RENDERED: JANUARY 29, 2021; 10:00 A.M. NOT TO BE PUBLISHED
Commonwealth of Kentucky Court of Appeals
NO. 2019-CA-1859-MR
DAVID WARSOW AND MARGARET APPELLANTS WARSOW
APPEAL FROM GRAVES CIRCUIT COURT v. HONORABLE TIMOTHY C. STARK, JUDGE ACTION NO. 15-CI-00097
KENTUCKY FARM BUREAU APPELLEE INSURANCE AGENCY, INC.
OPINION AFFIRMING
** ** ** ** **
BEFORE: COMBS, LAMBERT, AND K. THOMPSON, JUDGES.
COMBS, JUDGE: David and Margaret Warsow appeal from the summary
judgment of the Graves Circuit Court entered in favor of Kentucky Farm Bureau
Insurance Agency, Inc. (KFBIA), on November 22, 2019. After our review, we
affirm. David Warsow was riding his motorcycle on March 20, 2014, when
he was struck by lumber extending from the side of a trailer. The trailer was being
towed behind a truck owned by Scott Yokley, which was driven by Scott’s son,
Keith Yokley. The truck was insured under a policy issued by State Farm Mutual
Automobile Insurance Company to Scott’s spouse, Patricia Yokley. The Warsows
reached an agreement with the Yokleys as to their liability and agreed to settle the
claims for the State Farm policy limits. On March 18, 2015, the Warsows filed a
lawsuit against American Modern Select Insurance; Kentucky Farm Bureau
Mutual Insurance Company; and KFBIA.
American Modern Select Insurance insured the motorcycle that David
Warsow was riding at the time of the accident. The Warsows sought uninsured
and underinsured motorist coverage from American Modern -- along with basic
and added reparation benefits. American Modern was granted summary judgment
by an order entered on February 13, 2019.
Kentucky Farm Bureau Mutual Insurance Company insured the
Warsows’ automobiles. The Warsows sought uninsured and underinsured motorist
coverage and added reparations benefits for the motorcycle accident under those
policies. Kentucky Farm Bureau Mutual Insurance Company moved for summary
judgment on March 30, 2018. In an order entered April 12, 2018, the motion was
continued indefinitely and remains pending.
-2- The Warsows also alleged that the defendants, including KFBIA -- by
their errors and omissions -- negligently failed to provide them with all the
insurance coverage they sought when insuring David Warsow’s motorcycle. The
Warsows alleged that prior to his visit to the Kentucky Farm Bureau office in
Graves County to obtain insurance coverage for his motorcycle, David requested
added reparations benefits and underinsured motorist benefits in amounts equal to
the amount of the bodily injury liability limits on other policies he had purchased
from Kentucky Farm Bureau. Based on their prior course of dealing, the Warsows
alleged that the agent through whom they procured the motorcycle policy “knew or
should have known that [they] wanted the benefits of added reparations coverage
and underinsured motorist coverage in amounts matching the bodily liability
limits.” With respect to KFBIA, the Warsows charged that they had “purchased
motor vehicle coverage from Kentucky Farm Bureau Mutual Insurance Company
through the office of [KFBIA] in Mayfield, Kentucky . . . for many years.”
On September 23, 2019, following a period of extensive discovery,
KFBIA filed a duly supported motion for summary judgment. KFBIA argued that
it was entitled to judgment as a matter of law because: it does not write
motorcycle insurance; it did not offer advice or assistance to the Warsows; and it
never sold any insurance of any kind to the Warsows. KFBIA also contended that
the Warsows were aware that it would not be the underwriter for the insurance
-3- policy they purchased from the separate business entities, Graves County Farm
Bureau, Inc. or Kentucky Farm Bureau Mutual Insurance Company.
In their response, the Warsows argued that the decision in Grigsby v.
Mountain Valley Ins. Agency Inc., 795 S.W.2d 372 (Ky. 1990), governed the
dispute. In Grigsby, the Supreme Court of Kentucky held that an applicant for
insurance may have a claim against the insurance agent through which the
applicant purchased the insurance if the agent does not procure the coverage
requested by the applicant. The Warsows also explained as follows: “To the
extent that [KFBIA] has now stated that they are the wrong defendant . . . [the
Warsows] will be happy to file an Amended Complaint identifying another
defendant(s).”
On November 4, 2019, the Warsows filed an amended complaint
naming Graves County Farm Bureau, Inc., as a party defendant. Michael
Cartwright, agency manager of Graves County Farm Bureau, Inc., and Chris
Mathis, the Warsows’ agent, were also added as defendants. These claims remain
pending before the trial court.
In an order entered November 22, 2019, the Graves Circuit Court
granted KFBIA’s motion for summary judgment. This appeal followed.
On appeal, the Warsows argue that the trial court erred by concluding
that KFBIA was entitled to judgment as a matter of law because there is evidence
-4- from which a jury could find that the Warsows had requested more coverage for
the motorcycle than what they received and that KFBIA “was acting as an agent
for American Modern in selling the applicable insurance to David Warsow.”
KFBIA contends that the undisputed evidence establishes that the Warsows did not
have communication with, give instructions to, or have any interaction whatsoever
with KFBIA when David applied for the motorcycle insurance policy. Moreover,
it contends that the argument that it acted as an agent for American Modern was
never presented to the trial court and that it is, therefore, unpreserved for our
review.
In opposing KFBIA’s motion for summary judgment, the Warsows
did not present any argument that KFBIA was the agent which produced the
American Modern policy; nor did they dispute the assertion of KFBIA that it had
had no contact whatsoever with the Warsows.
Our review of the record reveals that the Warsows did not argue those
issues in the trial court. It is axiomatic that issues not raised or relied upon in the
trial court will not be addressed for the first time on appeal. Norton Healthcare,
Inc., v. Deng, 487 S.W.3d 846 (Ky. 2016); Stowe v. Realco Limited Liability
Company, 551 S.W.3d 462 (Ky. App. 2018). Moreover, we discern no error in the
granting of summary judgment in favor of KFBIA on the basis that the Warsows
had no interaction whatsoever with KFBIA.
-5- Summary judgment is appropriate where “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.” CR1 56.03.
Upon our review, we must determine whether the trial court erred in concluding
that no genuine issue of material fact existed and that the moving party was
entitled to judgment as a matter of law. Scifres v. Kraft, 916 S.W.2d 779 (Ky.
App. 1996).
Free access — add to your briefcase to read the full text and ask questions with AI
RENDERED: JANUARY 29, 2021; 10:00 A.M. NOT TO BE PUBLISHED
Commonwealth of Kentucky Court of Appeals
NO. 2019-CA-1859-MR
DAVID WARSOW AND MARGARET APPELLANTS WARSOW
APPEAL FROM GRAVES CIRCUIT COURT v. HONORABLE TIMOTHY C. STARK, JUDGE ACTION NO. 15-CI-00097
KENTUCKY FARM BUREAU APPELLEE INSURANCE AGENCY, INC.
OPINION AFFIRMING
** ** ** ** **
BEFORE: COMBS, LAMBERT, AND K. THOMPSON, JUDGES.
COMBS, JUDGE: David and Margaret Warsow appeal from the summary
judgment of the Graves Circuit Court entered in favor of Kentucky Farm Bureau
Insurance Agency, Inc. (KFBIA), on November 22, 2019. After our review, we
affirm. David Warsow was riding his motorcycle on March 20, 2014, when
he was struck by lumber extending from the side of a trailer. The trailer was being
towed behind a truck owned by Scott Yokley, which was driven by Scott’s son,
Keith Yokley. The truck was insured under a policy issued by State Farm Mutual
Automobile Insurance Company to Scott’s spouse, Patricia Yokley. The Warsows
reached an agreement with the Yokleys as to their liability and agreed to settle the
claims for the State Farm policy limits. On March 18, 2015, the Warsows filed a
lawsuit against American Modern Select Insurance; Kentucky Farm Bureau
Mutual Insurance Company; and KFBIA.
American Modern Select Insurance insured the motorcycle that David
Warsow was riding at the time of the accident. The Warsows sought uninsured
and underinsured motorist coverage from American Modern -- along with basic
and added reparation benefits. American Modern was granted summary judgment
by an order entered on February 13, 2019.
Kentucky Farm Bureau Mutual Insurance Company insured the
Warsows’ automobiles. The Warsows sought uninsured and underinsured motorist
coverage and added reparations benefits for the motorcycle accident under those
policies. Kentucky Farm Bureau Mutual Insurance Company moved for summary
judgment on March 30, 2018. In an order entered April 12, 2018, the motion was
continued indefinitely and remains pending.
-2- The Warsows also alleged that the defendants, including KFBIA -- by
their errors and omissions -- negligently failed to provide them with all the
insurance coverage they sought when insuring David Warsow’s motorcycle. The
Warsows alleged that prior to his visit to the Kentucky Farm Bureau office in
Graves County to obtain insurance coverage for his motorcycle, David requested
added reparations benefits and underinsured motorist benefits in amounts equal to
the amount of the bodily injury liability limits on other policies he had purchased
from Kentucky Farm Bureau. Based on their prior course of dealing, the Warsows
alleged that the agent through whom they procured the motorcycle policy “knew or
should have known that [they] wanted the benefits of added reparations coverage
and underinsured motorist coverage in amounts matching the bodily liability
limits.” With respect to KFBIA, the Warsows charged that they had “purchased
motor vehicle coverage from Kentucky Farm Bureau Mutual Insurance Company
through the office of [KFBIA] in Mayfield, Kentucky . . . for many years.”
On September 23, 2019, following a period of extensive discovery,
KFBIA filed a duly supported motion for summary judgment. KFBIA argued that
it was entitled to judgment as a matter of law because: it does not write
motorcycle insurance; it did not offer advice or assistance to the Warsows; and it
never sold any insurance of any kind to the Warsows. KFBIA also contended that
the Warsows were aware that it would not be the underwriter for the insurance
-3- policy they purchased from the separate business entities, Graves County Farm
Bureau, Inc. or Kentucky Farm Bureau Mutual Insurance Company.
In their response, the Warsows argued that the decision in Grigsby v.
Mountain Valley Ins. Agency Inc., 795 S.W.2d 372 (Ky. 1990), governed the
dispute. In Grigsby, the Supreme Court of Kentucky held that an applicant for
insurance may have a claim against the insurance agent through which the
applicant purchased the insurance if the agent does not procure the coverage
requested by the applicant. The Warsows also explained as follows: “To the
extent that [KFBIA] has now stated that they are the wrong defendant . . . [the
Warsows] will be happy to file an Amended Complaint identifying another
defendant(s).”
On November 4, 2019, the Warsows filed an amended complaint
naming Graves County Farm Bureau, Inc., as a party defendant. Michael
Cartwright, agency manager of Graves County Farm Bureau, Inc., and Chris
Mathis, the Warsows’ agent, were also added as defendants. These claims remain
pending before the trial court.
In an order entered November 22, 2019, the Graves Circuit Court
granted KFBIA’s motion for summary judgment. This appeal followed.
On appeal, the Warsows argue that the trial court erred by concluding
that KFBIA was entitled to judgment as a matter of law because there is evidence
-4- from which a jury could find that the Warsows had requested more coverage for
the motorcycle than what they received and that KFBIA “was acting as an agent
for American Modern in selling the applicable insurance to David Warsow.”
KFBIA contends that the undisputed evidence establishes that the Warsows did not
have communication with, give instructions to, or have any interaction whatsoever
with KFBIA when David applied for the motorcycle insurance policy. Moreover,
it contends that the argument that it acted as an agent for American Modern was
never presented to the trial court and that it is, therefore, unpreserved for our
review.
In opposing KFBIA’s motion for summary judgment, the Warsows
did not present any argument that KFBIA was the agent which produced the
American Modern policy; nor did they dispute the assertion of KFBIA that it had
had no contact whatsoever with the Warsows.
Our review of the record reveals that the Warsows did not argue those
issues in the trial court. It is axiomatic that issues not raised or relied upon in the
trial court will not be addressed for the first time on appeal. Norton Healthcare,
Inc., v. Deng, 487 S.W.3d 846 (Ky. 2016); Stowe v. Realco Limited Liability
Company, 551 S.W.3d 462 (Ky. App. 2018). Moreover, we discern no error in the
granting of summary judgment in favor of KFBIA on the basis that the Warsows
had no interaction whatsoever with KFBIA.
-5- Summary judgment is appropriate where “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.” CR1 56.03.
Upon our review, we must determine whether the trial court erred in concluding
that no genuine issue of material fact existed and that the moving party was
entitled to judgment as a matter of law. Scifres v. Kraft, 916 S.W.2d 779 (Ky.
App. 1996). Because factual findings are not at issue, we conduct our review de
novo. Pinkston v. Audubon Area Community Services, Inc., 210 S.W.3d 188 (Ky.
App. 2006).
Our review of the record reveals that there are no genuine issues of
material fact and that KFBIA was entitled to judgment as a matter of law.
Discovery indicated that when David Warsow allegedly provided a Graves County
Farm Bureau, Inc. representative with information relative to the coverage he
sought for his motorcycle, he was not dealing with KFBIA, an entity that does not
sell insurance, does not assist customers seeking to obtain insurance, and has no
employees in Graves County. In their response, the Warsows did not challenge the
sworn testimony offered by KFBIA. Nor did they present contradictory testimony
1 Kentucky Rules of Civil Procedure.
-6- or argue the existence of any disputed issue of material fact. Therefore, summary
judgment was proper.
Finally, the holding of the Supreme Court of Kentucky in Grigsby,
supra, has no bearing on the issue raised on appeal because there was no dispute in
that case that the plaintiff had dealt directly with Mountain Valley Insurance
Agency. Grigsby did not create a cause of action for negligence against an entity
with which the plaintiff had no contact.
The trial court did not err by granting summary judgment. Therefore,
we AFFIRM its judgment.
ALL CONCUR.
BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:
David V. Oakes Dennis J. Courtney Paducah, Kentucky Murray, Kentucky
Michael D. Risley Louisville, Kentucky
-7-