains at issue in the trial court and is scheduled to be resolved at trial by jury. The United Ohio Insurance Company is not a party to this appeal.
. At all times material to this action, Kay Zirger was an employee of the Mohawk Local School District. The School District held two insurance policies issued by the defendant-appellant Nationwide Agribusiness Insurance Company (Nationwide); a Commercial Auto Policy and an Education Liability Policy. On May 30, 2001 the Zirgers filed a motion for summary judgment asserting entitlement, as a matter of law, to uninsured/underinsured motorist coverage under both Nationwide policies. Nationwide opposed the Zirger's motion and further moved for summary judgment on November 28, 2001 on the grounds that, as a matter of law, the Zirgers were not covered under either of the policies issued by Nationwide.
. In an entry dated January 16, 2002, the trial court overruled Nationwide's motion for summary judgment and in the same order granted the Zirger's motion for summary judgment finding; 1) Kay Zirger was a named insured under the Nationwide Commercial Auto Policy since at the time of the accident she was performing duties related to school business; 2) a Nationwide Commercial Auto Policy provision excluding coverage was void; 3) Kay Zirger was a named insured under the Nationwide Education Liability policy under which uninsured/underinsured motorist coverage arose by operation of law. It is from this order that appellant Nationwide now appeals.
. Appellant raises the following assignments of error:
. "The Trial Court erred to the prejudice of Defendant-Appellant Nationwide Agribusiness Insurance Company when it overruled Nationwide Agribusiness Insurance Company's motion for summary judgment and granted Appellee's motion for summary judgment against Nationwide findin
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