Floering v. Huering ( 2004 )

DECISION AND JUDGMENT ENTRY {¶ 1} This appeal comes to us from the summary judgment granted by the Wood County Court of Common Pleas in a case involving uninsured/underinsured ("UM/UIM") motorist coverage pursuant to Scott-Pontzer v. Liberty Mut. Fire Ins. Co. (1999),85 Ohio St.3d 660. Because we conclude that summary judgment is proper in this case, we affirm.

{¶ 2} Appellant Cynthia Floering, filed UM/UIM claims pursuant to Scott-Pontzer, supra, against appellee, Hamilton Mutual Insurance Company ("Hamilton"), her son's employer's insurer. The claims stemmed from a motor vehicle accident and resulting death of Floering's son, Austin, a passenger in motor vehicle driven by his friend, Jordan Huering. The trial court initially found that Austin was an insured under his employer's policy pursuant to Scott-Pontzer. Nevertheless, the court later granted summary judgment in favor of Hamilton, stating that at the time of the accident, he was not in a "covered auto" as defined under the insurance policy. Both parties filed appeals from the trial court's judgment.

{¶ 3} The record reveals that Austin was riding around with friends in Huering's van when the vehicle struck a tree at approximately 1:30 a.m. Therefore, Austin was not acting within the scope of his employer's business when the accident related to his UM/UIM claims occurred.

{¶ 4} Pursuant to Westfield Ins. Co. v. Galatis,100 Ohio St.3d 216, 2003-Ohio-5849, we conclude that Austin was not an insured under the Hamilton policy, negating any coverage for his UM/UIM claims. Therefore, since no material issues of fact remain in dispute and Hamilton is entitled to judgment as a matter of law, summary judgment was properly granted in favor of Hamilton.

{¶ 5} Cynthia Floering's sole assignment of error is not well-taken. Hamilton's cross-assignments of error are rendered moot.

{¶ 6} The judgment of the Wood County Court of Common Pleas is affirmed. Pursuant to App.R. 24, court costs of this appeal are assessed to appellant.

Judgment affirmed.

A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. See, also, 6th Dist.Loc.App.R. 4, amended 1/1/98.

Pietrykowski, J., Lanzinger, J., Singer, J., concur.