F'E:B 06 20!^9 CLERK OF COURT SUPREME COURT OF OHIO IN THE SUPREME COURT OF OHIO. LOIS DOREEN, et al. Case No. 9T^02r 91. Plaintiffs-Appellants

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1 IN THE SUPREME COURT OF OHIO LOIS DOREEN, et al. Plaintiffs-Appellants V. ERIE INSURANCE COMPANY, Defendant-Appellee. Case No. 9T^02r 91 Discretionary Appeal from the Fairfield County Court of Appeals, Fifth Appellate District Court of Appeals Case No CA 67 MEMORANDUM IN SUPPORT OF JURISDICTION OF APPELLANTS LOIS DOREEN LONG AND DAVID J. BURGMAN WAYNE E. HASSAY ( ) (Counsel of Record) MARK R. METERKO ( ) Maguire & Schneider, L.L.P. 250 Civic Center Drive, Suite 500 Columbus, Ohio Telephone: (614) Facsimile: (614) Counsel for Appellants JOHN C. NEMETH ( ) DAVID A. HERD ( ) John C. Nemeth & Associates 21 E. Frankfort Street Columbus, Ohio Telephone: (614) Facsimile: (614) Counsel for Appellee L= F'E:B 06 20!^9 CLERK OF COURT SUPREME COURT OF OHIO

2 TABLE OF CONTENTS THIS CASE IS A CASE OF PUBLIC AND GREAT GENERAL INTEREST STATEMENT OF THE CASE AND FACTS...4 ARGUMENT IN SUPPORT OF PROPOSITION OF LAW...5 Proposition of law: When uninsured motorist coverage is contained in two or more policies of insurance, Ohio law mandates a claimant an amount of protection not less than the coverage limit under the policy in which claimant is an insured minus those amounts available for payment to the claimant from the other policies. Paee CONCLUSION PROOF OF SERV ICE APPENDIX Appx. Page A. Opinion of the Fairfield County Court of Appeals (December 26, 2008) B. Judgment Entry of the Fairfield County Court of Appeals (December 26, 2008)

3 THIS CASE IS ONE OF PUBLIC OR GREAT GENERAL INTEREST This case involves a critical issue relating to the amount of protection claimants are entitled to receive when two or more policies of insurance containing uninsured motorist coverage are involved. In this case, Amanda Thompson ("Decedent") was killed in an automobile accident by an uninsured tortfeasor. At the time of the accident, the Decedent held a policy of Insurance containing uninsured/underinsured coverage with a $250, per person limit. The $250, policy limit was paid to the Estate of the Decedent and distributed among seven individuals, including Appellants Lois Doreen Long and David J. Burgman, who received a collective total of $138, Appellants, however, were insured under a separate policy of insurance, issued by Appellee Erie Insurance Company, which also contained uninsured/underinsured motorist coverage with a $250, per person limit. Appellee does not dispute that Appellants are insured for the death of Decedent. The issue in this case was whether the Appellants were entitled to recover pursuant to the uninsured/underinsured motorist coverage in their policy minus the amounts already received from the Decedent's Policy. The Fifth District Court of Appeals held that Appellants were not entitled to any additional uninsured motorist protection. The Ohio General Assembly has addressed the amount of protection an underinsured motorist is entitled to receive after recovering from a tortfeasor. See R.C. 3937(C). There is also ample Supreme Court of Ohio precedent clarifying the amount of protection a claimant is entitled to receive in such a situation. Motorists Mut. Ins. v. Andrews (1992), 65 Ohio St.3d 362, , 1992-Ohio-21, 604 N.E.2d 142 (where "the claims of multiple claimants result in reduction of the amount available for payment to the insured below the underinsured motorists 1

4 limits," the insured is entitled to underinsured motorist coverage); Littrell v. Wigglesworth (2001), 91 Ohio St.3d 425, 2001-Ohio-87, 746 N.E.2d 1077 (a strict policy-limits-to-policylimits comparison is untenable in situations where multiple parties are looking to recover such that insurance carriers were permitted to set off only the amounts that beneficiaries actually received). The Ohio General Assembly, however, has not addressed what amount of protection claimants are entitled to receive from their uninsured motorist insurance policy when they receive money from another unrelated uninsured motorist policy in an amount less than their uninsured motorist coverage limits. Likewise, there is no compelling Supreme Court of Ohio precedent dealing with. this issue. There is a gap in Ohio law. This case is one of public or great general interest because it provides an opportunity to fill in the gap in Ohio law and address this unresolved issue. Not only does this case provide the Supreme Court of Ohio with an opportunity to address an unresolved issue of law, it is also a case of public or great general interest because it is an area of the law that is often litigated in trial courts and appellate courts throughout the State of Ohio. Every year thousands of Ohioans are involved in automobile accidents with an uninsured tortfeasor. The Supreme Court of Ohio should grant jurisdiction in this case to clarify what amounts such Ohioans are entitled to recover from uninsured motorist coverage when more than one policy of uninsured motorist insurance is involved. This case also provides the Supreme Court of Ohio with the opportunity to concretely apply what it has already stated is the purpose of uninsured/underinsured motorist insurance. That is, to put the injured policyholder in the same position he would have been had the tortfeasor carried sufficient liability insurance. See Lager v. Miller-Gonzalez, 120 Ohio St.3d 47, 2

5 2008-Ohio-4838, 896 N.E. 2d 666, 31 (citations omitted). The holding of the Fifth District Court of Appeals deviates from this basic purpose. This deviation is best demonstrated by comparing the current case to the case of Estate of Jackson v. State Farm Ins. Co., 5" Dist. No. 2007CA00205, 2008-Ohio-5802 (Nov. 3, 2008), which was decided by the Fifth District Court of Appeals less than two months before the current case. In Estate of Jackson, the tortfeasor negligently operated his motor vehicle causing the death of Elladean Jackson. Three adult children survived Ms. Jackson, including Tonya McDonald. The tortfeasor's insurance policy paid $100, in liability limits to the Estate of Elladean Jackson, which was distributed equally among the three children in the amount $33, each. At the time of the accident, Tonya McDonald was insured under a separate policy of insurance issued by State Farm, which contained underinsured motorist coverage in the amount of $50, per person and $100, per accident. Tonya McDonald made a claim for the underinsured coverage, which was denied by State Farm. The Estate of Jackson Court correctly concluded that pursuant to Littrell, Tonya McDonald was entitled to underinsured motorist protection up to the per person limit of her State Farm policy after setting off the amount she had already recovered (i.e. $50, $33,000.00). In the current case, Appellants are in the same exact position as Tonya McDonald. Appellants received money as beneficiaries of an estate and made a claim for uninsured/underinsured motorist coverage under a separate policy of insurance. The only difference is that the amount already received by Appellants (i.e. $138,043.92) came from the Decedent's uninsured motorist coverage as opposed to the tortfeasor's liability coverage. By holding that Appellants were entitled to no additional uninsured motorist protection, the Fifth 3

6 District Court of Appeals failed to put Appellants in the same position they would have been in had the tortfeasor carried liability insurance. The Supreme Court of Ohio should accept jurisdiction to clarify the application of its previous holding that all policy holders injured by an uninsured tortfeasor are entitled to the same protection they would have had if the tortfeasor had carried liability insurance. The Court must determine whether insureds, such as Appellants, are entitled to the same amount of protection regardless of whether the amounts actually received come from a tortfeasor's liability policy or another unrelated policy containing uninsured/underinsured motorist coverage. STATEMENT OF THE CASE AND FACTS The facts in this matter are not in dispute. On May 29, 2003, Amanda L. Thompson ("Decedent") was a passenger in a motor vehicle that was negligently operated and driven by Kylie Paradise. As a direct and proximate result of the tortfeasor's negligence, the Decedent suffered personal injuries and died within seconds of the collision. Kylie Paradise was uninsured. The Decedent held a policy of insurance with Erie Insurance Group/Erie Insurance Company ("Erie"), policy number Q , with a per person linrit of coverage of $250, ("Decedent's policy"). Pursuant to the terms of Decedent's policy, Erie paid $250, to the estate of the Decedent. On March 28, 2005, the Probate Court of Franklin County, Ohio ordered the net proceeds distributed among seven different wrongful death beneficiaries. As part of the distribution, Appellant Lois Doreen Long ("Appellant Long") received $132, and Appellant David J. Burgman ("Appellant Burgman") received $6, for a collective total of $138,

7 Appellants were insured under a separate and distinct policy of insurance, policy number Q , also with Erie, which included uninsured/underinsured motorist ("UM/UIM") coverage in the amount of $250, per person ("Long's policy"). On May 5, 2005, Appellant Long, as the administrator of the Estate of Decedent, filed a wrongful death complaint against Kylie Paradise and Terry Gates, who was the owner of the motor vehicle. In addition, Appellants, in their individual capacities, sued Erie seeking recovery pursuant to the uninsured/underinsured motorist coverage under Long's policy. Erie filed a motion for summary judgment arguing that Appellants were not entitled to any additional recovery pursuant to the uninsured/underinsured motorist coverage within Long's Policy. Appellants filed a motion for partial summary judgment arguing that they were entitled to additional recovery under Long's Policy. The trial court granted Erie's motion for summary judgment and denied Appellants' motion for partial summary judgment. Appellants appealed the decision. The Court of Appeals affirmed summary judgment in favor of Erie because "recovery was already made under the decedent's policy...in the same amount of limit of coverage ($250,000) as is being sought from the second Erie policy." ARGUMENT IN SUPPORT OF PROPOSITION OF LAW PROPOSITION OF LAW: When uninsured motorist coverage is contained in two or more policies of insurance, Ohio law mandates a claimant an amount of protection not less than the coverage limit under the policy in which claimant is an insured minus those amounts available for payment to the claimant from the other policies. This proposition of law is consistent with the purpose of uninsured/underinsured motorist insurance, which is to put an injured policyholder in the same position he would have been in had the tortfeasor carried sufficient liability insurance. Lager, 120 Ohio St.3d at 31; see also 5

8 Sexton v. State Farm Mut. Automobile Ins. Co. (1982), 69 Ohio St.2d 431, 436, 433 N.E.2d 55 (stating that "[t]he legislative purpose in creating compulsory uninsured motorist coverage was to place the injured policyholder in the same position with regard to recovery of damages, that he would have been in if the tortfeasor had possessed liability insurance"). Consider the current case. If the tortfeasor had possessed liability insurance, and the Decedent did not carry underinsured motorist coverage, Appellants would have received a collective total of $250, This is true regardless of the amount of money Appellants would have received from the tortfeasor. Indeed, Appellants could have received $250, directly from the tortfeasor, or they could have received the difference between $250, and any amount received from the tortfeasor, from their policy of insurance. See e.g. Andrews, 65 Ohio St.3d 362; see also Littrell, 91 Ohio St.3d 425; see also Estate of Jackson, 2008-Ohio Regardless of the amount received from the tortfeasor, if the tortfeasor had some type of liability. insurance, and the Decedent was uninsured, Appellants would have recovered a collective total of $250, Under Appellants' proposition of law, Appellants would receive a collective total of $250, (i.e. the difference between the collective coverage limit of Long's Policy i.e. $250, and the amounts available for payment from Decedent's Policy i.e. $138,043.92). As such, Appellants' proposition of law is consistent with the purpose of uninsured/underinsured motorist insurance. Under the holding of the Fifth District Court of Appeals, however, Appellants have been deprived of a recovery because of an irresponsible tortfeasor, and the fact that Decedent's policy limit had to be divided among numerous wrongful death beneficiaries, despite their purchase of insurance to avoid this result. 6

9 Appellants' proposition of law is also consistent with a basic premise of contract law (i.e. a party is entitled to receive the benefit of the bargain). When parties enter into a policy of insurance containing uninsured motorist coverage the parties have bargained to protect themselves in an amount not less than the highest coverage limit as set forth by the terms of the policy, whatever it may be, should they suffer a loss under the policy as a result of an uninsured motorist. Again, the current case is instructive. As insureds under Long's Policy, Appellants bargained to be protected in a collective amount not less than $250, (i.e. the per person limit of the uninsured motorist coverage under Long's Policy) should they suffer a loss as a result of an uninsured motorist. Appellants have suffered a loss as a result of an uninsured motorist but have only recovered $138, Under Appellants' proposition of law, Appellants would be entitled to recover the difference between the amount already recovered (i.e. $138,043.92) and the amount they bargained to receive ($250,000.00). It should also be noted that Appellants' proposition of law is not inconsistent with the anti-stacking provisions of R.C (F) or the collective coverage limits of R.C (G). R.C (F) provides that a policy of insurance may include terms precluding stacking of uninsured motorist coverage. Again, consider the current case. By collecting a total of $250,000.00, as Appellants' proposition of law would allow them to do, Appellants would not be aggregating the limits of their uninsured motorist coverage. Rather, they would merely be recovering the collective amount that they bargained to receive, the single person limit of $250,000.00, minus the amount already received from Decedent's policy. Appellants would be engaging in stacking if Appellants were each seeking a separate $250, for themselves, or 7

10 if Appellants were seeking a collective total of $500, in coverage because two vehicles were insured by Long's Policy. This would not be the case under Appellants' proposition of law. Accordingly, Appellants' proposition of law is not inconsistent with the anti-stacking provisions of R.C (F). R.C (G) provides that a policy of insurance may collectively limit coverage arising out of one person's bodily injury to the limit of the policy for a bodily injury sustained by any one person regardless of the number of insureds, claims made, etc. As set forth above, under Appellants' proposition of law, they would be entitled to recover the collective amount of $250, minus $138, This would be true whether, as here, there were two insureds attempting to collect under Long's Policy or ten insureds attempting to collect. All insureds would be collectively subject to the $250, limit. Appellants' proposition of law restricts Appellants to a collective recovery within the limits proscribed by a policy of insurance containing the limiting language contemplated by R.C (G) (i,e. a collective $250,000.00). Therefore, Appellants' proposition of law does not violate any existing statutes governing uninsured motorist coverage. Meanwhile, the proposition of law places insureds in the position they bargained for in a manner consistent with the declarations of this Court. CONCLUSION For the reasons set forth above, this case involves matters of public and great general interest. Appellants respectfully request that this Court accept jurisdiction in this case so that the important issues presented will be reviewed on the merits. 8

11 Respectfully submitted, Maguire & Schneider, LLP Wayne E. flassay ( ) (Counsel of Record) Mark R. Meterko ( ) 250 Civic Center Drive, Suite 500 Columbus, Ohio Telephone: (614) Facsimile: (614) Counsel for Appellants CERTIFICATE OF SERVICE The undersigned certifies that a true and accurate copy of the foregoing has been served by regular U.S. mail on FebruaryA, 2009, upon the following: John C. Nemeth, Esq. David A. Herd, Esq. 21 E. Frankfort Street Columbus, Ohio Wayne E. Ha say ( ) (Counsel of Record) Mark R. Meterko ( ) 9

12 ORIG INAL COURT OF APPEALS FAIRFIELD COUNTY, OHIO L^[.1^k. 1'Z, ^D13`119"4n LOIS DOREEN LONG, Administrator of the : Estate of Amanda Thompson, et al., : JUDGES: Sheila G. Farmer, P.J. Plaintiffs-Appellants : John W. Wise, J. Julie A. Edwards, J. -vs- Case No, 2007 CA 67 ERIE INSURANCE COMPANY Defendant-Appellee 0 P I N 10 N CHARACTER OF PROCEEDING: Civil Appeal From Fairfield County Court Of Common Pleas Case No. 05 CV 397 JUDGMENT: Affirmed DATE OF JUDGMENT ENTRY: APPEARANCES: For Plaintiffs-Appellants For Defendant-Appellee WAYNE E. HASSAY DAVID A. HERD MARK R. METERKO John C. Nemeth & Associates Maguire & Schneider, L.L.P. 21 E. Frankfort Street 250 Civic Center Drive, Suite 200 Columbus, Ohio Columbus, Ohio 43215

13 Fairfield County App. Case No CA 67 2 Edwards, J. { 1} Plaintiffs-appellants Lois Doreen Long, Administrator of the Estate of Amanda Thompson, et al., appeal from the November 20, 2007, Entry of the Fairfield County Court of Common Pleas granting the Motion for Summary Judgment filed by defendant-appellee Erie Insurance Company and denying their Motion for Partial Summary Judgment. STATEMENT OF THE FACTS AND CASE { 2} On May 29, 2003, Amanda Thompson (hereinafter "the decedent") was a passenger in a motor vehicle that was operated by Kylie Paradise. After Paradise failed to yield the right-of-way, the decedent was killed in an automobile accident. The decedent was the biological daughter of appellant Lois Doreen Long and was residing with appellant Long and her husband, Donald Long, at the time of her death. {13} At the time of the accident, the decedent held a policy of insurance with appellee Erie Insurance Company with a $250, policy limit. Appellee Erie Insurance Company paid the $250, limits to the decedent's estate and the proceeds were distributed among seven individuals. Of the $250,000.00, appellant Long received $132, and appellant David Burgman, appellant Long's minor son and the decedent's half brother, received $6, { 4} Subsequently, appellants filed a wrongful death complaint against Kylie Paradise, Terry Gates, who was the owner of the motor vehicle driven by Paradise, and appellee Erie Insurance Company. Appellants sought uninsured/underinsured coverage under a policy that appellee Erie Insurance Company had issued to Donald Long, the

14 Fairfield County App. Case No CA 67 3 resident spouse of appellant Lois Doreen Long. Such policy contained uninsured/underinsured motorist coverage in the amount of $250, per person. {1[5} On December 16, 2005, appellee filed a Motion for Summary' Judgment, arguing that appellants could not "collect another $250, policy limit for her daughter's death from a different Erie policy, one that she owned on her own." On December 16, 2005, appellants filed a Motion for Partial Summary Judgment, arguing that they were entitled to uninsured/underinsured motorist coverage under the policy that appellee Erie Insurance Company had issued to Donald Long, the resident spouse of appellant Lois Doreen Long. { 6} Pursuant to an Entry filed on March 16, 2007, the trial court granted appellee's Motion for Summary Judgment while denying the motion filed by appellants. Appellants then appealed. Pursuant to an Opinion filed on October 22, 2007, in Lois Doreen Long, Administrator of the Estate of Amanda Thompson, et al., v. Erie Insurance Company, Fairfield App. No. 2007CA00019, 2007-Ohio-6100, this Court dismissed appellants' appeal, stating, in relevant part, as follows: "We will not address the merits of Appellants' argument because we find this Court does not have jurisdiction to do so. No final appealable order exists under R.C because the claim against Defendant Paradise remains pending. The trial court did not include a finding there is no just cause for delay iri its Entry." Id at paragraph 5.1 {17} As memorialized in an Entry filed on November 20, 2007, the trial court reiterated its decision granting summary judgment to appellee and denying the Motion 1 This Court, in our Opinion, stated that it had been advised that the complaint against Terry Gates had been dismissed.

15 Fairfield County App. Case No CA 67 4 for Summary Judgment filed by appellants. The trial court, in its Entry, included a finding that "there is no just cause for delay." { S} Appellants now raise the following assignment of error on appeal: {19} "THE TRIAL COURT ERRED BY GRANTING ERIE'S MOTION FOR SUMMARY JUDGMENT AND DENYING APPELLANTS' MOTION FOR PARTIAL SUMMARY JUDGMENT." { 10} Summary judgment proceedings present the appellate court with the unique opportunity of reviewing the evidence in the same manner as the trial court. Smiddy v. The Wedding Party, Inc. (1987), 30 Ohio St.3d 35, 36, 506 N.E.2d 212. Therefore, we must refer to Civ.R. 56(C), which provides, in pertinent part: "Summary judgment shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, written admissions, affidavits, transcripts of evidence in the pending case, and written stipulations of fact, if any, timely filed in the action, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. * * * A summary judgment shall not be rendered unless it appears from the evidence or stipulation, and only from the evidence or stipulation, that reasonable minds can come to but one conclusion and that conclusion is adverse to the party against whom the motion for summary judgment is made, that party being entitled to have the evidence or stipulation construed most strongly in the party's favor." {111} Pursuant to the above rule, a trial court may not enter summary judgment if it appears that a material fact is genuinely disputed. The party moving for summary judgment bears the initial burden of informing the trial court of the basis for its motion and identifying those portions of the record that demonstrate the absence of a genuine

16 Fairfield County App. Case No CA 67 5 issue of material fact. The moving party may not make a conclusory assertion that the nonmoving party has no evidence to prove its case. The moving party must specifically point to some evidence which demonstrates that the nonmoving party cannot'support its claim. If the moving party satisfies this requirement, the burden shifts to the nonmoving party to set forth specific facts demonstrating there is a genuine issue of material fact for trial. Vahila v. Hall, 77 Ohio St.3d 421, 429, 1997-Ohio-259, 674 N.E.2d 1164, citing Dresher v. Burt (1996), 75 Ohio St.3d 280, 293, 662 N.E.2d 264. { 12} It is based upon this standard that we review appellants' assignment of error. 1 { 13} Appellants, in their sole assignment of error, argue that the trial court erred in granting appellee's Motion for Summary Judgment and in denying their Motion for Partial Summary Judgment. We disagree. { 14} As an initial matter, we note that appellee does not dispute that appellants are covered under the Erie policy issued to Donald Long, the resident spouse of appellant Louis Doreen Long. Rather, appellee contends that appellants are not entitled to underinsured motorist coverage under such policy because it has already paid $250, under the decedent's policy for the wrongful death of Amanda Thompson. { 15} In the case sub judice, Erie's policy contains the following language in the UM/UIM endorsement under the heading "Limitations Payment": {116} "No one will be entitled to receive duplicate payments for the same elements of (oss. All claims resulting from or arising out of any one person's bodily injury shall collectively be subject to the limit of the policy applicable to bodily injury

17 Fairfield County App. Case No CA 67 6 sustained by one person, and, for the purpose of such policy limit shall constitute a single claim. This limit shall apply regardless of the number of persons we protect, autos we insured, claims made..." {117} At the time subject policy was executed, R.C (A)(2) stated as follows: {118} "Any policy of insurance that includes uninsured motorist coverage, unde(nsured motorist coverage, or both uninsured and underinsured motorist coverages and that provides a limit of coverage for payment of damages for bodily injury, including death, sustained by any one person in any one auto accident may... include terms and conditions to the effect that all claims resulting from or arising out of any one person's bodily injury, including death, shall collectively be subject to the limit of the policy of applicable bodily injury, including death, sustained by one person, and, for the purpose of such policy limit shall constitute a single claim. Any such policy limit shall be enforceable regardless of number of insureds, claims made, vehicles or premiums shown in the declarations or policy, or vehicles involved in the accident. (Eff.10/31/2001)." {119} In Littrell v. Wigglesworth, 91 Ohio St.3d 425, 2001-Ohio-87, 746 N.E.2d 1077, the Ohio Supreme Court considered consolidated appeals, one of which was captioned Stickney v. State Farm Mut. Auto. Ins. Co., 91 Ohio St.3d 425, 746 N.E.2d The relevant facts in the Stickney case were as follows. {120} On January 20, 1996, Jennifer R. Stickney, a passenger in an automobile driven by Eric Semon, was killed as a result of injuries she sustained when Semon lost control of the vehicle. Appellant, Scott Stickney, Jennifer's father and the administrator

18 Fairfield County App. Case No CA 67 7 of her estate, settled with the tortfeasor's insurer for $125, Scott's wife and their other children did not receive any share of the settlement proceeds. {121} At the time of the accident, Scott, his wife, Cynthia Stickney, another daughter and son were insured under two policies of automobile liability insurance with appellee State Farm. Each policy provided UM/UIM coverage with limits of $100,00Q.00 per person and $300,000 per occurrence. On April 25, 1997, appellant, along with surviving family members, brought a declaratory judgment action against appellee seeking UM/UIM benefits under the State Farm policies. The trial court granted summary judgment in favor of State Farm. { 22} In the Supreme Court, the appellants argued that since the wife and other children, as statutory wrongful death beneficiaries, did not share in the settlement proceeds received from the tortfeasor's liability carrier, they were entitled to recover underinsured motorist benefits from the State Farm policies. In order to determine the amount of underinsured motorist coverage available to the wrongful death beneficiaries, the Stickney court began by determining the amount that those beneficiaries would have received had their losses resulted from the negligence of an uninsured motorist. The Court concluded that had Jennifer been killed by an uninsured motorist, the maximum amount that all wrongful death beneficiaries could have recovered in uninsured motorist benefits would have been the $100, per person limit of the State Farm policy. The amount awarded to decedent's personal representative for the benefit of the next of kin, $125,000.00, was the amount available for payment. Since this amount exceeded that which would be available under the appellant's uninsured motorist coverage, the wrongful death beneficiaries were not entitled to underinsured

19 Fairfield County App. CaseNo CA 67 8 motorist benefits from State Farm. Littrell v. Wigglesworth, 91 Ohio St.3d 425, 433, 746 N.E.2d 1077, {123} We find the recent Ohio Supreme Court case of Webb v. McCarty, 114 Ohio St.3d 292, 2007-Ohio-4162, 871 N.E. 2d 1164, to be instructive. In such case, Webb was injured and his wife was killed in an accident caused by McCarty. McCarty car(ed liability insurance in the amount of $300,000 per occurrence. The liability carrier settled the personal-injury claim with Webb for $25,000 and settled its claim with the estate for $269,836. {124} Webb and his children then sought underinsured motorists ("UM") coverage under Webb's insurance policy, which had a $100,000-per-person limit and a $300,000-per-accident limit. The court concluded that "the amount available for payment," pursuant to Littrell, supra, was the $269,836 actually paid to the Estate. The Ohio Supreme Court, in Webb, concluded that "Webb and other claimants under his policy are underinsured to the extent that his UM policy's per-accident limit, $300,000, exceeds the amount available for payment." Thus, the court in Webb concluded that the amount set off for purposes of underinsured-motorist coverage, even when all claimants are insured under the same policy, is the amount actually paid by the liability carrier. {125} As noted by the court in Brown v. Nationwide Mutual Fire Ins. Co., 174 Ohio App.3d 694, 2008-Ohio-174, 884 N.E.2d 617, "the Supreme Court [in Webb] did not consider the individual wrongful-death beneficiaries' claims, nor did it discuss the division of the settlement proceeds among the wrongful-death claimants. Rather, the Supreme Court compared the total amount paid under the tortfeasor's policy with the per-accident limit of the UIM coverage. Accordingly, the Supreme Court determined that

20 Fairfield County App. CaseNo CA 67 9."Webb and other claimants under his policy are underinsured to the extent that his UM policy's per-accident limit, $300,000, exceeds the amount available for payment," subject to the policy's per-person limit of $100,000. Id., 114 Ohio St.3d 292, 2007-Ohio- 4162, 871 N.E.2d 1164, at 5." Id at paragraph 29. { 26} In the case sub judice, appellee paid the $250, policy limits of the decedent's policy to the Estate. The insurance policy that was issued to Donald Long contains uninsured/underinsured motorist coverage in the amount of $250, per person. As noted by appellee, "recovery was already made under the decedent's policy... in the same amount of limit of coverage ($250,000) as is being sought from the second Erie policy." We find, therefore, that appellants were not entitled to underinsured motorist coverage under the Erie policy issued to Donald Long and that the trial court did not err in granting appellee's Motion for Summary Judgment while denying the Motion for Partial Summary Judgment filed by appellants.

21 Fairfield County App. Case No CA is affirmed. {127} Appellants' sole assignment of error is, therefore, overruled. { 28} Accordingly, the judgment of the Fairfield County Court of Common Pleas By: Edwards, J. Farmer, P.J. and Wise, J. concur JAE/0516 JUDGES

22 IN THE COURT OF APPEALS FOR FAIRFIELD COUNTY, OHIO FIFTH APPELLATE DISTRICT LOIS DOREEN LONG, Administrator of the : Estate of Amanda Thompson, et al., Plaintiffs-Appellants : ''f'i -vs- JUDGMENT ENTRY ERIE INSURANCE COMPANY Defendant-Appellee CASE NO CA 67 For the reasons stated in our accompanying Memorandum-Opinion on file, the judgment of the Fairfield County Court of Common Pleas is affirmed. Costs assessed to appellants.