RENDERED: JULY 22, 2022; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2021-CA-1135-MR
ESTATE OF CHARLES G. HOWARD;
TAMARA HOWARD; AND TAMARA
HOWARD, EXECUTRIX APPELLANTS
APPEAL FROM GREENUP CIRCUIT COURT
v. HONORABLE BRIAN CHRISTOPHER MCCLOUD, JUDGE
ACTION NO. 21-CI-00187
STATE FARM INSURANCE; ESTATE
OF REES A. JUSTICE; AND
STANDARD FIRE INSURANCE CO.
D/B/A TRAVELERS INSURANCE APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE: DIXON, MCNEILL, AND TAYLOR, JUDGES.
DIXON, JUDGE: The Estate of Charles G. Howard (“Howard Estate”) and
Tamara Howard, individually and as executrix of the Howard Estate, appeal from
the orders and judgments entered by the Greenup Circuit Court on August 25,
2021, and September 9, 2021, dismissing their complaint against State Farm
Insurance (“State Farm”), the Estate of Rees A. Justice (“Justice Estate”), and
Standard Fire Insurance Co. d/b/a Travelers Insurance (“Travelers”). Following a
careful review of the record, briefs, and law, we affirm.
BACKGROUND FACTS AND PROCEDURAL HISTORY
On April 22, 2019, Charles Howard’s southbound vehicle entered the
northbound lane of US 23 and collided head-on with Rees Justice’s vehicle, killing
both Charles and Rees. The accident was investigated by the Raceland Police
Department, whose report states, “THE COLLISION WAS PRIMARILY
CAUSED BY [CHARLES] BEING IN THE WRONG SIDE OF THE ROAD.”
The report also stated that other contributing factors were: Charles had a blood
alcohol content of 0.061, Rees was positive for THC, and Rees was traveling 65
miles per hour (mph) in an area with a posted speed limit of 55 mph.
Tamara Howard was appointed executrix of the Howard Estate on
June 10, 2019. Mark Justice, Rees’ father, was also appointed executor of the
Justice Estate in June 2019.
On April 21, 2021, Appellants sued State Farm, Rees’ insurer;
Travelers, Charles’ insurer; and the Justice Estate. The complaint alleges wrongful
death and loss of consortium against the Justice Estate, while admitting “the
primary cause of the collision was due to [Charles’] vehicle driven South on the
Northbound lane.” It also avers that the police report “concludes several other
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factors contributing to the collision stem from [Rees’] actions and inactions
contributing to this unfortunate collision.” The complaint further asserts State
Farm violated the Kentucky Unfair Claims Settlement Practices Act (“KUCSPA”)1
and the Kentucky Consumer Protection Act (“KCPA”).2 Travelers was a
defendant by virtue of Charles’ policy, which provided no fault and underinsured
coverage.
After each of the defendants answered, Appellants responded to
requests for admission. Appellants admitted “the proximate or primary cause of
the collision was [Charles’] driving of vehicle south in the northbound lane”;
however, they also pointed out the contributing factors noted in the police report.
Subsequently, each defendant moved the trial court to dismiss the
claims against them. The Justice Estate contended the complaint was not filed
within the one-year statute of limitations for wrongful death actions, or within six
months after the appointment of the personal representative of the Justice Estate.
Alternatively, the Justice Estate moved to dismiss the complaint for failure to state
a claim. Travelers and State Farm also argued the complaint was not filed within
the statute of limitations for wrongful death actions. State Farm further claimed
Appellants’ admission that Charles was the primary cause of the accident
1
Kentucky Revised Statutes (“KRS”) 304.12-230 and KRS 304.12-235.
2
KRS Chapter 367 et seq.
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precluded liability against the Justice Estate from being “beyond dispute” – a
requirement to plead and sustain an insurance bad faith claim against State Farm.
On August 25, 2021, the trial court granted the motions to dismiss the
complaint as untimely under the one-year statute of limitations provided in KRS
304.39-230(2) and 413.180(1). Appellants moved the trial court for
reconsideration and to alter, amend, or vacate that order, asserting the applicable
statute of limitations is two years under KRS 304.39-230(6) of Kentucky’s Motor
Vehicle Reparations Act (“MVRA”).3 On September 9, 2021, the trial court
entered two orders denying Appellants’ motions, but amending its August 25,
2021, order to include its rationale for dismissing Appellants’ bad faith claims
against State Farm. This appeal followed.
STANDARD OF REVIEW
The standard of review of a ruling on a motion for judgment on the
pleadings is well established:
Kentucky’s “Civil Rule [(“CR”)] 12.03 provides that any
party to a lawsuit may move for a judgment on the
pleadings.” [City of Pioneer Vill. v. Bullitt Cty., 104
S.W.3d 757, 759 (Ky. 2003)]. A judgment on the
pleadings “should be granted if it appears beyond doubt
that the nonmoving party cannot prove any set of facts
that would entitle him/her to relief.” Id. “[T]he circuit
court is not required to make any factual determination;
rather, the question is purely a matter of law.” James v.
Wilson, 95 S.W.3d 875, 883-84 (Ky. App. 2002).
3
KRS 304.39-010 et seq.
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Further, CR 12.03 may be treated as a motion for
summary judgment. Schultz v. Gen. Elec. Healthcare
Fin. Servs., Inc., 360 S.W.3d 171, 177 (Ky. 2012). We
review a judgment on the pleadings de novo. Id.
Scott v. Forcht Bank, NA, 521 S.W.3d 591, 594 (Ky. App. 2017).
Summary judgment is appropriate “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.” CR 56.03. An
appellate court’s role in reviewing a summary judgment is to determine whether
the trial court erred in finding no genuine issue of material fact exists and the
moving party was entitled to judgment as a matter of law. Scifres v. Kraft, 916
S.W.2d 779, 781 (Ky. App. 1996). A grant of summary judgment is reviewed de
novo because factual findings are not at issue. Pinkston v. Audubon Area Cmty.
Servs., Inc., 210 S.W.3d 188, 189 (Ky. App. 2006) (citing Blevins v. Moran, 12
S.W.3d 698 (Ky. App. 2000)).
ANALYSIS
On appeal, Appellants raise several arguments. We will address each
in turn.
Loss of Consortium Claims
Appellants first argue the trial court violated Tamara’s rights to her
day in court. However, loss of consortium claims are subject to the one-year
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statute of limitations under KRS 413.140(1)(a). “Loss of consortium is not a
recoverable injury within the purview of the MVRA.” Floyd v. Gray, 657 S.W.2d
936, 938 (Ky. 1983). Because the case herein was not filed until nearly two years
after the accident, Tamara’s claims for loss of consortium were filed well beyond
the applicable statute of limitations and were, therefore, time-barred.
Wrongful Death Claims
a. MVRA provides the proper statute of limitations
Appellants also contend the trial court erred in ruling their claims
were barred by the one-year statute of limitations provided by the wrongful death
statute and KRS 304.39-230(2). Instead, they argue the trial court should have
applied the two-year statute of limitations found in KRS 304.39-230(6). We agree.
As stated by another panel of our court:
Wrongful death claims are generally covered under the
one-year period of limitations set forth in KRS
413.180(1) and personal injury claims are generally
covered under the one-year limitations period set forth in
KRS 413.140(1)(a). However, in a case where the
MVRA is applicable, a longer two-year period of
limitations will apply. [Worldwide Equip., Inc. v.
Mullins, 11 S.W.3d 50, 59 (Ky. App. 1999).] Indeed,
[o]ur rules of statutory construction are that a
special statute preempts a general statute, that a
later statute is given effect over an earlier statute,
and that because statutes of limitation are in
derogation of a presumptively valid claim, a longer
period of limitations should prevail where two
statutes are arguably applicable.
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Id., quoting Troxell v. Trammell, 730 S.W.2d 525, 528
(Ky. 1987).
Hammers v. Plunk, 374 S.W.3d 324, 331 (Ky. App. 2011). Here, the death was
caused by a motor vehicle accident and, consequently, falls under the MVRA.
Thus, the two-year statute of limitations applies. As a result, the portions of the
complaint pertaining to wrongful death were filed within the applicable two-year
statute of limitations and, consequently, were not time-barred. Nonetheless, the
claims were still properly dismissed for the reasons that follow.
b. Comparative negligence
Appellants maintain their complaint should not have been dismissed
under Hilen v. Hays, 673 S.W.2d 713 (Ky. 1984). In Hilen, we adopted the
principle of comparative negligence, stating:
Henceforth, where contributory negligence has
previously been a complete defense, it is supplanted by
the doctrine of comparative negligence. In such cases
contributory negligence will not bar recovery but shall
reduce the total amount of the award in the proportion
that the claimant’s contributory negligence bears to the
total negligence that caused the damages. The trier of
fact must consider both negligence and causation in
arriving at the proportion that negligence and causation
attributable to the claimant bears to the total negligence
that was a substantial factor in causing the damages.
Id. at 720 (emphasis added).
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The Supreme Court of Kentucky has expounded on Hilen’s effect
stating:
Under both comparative negligence and
contributory negligence principles, a judgment of liability
is based on the answers to two questions. First, who was
at fault? Second, upon what basis will the damages be
allocated among those parties found to be at fault?
Under comparative negligence, the determination
of who was at fault follows exactly the same path as it
did under contributory negligence. The question of
fault has always been answered by determining
whether the party breached an applicable duty and
whether the breach was a substantial factor in
causing the injury claimed.
What comparative negligence changed was the
way we allocate, or apportion, fault. Under contributory
negligence, if the plaintiff was to any degree at fault for
his injury, all the damage was allocated to him, and he
could recover nothing from the defendant, regardless of
the defendant’s degree of culpability. Under comparative
negligence, the finder of fact allocates to each party a
percentage of the total fault, and hence a percentage of
the damages, based upon that party’s conduct and the
relationship of that conduct to the injury.
Henson v. Klein, 319 S.W.3d 413, 422 (Ky. 2010) (emphasis added).
“It is well-established that to establish liability for negligence the
plaintiff must prove: (1) a duty; (2) a breach of that duty; (3) which was the
proximate cause of an injury; and (4) which resulted in damages. All of these
elements are essential to a valid claim.” Reece v. Dixie Warehouse & Cartage Co.,
188 S.W.3d 440, 445 n.6 (Ky. App. 2006) (emphasis added).
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In the case herein, Rees had a general duty to obey the rules of the
road. The police report indicates he breached two such duties by testing positive
for THC and exceeding the speed limit. However, no proof has been presented
that these contributing factors were a substantial factor or the proximate cause of
Charles’ death. In fact, all the evidence regarding the cause of Charles’ death
points to Charles alone.4 Accordingly, we cannot say the trial court erred in
dismissing the wrongful death claim on those grounds.
We may affirm a lower court on any grounds supported by the record.
Commonwealth v. Mitchell, 610 S.W.3d 263, 271 (Ky. 2020). (“If an appellate
court is aware of a reason to affirm the lower court’s decision, it must do so, even
if on different grounds.” Mark D. Dean, P.S.C. v. Commonwealth Bank & Tr. Co.,
434 S.W.3d 489, 496 (Ky. 2014).) Therefore, we must conclude that the trial court
properly dismissed these claims.
Bad Faith Claims
Appellants also claim the trial court erred in dismissing their
complaint against State Farm and Travelers without discovery or proof. It is well-
established “summary judgment is only proper after a party has been given ample
opportunity to complete discovery, and then fails to offer controverting
4
The record includes an affidavit of Raceland Police Department Chief Don Sammons
testifying “to a reasonable degree of probability that the proximate cause of this accident was the
negligence and actions of [Charles].”
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evidence.” Pendleton Bros. Vending, Inc. v. Commonwealth Fin. & Admin.
Cabinet, 758 S.W.2d 24, 29 (Ky. 1988) (emphasis added) (citing Hartford Ins.
Grp. v. Citizens Fid. Bank & Tr. Co., 579 S.W.2d 628 (Ky. App. 1979)). Yet, it is
“not necessary to show that the respondent has actually completed discovery, but
only that respondent has had an opportunity to do so.” Hartford, 579 S.W.2d at
630.
In Hartford, a period of approximately six months between the filing
of the complaint and the summary judgment was found to be sufficient time to
conduct discovery. However, this is not a bright-line rule, and the appropriate time
for discovery necessarily varies from case to case depending on the complexity,
availability of information sought, and the like. See Suter v. Mazyck, 226 S.W.3d
837, 842 (Ky. App. 2007).
Here, more than four months elapsed between the filing of the
complaint and the dismissal. This is not a complicated part of the case, nor does it
appear that any relevant information sought has been withheld. Thus, we cannot
say the trial court’s grant of summary judgment was premature.
Furthermore, in bad faith actions, the Supreme Court of Kentucky has
held:
We start with the proposition that there is no such
thing as a “technical violation” of the UCSPA, at least in
the sense of establishing a private cause of action for
tortious misconduct justifying a claim of bad faith:
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“[A]n insured must prove three elements in order
to prevail against an insurance company for
alleged refusal in bad faith to pay the insured’s
claim: (1) the insurer must be obligated to pay the
claim under the terms of the policy; (2) the insurer
must lack a reasonable basis in law or fact for
denying the claim; and (3) it must be shown that
the insurer either knew there was no reasonable
basis for denying the claim or acted with reckless
disregard for whether such a basis existed. . . .
[A]n insurer is . . . entitled to challenge a claim and
litigate it if the claim is debatable on the law or the
facts.”
This is a quote from Leibson, J., in dissent, in
[Fed. Kemper Ins. Co. v. Hornback, 711 S.W.2d 844,
846-47 (Ky. 1986)], stating views which were
incorporated by reference in this Court’s Majority
Opinion in Curry v. Fireman’s Fund [Ins. Co., 784
S.W.2d 176, 178 (Ky. 1989)]. It applies to a claim of bad
faith made by an insured against his own insurer, and a
fortiori to a third-party’s claim of bad faith against an
insurance company.
Wittmer v. Jones, 864 S.W.2d 885, 890 (Ky. 1993). The court has further
elucidated that this means “when an insured’s liability is unclear, bad-faith claims
fail as a matter of law because the insurer has a reasonable basis for challenging
the claim.” Mosley v. Arch Specialty Ins. Co., 626 S.W.3d 579, 586 (Ky. 2021)
(emphasis added). Since there is no clear liability against the Justice Estate,
Appellants’ claims against State Farm and Travelers for bad faith fail as a matter of
law.
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CONCLUSION
Therefore, and for the foregoing reasons, the orders entered by the
Greenup Circuit Court are AFFIRMED.
ALL CONCUR.
BRIEFS FOR APPELLANTS: BRIEF FOR APPELLEE STATE
FARM INSURANCE:
Dwight O. Bailey
Flatwoods, Kentucky Darrin W. Banks
Paintsville, Kentucky
BRIEF FOR APPELLEE
STANDARD FIRE INSURANCE
CO. D/B/A TRAVELERS
INSURANCE:
Michael P. Casey
Emily S. Payne
Lexington, Kentucky
BRIEF FOR APPELLEE ESTATE OF
REES A. JUSTICE:
Robert B. Cetrulo
Edgewood, Kentucky
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