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Nationwide Insurance Enterprises v. Progressive Specialty6/20/2002
ting to the first element of a claim for civil abuse of process, which is that a legal proceeding has been set in motion in proper form and with probable cause. To the direct contrary, Renaut's memorandum contra and counterclaim both argue that Progressive filed the action in Kentucky without probable cause. Therefore, Renaut has failed to raise a genuine issue of material fact with regard to this claim
. With regard to Renaut's claim of unjust enrichment, to recover under the theory of unjust enrichment, the plaintiff must prove the following elements: (1) the plaintiff conferred a benefit on the defendant; (2) the defendant had knowledge of the benefit; and (3) the defendant retained the benefit under circumstances where it would be unjust for him to retain that benefit without payment. Hambleton v. R.G. Barry Corp. (1984), 12 Ohio St.3d 179, 183. Additionally, unjust enrichment involves not only a loss by the plaintiff, but also the defendant must receive a gain. See id.
. Renaut claims that Progressive has been unjustly enriched by retaining his premium payments while seeking to find the insurance policy void ab initio. Once again, we agree with the trial court that Renaut cannot demonstrate reasonable minds could conclude that Progressive retained a benefit under circumstances where it would be unjust for it to retain that benefit without payment. Progressive does not deny that it has retained the $1,705 in premiums, and agrees that if the policy were ever to be found void, Renaut would be entitled to a refund of its premium payments. However, Progressive has settled the five hundred thousand dollar underlying subrogation claim and has agreed to pay two hundred fifteen thousand dollars to Nationwide in full settlement of such claim on behalf of its putative insured, Renaut. Given Progressive's payment of such a large sum in settlement of claims on behalf of Renaut, reasonable minds could not conclude that Progressive unjustly retained any benefit by keeping the $1,705 in total premiums paid by Renaut for insurance coverage. Thus, there is no genuine issue of material fact with regard to Renaut's claim for unjust enrichment.
. Accordingly, Renaut's assignment of error is overruled, and the judgment of the Franklin County Court of Common Pleas is affirmed.
Judgment affirmed.
BOWMAN and LAZARUS, JJ., concur.
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