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Nationwide Insurance Enterprises v. Progressive Specialty6/20/2002
would toll the statute of limitations for a malicious prosecution claim. Therefore, this argument is without merit.
. With regard to the claim that Progressive was liable for malicious prosecution for filing the January 10, 2000 motion to set aside the voluntary dismissal of Renaut filed by Nationwide knowing there was no such motion provided for by the Ohio Civil Rules, Renaut presents no argument in his appellate brief regarding this issue. We agree with the trial court that a motion to vacate cannot constitute the basis for a malicious prosecution claim because such a claim requires a malicious "institution" of prior proceedings. See Trussell v. General Motors Corp. (1990), 53 Ohio St.3d 142. Further, the January 10, 2000 motion was never ruled upon and was "released"; thus, the trial court did not terminate the prior proceedings in favor of the plaintiff, which is a required element for malicious prosecution. Id. Therefore, even construing the evidence most strongly in favor of Renaut, we find there is no genuine issue of material fact with regard to his malicious prosecution claim, and reasonable minds can come to but one conclusion, and that conclusion is adverse to Renaut.
. We next address Renaut's bad-faith claim against Progressive. Renaut asserted in his counterclaim that the actions of Progressive in filing the declaratory judgment action in Kentucky and in filing the third-party complaint seeking declaratory judgment in the case at bar were done in bad faith. Progressive's claims in its declaratory judgment actions were premised upon its allegation that the insurance policy was void ab initio due to material misrepresentations in the policy application.
. In Preferred Risk Ins. Co. v. Gill (1987), 30 Ohio St.3d 108, the Ohio Supreme Court held:
An insurer may maintain a declaratory judgment action under R.C. Chapter 2721 for purposes of establishing its rights and obligations under a contract of insurance. The insurer, if proceeding in good faith, is entitled to bring such an action for purposes of adjudicating its duty to defend and/or indemnify its insured in a tort action brought by a third party, even where the underlying tort complaint alleges conduct within the coverage of the contract of insurance. Id., paragraph one of the syllabus. (Citations omitted.)
. The standard for a bad-faith claim was announced in Zoppo v. Homestead Ins. Co. (1994), 71 Ohio St.3d 552, wherein the court determined that an insurer fails to exercise good faith in processing a claim of its insured where its refusal to pay the claim is not predicated upon circumstances that furnish reasonable justification therefor. A lack of reasonable justification exists where an insurer refuses to pay a claim in an arbitrary or capricious manner. Hart v. Republic Mut. Ins. Co. (1949), 152 Ohio St. 185, 188.
. The bad-faith standard enunciated in Zoppo has been applied to actions for declaratory judgment filed by an insurance company. See Nationwide Mut. Fire Ins. Co. v. Masseria (1999), Geauga App. No. 98-G-2197. Thus, before an insurance company files a declaratory action seeking to avoid indemnification, the insurance company, at the time of filing, must have a good faith belief that it is entitled to such relief. Id. Furthermore, this good-faith belief must be supported by evidence known to and relied upon by the company at the time the declaratory action was first filed. Id. Evidence that was not known or not relied upon is irrelevant when the issue concerns the good faith of the insurance company in making the decision to file a declaratory action. Id.
. Summary judgment is appropriately granted to the defendant on a claim of bad faith w
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