RENDERED: APRIL 9, 2021; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2019-CA-1426-MR
LENWOOD HOWELL,
INDIVIDUALLY AND AS THE
EXECUTOR/ADMINISTRATOR OF
THE ESTATE OF CORA HOWELL APPELLANTS
APPEAL FROM LAWRENCE CIRCUIT COURT
v. HONORABLE JOHN DAVID PRESTON, JUDGE
ACTION NO. 17-CI-00211
PROGRESSIVE NORTHERN
INSURANCE COMPANY; ADRIAN O.
TURNER; AND GILL & SANDHU,
INC. APPELLEES
OPINION
AFFIRMING
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BEFORE: ACREE, JONES, AND K. THOMPSON, JUDGES.
ACREE, JUDGE: Lenwood Howell, individually and as administrator of the
Estate of Cora Howell, appeals the Lawrence Circuit Court’s August 23, 2019
order granting Progressive Northern Insurance Company’s motion for summary
judgment. Howell argues Progressive insured a vehicle that struck the vehicle in
which he and his wife were traveling. The circuit court, after examining the
contract of insurance, concluded it was not. Howell believes the contract language
is sufficiently ambiguous to prevent judgment as a matter of law.
Because we agree with the circuit court that the contract is not
ambiguous, and that Progressive is entitled to judgment, we affirm.
BACKGROUND
On February 26, 2017, a tragic collision occurred at the intersection of
Highway 3 and U.S. 23 in Louisa, Kentucky. Adrian Turner, an employee of Gill
& Sandhu, Inc., ran a red light, driving a 2013 Freightliner. His vehicle struck the
car in which Lenwood and Cora Howell were traveling. Cora died from the
accident and Lenwood suffered serious injuries.
Lenwood sued Turner and Gill & Sandhu on his own behalf and on
behalf of his wife’s estate. Gill & Sandhu contracted with Progressive to provide
liability insurance for certain of its vehicles. Gill & Sandhu was identified as the
“Designated Insured” and Turner as identified as a “rated driver.”
On June 28, 2019, an agreed judgment was entered for $2,000,000
against Turner and Gill & Sandhu Inc. Insurance by a different insurer, Northland
Insurance, covered $920,000 of the settlement, leaving a balance of $1,080,000.
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Lenwood sought the amount from Progressive which argued the vehicle Turner
was driving was not covered under the policy it issued to Gill & Sandhu.
The circuit court heard arguments on the summary judgment motion
and concluded the vehicle involved in the accident was not covered under the
policy. This appeal followed.
STANDARD OF REVIEW
“Because summary judgment does not require findings of fact but
only an examination of the record to determine whether material issues of fact
exist, we generally review the grant of summary judgment without deference to
either the trial court’s assessment of the record or its legal conclusions.” Hammons
v. Hammons, 327 S.W.3d 444, 448 (Ky. 2010) (citing Malone v. Ky. Farm Bur.
Mut. Ins. Co., 287 S.W.3d 656, 658 (Ky. 2009)).
ANALYSIS
Gill & Sandhu is an insured under a contract of insurance issued by
Progressive. Lenwood claims that such contract insures the liability arising from
the accident that caused his wife’s death and his injuries. He argues the contract is
ambiguous and, under the doctrine of reasonable expectations, it must be construed
by the courts as providing coverage.
Notwithstanding that this doctrine “resolves an insurance-policy
ambiguity in favor of the insured’s reasonable expectation,” True v. Raines, 99
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S.W.3d 439, 443 (Ky. 2003) (emphasis added), Lenwood’s first task is to convince
this Court there is an ambiguity. “[T]he mere fact that [a party] attempt[s] to
muddy the water and create some question of interpretation does not necessarily
create an ambiguity[.] Only actual ambiguities, not fanciful ones, will trigger
application of the doctrine.” Id. (citations and internal quotation marks omitted).
“A contract is ambiguous if a reasonable person would find it
susceptible to different or inconsistent interpretations.” Cantrell Supply, Inc. v.
Liberty Mut. Ins. Co., 94 S.W.3d 381, 385 (Ky. App. 2002). Based on that
definition, and considering all undisputed material facts, this insurance contract is
not ambiguous.
The language of the policy pertinent to our review is as follows:
[Progressive] will pay all sums an “insured” legally must
pay as damages because of “bodily injury” or “property
damage” to which this insurance applies, caused by an
“accident” and resulting from the ownership,
maintenance, or use of a covered “auto”.[1]
(Policy Endorsement; Record (R.) 567) (emphasis added).
Section I of the policy defines “COVERED AUTOS” and limits
coverage to “SPECIFICALLY DESCRIBED AUTOS” identified as “[o]nly those
autos described in . . . the Declarations for which a premium charge is shown . . . .”
1
The policy defines the term “auto” broadly to include the type of vehicle Turner was driving at
the time of the accident – “A land motor vehicle, trailer or semi-trailer designed for travel on
public roads . . . .” (R. 561).
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(R. 548). The Declarations identify and charge a premium for three autos, none of
which is the vehicle Turner was driving when he collided with Lenwood’s vehicle.
(R. 626).
The circuit court found as fact that “[n]either the 2013 Freightliner nor
the trailer involved in the accident of this case were listed on the declarations page
of the Progressive policy.” Lenwood does not contest that finding of fact because
it is incontrovertible.
We agree with the circuit court that policy coverage applied only to
accidents “resulting from the . . . . use of a covered ‘auto[.]’” Because the accident
did not result from the use of a covered auto, the policy did not insure the subject
accident.
Lenwood argues ambiguity because the “Designated Insured
Endorsement” includes Gill & Sandhu as an additional insured and Turner as a
“rated driver.” However, we fail to see how the inclusion creates any ambiguity
regarding the other independent qualifier for coverage – use of a covered auto.
CONCLUSION
For the foregoing reasons, we affirm the Lawrence Circuit Court’s
August 23, 2019 order granting Progressive’s motion for summary judgment.
ALL CONCUR.
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BRIEFS FOR APPELLANTS: BRIEF FOR APPELLEE
PROGRESSIVE NORTHERN
Gregory L. Smith INSURANCE COMPANY:
Anna S. Rueff
Louisville, Kentucky William J. Baird, IV
Pikeville, Kentucky
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