[Cite as Founders Ins.Co. v. Gurung, 2017-Ohio-8983.]


STATE OF OHIO                    )                       IN THE COURT OF APPEALS
                                 )ss:                    NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT                 )

FOUNDERS INSURANCE COMPANY                               C.A. No.   28508
                                                                    28511
        Appellee

        v.
                                                         APPEAL FROM JUDGMENT
RAN B. GURUNG, et al.                                    ENTERED IN THE
                                                         COURT OF COMMON PLEAS
        Appellant                                        COUNTY OF SUMMIT, OHIO
                                                         CASE No.   CV 2015-07-3479

                                DECISION AND JOURNAL ENTRY

Dated: December 13, 2017



        HENSAL, Presiding Judge.

        {¶1}    Ran Gurung and Dianne Badea appeal an order of the Summit County Court of

Common Pleas that granted summary judgment to Founders Insurance Company on its

declaratory judgment action and denied Mr. Gurung’s motion for summary judgment. For the

following reasons, this Court affirms.

                                                    I.

        {¶2}    The facts of this case are not in dispute. On August 16, 2014, Mr. Gurung was

driving a car when he collided with a bus, injuring Ms. Badea, a passenger on the bus. At the

time of the collision, Mr. Gurung had a temporary driver’s permit, which required him to be

accompanied by a licensed operator. Although there were two other people in the car with Mr.

Gurung, neither had a valid driver’s license.

        {¶3}    At the time of the collision, Mr. Gurung had an insurance policy with Founders.

Following the collision, Founders filed a complaint against Mr. Gurung and Ms. Badea, seeking
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a declaration that Mr. Gurung’s policy did not provide any liability coverage for the collision and

that it was not required to defend or indemnify Mr. Gurung in a lawsuit filed by Ms. Badea.

Specifically, it alleged that the policy did not apply because Mr. Gurung was operating the car in

violation of a condition of his driving privileges. Mr. Gurung counterclaimed, alleging multiple

causes of action. Founders and Mr. Gurung filed cross-motions for summary judgment. The

trial court granted Founders’ motion and denied Mr. Gurung’s motion, concluding that the

contract was not ambiguous and that the “driving privileges” exception applied because Mr.

Gurung was not driving “in accordance with the terms and conditions of licensure for a

temporary permit.” Mr. Gurung and Ms. Badea have appealed, each assigning two errors.

Because their arguments are identical, we will address them together.

                                                II.

                                  ASSIGNMENT OF ERROR I

       THE TRIAL COURT ERRED IN GRANTING FOUNDERS INSURANCE
       COMPANY’S MOTION FOR SUMMARY JUDGMENT.

       {¶4}    Mr. Gurung and Ms. Badea argue that the trial court incorrectly granted Founders’

motion for summary judgment. Under Civil Rule 56(C), summary judgment is appropriate if:

       (1) [n]o genuine issue as to any material fact remains to be litigated; (2) the
       moving party is entitled to judgment as a matter of law; and (3) it appears from
       the evidence that reasonable minds can come to but one conclusion, and viewing
       such evidence most strongly in favor of the party against whom the motion for
       summary judgment is made, that conclusion is adverse to that party.

Temple v. Wean United, Inc., 50 Ohio St.2d 317, 327 (1977). To succeed on a motion for

summary judgment, the movant bears the initial burden of demonstrating that there are no

genuine issues of material fact concerning an essential element of the opponent’s case. Dresher

v. Burt, 75 Ohio St.3d 280, 292 (1996). If the movant satisfies this burden, the nonmoving party

“must set forth specific facts showing that there is a genuine issue for trial.” Id. at 293, quoting
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Civ.R. 56(E). This Court reviews an award of summary judgment de novo. Grafton v. Ohio

Edison Co., 77 Ohio St.3d 102, 105 (1996).

          {¶5}   In its motion for summary judgment, Founders argued that Mr. Gurung’s

insurance policy did not provide coverage for the collision because Mr. Gurung did not have a

licensed driver in the car with him, which was a condition of his entitlement to drive a motor

vehicle under Revised Code Section 4507.05. Founders noted that, in a section of the policy

entitled “Valid Driver’s License[,]” the policy provided that “[n]o coverage is afforded under any

Part of this policy if, at the time of the accident, your insured car or temporary substitute car is

being operated by a person who * * * is in violation of any condition of their driving

privileges[.]” According to Founders, this language is not ambiguous and, applying its plain and

ordinary meaning, the collision indisputably falls outside the scope of coverage of Mr. Gurung’s

policy.

          {¶6}   “Insurance contracts are construed by the same rules used to construe contracts.”

World Harvest Church v. Grange Mut. Cas. Co., 148 Ohio St.3d 11, 2016-Ohio-2913, ¶ 28. A

court’s “task when interpreting an insurance policy is to ‘examine the insurance contract as a

whole and presume that the intent of the parties is reflected in the language used in the policy.’”

Id., quoting Westfield Ins. Co. v. Galatis, 100 Ohio St.3d 216, 2003-Ohio-5849, ¶ 11. “We look

to the plain and ordinary meaning of the language used in the policy unless another meaning is

clearly apparent from the contents of the policy.” Galatis at ¶ 11. “An exclusion in an insurance

policy will be interpreted as applying only to that which is clearly intended to be excluded.”

(Emphasis sic.) World Harvest Church at ¶ 29, quoting Hybud Equip. Corp. v. Sphere Drake

Ins. Co., Ltd., 64 Ohio St.3d 657, 665 (1992). “Ambiguity in the policy language is construed

against the insurer and liberally in favor of the insured, particularly when the ambiguity exists in
                                                 4


a provision that purports to limit or qualify coverage under the insurance policy.” Id. “As a

matter of law, a contract is unambiguous if it can be given a definite legal meaning.” Galatis at ¶

11.

          {¶7}   The term “driving privileges” is not defined in the contract. The plain and

ordinary meaning of “privilege,” however, is “a right or immunity granted as a peculiar benefit,

advantage, or favor * * *.” Webster’s Third New International Dictionary 1805 (1986); see also

Black’s Law Dictionary 1234 (8th Ed. 2004) (defining “privilege” as “[a] special legal right,

exemption, or immunity granted to a person or class of persons * * *.”). “Driving privileges,”

therefore, is best understood as referring to a person’s legal authorization to operate a motor

vehicle upon the public highways.

          {¶8}   Mr. Gurung and Ms. Badea argue that the term “driving privileges” refers only to

the permission to drive that is sometimes granted to a person whose driver’s license has been

revoked or suspended. Those driving privileges, however, are typically referred to with a

qualifier such as “limited” or “occupational” in accordance with Section 4510.021. See State v.

Codeluppi, 139 Ohio St.3d 165, 2014-Ohio-1574, ¶ 4; State v. Manocchio, 138 Ohio St.3d 292,

2014-Ohio-785, ¶ 2. When the term “driving privilege” has been used without those qualifiers, it

has referred, instead, to the general right of all legally authorized drivers to operate a motor

vehicle. See Kettering v. Baker, 42 Ohio St.2d 351, 355 (1975) (“The clear intent of [R.C.

4511.191] is to remove from the highways of this state those drivers who would insist on

exercising the driving privilege while under the influence of alcohol.”). We, therefore, reject Mr.

Gurung’s and Ms. Badea’s assertion that the exclusion only applies to those who have been

granted permission to drive following the suspension of their license or temporary instruction

permit.
                                                 5


       {¶9}    Applying the plain and ordinary meaning of “driving privilege” to the insurance

provision at issue in this case, we conclude that the exclusion provides that no coverage is

afforded if, at the time of the collision, the insured’s car is being operated by a person who is in

violation of any condition of their authorization to operate a motor vehicle upon the public

highways. For those who are driving under a temporary instruction permit, Section 4507.05(A)

places several conditions on their lawful operation of a motor vehicle. For those who are at least

16 years old, the driver’s permit and identification card must be “in the holder’s immediate

possession[,]” the driver must be “accompanied by a licensed operator who is at least twenty-one

years of age,” the licensed operator must be “actually occupying a seat beside the driver, and * *

* not have a prohibited concentration of alcohol * * * ,” “[t]he total number of occupants of the

vehicle [cannot] exceed the total number of occupant restraining devices originally installed in

the motor vehicle by its manufacturer * * *,” and each occupant must be “wearing all of the

available elements of a properly adjusted occupant restraining device.”

       {¶10} Mr. Gurung and Ms. Badea argue that, regardless of the definition of “driving

privileges,” Founders does not have the authority to determine whether Mr. Gurung was driving

“in violation” of one of the conditions of his temporary instruction permit. They note that Mr.

Gurung was not cited for violating Section 4507.05(A)(2) and, thus, did not have a full and fair

opportunity to present any legal or factual defenses for such allegations. They argue that it is

against public policy for an insurance company to make a contractual finding that would

ordinarily be reserved for a court of law. They also argue that allowing insurance companies to

have the authority to make such findings would have onerous and far reaching effects on

insurance coverage in Ohio.
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       {¶11} We are not persuaded by Mr. Gurung’s and Ms. Badea’s arguments because Mr.

Gurung admitted in discovery that, at the time of the collision, “no one in the automobile * * *

had a valid Ohio driver’s license” other than Mr. Gurung’s temporary instruction permit.

Accordingly, there is no genuine issue of material fact that Mr. Gurung was driving in violation

of one of the conditions of his temporary instruction permit at the time of the collision. Upon

review of the record, we conclude that the trial court correctly determined that Founders

established that there were no genuine issues of material fact in dispute and that it was entitled to

judgment as a matter of law. Mr. Gurung’s and Ms. Badea’s first assignments of error are

overruled.

                                  ASSIGNMENT OF ERROR II

       THE TRIAL COURT ERRED IN DENYING RAN B. GURUNG’S MOTION
       FOR SUMMARY JUDGMENT.

       {¶12} Mr. Gurung and Ms. Badea also argue that the trial court incorrectly denied Mr.

Gurung’s motion for summary judgment. They repeat their arguments that the contract is

ambiguous and that, construing the language in their favor, the trial court should have held that it

provides coverage to Mr. Gurung for the collision.         They also repeat their argument that

Founders does not have the legal authority to determine when an insured has breached a contract.

We conclude that their arguments are without merit for the reasons stated above and that the trial

court correctly denied Mr. Gurung’s motion for summary judgment. Mr. Gurung’s and Ms.

Badea’s second assignments of error are overruled.

                                                III.

       {¶13} Mr. Gurung’s and Ms. Badea’s assignments of error are overruled. The judgment

of the Summit County Court of Common Pleas is affirmed.

                                                                                Judgment affirmed.
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       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed to Appellants.




                                                     JENNIFER HENSAL
                                                     FOR THE COURT



SCHAFER, J.
CALLAHAN, J.
CONCUR.


APPEARANCES:

LAWRENCE J. SCANLON, Attorney at Law, for Appellant.

DAVID C. PERDUK, Attorneyat Law, for Appellant.

JOSH L. SCHOENBERGER and SUSAN S. R. PETRO, Attorneys at Law, for Appellee.
