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Andrews v. Travelers Indemnity

Court of Appeals of Kentucky

March 9, 2018

BRITTENY ANDREWS APPELLANT
v.
TRAVELERS INDEMNITY APPELLEE

         APPEAL FROM JEFFERSON CIRCUIT COURT HONORABLE JAMES M. SHAKE, JUDGE ACTION NO. 15-CI-000512

          BRIEFS FOR APPELLANT: William D. Nefzger M. Catherine Halloran Louisville, Kentucky

          BRIEF FOR APPELLEE: Charles A. Walker Louisville, Kentucky

          BEFORE: DIXON, JOHNSON, AND NICKELL, JUDGES.

          OPINION

          NICKELL, JUDGE

         Britteny 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)[1] were not overdue and denied Andrews relief under KRS[2] 304.39-210(1)-(2) and 304.39-220(1). Following a careful review, we discern no error and affirm.

         This 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.

         Medical bills exceeding $10, 000 were submitted to Travelers in September 2014.[3] 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.

         Andrews 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.

         Andrews 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 Andrews BRB?

         A trial 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[4] 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. 1991). Further,

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. 2013).

         Kentucky's Motor Vehicle Reparations Act (MVRA)[5] 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 ...

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