Nationwide Agribusiness Insurance Company v. Brandon Day Thompson

RENDERED: APRIL 22, 2022; 10:00 A.M.
NOT TO BE PUBLISHED

Commonwealth of Kentucky
Court of Appeals
NO. 2019-CA-1050-MR

NATIONWIDE AGRIBUSINESS
INSURANCE COMPANY APPELLANT

APPEAL FROM CUMBERLAND CIRCUIT COURT
v. HONORABLE DAVID L. WILLIAMS, JUDGE
ACTION NO. 17-CI-00012

BRANDON DAY THOMPSON;
NICOLE VIVETTE THOMPSON;
JEAN THOMPSON; THE BRANDON
DAY THOMPSON AND NICOLE
VIVETTE THOMPSON JOINT
LIVING TRUST; THE THOMPSON
TRUST; EMORY MESSENGER;
KENNETH CLARK; AND THE
UNKNOWN DEFENDANT APPELLEES

OPINION
AFFIRMING

** ** ** ** **

BEFORE: MAZE, TAYLOR, AND K. THOMPSON, JUDGES.

THOMPSON, K., JUDGE: Nationwide Agribusiness Insurance Company

(Nationwide) appeals from the Cumberland Circuit Court’s orders granting
summary judgment1 to Brandon Day Thompson, Nichole Vivette Thompson, Jean

Thompson, the Brandon Day Thompson and Nichole Vivette Thompson Joint

Living Trust (Joint Trust), and the Thompson Trust (collectively the Thompsons),2

and granting summary judgment to Emory Messenger, which dismissed the

Thompsons and Messenger from the case. These orders were made final and

appealable. Summary judgment was not sought by Kenneth Clark or the unknown

defendant.3

FACTUAL AND LEGAL BACKGROUND

On July 8, 2015, James and Kylie Fisher purchased a residence on

approximately fifty-eight acres of land in Burkesville, Kentucky, from the

Thompson Trust, of which Jean is a trustee. Jean formerly occupied the residence

1
The circuit court’s order was entitled “Partial Summary Judgment” but it in fact granted the
Thompsons complete relief and dismissed the complaint against them. The order’s title mirrored
the title of the Thompsons’ motion which sought summary judgment on all claims brought
against them but was not seeking summary judgment regarding the other parties. Therefore, to
avoid confusion, we simply refer to this order as granting summary judgment and the
Thompsons’ motion as seeking summary judgment.
2
The captioned names provided in the notice of appeal appear to be incorrect as to the spelling
of “Nicole” based upon circuit court orders, previous court filings and other legal documents
contained in the record in which Nicole is spelled “Nichole.” Therefore, we use “Nichole” in the
body of this Opinion and refer to her as Nichole Thompson. We have also corrected the spelling
of Nichole when referring to the Brandon Day Thompson and Nichole Vivette Thompson Joint
Living Trust. As “Jean” is used in the circuit court orders and previous court filings while
Jeanenne is used in other legal documents, and Jean appears to be a shorted form of Jeanenne,
we use “Jean” unless referencing a direct quote.
3
Service was attempted on Clark by certified mail; Unknown Defendant was served by warning
order attorney.

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which she had owned for two years. Simultaneously, the Fishers purchased

adjoining land that constituted about another fifty-eight acres from the Joint Trust,

of which Brandon is the trustee. Jean is Brandon’s mother and Brandon has Jean’s

power of attorney; Brandon and Nichole were also Jean’s neighbors, having lived

on an adjoining parcel not relevant to this suit.

The conveyance to the Fishers was made through a single deed, for a

single purchase price, with the terms set out in a single promissory note. Brandon

and Nichole, as trustees of the Joint Trust, and Jean as trustee of the Thompson

Trust, were listed as the grantors. The deed referenced two tracts of land, one from

the Joint Trust which consisted only of land, and one from the Thompson Trust

which contained a house on land. The promissory note references the principal

sum of $245,000 as being due to the Thompsons or survivor thereof but provided

for separate monthly payment checks being due at the same time to Jean as trustee

of the Thompson Trust and Brandon and Nichole as trustees of the Joint Trust.

The Thompsons conveyed the properties only with a General

Warranty of Title, warranting that they had a good right and title to sell and convey

the properties. The Thompsons did not make any warranties as to the condition of

the house. The Thompson Trust paid for an inspection and provided the inspection

report to the Fishers prior to the sale.

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 The house was not mentioned at all in the deed and only mentioned in

the portion of the promissory note that provided:

The Payors shall also be required to maintain insurance
on the dwelling house, in an amount of at least
$100,000.00, with the Thompson Trust as loss payable in
the event of loss. Payors must provide said Payee with a
copy of the declaration page of the insurance policy
showing said Payee as loss payable.

The Thompson Trust also maintained insurance on the residence through Kentucky

Farm Bureau (KFB).

While living in the house, Jean had extensive renovations done,

including a complete remodel of the bathroom and kitchen, new flooring, and

structural repair. As part of these renovations, Brandon helped Jean arrange for

electrical work to be done on the house. Exterior electrical work, which was

properly permitted, was performed by Emory Messenger consisting of correcting

the 100 amp service being connected to an 200 amp panel box, by updating the

service to 200 amp to the existing 200 amp panel box. This work passed

inspection.

Interior electrical work took place to rewire two upstairs bedrooms,

with the rewiring taking place in the attic space adjoining those bedrooms to

address frayed and exposed wiring. The interior electrical work was performed by

a neighbor, Clark, who was not an electrician.

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 On March 12, 2016, approximately nine months after the sale, the

home caught fire and suffered significant damage. Nationwide and KFB each

made payments for the damage. As to the structural damage, Nationwide and KFB

negotiated that KFB would be responsible for 41% of that damage, with the

balance to be paid by Nationwide. Nationwide issued a check for $85,251.90 to

“Fisher, James and Brandon & Nichole Thompson” for its share of the structural

damage. While this check was negotiated, the Thompsons deny that any of them

signed it. KFB paid Jean $53,644.65 for its share of the structural damage.

Nationwide also paid the Fishers $41,258.63 for contents damage and $15,182.87

for replacement lodging.

A later investigation connected the fire with faulty electrical work in

the attic, which consisted of an incorrect connection between new wiring and

existing wiring. We assume for purposes of this appeal in reviewing the grant of

summary judgment that the cause of the fire was established to be this faulty

connection.

In March 2017, Nationwide filed a complaint against the Thompsons,

Messenger, and Unknown Defendant. Nationwide made the same two allegations

against Brandon and Nichole, the Joint Trust, Jean, and the Thompson Trust: (1)

they were negligent in hiring certain individuals to perform electrical work at the

residence; and (2) they failed to disclose known defects at the time of the sale of

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the residence. Nationwide alleged that it was damaged as a result, based upon

having to pay insurance damages. As to Messenger and Unknown Defendant,

Nationwide alleged that each had a duty to exercise reasonable care in all aspects

of any electrical work at the residence, were negligent in performing such work,

and as a result Nationwide was damaged. The Thompsons then filed a third-party

complaint against the Fishers.

In June 2018, after deposing Brandon and learning that Clark had

performed electrical work inside the residence, Nationwide was permitted to file an

amended complaint adding Clark as a defendant in August 2018. Nationwide’s

allegation against Clark was identical to that against Messenger and Unknown

Defendant.

In September 2018, and October 2018, the Thompsons and Messenger

filed motions for summary judgment. While they were pending, in November

2018, the Thompsons requested leave to file an amended third-party complaint

against the Fishers. They alleged among other things that the Fishers defaulted on

the promissory note and committed fraud by negotiating the check from

Nationwide for the loss due to the fire after forging Brandon and Nichole’s

signatures.4

4
The record does not reflect that the circuit court took any action on approving the filing of this
amended third-party complaint, however, we recite these allegations as they are relevant to the
arguments relating to the summary judgment motions and the circuit court’s subsequent rulings.

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 SUMMARY JUDGMENT

I. MESSENGER

In October 2018, Messenger moved for summary judgment on the

basis that Nationwide in its tardy answers to interrogatories failed to explain the

factual basis behind its claim that Messenger was negligent in performing electrical

work and that his negligence was a substantial factor in causing the fire.

Messenger stated that because it was established the fire occurred in the attic, he

could not be responsible where his only work on the residence was outside the

house to install 200 amp service to the existing panel box, he obtained the

appropriate permit, his work was inspected and approved, and there was no

damage to the panel box from the fire. Messenger denied that the deposition of

Brandon showed any basis for his liability because Brandon, who was familiar

with the electrical work performed on the residence, denied that Messenger

performed any electrical work whatsoever inside the house.

In December 2018, Nationwide filed its response to Messenger’s

motion for summary judgment. It argued summary judgment was inappropriate

because “Mr. Messenger must show that there is undisputed evidence that he did

not perform the work and that his relationship to whomever did perform the work

was not such that Mr. Messenger could have liability for that person’s negligence.”

Nationwide argued that Messenger’s admission he had done some exterior work

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did not exonerate him from claims of negligence for interior work and Brandon’s

testimony provided a possible connection between Clark and Messenger.

Nationwide also argued that summary judgment was premature where Jean and

Messenger had yet to be deposed and Clark has not yet been served.

In January 2019, the circuit court granted Messenger’s motion, noting

that during oral argument it had granted Nationwide ten days to produce some

affirmative evidence to create a material issue of fact linking any act of Messenger

as being a substantial factor in causing the fire, but Nationwide failed to produce

any such evidence.

II. THE THOMPSONS

In September 2018, the Thompsons moved for summary judgment on

several grounds.5 The Thompsons filed two different memoranda in support of this

motion.

In the September 2018 memorandum, they argued that as to Brandon,

Nichole, and the Joint Trust, they had no duty to the Fishers and had not violated

any duty based on lacking any ownership interest in the residence. They further

argued there was no evidence to suggest that they hired anyone to perform work on

the residence, could not be liable as agents to the Thompson Trust (although the

5
We only discuss the grounds sought and the resolution by the circuit court that are relevant to
this appeal.

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Thompson Trust could be liable), caveat emptor applied, and there was no

evidence of a fraudulent omission.

In the October 2018 memorandum, they argued: (1) the agreement

between the Thompsons and the Fishers precludes Nationwide’s subrogation claim

against any of the parties because the intent of the agreement requiring the Fishers

to maintain insurance on the residence was intended to have the Fishers assume the

risk of loss, rather than the Thompsons; (2) an insurer cannot assert a subrogation

action against its own insured, which included the Thompson Trust where the

Fishers were required to name the Thompson Trust as a loss payee on the policy

but failed to do so; and (3) the Thompsons have an equitable lien on the policy

proceeds to the extent of their insurable interest of $245,000, which Nationwide

recognized by issuing a check for damages payable to James Fisher and Brandon

and Nichole Thompson, so the Thompsons are effectively insured under the policy.

In November 2018, Nationwide filed its response to the Thompsons’

motion for summary judgment and denied that summary judgment in favor of the

Thompsons was appropriate. Nationwide argued if subrogation protected the

Thompsons, it should only extend to their insurable interest and not include the

contents or loss of use costs. Nationwide argued the Fishers’ violation of the

promissory note cannot relieve the Thompsons of their negligence which they did

not contract away through an exculpatory clause by requiring insurance, and their

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willful actions could not be excused through an exculpatory clause. Nationwide

argued Brandon’s actions in allowing Clark to do the rewiring were wanton and in

violation of a safety statute, and furthermore the Thompsons’ undisclosed actions

prior the sale would have resulted in the voiding of the insurance contract had they

been the ones entering into it as it voided coverage for defective renovation, was a

material misrepresentation, and under the fortuity doctrine where the damage

resulted from intentional acts, it barred coverage.

In February 2019, after hearing argument from counsel, the circuit

court granted the Thompsons’ motion for summary judgment. It made this ruling

on the basis that: (1) the documents associated with the sale of the property

showed that the Fishers and the Thompsons intended for the Fishers to assume the

risk of loss through the purchase of insurance, thus relieving them of liability; and

(2) “Kentucky law does not permit an insurer to maintain a subrogation action

against a party to a contract for whom insurance coverage was contracted and for

whom it was to benefit.” It explained that by Nationwide issuing an insurance

check with Brandon and Nichole Thompson listed as payees, it recognized the

Thompsons as insureds and it could not subrogate against its own insured.

MOTIONS TO ALTER, AMEND, OR VACATE

Nationwide filed motions to alter, amend, or vacate these orders

granting summary judgment to Messenger and the Thompsons in February and

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March 2019. As to the grant of summary judgment to Messenger, Nationwide

argued Brandon’s testimony clearly indicated that “Mr. Messenger and Mr. Clark

had some kind of pre-existing relationship which may have been a

contractor/subcontractor arrangement[.]” Nationwide asserted that Messenger’s

proof that he performed exterior work did not preclude his later performing interior

work on the residence and Brandon’s statement that Messenger did not perform the

interior work was subject to doubt. It also pointed to the fact “Mr. Messenger has

yet to be deposed or otherwise explain the work he did or his relationship with Mr.

Clark, who has himself not been served or subject to written discovery or

depositions.”

In Nationwide’s motion to alter, amend or vacate the grant of

summary judgment to the Thompsons, it argued: (1) the bar against subrogation

was improperly and prematurely applied in light of the incomplete discovery in

this case and subrogation should be applied where there is fraud, bad faith, or

evidence the insureds derived some inequitable benefit from the covered loss,

given that the Thompsons have yet to fully respond to written discovery and

production requests, Messenger has not yet been deposed, and Clark has not been

served or subject to any discovery; (2) there are factual issues in regard to the

parties’ intent in the agreement, exculpatory contracts precluding liability for

future negligence are disfavored, and parties cannot contract away liability for

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failure to comply with a duty imposed by a safety statute; (3) any bar to

subrogation would only apply to the Thompsons’ insurable interest, the residence,

so Nationwide may still be able to subrogate against them for the amount paid for

the Fishers’ loss of contents and loss of use, and as Brandon, Nichole, and the Joint

Trust were not obligated to be named as insurance beneficiaries on the promissory

note, they are not protected from subrogation. Nationwide further requested that

the circuit court rule on all the previous bases it had raised in opposition of

summary judgment so that it could avoid the need for a subsequent appeal should

the order be reversed on appeal.

In June 2019, the circuit court denied Nationwide’s motions to alter,

amend, or vacate regarding the Thompsons and Messenger. As to the Thompsons,

the circuit court addressed the outstanding issues as follows: (1) discovery resulted

in two answered sets of written discovery from the Thompsons, the deposition of

Brandon, and no discovery dispute was brought before the circuit court, and the

court’s conclusion on subrogation would not be altered by any additional facts or

discovery; (2) there was no factual dispute about the parties to the agreement’s

intent, which could be interpreted from the four corners of the agreement and was

unambiguous; (3) the Thompsons are afforded the same protection against

subrogation regardless of their insurable interest; (4) non-sellers Brandon, Nichole,

and the Joint Trust have no potential liability for negligence or duty to disclose any

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defects in the residence because they did not own the residence, furthermore, there

was no fraud or fraudulent omission and caveat emptor applies; and (5)

exculpatory provision cases have no application. As to Messenger, the circuit

court summarily denied the motion to amend, alter, or vacate.

THE APPEAL

I. SUMMARY JUDGMENT STANDARD

Pursuant to the Kentucky Rules of Civil Procedure (CR) 56.03,

summary judgment shall be rendered “if the pleadings, depositions, answers to

interrogatories, stipulations, and admissions on file, together with the affidavits, if

any, show that there is no genuine issue as to any material fact and that the moving

party is entitled to a judgment as a matter of law.”

“The standard of review on appeal of a summary judgment is 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). Summary judgment “should only

be used ‘to terminate litigation when, as a matter of law, it appears that it would be

impossible for the respondent to produce evidence at the trial warranting a

judgment in his favor and against the movant.’” Steelvest, Inc. v. Scansteel Service

Center, Inc., 807 S.W.2d 476, 483 (Ky. 1991) (quoting Paintsville Hospital Co. v.

Rose, 683 S.W.2d 255, 256 (Ky. 1985)).

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 “A summary judgment is only proper after a party has been given

ample opportunity to complete discovery, and then fails to offer controverting

evidence.” Pendleton Bros. Vending, Inc. v. Commonwealth Finance and Admin.

Cabinet, 758 S.W.2d 24, 29 (Ky. 1988). Whether a party’s opportunity to

complete discovery is reasonable will naturally be fact-specific. See Bowlin

Group, LLC v. Rebennack, 626 S.W.3d 177, 187-88 (Ky.App. 2020); Suter v.

Mazyck, 226 S.W.3d 837, 844 (Ky.App. 2007).

II. THE COMPLETION OF DISCOVERY

Nationwide argues that summary judgment was prematurely granted

as to both Messenger and the Thompsons, because Nationwide had not had an

opportunity to complete its discovery. We are confident that Nationwide had an

ample opportunity to complete discovery and that further discovery would have

been pointless.

While Nationwide now vaguely states that discovery had not been

completed regarding its claim against Messenger, it has not stated what further

discovery it would wish to do. During a hearing on November 29, 2018, the circuit

court gave Nationwide one final opportunity to provide proof that Messenger’s

actions were connected to the fire. The circuit court specified it was giving

Nationwide ten days to provide such proof and inquired whether this would be a

sufficient time for Nationwide to respond. Nationwide said it was acceptable.

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 When another hearing was held on January 24, 2019, the circuit court

inquired as to whether any further discovery had taken place. Nationwide stated

that it had not engaged in any further discovery and did not request any further

opportunity to do so.

As Nationwide has failed to assert what discovery it would do

regarding its claim against Messenger, and failed to engage in any additional

discovery when given the opportunity to do so, we are confident that summary

judgment was not prematurely granted to Messenger.

As to the Thompsons, Nationwide argues that the Thompsons failed to

respond to its second set of requests for production of documents, so its discovery

was incomplete. The documents Nationwide requested were irrelevant to the

grounds upon which summary judgment was granted. Nationwide asked for proof

of Brandon’s power of attorney over Jean, copies of checks or receipts that they

received from the Fishers in payment of the promissory note, and documents or

evidence supporting the claim that the Fishers made payments by two separate

checks each month. Nationwide was seeking to make the other Thompsons joint

sellers of the residence to make them have the same liability as Jean as trustee of

the Thompson Trust, but as we will later discuss why there is no liability for any of

the Thompsons, the lack of such discovery was irrelevant and cannot prejudice

Nationwide.

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 We note that below Nationwide stated that it had not deposed Jean or

Messenger, and that Clark had not yet been served. However, Nationwide never

noticed depositions for Jean or Messenger, and its claims against Messenger and

the Thompsons cannot linger indefinitely when it is unclear whether Clark will

ever be served.

III. DRAFTING OF ORDERS BY OPPOSING COUNSEL

Nationwide argues we should reverse because the circuit court asked

opposing counsel to draft the orders granting summary judgment and denying the

motions to alter, amend, or vacate.

There is nothing improper about the circuit court memorializing its

decisions through orders primarily drafted by opposing counsel. As explained in

Bingham v. Bingham, 628 S.W.2d 628, 629 (Ky. 1982), “the delegation of the

clerical task of drafting proposed findings of fact and conclusions of law under the

proper circumstances does not violate the trial court’s responsibility.” The

Kentucky Supreme Court reiterated this point in Prater v. Cabinet for Human

Resources, 954 S.W.2d 954, 956 (Ky. 1997), stating “[i]t is not error for the trial

court to adopt findings of fact which were merely drafted by someone else.” As

our Court recently noted, “[t]he Supreme Court has not overruled Bingham or

Prater.” Keith v. Keith, 556 S.W.3d 10, 14 (Ky.App. 2018).

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 The videos of the hearings regarding the motions for summary

judgment and the motions to alter, amend, or vacate confirm that the circuit court

clearly stated what it had decided and what needed to be memorialized by counsel.

Nationwide has failed to make a showing that the circuit court did not control the

decision-making process which is needed to show error pursuant to Bingham, 628

S.W.2d at 629-30. Therefore, there was no error in the circuit court’s actions.

IV. MESSENGER’S SUMMARY JUDGMENT

As to the summary judgment granted to Messenger, Nationwide

argues the claims against Messenger are warranted because “the record clearly

raises a genuine dispute regarding [Messenger’s] work at the home and his

relationship with Kenneth Clark.” It argues that Messenger admitted performing

work at the house, his denial of any interior work is self-serving, and “[p]roof that

he did some other exterior work is not evidence that he did not do the interior work

in question.” Nationwide speculates that “[Messenger] and Mr. Clark may have

had some kind of professional relationship when Mr. Clark replaced the interior

wiring.” Nationwide also argues the circuit court wrongfully placed the burden of

proof on Nationwide and, to the extent that Messenger’s motion for summary

judgment was treated as one for failure to state a claim, notice pleading was

sufficient.

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 We disagree. As the circuit court correctly noted, there was simply no

established connection between the work that Messenger did on the exterior of the

house and the fire. As Nationwide’s counsel admitted during a hearing before the

circuit court, Messenger’s exterior electrical work could not have caused the fire

and resulting damage.

Brandon testified during his deposition that Messenger did not do any

work inside the house. He testified that the interior work was done by Clark.

While Nationwide appears to doubt Brandon’s testimony, it has failed to provide

any evidence that Messenger did any interior work.

Brandon’s deposition testimony provides no evidence of a relationship

between Clark and Messenger, other than Clark’s recommending Messenger and

trying to arrange for Messenger to perform electrical work, with Messenger

declining to perform any rewiring within the house.6 To the extent that Nationwide

6
We disagree with Nationwide that this exchange during Brandon’s deposition provides any
support for its supposition that Clark may have been working for Messenger, thus making
Messenger liable for Clark’s defective work:

Q. When you say, “Kenny was trying to negotiate
with Mr. Messenger to do it [the electrical work],” can you
clarify what you mean by that?

A. Yes. Kenny – Kenny suggested that – that Emory
Messenger would be a licensed electrician that would be willing to
work there, so Emory came out, Jeanenne hired him, he began the
work outside, and then wanted to be paid for the work outside, and
then did not come back to do the work inside.

...

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may have thought there was something to explore in the possible relationship

between Messenger and Clark, it should have either propounded additional

interrogatory questions on Messenger or deposed him. Nationwide did neither.

Nationwide is incorrect that the circuit court wrongfully shifted the

burden to it. As explained in Henninger v. Brewster, 357 S.W.3d 920, 929

(Ky.App. 2012):

When the moving party has presented evidence showing
that despite the allegations of the pleadings there is no
genuine issue of material fact, it becomes incumbent
upon the adverse party to counter that evidentiary
showing by some form of evidentiary material reflecting
that there is a genuine issue pertaining to a material fact.

(quoting Neal v. Welker, 426 S.W.2d 476, 478 (Ky. 1968) (emphasis original).

Nationwide was given the opportunity to produce some counter evidence and

failed to do so. As was the case in Henninger:

[Nationwide’s] argument fails because “[c]onclusory
allegations based on suspicion and conjecture” are not
sufficient to create an issue of fact to defeat summary

Q. . . . So Kenny just volunteered Emory as
someone who could do the work, knowing that you-all wanted
it done?

A. I believe that’s how it transpired, yeah.

Q. Then when Emory would not respond to Kenny,
as it was explained to you, did you-all ask Kenny to do the
work, or did he volunteer to do the work?

A. I can’t remember. He volunteered to do a lot of
things, so I would say he volunteered.

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 judgment. [Harstad v. Whiteman, 338 S.W.3d 804, 812
(Ky.App. 2011)]; see also Neal, 426 S.W.2d at 479-80
(emphasizing the appellant’s “hope or bare belief . . . that
something will turn up cannot be made basis for showing
that a genuine issue as to a material fact exists”);
Benningfield v. Pettit Environmental, Inc., 183 S.W.3d
567, 572-73 (Ky.App. 2005) (same); de Jong [v.
Leitchfield Deposit Bank], 254 S.W.3d [817,] 825
[(Ky.App. 2007)].

357 S.W.3d at 929. Under these circumstances, summary judgment was

appropriately granted as there were no genuine issues of fact as to the work that

Messenger did having any relationship to the fire, and there is nothing to connect

the interior work that Clark did to Messenger.

V. THE THOMPSONS’ SUMMARY JUDGMENT

Nationwide makes several arguments about why summary judgment

should not have been granted to the Thompsons. Nationwide argues: (1) there was

no subrogation bar; (2) caveat emptor does not bar its claim for fraud; (3) Brandon

and Nichole are liable as Jean’s agents; (4) the Fishers did not intend to relieve the

Thompsons of any liability in obtaining insurance; and (5) to the extent the

Thompsons intended the insurance requirement to protect them from liability, it is

an invalid exculpatory clause.

In considering whether summary judgment was properly granted to

the Thompsons, we first consider what claims Nationwide can properly pursue

against them. A right of subrogation “permits [an insurance company] to be placed

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in the position of its insured in order to pursue recovery for the payments [the

insurance company] was obligated to pay its insured.” Wine v. Globe American

Cas. Co., 917 S.W.2d 558, 561 (Ky. 1996). “All subrogation rights are derivative

and the insurer only acquires the rights of its insured. A subrogee is substituted in

place of its insured; it does not acquire greater rights.” Id. at 566. Therefore,

Nationwide, as the insurer of the Fishers, has only the same rights that the Fishers

have to recover against the Thompsons.

The circuit court rejected that Brandon, Nichole, and the Joint Trust

could be liable for negligence because as non-sellers they lacked any duty to the

Fishers. The circuit court rejected that Brandon, Nichole, and the Joint Trust could

be liable for a fraudulent omission because the doctrine of caveat emptor applied,

there was no evidence of a fraudulent omission and, furthermore, they did not own

the residence and therefore had no duty to disclose anything about it. The circuit

court did not address excluding liability to Jean and the Thompson Trust based on

lack of duty.

We choose to focus our discussion on whether any of the Thompsons,

including Jean and the Thompson Trust, owed any duty to the Fishers. In doing so,

we properly act within our role as a reviewing court for it is well-established that

“an appellate court may affirm a lower court’s decision on other grounds as long as

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the lower court reached the correct result.” Emberton v. GMRI, Inc., 299 S.W.3d

565, 576 (Ky. 2009).

A. NEGLIGENCE

Nationwide’s complaint and amended complaint argued that the

Thompsons were negligent in hiring certain individuals to perform electrical work

at the residence. While this claim could be interpreted as being one for “negligent

hiring,” it appears that the parties have focused upon this claim as being one for

simple negligence. In the interest of addressing this claim completely, we address

it in both ways.

“Under Kentucky law, the elements of negligent hiring and retention

are: (1) the employer knew or reasonably should have known that an employee

was unfit for the job for which he was employed, and (2) the employee’s

placement or retention at that job created an unreasonable risk of harm to the

plaintiff.” Ten Broeck Dupont, Inc. v. Brooks, 283 S.W.3d 705, 733 (Ky. 2009).

“[C]laims of negligent hiring/retention focus on the direct negligence of the

employer which permitted an otherwise avoidable circumstance to occur.” Id. at

734.

The problem for Nationwide is that the Thompson Trust was not a

conventional employer of Clark. All of the evidence indicates that Clark was an

independent contractor.

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 An individual is the agent of another if the principal has
the power or responsibility to control the method,
manner, and details of the agent’s work. If, however, an
individual is free to determine how work is done and the
principal cares only about the end result, then that
individual is an independent contractor.

Nazar v. Branham, 291 S.W.3d 599, 606-07 (Ky. 2009) (citations omitted).

According to Brandon’s deposition, which was the only evidence as to

what Clark’s role was, Brandon mostly left Clark alone to do the work in the attic,

did not monitor his work, and by looking at what Clark did Brandon would not be

able to say whether it was done properly or not unless it wasn’t connected because

“as far as – as codes and how it’s – how it’s done, neither of us [Brandon or Jean]

would have that expertise.” Therefore, we conclude as a matter of law that Clark

was acting as an independent contractor.

We have been unable to locate any Kentucky authority which would

authorize an action for negligent hiring of an independent contractor. See Smith v.

Kentucky Growers Insurance Co., Inc., No. 2001-CA-001624-MR, 2002 WL

35628958, at *2 (Ky.App. Nov. 1, 2002) (unpublished) (stating unequivocally

“[w]hile some jurisdictions recognize a claim against employers for negligently

hiring an independent contractor, Kentucky has not recognized such a claim.”).7

We do not believe it would be appropriate to authorize such an action in the case of

7
We do not rely on Smith as authority but note that it confirms what our own investigation has
revealed.

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homeowner sellers, who without any expertise themselves, hire individuals to work

on their homes.

Alternatively, if Nationwide’s claim was to be interpreted as a

respondeat superior negligence claim, the same problem arises because

Clark was operating as an independent contractor rather than as an agent of the

Thompson Trust. A principal is “generally is not held liable for the conduct of an

independent contractor.” Nazar, 291 S.W.3d at 606.

Common law negligence “requires proof of (1) a duty owed by the

defendant to the plaintiff, (2) breach of that duty, (3) injury to the plaintiff, and (4)

legal causation between the defendant’s breach and the plaintiff’s injury.” Wright

v. House of Imports, Inc., 381 S.W.3d 209, 213 (Ky. 2012) (citations omitted). We

do not believe that the Thompson Trust owed a duty to the Fishers for any

negligence from Clark’s actions.

Duty, the first element, presents a question of law. Mullins v.

Commonwealth Life Insurance Co., 839 S.W.2d 245, 248 (Ky. 1992). “If no duty

is owed by the defendant to the plaintiff, there can be no breach thereof, and

therefore no actionable negligence.” Ashcraft v. Peoples Liberty Bank & Tr. Co.,

Inc., 724 S.W.2d 228, 229 (Ky.App. 1986). In making our determination as to the

existence of a duty, we are faced with questions of both law and policy. Pathways,

Inc. v. Hammons, 113 S.W.3d 85, 89 (Ky. 2003).

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 It is important to note that whether a duty of care exists is
a wholly different and distinct concept from whether a
standard of care, typically that of reasonable or ordinary
care, is met or satisfied. One is a purely legal question,
grounded in social policy, while the other is inherently
fact-intensive, grounded in common sense and conduct
acceptable to the particular community.

Shelton v. Kentucky Easter Seals Soc., Inc., 413 S.W.3d 901, 913-14 (Ky. 2013)

(citations omitted).

However, “proper application of negligence law requires courts to

view the facts as they reasonably appeared to the party charged with negligence.

We are not at liberty to impose liability based on hindsight.” Mitchell v. Hadl, 816

S.W.2d 183, 186 (Ky. 1991). “Foreseeable risks are determined in part on what

the defendant knew at the time of the alleged negligence.” Pathways, Inc., 113

S.W.3d at 90.

“In the context of real estate transactions, it is the general rule that

‘where no direct representation is made by the vendor concerning definite facts and

the purchaser has sufficient opportunity to observe the condition of the premises,

the maxim of caveat emptor is applicable[.]’” Waldridge v. Homeservices of

Kentucky, Inc., 384 S.W.3d 165, 171 (Ky.App. 2011) (quoting Fannon v. Carden,

240 S.W.2d 101, 103 (Ky. 1951)).

In Wilson v. Southland Optical Company, Inc., 774 S.W.2d 447

(Ky.App. 1988), the purchaser of a building and the tenants brought a negligence

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claim against the sellers of the property on the basis that the contractor who the

seller hired to install a new air conditioning unit, and who was not an electrician,

was negligent where he installed the new unit to the wiring connecting the old unit

to the building’s power, resulting in a short and a fire because the wiring to the

new unit was insufficient. One of the sellers testified that he assumed the

contractor, who was not an electrician but had held various jobs in electrical

maintenance, could properly install the unit. Id. at 448. The sellers appealed after

a trial in which they were found to be jointly and severally liable with the

contractor, arguing the doctrine of caveat emptor precluded their liability under

negligence.

The Court framed the issues as follows: “What is the liability of a

vendor of land to his purchaser and the purchaser’s tenants for losses resulting

from defects in the premises?” Id. The Court concluded that caveat emptor

precluded the claim, explaining that any liability would have to be predicated on

the failure to disclose a known dangerous condition under the RESTATEMENT

(SECOND) OF TORTS § 353 (1965), but the evidence was insufficient to support such

a claim. 774 S.W.2d at 228-49. We will discuss infra that section of the

RESTATEMENT (SECOND) OF TORTS as it relates to the claim of fraudulent omission.

Our sister courts have recognized that there is or may be an exception

for caveat emptor for “negligent construction” by a builder/seller of houses. See

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Cendant Mobility Financial Corp. v. Asuamah, 285 Ga. 818, 822, 684 S.E.2d 617,

620-21 (2009) (confirming there may be recovery for negligent construction, “by a

homeowner seeking recovery against the builder/seller of the home for latent

building construction defects”); Cochran v. Keeton, 47 Ala. App. 194, 200, 252 So.

2d 307, 312 (Civ. App. 1970) (noting a possible duty for negligent construction

where a builder/seller knew it had installed faulty wiring and had not yet corrected

it, but deciding the case on other grounds).

However, our sister courts have rejected there being an exception to

caveat emptor allowing negligence liability for a non-builder/seller. In Cendant

Mobility Financial Corporation, 285 Ga. at 822, 684 S.E.2d at 621, the Court

refused to extend the exception for a builder/seller to allow liability for a non-

builder/seller for a negligent repair which left water damage resulting in mold and

affirmed the granting of summary judgment to the non-builder/seller based on lack

of duty. Similarly, in Brennan v. Kunzle, 37 Kan. App. 2d 365, 390, 154 P.3d

1094, 1111 (2007), overruled on other grounds by Osterhaus v. Toth, 291 Kan.

759, 781-82, 249 P.3d 888, 903 (2011), the Court concluded that summary

judgment was properly granted on a negligence claim to non-builder/sellers of a

house (who had no expertise in the design, construction, or repair of homes and

were not in the business of construction or selling of homes) regarding ongoing

water infiltration issues because they did not construct the house and while they

-27-
had repairs made to the house, these were done through independent contractors

who apparently made improper or insufficient repairs.

Given the foregoing authority from our Courts and our sister courts,

we conclude that as a matter of law, Nationwide could not establish that the

Thompsons had any duty to protect the Fishers from the results of any negligence

in Clark’s rewiring of the bedrooms. Additionally, had there been a duty, no

breach of that duty occurred given the facts known at the time the rewiring took

place. It is inappropriate to look backward and infer duty and breach of that duty

on the part of the Thompsons from the fact that the fire took place.

B. FRAUDULENT OMISSION

While Nationwide has bandied about the terms fraud, fraudulent

misrepresentation, and fraudulent omission, its complaint and amended complaint

only raised a claim for fraudulent omission and the circuit court only addressed this

claim on that basis.

As explained in Giddings & Lewis, Inc. v. Industrial Risk Insurers,

348 S.W.3d 729, 747 (Ky. 2011):

[A] fraud by omission claim is grounded in a duty to
disclose. To prevail, a plaintiff must prove: (1) the
defendant had a duty to disclose the material fact at issue;
(2) the defendant failed to disclose the fact; (3) the
defendant’s failure to disclose the material fact induced
the plaintiff to act; and (4) the plaintiff suffered actual
damages as a consequence. The existence of a duty to
disclose is a matter of law for the court.

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(Citations and parenthetical omitted.)

Under Kentucky law, a duty to disclose may arise under the four

following circumstances:

(1) “from a confidential or fiduciary relationship,” (2)
where “provided by statute,” (3) “when a defendant has
partially disclosed material facts to the plaintiff but
created the impression of full disclosure,” and (4) “where
one party to a contract has superior knowledge and is
relied upon to disclose the same.”

Helm v. Ratterman, 778 Fed. App’x 359, 374 (6th Cir. 2019) (quoting Giddings &

Lewis, Inc., 348 S.W.3d at 747-48). Grounds three and four would be the basis for

a possible duty here.

Regarding incomplete disclosure:

Since the beginning of our jurisprudence, the principle
has been consistently adhered to that the concealment by
a seller of a material defect in property being sold, or the
suppression by him of the true conditions respecting the
property, so as to withhold from the buyer information he
is entitled to, violates good faith and constitutes
deception which may relieve the buyer from an
obligation or may permit him to maintain an action for
damages or to vacate the transaction.

Hall v. Carter, 324 S.W.2d 410, 412 (Ky. 1959). “The voluntary doing of an act

which necessarily results in injury to another, where the party knows the facts and

had reason to know that the injury will result, will sustain an action for fraud.”

Weikel v. Sterns, 142 Ky. 513, 134 S.W. 908, 909 (1911).

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 Caveat emptor “does not exonerate the seller from liability for

common law fraud.” Waldridge, 384 S.W.3d at 171.

In the sale of real estate the intentional suppression
of facts known to the seller and unknown to the
purchaser is ground for an action for deceit if the
purchaser was damaged by reason of the fraudulent
concealment. Where there is a latent defect known to the
seller and he remains silent with the knowledge that the
buyer is acting on the assumption that no defect exists,
the buyer has a cause of action against the seller for an
intentional omission to disclose such latent defect.
However, mere silence does not constitute fraud where it
relates to facts open to common observation or
discoverable by the exercise of ordinary diligence, or
where means of information are as accessible to one
party as to the other.

Bryant v. Troutman, 287 S.W.2d 918, 920-21 (Ky. 1956) (citations omitted). See

Waldridge, 384 S.W.3d at 173-74 (“hold[ing] that a seller’s real estate agent owes

a duty to a buyer to not commit fraud by either misrepresenting a material fact or

failing to disclose a material fact of which they have actual knowledge and of

which the buyer is unaware[,]” thus subjecting them to potential liability for

“common law fraud.”); 6A AMERICAN LAW OF TORTS § 18:206 Houses; generally

(footnotes omitted) (emphasis added) (noting “[t]he ordinary seller or vendor or

grantor of an existing and ‘used’ or ‘secondhand’ house or similar structure is

usually held not liable [for defects in the house]” unless the “vendor fails to

disclose a dangerous condition known to the vendor where he or she also should

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have realized that the vendee did not know about and probably would not discover

it.”).

Similarly, this tracks with relevant sections of the RESTATEMENT

(SECOND) OF TORTS, as discussed in Wilson, 774 S.W.2d at 449, regarding the

failure to disclose dangerous conditions:

§ 352. DANGEROUS CONDITIONS EXISTING AT
TIME VENDOR TRANSFERS POSSESSION

Except as stated in § 353, a vendor of land is not subject
to liability for physical harm caused to his vendee or
others while upon the land after the vendee has taken
possession by any dangerous condition, whether natural
or artificial, which existed at the time that the vendee
took possession.

§ 353. UNDISCLOSED DANGEROUS CONDITIONS
KNOWN TO VENDOR

(1) A vendor of land who conceals or fails to disclose to
his vendee any condition, whether natural or artificial,
which involves unreasonable risk to persons on the
land, is subject to liability to the vendee and others
upon the land with the consent of the vendee or his
subvendee for physical harm caused by the condition
after the vendee has taken possession, if

(a) the vendee does not know or have reason to know
of the condition or the risk involved, and

(b) the vendor knows or has reason to know of the
condition, and realizes or should realize the risk
involved, and has reason to believe that the vendee
will not discover the condition or realize the risk.
....

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 As explained in Wilson, any liability of the vendors must come under

Section 353:

The fact is, after sale and delivery of possession of the
land in question, it became of no consequence that a
dangerous condition (if any there was) existing thereon at
the time of the transaction was natural or unnatural, or
that it was created by an intentional or unintentional act,
or that it originated by the act of the [vendors], their
agent, or an independent contractor. . . .

. . . [T]he ultimate issue as to the [vendors’] liability is
whether or not they, at the time of selling the property,
knew or should have known of a dangerous condition
that might lead to fire and of which the purchaser and
tenants would not reasonably have been expected to
appreciate.

Wilson, 774 S.W.2d at 449. The Court concluded that the vendor who hired a non-

electrician contractor to install an air conditioner, believing the contractor could do

the job, where the vendor did not know the air conditioner had been installed

incorrectly, should have been granted summary judgment. Id.

Under the common law, a condition need not be dangerous to require

disclosure if it diminishes the value of the home sold and cannot be discovered by

potential sellers. Therefore, in Weikel, 134 S.W. at 909, the Court ruled the seller

committed fraud where the seller sold a house with a concealed sewage pit beneath

it. Although the seller claimed ignorance that the location of the sewage would

render the house unfit for occupation, the Court ruled that the seller “knew enough

facts to put a reasonable man on notice, and when he sold an innocent purchaser

-32-
the house, causing him a loss by reason of the concealment of the facts, the loss

should fall on him, and not on the purchaser.” Id.

Similarly in Kaze v. Compton, 283 S.W.2d 204, 208 (Ky. 1955),

where there was evidence that the sellers knowingly built and sold a house over a

concealed drainage tile which caused water to bubble up from the ground under the

house after the rain, “the condition was substantial or vital enough to place a duty

upon the vendors to disclose it.”

In contrast, if the sellers do not know of the defect and simply give an

opinion rather than a misrepresentation of a material fact, they cannot be liable.

Church v. Eastham, 331 S.W.2d 718, 719 (Ky. 1960); Bunch v. Bertram, 219 Ky.

848, 294 S.W. 805, 808 (1927). Therefore, when the evidence was that the sellers

had the plumbing installed by a contractor and the sellers did not know of the

plumbing problems that the bathtub, commode, wash basin, and kitchen sink were

all unvented and the sewer pipe improperly installed, but had made the statement

that the house had “good plumbing,” that was a matter of opinion rather than a

representation. Church, 331 S.W.2d at 719.

Unlike the situations in Weikel and Kaze, there is absolutely no

evidence that the Thompsons had any knowledge that there was a defect, latent or

otherwise, in the electrical wiring as corrected by Clark. Nationwide is evaluating

the duty of the Thompsons based on hindsight, knowing that a fire occurred which

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was traced to a faulty wiring connection. While with hindsight the Thompson

Trust’s action of hiring Clark to rewire the bedrooms may appear to be ill-advised,

not all ill-advised actions result in legal liability. The fact that a fire occurred does

not necessarily mean that the Thompsons concealed a defective condition and

omitted making needed disclosures.

This situation is distinct from those in which fraud has been found,

because just like the vendors in Wilson, there is absolutely no evidence that any of

the Thompsons knew that the repair was dangerous. All the evidence is that

Brandon, acting on behalf of Jean, helped arrange for a repair in an effort to make

the wiring of the house safer and work better. Brandon testified during his

deposition that his mother decided to have the electrical work done to the attic

because the existing “wiring was old” and “there was one area that had some

exposed connections.”8 According to Brandon, Jean hired Clark to rewire the

8
Brandon’s relevant deposition testimony was as follows:

Q. Briefly, what was the reason to do any electrical
work inside?

A. Just the nature of the age of the home, and some of
the electrical work that was – was existing appeared to be not up to
what I would consider code, not that I know the electrical code, but

Q. But as far as what you could see, what was
wrong with it?

A. Some of the wiring was just old. There was – there
was one area that had some exposed connections.

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bedrooms after Clark volunteered that he could do the repairs and Brandon and

Jean had some basis for thinking Clark could do the repairs as he had repaired

other things for them before. Additionally, Brandon knew that Clark worked for a

company that made electrical wiring harnesses for automobiles, the implication

being that Clark had at least some knowledge about electrical wiring.

Nationwide failed to present any evidence that Brandon or Jean had

any reason to believe the replaced wiring was improperly connected to the existing

wiring, had any motivation to have the bedrooms rewired in an unsafe manner, or

that they experienced any problems with the new wiring after it was installed to put

Q. Was the decision made to just redo it all because
you could see some areas that were wrong?

A. That was – the original decision was to do it that
way, and then what was actually done was just a portion of the
home.

...

Q. So you’re saying in your opinion, you thought
that electrical wiring, existing electrical components that you
could see within the house, looked like they needed repairs?

A. There was – there was one area that – that had, you
know, wires that looked like they were possibly loose.

Q. Okay. Would you agree that improper or
deteriorating electrical work would be a safety hazard?

A. Yes . . . I think the rest of the home was just fine.
The house, you know, it didn’t have any electrical – it didn’t have
any actual electrical problems. It didn’t have any – any sparks;
there was no fluttering or anything like that. Just one area that
went – the two rooms upstairs were being repaired and remodeled.

-35-
them on notice of a potential defect. Generally, if something works correctly after

it is repaired, the assumption is that it has been done correctly. Additionally, Jean

continued to reside in the house after the wiring repairs, which is some evidence

she must have believed the new wiring to be safe.

Simply put, the Thompsons had no basis for knowing that the wiring

was connected incorrectly; the only evidence is that they believed the new wiring

to be superior to what it replaced and made the home safer. Lacking all knowledge

of a latent defect, the Thompsons could not fraudulently omit what appeared to be

an immaterial fact at the time – who replaced the wiring and his professional

qualifications or lack thereof. They certainly had no basis for disclosing anything

about a wiring defect that they themselves did not know existed. Therefore, there

was no duty to tell the Fishers anything about who rewired the house or that the

rewiring was defective. Therefore, summary judgment was properly granted to the

Thompsons.

CONCLUSION

Accordingly, we affirm the Cumberland Circuit Court’s grant of

summary judgment to Messenger and the Thompsons.

ALL CONCUR.

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BRIEFS FOR APPELLANT: BRIEF FOR APPELLEES
BRANDON DAY THOMPSON;
Donald J. Hass NICOLE VIVETTE THOMPSON;
Louisville, Kentucky JEAN THOMPSON; THE
BRANDON DAY THOMPSON AND
NICOLE VIVETTE THOMPSON
JOINT LIVING TRUST; AND THE
THOMPSON TRUST:

John C. Miller
Campbellsville, Kentucky

BRIEF FOR APPELLEE
EMORY MESSENGER:

Patrick A. Ross
Horse Cave, Kentucky

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