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Nationwide Insurance Enterprises v. Progressive Specialty6/20/2002
. Peter P. Renaut, defendant/third-party plaintiff-appellant, appeals a judgment of the Franklin County Court of Common Pleas granting a motion for summary judgment filed by Progressive Insurance Company ("Progressive"), defendant-appellee.
. The underlying facts in this case are the same as this court set forth in Nationwide Ins. Enterprises v. Progressive Specialty Ins. Co. (2001), Franklin App. No. 00AP-1474, and the following factual summary generally mirrors our factual summary in that case. In August 1996, Chase Motors, Inc., ("Chase Motors") purchased a 1994 Baja Outlaw boat. Chase Motors is a closely held corporation owned by Renaut. After purchasing the boat, Renaut had his office manager, Jackie Masters, contact his insurance agent, Craig Humphrey at Cole-Humphrey Insurance Agency ("agency"), to insure the boat. Masters claimed that she told Humphrey the year, make, and VIN number of the boat and told Humphrey that he would have to get any additional information from Renaut. Humphrey claimed that he told Renaut he needed more information about the boat, including its horsepower. He also claimed he told Renaut that Progressive would not insure boats greater than 350 horsepower. Humphrey alleged that someone later phoned the agency, and Vickie Gordon, an employee of the agency, recorded the information on the property change and other form, which indicated the Baja boat was 330 horsepower. Humphrey allegedly mailed an application for insurance through Progressive to Progressive and to Renaut for his signature, but Renaut did not return the application. Progressive issued an insurance policy for a 330 horsepower Baja boat with a liability limit of five hundred thousand dollars and excess coverage of one million dollars.
. In August 1997, Robert Smith and others, with Renaut's consent, took the boat to Lake Cumberland, Kentucky. While Smith was operating the boat, he backed it over John Adams, whose leg was amputated. Upon learning of the accident, Renaut contacted Humphrey, who told Renaut that he needed to sign the application for the insurance policy that had been issued the previous year. Humphrey drove to Columbus and obtained Renaut's signature on the insurance application. However, while investigating the claim, Progressive inspected the boat and discovered that it had a horsepower of 415, not 330 as indicated in the policy. Progressive claimed that at the time the policy was issued, its underwriting guidelines prohibited the issuance of policies for single-engine boats exceeding 351 horsepower.
. On January 16, 1998, the law firm of Brown, Todd, and Heyburn, LLC ("Brown Todd") filed, on behalf of Progressive, a declaratory judgment action against Renaut in Kenton Circuit Court in Kentucky. Progressive sought to have the policy declared void ab initio based upon the alleged misrepresentation in the insurance policy application. On May 7, 1998, Smith intervened as a defendant in the Kenton action. On November 3, 1998, Smith filed a third-party complaint in Kenton Circuit Court against Humphrey, alleging that Humphrey failed to obtain Renaut's signature on the insurance application until after the accident; thus, if Progressive was found not responsible for coverage, Humphrey should be liable for Renaut's failure to properly apply for coverage. After first denying Renaut's motion to dismiss based upon lack of personal jurisdiction, the Kenton court dismissed the action for lack of personal jurisdiction on May 7, 1999. Progressive filed a motion to vacate, alter, or amend the dismissal of the case, and, on August 6, 1999, the Kenton court denied the motion and dismissed Progressive's complaint against Renaut.
. On August 18, 1999, Adams settled
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