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Joiner v. Kentucky Farm Bureau Mutual Insurance Co.

Court of Appeals of Kentucky

August 2, 2019

CHRISTOPHER JOINER APPELLANT
v.
KENTUCKY FARM BUREAU MUTUAL INSURANCE COMPANY APPELLEE

          APPEAL FROM JEFFERSON CIRCUIT COURT HONORABLE JAMES M. SHAKE, JUDGE ACTION NO. 15-CI-004861

          BRIEFS FOR APPELLANT: Michael A. Landisman Louisville, Kentucky

          BRIEF FOR APPELLEE: Valerie W. Herbert Denise M. Motta Louisville, Kentucky

          BEFORE: ACREE, KRAMER, AND TAYLOR, JUDGES.

          OPINION

          ACREE, JUDGE

          The 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).[1] We affirm.

         FACTS AND PROCEDURE

         On 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.

         The 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.

         DXP 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.

         On the 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.

         No 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, [2]and 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 KRS[3] 304.39-210 and KRS 304.39-220 because Farm Bureau failed to pay the billing summary when submitted.

         For the 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.

         It 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.

         As for 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 that:

[Joiner] has never made any claim for payment of PIP benefits with Kentucky Farm Bureau. As of October 27, 2016, no PIP[4] 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 limitations argument.

         Joiner responded to Farm Bureau's summary judgment motion by pointing to the only submission he ever made to Farm Bureau, the DXP billing summary.

         At the 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 insurer.

         By 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[5] 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 ...


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