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Founders Insurance Co. v. Gurung

Court of Appeals of Ohio, Ninth District, Summit

December 13, 2017

FOUNDERS INSURANCE COMPANY Appellee
v.
RAN B. GURUNG, et al. Appellant

         APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO CASE No. CV 2015-07-3479

          LAWRENCE J. SCANLON, Attorney at Law, for Appellant.

          DAVID C. PERDUK, Attorneyat Law, for Appellant.

          JOSH L. SCHOENBERGER and SUSAN S. R. PETRO, Attorneys at Law, for Appellee.

          DECISION AND JOURNAL ENTRY

          JENNIFER HENSAL JUDGE.

         {¶1} Ran Gurung and Dianne Badea appeal an order of the Summit County Court of Common Pleas that granted summary judgment to Founders Insurance Company on its declaratory judgment action and denied Mr. Gurung's motion for summary judgment. For the following reasons, this Court affirms.

         I.

         {¶2} The facts of this case are not in dispute. On August 16, 2014, Mr. Gurung was driving a car when he collided with a bus, injuring Ms. Badea, a passenger on the bus. At the time of the collision, Mr. Gurung had a temporary driver's permit, which required him to be accompanied by a licensed operator. Although there were two other people in the car with Mr. Gurung, neither had a valid driver's license.

         {¶3} At the time of the collision, Mr. Gurung had an insurance policy with Founders. Following the collision, Founders filed a complaint against Mr. Gurung and Ms. Badea, seeking a declaration that Mr. Gurung's policy did not provide any liability coverage for the collision and that it was not required to defend or indemnify Mr. Gurung in a lawsuit filed by Ms. Badea. Specifically, it alleged that the policy did not apply because Mr. Gurung was operating the car in violation of a condition of his driving privileges. Mr. Gurung counterclaimed, alleging multiple causes of action. Founders and Mr. Gurung filed cross-motions for summary judgment. The trial court granted Founders' motion and denied Mr. Gurung's motion, concluding that the contract was not ambiguous and that the "driving privileges" exception applied because Mr. Gurung was not driving "in accordance with the terms and conditions of licensure for a temporary permit." Mr. Gurung and Ms. Badea have appealed, each assigning two errors. Because their arguments are identical, we will address them together.

         II.

         ASSIGNMENT OF ERROR I

         THE TRIAL COURT ERRED IN GRANTING FOUNDERS INSURANCE COMPANY'S MOTION FOR SUMMARY JUDGMENT.

         {¶4} Mr. Gurung and Ms. Badea argue that the trial court incorrectly granted Founders' motion for summary judgment. Under Civil Rule 56(C), summary judgment is appropriate if:

(1) [n]o genuine issue as to any material fact remains to be litigated; (2) the moving party is entitled to judgment as a matter of law; and (3) it appears from the evidence that reasonable minds can come to but one conclusion, and viewing such evidence most strongly in favor of the party against whom the ...

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