RENDERED: DECEMBER 11, 2020; 10:00 A.M.
TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2019-CA-1739-MR
CAMERON R. STONE, BY NEXT
FRIEND AND CO-CONSERVATOR,
REGINA RAMAGE; AND
REGINA RAMAGE, IN HER
INDIVIDUAL CAPACITY APPELLANTS
APPEAL FROM JEFFERSON CIRCUIT COURT
v. HONORABLE SUSAN SCHULTZ GIBSON, JUDGE
ACTION NO. 18-CI-006277
KENTUCKY FARM BUREAU
MUTUAL INSURANCE COMPANY APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE: CLAYTON, CHIEF JUDGE; KRAMER AND MCNEILL, JUDGES.
CLAYTON, CHIEF JUDGE: This appeal is brought from a Jefferson Circuit
Court order granting summary judgment to Kentucky Farm Bureau Mutual
Insurance Company (“KFB”). The appellants are the mother and the minor son of
a woman who was killed in a car accident. They seek to recover loss of
consortium damages under the underinsured motorist (“UIM”) provisions of a
KFB automobile insurance policy, although the decedent’s claims are expressly
excluded under the terms of the policy. The circuit court dismissed the mother’s
claim as a matter of law because Kentucky does not recognize a claim for loss of
consortium for an adult child. It further held that the son’s loss of consortium
claim is excluded from coverage because it is derivative of the excluded primary
wrongful death claim. Having reviewed the record and the applicable law, we
affirm.
MaKaela Franklin was twenty-six years of age when she was killed in
a head-on collision with a vehicle driven by Kaysie Yaw. At the time of the
accident, she resided in the same household as her minor son, Cameron Stone, and
her mother, Regina Ramage. Several months before the accident, KFB issued a
renewal of an automobile insurance policy (“Policy”) to Regina and Darrell
Ramage.
The UIM provision of the Policy provides in relevant part as follows:
PART C/1 – UNDERINSURED MOTORISTS
COVERAGE
INSURING AGREEMENT
A. We will pay compensatory damages which an insured
is legally entitled to recover from the owner or operator
of an underinsured motor vehicle because of bodily
injury:
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1. Sustained by an insured; and
2. Caused by an accident.
The owner’s or operator’s liability for these damages
must arise out of the ownership, maintenance or use of
the underinsured motor vehicle.
B. Insured as used in this Coverage Part C/1 –
Underinsured Motorists Coverage means:
1. You or any family member.
2. Any other person while occupying your covered auto.
3. Any person for damages that person is entitled to
recover because of bodily injury to which this coverage
applies sustained by a person described in B.1. or B.2.
above.
“Family member” is defined elsewhere in the Policy as “a person
related to you by blood, marriage or adoption who is a resident of your household.”
The Policy also contains several exclusions of UIM coverage,
including the following which is pertinent to this case:
A. We do not provide Underinsured Motorists Coverage
for bodily injury sustained by any insured:
1. While occupying, or when struck by, any motor
vehicle or trailer of any type owned by you or any family
member for which the security required by the Kentucky
Motor Vehicle Reparations Act is not in effect.
In the fatal accident, Franklin was driving an uninsured vehicle titled
in her own name.
Following Franklin’s death, Regina Ramage was appointed
administratrix of her estate and the co-conservator of her son, Ramage’s grandson.
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The estate and Stone settled for policy limits with Yaw’s insurer. Stone and
Ramage, as his next friend and co-conservator, and in her individual capacity,
thereafter filed a lawsuit against KFB in Jefferson Circuit Court. According to the
complaint, the settlement with Yaw’s insurer was insufficient to compensate the
plaintiffs for the loss of Franklin’s consortium, and they sought to recover damages
under the UIM provisions of the Ramages’ KFB Policy.
Following written discovery, KFB moved for summary judgment.
The circuit court granted the motion, holding that Regina’s UIM claim could not
be sustained because loss of consortium for the death of an adult child is not
recognized in Kentucky. It further held that claims for Franklin’s wrongful death
were clearly excluded from the Policy’s UIM coverage because she was operating
an uninsured motor vehicle, a violation of the security required by the Kentucky
Motor Vehicle Reparations Act (“MVRA”). The court concluded that Stone’s
claim for loss of consortium was also excluded from coverage under the Policy
because it derived from Franklin’s injury. This appeal followed.
In reviewing a grant of summary judgment, our inquiry focuses on
“whether the trial court correctly found that there were no genuine issues as to any
material fact and that the moving party was entitled to judgment as a matter of
law.” Scifres v. Kraft, 916 S.W.2d 779, 781 (Ky. App. 1996) (citing Kentucky
Rules of Civil Procedure (“CR”) 56.03).
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The appellants argue that the circuit court’s dismissal of Ramage’s
claim on the grounds that Kentucky does not permit recovery for the loss of
consortium of an adult child should be reconsidered on equitable and public policy
grounds. They contend there is no rational basis for the distinction between the
losses suffered by the parent of a deceased adult child as opposed to a minor child.
In Kentucky, the claim for loss of consortium for the death of a minor
child is expressly created by statute. Kentucky Revised Statutes (“KRS”) 411.135
provides that “[i]n a wrongful death action in which the decedent was a minor
child, the surviving parent, or parents, may recover for loss of affection and
companionship that would have been derived from such child during its minority,
in addition to all other elements of the damage usually recoverable in a wrongful
death action.” In Giuliani v. Guiler, 951 S.W.2d 318 (Ky. 1997), the Kentucky
Supreme Court recognized reciprocal claims of minor children for the loss of
parental consortium. Id. at 323.
The Court subsequently refused, however, to recognize a cause of
action for loss of parental consortium brought by emancipated adult children.
Clements v. Moore, 55 S.W.3d 838 (Ky. App. 2000). The Court explained its
decision as follows:
We are not insensitive to the losses experienced by
the appellants [adult children of a deceased parent],
losses which are substantially the same as those
experienced by their minor sibling. Further, we do not
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have any reason to believe that the appellants are any less
deserving of compensation than other family members
merely because they have reached the status of adults.
Nevertheless, it is the belief of this Court that it is not the
proper function of the judiciary to further develop the
common law in the area of loss of consortium claims in
the context of wrongful death. Rather, the recognition of
filial claims for wrongful death is one exclusively within
the purview of the Legislature. . . . While this Court has
not hesitated to take an active role in extending the
common law of torts when appropriate, we decline the
invitation in the case sub judice so as not to invade the
province of the Legislature, the branch of our
government to which our constitution has granted the
[sole] responsibility for determining who can recover
what damages for the wrongful death of another.
Id. at 840-41 (internal quotation marks and footnotes omitted).
In light of this clear refusal by the Kentucky Supreme Court to create
a loss of consortium claim for adult children, and in the absence of a statutorily-
created claim, we must affirm the circuit court’s dismissal of Ramage’s reciprocal
claim as the parent of a deceased adult child. Such a claim is not recognized in
Kentucky and we are not empowered to create one. Whatever the merits of the
appellants’ arguments, “as an intermediate appellate court, this Court is bound by
established precedents of the Kentucky Supreme Court. SCR[1] 1.030(8)(a). The
Court of Appeals cannot overrule the established precedent set by the Supreme
Court or its predecessor Court.” Smith v. Vilvarajah, 57 S.W.3d 839, 841 (Ky.
App. 2000).
1
Rules of the Supreme Court.
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We turn now to consider whether Stone’s claim for loss of parental
consortium is excluded from the UIM coverage of the Policy.
The interpretation of an insurance contract is a matter of law to be
reviewed de novo, giving no deference to the trial court. Davis v. Kentucky Farm
Bureau Mutual Ins. Co., 495 S.W.3d 159, 161 (Ky. App. 2016); Hallahan v. The
Courier-Journal, 138 S.W.3d 699, 705 (Ky. App. 2004). When an insurance
contract is ambiguous, it “is to be construed against the drafter, and so as to
effectuate the policy of indemnity.” Bituminous Cas. Corp. v. Kenway
Contracting, Inc., 240 S.W.3d 633, 638 (Ky. 2007), as modified on denial of
reh’g (Jan. 24, 2008).
Specifically, in regard to UIM exclusions, the Kentucky Supreme
Court has held that “there is nothing either in the MVRA or our public policy
prohibiting enforcement of exclusion of UIM coverage in certain scenarios. The
reasonable expectations of coverage are satisfied so long as the plain meanings of
the terms of the underlying policies are clear and unambiguous.” Philadelphia
Indemnity Ins. Co., Inc. v. Tryon, 502 S.W.3d 585, 592 (Ky. 2016).
For purposes of the motion for summary judgment, KFB conceded
that Franklin and Stone were residents of Ramage’s household at the time of the
fatal accident and therefore met the definition of “insureds” under the Policy. The
appellants argue Stone is entitled to UIM coverage under the plain language of Part
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C/1 (A.) of the Policy as an “insured” who “is legally entitled” to recover loss of
consortium damages “because of bodily injury . . . [s]ustained by an insured[,]”
namely Franklin. Because Stone was not occupying Franklin’s uninsured vehicle
at the time of her fatal injury, the appellants contend he is not subject to the UIM
exclusion. Had KFB wished to exclude loss of consortium claims from UIM
coverage, the appellants contend the Policy should have included express
provisions to that effect.
KFB contends that the appellants’ argument is not adequately
preserved in the record before the circuit court or in the appellants’ prehearing
statement. In their response to KFB’s motion for summary judgment, the
appellants relied on Hoskins v. Kentucky Farm Bureau Mutual Insurance
Company, No. 2011-CA-001454-MR, 2012 WL 4841094 (Ky. App. Oct. 12,
2012), an unpublished Opinion which we shall discuss more fully below, to argue
that the Policy does not specify that the underlying bodily injury from which the
loss of consortium claim is derived must be one that is covered by the terms of the
Policy. The appellants also cited Hoskins in their prehearing statement. These
references by the appellants to Hoskins are sufficient to preserve these arguments
for review, particularly as we are applying a de novo standard of review which
affords no “deference to the interpretation afforded by the circuit court.” Cinelli v.
Ward, 997 S.W.2d 474, 476 (Ky. App. 1998).
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Two unpublished Opinions of this Court have construed provisions of
insurance contracts virtually identical to the one before us and arrived at
conflicting conclusions regarding loss of consortium claims. In the Opinion relied
upon by the appellants, Hoskins,2 a husband and wife were named insureds under
an automobile policy containing an identical UIM clause to the Policy at issue in
this case. The specific exclusion at issue in Hoskins was for bodily injury
sustained by an insured while occupying or operating a motorcycle. After the
husband was seriously injured while riding his motorcycle, the wife sought to
recover for loss of consortium damages. She contended the plain language of the
insurance policy unambiguously provided UIM coverage for her claim, since the
phrase “because of bodily injury” in the general UIM clause encompassed her
claim, as distinguished from the “for bodily injury” language in the motorcycle
exclusion clause that barred her husband’s claim. The insurance company argued
2
The fact that Hoskins was affirmed by the Kentucky Supreme Court does not, as the appellants
suggest, endow it with greater precedential authority than any other unpublished Opinion. After
the Kentucky Supreme Court granted discretionary review of Hoskins, the Opinion was de-
published by operation of CR 76.28(4)(a). The Kentucky Supreme Court subsequently entered
an order indicating that, due to the recusal of one of the justices, the vote of the six remaining
members of the Court on the case was equally divided. Pursuant to SCR 1.020, the Opinion of
the Court of Appeals was affirmed and ordered not to be published. In Estate of Wittich By and
Through Wittich v. Flick, 519 S.W.3d 774 (Ky. 2017), the Kentucky Supreme Court ruled that an
Opinion with an identical procedural history “properly falls within the type of publication status
which makes it merely persuasive authority[,]” in reliance on CR 76.28(4)(c), which states:
“Opinions that are not to be published shall not be cited or used as binding precedent in any
other case in any court of this state . . .” and “unpublished Kentucky appellate decisions,
rendered after January 1, 2003, may be cited for consideration by the court if there is no
published opinion that would adequately address the issue before the court.” Wittich, 519
S.W.3d at 779 (emphasis in original).
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that the loss of consortium claim was derivative or based upon the husband’s
bodily injury for purposes of the insurance policy exclusions and because the
wife’s claim was based on an excluded injury, it was not covered under the policy.
The Court of Appeals, in a 2-1 decision, ruled in the wife’s favor because the plain
language of the policy failed to specify that the underlying bodily injury from
which the loss of consortium claim was derived must be one that is covered under
the terms of the policy. Hoskins, slip op. at 5-6.
Several years later, in Kentucky Farm Bureau Mutual Insurance
Company v. Armfield, No. 2014-CA-001559-MR, 2016 WL 748388 (Ky. App.
Feb. 26, 2016), a different panel of this Court, also in a 2-1 decision, construed
identical insurance policy language and arrived at the opposite conclusion. In
Armfield, the UIM claims of a husband and wife who were injured while riding
together on a motorcycle were barred by a motorcycle exclusion, but they filed loss
of spousal consortium claims for each other. The Armfield majority took an
unfavorable view of this tactic, characterizing the couple’s claims as attempting an
end run around the exclusion from coverage of their non-covered, non-
compensable bodily injuries. The Opinion held that they were not entitled to
recover because a spouse’s claim for loss of consortium is not a separate injury but
is derivative of the injured spouse’s personal injury claim and is entirely dependent
on the success of the underlying injury claim. “Loss of consortium is a wholly
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derivative claim that merely provides access to an additional category of damages
if a defendant’s liability can be established under another legal theory.” Id. at *3
(citation omitted). “If no liability attaches for the injured plaintiff’s personal injury
claim, the plaintiff-spouse’s claim for loss of consortium should be dismissed.” Id.
at *2.
We have considered Hoskins and Armfield, as well as the arguments
of the parties, in arriving at our decision in this case. We recognize that the
Armfield Opinion conflates the right to recover from a tortfeasor in legal
proceedings with the right to recover under the insurance contract. As the
appellants argue, the fact that loss of consortium is derivative of bodily injury
under the common law does not alter the language of the Policy which purports to
pay compensatory damages which an insured is “legally entitled to recover.” In
their view, Stone’s right to recover for loss of consortium exists independently of
Franklin’s right to recover under the Policy.
On the other hand, our courts have reiterated that insurance contracts
must be given a reasonable interpretation. “While ambiguous terms [in the
insurance contract] are to be construed against the drafter and in favor of the
insured, we must also give the policy a reasonable interpretation, and there is no
requirement that every doubt be resolved against the insurer. . . . [T]he terms
should be interpreted in light of the usage and understanding of the average
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person.” American Commerce Ins. Co. v. Brown, 168 S.W.3d 386, 388 (Ky. App.
2004) (emphasis and citation omitted). Under the doctrine of reasonable
expectations, when an ambiguity exists in an insurance contract, “ambiguous terms
should be interpreted in favor of the insured’s reasonable expectations.” True v.
Raines, 99 S.W.3d 439, 443 (Ky. 2003), as amended (Apr. 2, 2003) (internal
quotation marks and citation omitted).
An insured could reasonably expect that her claim for UIM coverage,
and the derivative claim of her minor child for loss of consortium, would be
excluded if they were injured in an uninsured vehicle. What is not reasonable is
the expectation that the minor child’s loss of consortium claim would, however, be
covered if he was not present in the vehicle. Under this interpretation, KFB would
be required to compensate Stone “for a risk which was not contemplated and for
which no compensation was paid.” Huelsman v. National Emblem Ins. Co., 551
S.W.2d 579, 581 (Ky. App. 1977).
“A basic rule of contract interpretation requires that preference be
given to the ‘interpretation which gives a reasonable, lawful, and effective meaning
to all the terms’ over a reading ‘which leaves a part unreasonable, unlawful, or of
no effect.’” Maze v. Board of Directors for Commonwealth Postsecondary
Education Prepaid Tuition Trust Fund, 559 S.W.3d 354, 363 (Ky. 2018) (quoting
L.K. Comstock & Co., Inc. v. Becon Const. Co., 932 F.Supp. 948, 967 (E.D. Ky.
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1994)). Stone would not have a loss of consortium claim but for his mother’s
claim, which is expressly excluded by the Policy. An interpretation of the Policy
which gives a reasonable meaning to all its provisions supports the circuit court’s
holding that his derivative claim is excluded from UIM coverage.
Finally, we address the appellants’ argument that the language of the
UIM exclusion referring to “the security required by the Kentucky Motor Vehicle
Reparations Act” is ambiguous and unclear. The appellants did not raise this
argument before the circuit court. The circuit court found the exclusion was
enforceable and served to exclude Franklin from UIM coverage under the Policy
because she was driving an uninsured vehicle which did not meet the security
requirements of the MVRA. The circuit court’s analysis is well-founded and will
not be disturbed on appeal.
For the foregoing reasons, the memorandum and order of the
Jefferson Circuit Court granting KFB’s motion for summary judgment is affirmed.
ALL CONCUR.
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BRIEFS FOR APPELLANTS: BRIEF FOR APPELLEE:
David V. Oakes Michael E. Krauser
Andrew K. AsBridge Louisville, Kentucky
Paducah, Kentucky
Kevin C. Burke
Jamie K. Neal
Louisville, Kentucky
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