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Cole v. Fagin

Court of Appeals of Kentucky

April 19, 2013

SUSAN COLE, APPELLANT
v.
KEVIN FAGIN and GRANGE MUTUAL CASUALTY COMPANY, APPELLEES

APPEAL FROM MADISON CIRCUIT COURT. HONORABLE JEAN C. LOGUE, JUDGE. ACTION NO. 11-CI-01501.

REVERSING

BRIEF FOR APPELLANT: Kyle B. McKenzie, Hamilton, Ohio.

BRIEF FOR APPELLEE, GRANGE MUTUAL CASUALTY COMPANY: Whitney Dunlap III, Richmond, Kentucky.

BRIEF FOR APPELLEE, KEVIN FAGIN: Perry M. Bentley, Carl N. Frazier, Lexington, Kentucky.

BEFORE: MOORE, NICKELL, AND TAYLOR. ALL CONCUR.

OPINION

MOORE, JUDGE:

Susan Cole appeals from the Madison Circuit Court's summary judgment in favor of Appellees, Kevin Fagin and Grange Mutual Casualty Company, which it entered on the basis of the statute of limitations. Upon review, we reverse.

FACTUAL AND PROCEDURAL HISTORY

Susan Cole carries a policy of insurance with Grange; among other things, her policy includes $5,000 in Med Pay, $10,000 in Basic Reparations Benefits (BRB), and

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components of underinsured and uninsured motorist coverages. On July 1, 2009, Cole was injured in an automobile accident with Kevin Fagin. Cole incurred medical expenses after her resulting injuries were treated at St. Joseph Hospital-Berea. In response to Cole's accident and resulting injuries, Grange's adjuster mailed Cole an application for BRB on July 2, 2009.

Nothing in Cole's policy with Grange indicates any priority of payment between Cole's Med Pay and BRB coverages. As Grange represents in its brief, however, its adjuster later " analyzed the situation and realized that Grange could best serve [Cole] by marshaling the two coverages that [Cole] had available," i.e., Med Pay and BRB. On July 9, 2009, Grange's adjuster then sent a letter to Cole's attorney stating in relevant part:

Insured:

Susan L. Cole

Claim Number:

APV963781CJT

Date of Loss:

7/01/2009

Your Client:

Susan Cole


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