FROM JEFFERSON CIRCUIT COURT HONORABLE JAMES M. SHAKE, JUDGE
ACTION NO. 15-CI-000512
FOR APPELLANT: William D. Nefzger M. Catherine Halloran
FOR APPELLEE: Charles A. Walker Louisville, Kentucky
BEFORE: DIXON, JOHNSON, AND NICKELL, JUDGES.
Andrews appeals from a Jefferson Circuit Court order granting
Travelers Indemnity's (Travelers) motion for summary
judgment. The trial court found basic reparation benefits
(BRB) were not overdue and denied Andrews relief
under KRS 304.39-210(1)-(2) and 304.39-220(1).
Following a careful review, we discern no error and affirm.
case arises from an underlying motor vehicle accident (MVA)
which occurred on July 22, 2014. Andrews was a passenger in
an uninsured vehicle involved in the accident. Andrews
applied for BRB through the Kentucky Assigned Claims Plan
(KACP) on August 11, 2014. Her claim was assigned to
Travelers on September 5, 2014.
bills exceeding $10, 000 were submitted to Travelers in
September 2014. Andrews also claimed lost wages and
submitted wage and salary verification to Travelers on
October 31, 2014. On November 4, 2014, Andrews sent a letter
to Travelers reserving the right to direct BRB payments and
requesting Travelers to contact her counsel should additional
information be required.
sued Travelers for failure to issue BRB payments. Andrews
later moved for summary judgment, penalty interest, and
attorney's fees. Travelers also moved for summary
judgment asserting BRB payments were not overdue because no
direction of payment had been made pursuant to KRS
304.39-210. After oral arguments and written submissions, the
trial court awarded summary judgment in favor of Travelers.
This appeal followed.
raises multiple questions on appeal: (1) did she provide
reasonable proof of loss, entitling her to BRB; (2) are BRB
payments overdue; (3) are calculating net loss, directing
payment of benefits, and submitting to a voluntary interview
prerequisites to payment of BRB; (4) did Travelers waive its
defenses regarding Andrews' alleged failure to direct
payment of benefits and/or calculate her net loss; and (5)
did Travelers act with reasonable foundation in denying
court properly awards summary judgment when "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. Summary judgment
should be granted only if it appears impossible the
non-moving party will be able to produce evidence at trial
warranting judgment in her favor. Steelvest, Inc. v.
Scansteel Service Center, Inc., 807 S.W.2d 476, 482 (Ky.
a trial judge must view the evidence in the light most
favorable to the nonmoving party . . . . The moving party
bears the initial burden of demonstrating that no genuine
issue of material fact exists and then the burden shifts to
the party opposing summary judgment to produce at least some
affirmative evidence showing that there is a genuine issue of
material fact requiring trial.
First Federal Sav. Bank v. McCubbins, 217 S.W.3d
201, 203 (Ky. 2006) (citations omitted). We review a trial
court's grant of summary judgment de novo.
Baptist Physicians Lexington, Inc. v. New
Lexington Clinic, P.S.C., 436 S.W.3d 189, 194 (Ky.
Motor Vehicle Reparations Act (MVRA) defines BRB as:
benefits providing reimbursement for net loss suffered
through injury arising out of the operation, maintenance, or
use of a motor vehicle, subject, where applicable, to the
limits, deductibles, exclusions, disqualifications, and other
conditions provided in this subtitle. The maximum amount of
basic reparation benefits payable for all economic loss
resulting from injury to any one (1) person as the result of
one (1) accident shall be ten thousand dollars ($10, 000),
regardless of the number of persons entitled to such benefits
or the number of providers ...