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Nationwide Insurance Enterprises v. Progressive Specialty6/20/2002
here the record is devoid of any evidence tending to show a lack of good faith on the part of the defendant. See Labate v. Natl. City Corp. (1996), 113 Ohio App.3d 182. In the present case, the record is devoid of any evidence tending to show a lack of good faith on behalf of Progressive in filing its declaratory judgment actions. Progressive sought declaratory judgment in its third-party complaint under R.C. 3911.06, which provides:
No answer to any interrogatory made by an applicant in his application for a policy shall bar the right to recover upon any policy issued thereon, or be used in evidence at any trial to recover upon such policy, unless it is clearly proved that such answer is willfully false, that it was fraudulently made, that it is material, and that it induced the company to issue the policy, that but for such answer the policy would not have been issued, and that the agent or company had no knowledge of the falsity or fraud of such answer.
Thus, Progressive would have had to prove each of the requirements under R.C. 3911.06 in order to declare the policy void. The trial court found that after reviewing Progressive's third-party complaint and the referenced materials, it believed Progressive made the necessary preliminary investigation and that sufficient evidence existed and was known to Progressive to provide a good-faith basis for filing the declaratory judgment actions pursuant to R.C. 3911.06.
. The only requirement under R.C. 3911.06 that Renaut challenges is the requirement that, but for the allegedly fraudulent answer, Progressive would not have issued the policy. Renaut points out that Progressive's 1996 Ohio application for policies of boat insurance contains a section for computing the premium amount, and the "surcharges" section clearly demonstrates that Progressive would cover a boat with an engine whose horsepower exceeds the manufacturer's horsepower ratings or a horsepower of 351 for a 50 percent surcharge on the premium amount. However, that Progressive could have hypothetically issued a different policy with different terms, conditions, and premiums for a boat engine exceeding 350 horsepower is irrelevant. What is pertinent is that Progressive would not have issued the current policy had it known the true engine horsepower. Progressive indicated such in its third-party complaint and attached an affidavit to its answer to the original complaint averring that it would not have issued the policy in question if it had known the boat had a 415 horsepower engine.
. As the trial court pointed out, Progressive may not have ultimately prevailed on this requirement or any other but for the purposes of summary judgment in this case; it was only necessary to determine whether Progressive had a good-faith basis for seeking declaratory judgment. Renaut cannot demonstrate that Progressive would have issued the same policy with the same terms and conditions if it had known of the allegedly fraudulent answer prior to issuing the policy. Therefore, we find that the circumstances furnished Progressive a reasonable justification for filing its declaratory judgment actions.
. We also note that there was a lack of evidence that Progressive knowingly made its claims in Kentucky knowing such was the wrong jurisdiction. Renaut can point to no evidence, and none exists in the record, to raise a genuine issue of material fact as to this claim. In fact, the Kentucky court originally found that it did have jurisdiction to hear Progressive's claims. Thus, summary judgment was also appropriate for this reason. Further, we agree with the trial court that Renaut's requests for further discovery were not relevant to his bad-faith claim because it is Prog
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