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Shaheen v. Progressive Cas. Ins. Co.

United States District Court, W.D. Kentucky, Paducah Division

July 13, 2015

JOSEPH SHAHEEN, Ancillary Administrator of the Estate of Nadia Shaheen, deceased, Plaintiff
v.
PROGRESSIVE CASUALTY INSURANCE COMPANY, Defendant

Decided July 10, 2015.

Page 445

For Joseph Shaheen, Ancillary Administrator of the Estate of Nadia Shaheen, deceased, Plaintiff: Jonathan Freed, LEAD ATTORNEY, Bradley, Freed, and Grumley PSC, Paducah, KY; Ricky A. Lamkin, LEAD ATTORNEY, Murray, KY; Shereef Akeel, LEAD ATTORNEY, Akeel & Valentine, Troy, MI.

For Progressive Casualty Insurance Company, Defendant: Christopher M. Mussler, Lindsay M. Gray, LEAD ATTORNEYS, Gwin, Steinmetz & Baird, PLLC, Louisville, KY.

Page 446

MEMORANDUM OPINION AND ORDER

Thomas B. Russell, Senior United States District Judge.

This matter comes before the Court upon Defendant's Motion for Summary Judgment (DN 67). Plaintiff has responded (DN 69), and Defendant has replied (DN 74). This matter is now ripe for adjudication. For the reasons that follow, Defendant's Motion is GRANTED.

BACKGROUND

This is an action for the recovery of insurance proceeds under the Kentucky Unfair Claims Settlement Practices Act (" KUCSPA" ), KRS 304.12-230. Defendant Progressive Casualty Insurance Company provided coverage for a vehicle insured by Bret and Janice Yonts and provided to their son, Burgess Harrison Yonts (" Yonts" ). In the early morning hours of November 11, 2005, Yonts struck decedent Nadia Shaheen with his vehicle as she was walking home from the computer lab at Murray State University. Yonts was intoxicated. He left the scene and attempted to conceal his wrongful acts. Nadia Shaheen's body was discovered several hours later.

On February 1, 2007, Yonts was convicted of wanton murder, tampering with physical evidence, driving under the influence, and leaving the scene of an accident. He was sentenced to twenty years in prison on April 9, 2007. His conviction became final after he dropped his appeal and executed an affidavit accepting responsibility for Shaheen's death.

On October 17, 2006, Plaintiff filed suit against Yonts, Yonts' fraternity, individual fraternity members, and a bar that Yonts visited, for recovery of compensatory and punitive damages. The suit alleged wrongful death, and dram shop and negligence theories.

Plaintiff demanded the prompt and unconditional payment of $250,000 from Progressive on March 20, 2007. On April 18, 2007, Progressive, through Yonts's counsel, offered to pay the $250,000 liability policy limit, conditioned upon the release of all claims against Yonts and dismissal of the suit. (Docket No. 67-2) (" In exchange, my client will receive a Release Agreement

Page 447

with hold harmless and indemnification language and an Agreed Order of Dismissal with prejudice." ). On April 27, 2007, Plaintiff responded that only an unconditional payment of the liability policy limit without releasing the claims against Yonts or Plaintiff's rights to recover all damages assessed against Yonts was acceptable. Progressive " recognized a release was problematic for Plaintiff because it could prejudice his claims against the other defendants, including his dram shop claims." (Docket No. 67).

Summary judgment was granted in favor of the fraternity defendants in early 2009, and the dram shop claim was settled in March of 2009. Trial was to proceed against the only remaining Defendant, Yonts. Plaintiff then made a settlement proposal that included a specific demand for payment of personal funds by the Yonts family. It also included a covenant not to execute/collect, providing that Yonts would submit an offer of judgment in the amount of $1.5 million dollars, Progressive would pay the $250,000 liability limit and Yonts' parents would pay $100,000, and if Yonts completed additional conditions including advocacy against alcohol related perils, the remainder of the judgment would not be executed upon or collected. A draft offer dated April 28, 2009 was eventually accepted and became the agreement that ended the underlying litigation.

Plaintiff now seeks damages from Progressive for violating the KUCSPA. Plaintiff alleges that Progressive violated the act by not responding to his April 27, 2007 demand and by refusing ...


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