RENDERED: JANUARY 13, 2023; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2021-CA-1310-MR
PIERETTE THOMPSON APPELLANT
APPEAL FROM MARTIN CIRCUIT COURT
v. HONORABLE JOHN DAVID PRESTON, JUDGE
ACTION NO. 20-CI-00071
STATE FARM MUTUAL
AUTOMOBILE INSURANCE
COMPANY APPELLEE
OPINION
AFFIRMING
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BEFORE: CALDWELL, DIXON, AND TAYLOR, JUDGES.
DIXON, JUDGE: Pierette Thompson appeals from the order granting State Farm
Mutual Automobile Insurance Company (State Farm) summary judgment, entered
on October 7, 2021, by the Martin Circuit Court. Following a careful review of the
record, briefs, and law, we affirm.
BACKGROUND FACTS AND PROCEDURAL HISTORY
On November 30, 2018, Thompson paid Earnest Dingess, Sr., to give
her a ride to a local Cash Express. Thompson alleges that while they were in
Dingess’s car in the parking lot, another vehicle ran into them. She claims Dingess
exited his vehicle and spoke with the other driver but let the driver leave without
obtaining any personal information. No police report was filed.
On January 26, 2019, Thompson contacted Dingess’s insurance
company, State Farm, seeking uninsured motorist benefits. When State Farm
questioned Dingess about the incident, he admitted he drove Thompson to Cash
Express but denied having an automobile accident. Because no police report was
filed and State Farm was not notified about an accident within 30 days as required
by the policy, State Farm denied coverage.
Thompson eventually sued Dingess, State Farm, and an unknown
defendant – the other driver. Both Dingess and State Farm moved the trial court
for summary judgment, which was granted. This appeal followed.
STANDARD OF REVIEW
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
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that the moving party is entitled to a judgment as a matter of law.” CR1 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, Thompson asserts the trial court erred in dismissing her
claims against State Farm. She argues State Farm’s 30-day notification
requirement impermissibly shortens the statute of limitations for making an
uninsured motorist claim, citing Elkins v. Kentucky Farm Bureau Mutual
Insurance Company, 844 S.W.2d 423 (Ky. App. 1992), in which a one-year
limitation for filing suit was held unreasonable. However, the case herein differs
factually and legally from Elkins, including the fact this case arises from an alleged
hit-and-run accident.
Under KRS2 304.20-020(2), an “uninsured motor vehicle” includes:
1
Kentucky Rules of Civil Procedure.
2
Kentucky Revised Statutes.
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an insured motor vehicle where the liability insurer
thereof is unable to make payment with respect to the
legal liability of its insured within the limits specified
therein because of insolvency; an insured motor vehicle
with respect to which the amounts provided, under the
bodily injury liability bond or insurance policy applicable
at the time of the accident with respect to any person or
organization legally responsible for the use of such motor
vehicle, are less than the limits described in KRS 304.39-
110; and an insured motor vehicle to the extent that the
amounts provided in the liability coverage applicable at
the time of the accident is denied by the insurer writing
the same.
This definition “does not provide that a motor vehicle will be considered uninsured
when the driver flees the scene and cannot be identified. If the legislature had
intended to include ‘hit and run’ vehicles within the mandated coverage, it could
have done so.” Huelsman v. Nat’l Emblem Ins. Co., 551 S.W.2d 579, 580 (Ky.
App. 1977). It did not, nor may we do so on its behalf.
Shortly after the passage of Kentucky’s Motor Vehicle Reparations
Act, it was established by the Supreme Court of Kentucky that although insurers
are required by KRS 304.20-020 to provide uninsured motorist coverage, “there is
no requirement that coverage against loss caused by hit-and-run vehicles be
afforded.” Jett v. Doe, 551 S.W.2d 221, 222-23 (Ky. 1977). It further held:
the statute recognizes by its language “subject to the
terms and conditions of such coverage” contained in
subsection (2), that insurers may insert restrictions in
their policies’ provisions defining what is an “uninsured
motor vehicle.” The matter herein is thus a purely
contractual issue between the insurer and its insured
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which we cannot disturb. By issuing an automobile
liability policy providing for uninsured motorist coverage
in hit-and-run cases, even though such coverage be
subject to the restriction under consideration here, the
insurer is providing coverage greater than that required
by KRS 304.20-020. The insurer, in affording this
additional coverage, has the right to require whatever
conditions precedent to such protection as it sees fit,
and once such a condition is clearly expressed in the
policy and agreed upon by the parties, the courts
must give it full force and effect and abstain from
making a new or different contract under the guise of
interpretation at the instance of a disappointed party.
[Mullins v. Nat’l Cas. Co.,] 273 Ky. 686, 117 S.W.2d
928 (1938). In bringing a claim under the hit-and-run
provision here, it was incumbent upon the insured to
bring herself within its requirements. This the appellant
admits she has not done. We therefore must conclude
there to have been no error in the circuit court’s judgment
denying coverage.
Id. at 223 (emphasis added).
Turning to the case herein, there is no dispute that even if there was an
accident, it was a hit-and-run. Accordingly, compliance with the terms of the
policy was mandatory for coverage, and any failure to do so forfeited said
coverage. Thompson’s contention that she should not be held to the terms of the
policy is nonsensical because a second-class insured3 is not afforded greater rights
3
Ordinarily, there are two classes of insureds. The first class generally consists of “the named
insured, the insured who bought and paid for the protection and who has a statutory right to
reject uninsured motorist coverage, and the members of his family residing in the same
household.” Ohio Cas. Ins. Co. v. Stanfield, 581 S.W.2d 555, 557 (Ky. 1979). The second class
is normally comprised of others in the vehicle at the time of the accident. While the protection
afforded to the first class is typically broad, that of the second class can be more limited.
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and coverage than a first-class insured who procured and paid premiums for said
coverage. Thus, the trial court did not err in dismissing Thompson’s claims against
State Farm.
CONCLUSION
Therefore, and for the foregoing reasons, the order entered by the
Martin Circuit Court is AFFIRMED.
ALL CONCUR.
BRIEF FOR APPELLANT: BRIEF FOR APPELLEE:
Travis O. Terry Darrin W. Banks
Hindman, Kentucky John V. Porter
Cameron D. Allen
Paintsville, Kentucky
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