COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 69480 : ROBERT A. MOLEK, ET AL. : : JOURNAL ENTRY Plaintiffs-Appellants : : and -vs- : : OPINION : STATE FARM MUT. AUTOMOBILE : INS. CO. : : Defendant-Appellee : : DATE OF ANNOUNCEMENT MAY 23, 1996 OF DECISION: CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court Case No. 283136 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: __________________________ APPEARANCES: For Plaintiffs-Appellants: For Defendant-Appellee: JOSEPH L. COTICCHIA, ESQ. HENRY A. HENTEMANN, ESQ. 1640 Standard Building MICHAEL J. CREAGAN, ESQ. Cleveland, OH 44113 Meyers, Hentemann, Schneider & Rea; 2100 Superior Bldg. 814 Superior Avenue, N.E. Cleveland, OH 44114 -3- PATRICIA ANN BLACKMON, J.: Robert and Barbara Molek, along with their minor children, Robert, Jr., Rebecca, and Stephanie, plaintiff-appellants, appeal a decision by the trial court granting summary judgment in favor of State Farm Mutual Automobile Insurance Company (State Farm), defendant-appellee, in a declaratory judgment action. The Moleks assign the following error for our review: THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT IN FAVOR OF DEFENDANT. After reviewing the record and the arguments of the parties, we affirm the decision of the trial court. The apposite facts follow. On July 24, 1994, Robert Molek suffered severe injuries when a car struck his motorcycle. In addition to permanent leg injuries, Robert Molek suffered severe brain damage as a result of the accident. Robert Molek had a policy of insurance with State Farm with underinsured motorist coverage limits of $100,000 per person and $300,000 per accident. The driver of the car had a policy of insurance with liability limits of $12,500 per person and $25,000 per accident. Robert Molek settled with the driver's insurance company for $12,500. Subsequently, State Farm paid Robert Molek the $100,000 per person limit of his underinsured motorist coverage. On January 10, 1995, the Moleks filed a complaint for declaratory judgment seeking to recover the remaining $200,000 in underinsured motorist coverage. The Moleks argued Robert Molek's -4- wife and children each had separate claims under the policy. State Farm moved for summary judgment on the complaint. State Farm argued the claims of Robert Molek's wife and children were included in the per person payment of $100,000 on Robert Molek's claim. Robert Molek's policy of insurance with State Farm included the following provision: Limits of Liability The amount of coverage is shown on the declarations page under "Limits of Liability - U - Each Person, Each Accident". Under "Each Person" is the amount of coverage for all damages, including damages for care and loss of services, arising out of and due to bodily injury to one person. Under "Each Accident" is the total amount of coverage, subject to the amount shown under "Each Person", for all such damages arising out of and due to bodily injury to two or more persons in the same accident. *** The limits of liability are not increased because *** more than one person is insured at the time of the accident. The trial court granted State Farm's motion for summary judgment. This appeal followed. The Moleks' appeal requires us to determine whether the trial court erred in granting summary judgment in favor of State Farm. A motion for summary judgment should be granted if no genuine issue of material fact is shown by the pleadings, depositions, interrogatory responses, written admissions, affidavits, transcripts, and written fact stipulations filed in the case and the evidence shows that the moving party is entitled to judgment as a matter of law. Civ.R. 56(C). -5- A party seeking summary judgment must state specifically which areas of the opponent's claim fail to raise a genuine issue of material fact and may support such assertion with affidavits or other materials authorized by Civ.R. 56(C). A motion for summary judgment places a reciprocal burden on the non-moving party to set forth specific facts showing there is a genuine issue for trial. Dresher v. Burt (1996), ___ Ohio St.3d ___,___. Unless the nonmovant makes the required showing, summary judgment shall be entered against him. When evaluating a motion for summary judgment, the trial court must construe the evidence most strongly in favor of the non-movant and must resolve all doubts in his favor. Id. See also Murphy v. Reynoldsburg (1992), 65 Ohio St.3d 356,358-59. In its motion for summary judgment, State Farm argued the claims by Robert Molek's wife and children were precluded by the following provision in its policy of insurance: The amount of coverage is shown on the declarations page under 'Limits of Liability - - U -- Each Person, Each Accident. Under 'Each Person' is the amount of coverage for all damages, including damages for care and loss of services, arising out of and due to bodily injury to one person. The Moleks argue the policy provision did not apply to limit consortium claims in their entirety. They assert the consortium claims were separate from Robert Molek's claim. In support of their argument, the Moleks cite Erie Ins. Group v. Wolff (1994), 94 Ohio App.3d 216, and Dunkel v. Motorists Mut. Ins. Co. (1987), 41 Ohio App.3d 130, which upheld separate loss of consortium claims -6- brought by members of an insured person's family. The Moleks also cite Gallimore v. Children's Hosp. Medical Center (1993), 67 Ohio St.3d 244, which held a child may recover for loss of parental consortium against a tortfeasor who negligently injured the child's parent, and Savoie v. Grange Mutual (1993), 67 Ohio St.3d 500 which held that each person covered under an uninsured/underinsured motorist policy who is presumed to be damaged under R.C. 2125.01 has a separate claim subject to a separate per person policy limit. However, in Dues v. Hodge (1988), 36 Ohio St.3d 46, the Ohio Supreme Court stated, "[w]hile we agree that such a derivative action may be maintained, the issue before us is not whether such an action is available, but rather, whether the insurance policies issued by State Farm allow separate coverage for the derivative actions." In its motion for summary judgment, State Farm does not contend that the Moleks' loss of consortium claims are invalid, only that they are "subject to the single, each person limit of coverage already paid to Robert Molek." (State Farm's Motion for Summary Judgment at 7). Savoie upheld the prior decision in Dues which held that, in cases not involving wrongful death, an insurance company can validly impose a single limit of liability for all causes of action arising out of bodily injury to one person. Savoie at 509. In order to be a valid restriction on stacking of uninsured/under- insured motorist coverage, an anti-stacking provision must be both unambiguous and clear and conspicuous in the policy. Dues at 48. -7- In this case, the provision was contained in Section III - Uninsured Motor Vehicle Coverage in a section captioned Limits of Liability. The provision clearly specifies that the $100,000 Each Person limit is "the amount of coverage for all damages, including damages for care and loss of services, arising out of and due to bodily injury to one person." (Emphasis added.) The policy also states that "[t]he limits of liability are not increased because more than one person or organization may be an insured." We find that the above language is unambiguous, clear, and conspicuous in the policy. Dues at 48. The provision was clearly intended to limit all recovery arising out of and due to bodily injury to one person, including loss of consortium claims brought by members of the injured person's family. Accordingly, we find that the trial court properly entered summary judgment in favor of State Farm on the Moleks' loss of consortium claims. Judgment affirmed. -8- It is ordered that Appellee recover of Appellants its costs herein taxed. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Common Pleas Court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. Exceptions. O'DONNELL, J., and PATTON, J., CONCUR. PATRICIA ANN BLACKMON PRESIDING JUDGE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announcement of decision (see Rule 26). Ten (10) days from the date hereof this document will be stamped to indicate journaliza- .