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Felton v. Nationwide Mutual Fire Insurance Co.9/14/2005
DECISION AND JOURNAL ENTRY
This cause was heard upon the record in the trial court. Each error assigned has been reviewed and the following disposition is made:
{ } Plaintiffs-Appellants Patricia M. Felton, et al. have appealed the decision of the Summit County Court of Common Pleas that granted summary judgment in favor of the Defendant-Appellee Nationwide Mutual Fire Insurance Company ("Nationwide"). This Court affirms.
I.
{ } The facts of this case are undisputed. In early August of 1999, Salvador and Trina Duluc visited the Dominican Republic and requested that their son, Thomas, watch over the home and care for their pets during their absence.
Thomas agreed. With their permission, Thomas set up temporary residence at the Dulucs' home during the duration of his parents' stay in the Dominican Republic.
{ } On August 7, 1999, Plaintiff-Appellant Patricia Felton ("Felton") was walking her dog in the neighborhood surrounding her home at 778 Inverness Road in Fairlawn, Ohio. While walking past the Duluc residence, located at 534 West Fairlawn Boulevard in Fairlawn, Ohio, Appellant was attacked by a dog owned by the Dulucs' son, Thomas Duluc. Felton sustained permanent injuries.
{ } It is undisputed by the parties, and conceded by Thomas, that on August 7, 1999, he lived in a house located at 681 Gardendale Avenue in Akron, Ohio. According to the facts before the trial court, Thomas did not pay rent to his parents during his stay at their home. Nor did he change his mailing address; Thomas continued to receive his mail at the Gardendale address. Additionally, the utilities at the Gardendale address were in Thomas' name. Furthermore, Thomas' voter registration indicates his sole residence as 681 Gardendale Avenue, Akron, Ohio. Lastly, during his period of temporary residence at the Duluc home, Thomas intended to return to the Gardendale address upon his parents return from the Dominican Republic and in fact did so.
{ } At the time of the incident, the Dulucs had in effect a homeowners insurance policy obtained through Nationwide covering the property known as 534 West Fairlawn Boulevard, Fairlawn, Ohio, 44313. The policy had been in effect since July 3, 1997.
{ } On January 11, 2000 Felton filed a complaint against the Dulucs and Thomas for personal injuries resulting from the dog bite. The matter went to trial wherein a jury found in favor of the Felton and against Thomas Duluc in the amount of $35,000. The Summit County Court of Common Pleas entered a judgment reflecting the jury verdict on October 18, 2002.
{ } Subsequently, Felton requested that Nationwide satisfy the October 18, 2002 verdict under the terms of the Dulucs' homeowners insurance policy. Nationwide refused coverage. The matter ultimately came before the Summit County Court of Common Pleas upon the Supplemental Complaint and Counterclaim of the parties each seeking a judicial declaration as to whether Thomas Duluc was an insured under the homeowners insurance policy issued by Nationwide to the named insureds, Salvador and Trina Duluc.
{ } Each party requested summary judgment based upon their respective claims and on January 18, 2005, the trial court granted summary judgment as against Felton and in favor of Nationwide. The court also declared that Thomas Duluc was not, and never had been, an insured under the Dulucs' Nationwide homeowners insurance policy.
{ } Felton has timely appealed the decision of the Court of Common Pleas, asserting one assignment of error.
II.
Assignment of Error Number One
"THE LOWER COURT ERRED BY FAILING TO FIND TH
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