Hamilton Mutual Insurance Co. v. United States Fidelity & Guaranty Co.

926 S.W.2d 466, 1996 Ky. App. LEXIS 121
CourtCourt of Appeals of Kentucky
DecidedJuly 26, 1996
DocketNos. 94-CA-2788-MR, 94-CA-2818-MR and 94-CA-2888-MR
StatusPublished
Cited by7 cases

This text of 926 S.W.2d 466 (Hamilton Mutual Insurance Co. v. United States Fidelity & Guaranty Co.) is published on Counsel Stack Legal Research, covering Court of Appeals of Kentucky primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Hamilton Mutual Insurance Co. v. United States Fidelity & Guaranty Co., 926 S.W.2d 466, 1996 Ky. App. LEXIS 121 (Ky. Ct. App. 1996).

Opinion

OPINION

HOWERTON, Judge.

Hamilton Mutual Insurance Company (Hamilton) appeals from an order of the Barren Circuit Court finding that it owed under-insured motorist (UIM) coverage for an accident involving a family-available vehicle for which Hamilton did not provide basic coverage. United States Automobile Association (USAA) cross-appeals from the same order which determined that it also owed UIM coverage. USAA likewise had not insured the vehicle in the accident. Additionally, United States Fidelity & Guaranty Company (USF&G), which did insure the vehicle, appeals as to the apportionment of liability among the three insurers. It also alleges error in the trial court’s denial of its motion to compel discovery of the tort-feasor’s assets following USF&G’s substitution of settlement payment to preserve its subrogation rights. After reviewing the record, we reverse and remand on the grounds to be set forth.

This action arose as a consequence of a motor vehicle accident which occurred on January 30, 1992, in Barren County, Kentucky. Nancy Gibson was driving a Lincoln Town Car in which her daughter, Rachel, was riding as a passenger. The Lincoln was registered in the name of Dr. Ray Allen Gibson, M.D., P.S.C. The Gibson vehicle collided with a vehicle owned by Phillip Turner and driven by Jay Turner, causing physical injuries to both Nancy and Rachel.

In addition to the Lincoln, there were two other vehicles available for use by the Gibson household. The 1990 Lincoln was insured under a policy issued by USF&G, which provided UIM limits of $100,000 per accident. A 1979 Chevrolet Scottsdale pickup was insured by USAA under a policy providing UIM limits of $300,000 per person and $500,-000 per accident. Finally, a 1984 Chevrolet Blazer was insured by a policy through Hamilton which provided UIM limits of $500,000 per accident. Both the pickup and the blazer were registered to Dr. Ray Allen Gibson under personal coverage policies, while the Lincoln was insured under a business policy to Dr. Gibson’s P.S.C.

In January 1993, Rachel and Nancy Gibson, along with Dr. Gibson, filed suit against the Turners. The Gibsons also named USF&G, USAA, and Hamilton as defendants to the action under claims for UIM benefits. During the course of the litigation, the Gib-sons made some settlement with the Turners which utilized their liability insurance policy limits of $100,000. USF&G, the carrier for the Lincoln involved in the accident, elected to substitute payment of the settlement so as to preserve its subrogation rights in accor[468]*468dance with Coots v. Allstate Ins. Co., Ky., 853 S.W.2d 895 (1993).

The Gibsons and each of the three UIM carriers filed motions for summary judgment and a declaration of coverage available to the Gibsons under the policies. In the motions, USF&G agreed that UIM benefits were available under its policy, but claimed that USAA and Hamilton also owed coverage under their policies. USAA and Hamilton both argued that their policies excluded coverage under the “owned but not scheduled for coverage” provisions, wherein UIM coverage was not provided for vehicles owned by the Gibson household but not listed for coverage under the policy in question.

By order styled “Summary Judgment on Counts VI, VII, and VIII of Complaint”, dated March 28, 1994, the trial court ruled that UIM benefits were available to the Gib-sons under all three policies, and that coverage would be apportioned on a pro rata basis according to the respective limits of liability. The total UIM coverage available was determined to be $900,000, and the court determined that Hamilton would be responsible for 5/9 of any excess judgment, USAA would be responsible for 3/9, and USF&G would be responsible for 1/9, not to exceed each policy’s limits. Hamilton and USAA each filed motions to alter, amend, or vacate, and on June 2, 1994, the trial court entered an amended partial summary judgment. The trial court vacated the prior order as to the fractional apportionment and adopted an equal division of benefits wherein each carrier would be responsible for 1/3 of any excess judgment. On June 6, 1994, the trial court again amended the partial summary judgment to clarify that the division of coverage would be redistributed when any carrier’s limits were exhausted. Finally, on November 2, 1994, the trial court entered a third amended partial summary judgment in which it incorporated by reference the second amended judgment and designated that the adjudication was final and appealable.

It is from the last order that Hamilton filed its notice of appeal in November 1994, and USAA and USF&G filed their cross-appeals. This Court initially dismissed the appeal as premature. Subsequently, we received a motion for reconsideration and a copy of a circuit court order stating that the Gibsons had settled with all defendants and were dismissed from the proceedings. It appears as though all that remains at this juncture is the dispute between the three UIM carriers as to apportionment of their liability. We note, however, that we have not been provided with any details as to the nature of the settlement, the total amount in controversy, or what amount, if any, was agreed to for either or both Nancy and Rachel.

Hamilton argues on appeal, as does USAA in its cross-appeal, that the “owned but not scheduled for coverage” provision of the policy excludes coverage for UIM benefits. The provision states:

Exclusions.

A. We do not provide Uninsured or Un-derinsured Motorists Coverage for “bodily injury” sustained by any person:
1. While “occupying”, or when struck by, any motor vehicle owned by you or any “family member” which is not insured for this coverage under this policy.

The provision in USAA’s policy contains essentially the same language.. It is Hamilton’s contention that even though the Lincoln was registered and insured under Dr. Gibson’s P.S.C., such is merely the “alter ego” for the professional. Thus, the Lincoln was owned by a “family member” and not covered under the Hamilton policy, and therefore was excluded from coverage under the above provision. We can only conclude that the policy provision is unenforceable in this ease, and that the “alter ego” argument is irrelevant.

In Chaffin v. Kentucky Farm Bureau Ins. Co., Ky. 789 S.W.2d 754 (1990), our Supreme Court held that Farm Bureau owed uninsured motorist (UM) coverage to its insured under three separate policies issued by Farm Bureau covering three separate vehicles. In doing so, the Court determined that the “owned but not scheduled for coverage” clause in the Farm Bureau policies was “nearly incapable of rational construction” and “so broadly drawn as to obfuscate its purpose in prevention of fraud, if indeed such [469]*469is its primary purpose.” Id. at 756, 757. The Court went on to state:

If appellant had been injured by an uninsured motorist while riding in the vehicle of a friend or while walking across a street, uninsured motorist coverage would have been available from all three of her uninsured motorist policies, (citations omitted). By its own terms, the other vehicle exclusion in appellant’s policy would not be applicable to such facts.

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Cite This Page — Counsel Stack

Bluebook (online)
926 S.W.2d 466, 1996 Ky. App. LEXIS 121, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hamilton-mutual-insurance-co-v-united-states-fidelity-guaranty-co-kyctapp-1996.