FROM JEFFERSON CIRCUIT COURT HONORABLE JAMES M. SHAKE, JUDGE
ACTION NO. 15-CI-004861
FOR APPELLANT: Michael A. Landisman Louisville, Kentucky
FOR APPELLEE: Valerie W. Herbert Denise M. Motta Louisville,
BEFORE: ACREE, KRAMER, AND TAYLOR, JUDGES.
question under review is whether the Jefferson Circuit Court
erred by granting summary judgment in favor of Kentucky Farm
Bureau Mutual Insurance Company and dismissing Christopher
Joiner's claim that Farm Bureau violated the Kentucky
Motor Vehicle Reparations Act (MVRA) by failing to pay basic
reparations benefits (BRB). We affirm.
September 20, 2013, Joiner, a pedestrian, was struck by a
vehicle operated by Michael Michalski. Michalski's
vehicle was insured by a policy issued by Farm Bureau. Within
twenty-four hours, Dr. Gregory Sanders with Diagnostic X-Ray
Physicians (DXP) was treating Joiner. (Joiner's Reply
Brief, p. 2.) If an invoice was generated for that medical
care, it is not a part of the record. However, the subsequent
billing summary is a part of the record.
billing summary shows that on September 21, 2013, Dr. Sanders
took three x-rays of Joiner's leg, ankle, and foot, and
he took a CT scan of his lumbar spine. The total medical
expenses were $320.00. (R. 48.) The billing summary further
shows DXP's bill was adjusted down by $242.93. Finally,
the billing summary shows "Insurance Payment" of
the $77.07 balance and "TOTAL BALANCE" of $0.00.
After Joiner filed suit, he acknowledged the source of the
"Insurance Payment" was the Kentucky Medical
Assistance Program, Medicaid.
printed the billing summary on October 28, 2013. On that same
day, October 28, 2013, Joiner's attorney sent a letter to
Farm Bureau, notifying it of a pending claim and requesting
the name of the adjuster "assigned to the Kentucky
No-fault claim and/or medical payment benefits[.]" (R.
46.) The next day, October 29, 2013, Farm Bureau drafted and
mailed a letter to Joiner's attorney acknowledging
receipt of the representation letter, identifying the
adjuster, and stating the loss number assigned to
Joiner's claim for future reference.
same day, October 29, 2013, Joiner's attorney's
paralegal sent a second letter to Farm Bureau enclosing the
above-referenced billing summary. The letter asked Farm
Bureau to "please process the enclosed for payment . .
.", despite that the billing statement indicated all
amounts due had already been paid by other insurance. Farm
Bureau made no response.
further communication took place between Joiner or his
counsel and Farm Bureau until just short of the two-year
anniversary of the accident. On September 18, 2015, Joiner
filed a personal injury complaint against Michalski,
a second complaint against Farm Bureau alleging it violated
the MVRA by failing to timely pay BRB. Joiner claimed
entitlement to interest and attorney's fees pursuant to
304.39-210 and KRS 304.39-220 because Farm Bureau failed to
pay the billing summary when submitted.
next year after filing the complaint, Joiner undertook no
discovery; neither did Farm Bureau. Joiner sent no other
medical bills or claims to Farm Bureau. On October 31, 2016,
Farm Bureau moved for summary judgment.
asserted that Joiner never sent a BRB application, never sent
an unpaid medical bill, and never claimed reimbursement for
medical or other expenses not already reimbursed by
insurance. Based on those assertions, Farm Bureau argued
Joiner's complaint stated no justiciable cause of action
and should be dismissed.
DXP's billing summary, Farm Bureau posited that it did
not constitute proof of a net loss suffered by Joiner;
rather, it was proof the medical expenses were fully
satisfied by another insurer. Farm Bureau supported its
position by attaching to its summary judgment motion the
affidavit of Michelle Reed, a Farm Bureau employee, averring
[Joiner] has never made any claim for payment of PIP benefits
with Kentucky Farm Bureau. As of October 27, 2016, no
application, medical bill, or wage loss document has been
submitted by [Joiner], his attorneys or anyone acting on his
behalf (including a medical provider or employer).
Because [Joiner] has never made any claim for payment of PIP
benefits, no PIP claim pertaining to [Joiner] has been denied
by Kentucky Farm Bureau.
(R. 37.) Farm Bureau independently asserted a statute of
responded to Farm Bureau's summary judgment motion by
pointing to the only submission he ever made to Farm Bureau,
the DXP billing summary.
hearing on the motion, Farm Bureau repeated its position and
argument. Joiner's counsel argued - without offering
proof - that Joiner, in fact, had incurred "some $9, 000
in medical bills." (R. 59.) Joiner's counsel could
not answer the trial court's question why Joiner had not
submitted those medical bills to Farm Bureau for payment. He
did acknowledge, however, that bills had been sent to another
order entered February 15, 2017, the trial court granted Farm
Bureau's motion. After entry of the summary judgment,
Joiner moved the trial court pursuant to CR 59.05 to alter,
amend, or vacate the trial court's decision, again
pointing out it indeed submitted a claim in October 2013. He
filed his own affidavit stating that in the three and
one-half years since the accident, the expenses for his
medical treatment made necessary by the accident totaled $10,
000. No invoices ...