Lenwood Howell Individually v. Progressive Northern Insurance Company

• Court: Court of Appeals of Kentucky
• Decided: April 8, 2021
• Docket: 2019 CA 001426
• Status: Unknown

Opinion

RENDERED: APRIL 9, 2021; 10:00 A.M. NOT TO BE PUBLISHED

Commonwealth of Kentucky Court of Appeals

NO. 2019-CA-1426-MR

LENWOOD HOWELL, INDIVIDUALLY AND AS THE EXECUTOR/ADMINISTRATOR OF THE ESTATE OF CORA HOWELL APPELLANTS

APPEAL FROM LAWRENCE CIRCUIT COURT v. HONORABLE JOHN DAVID PRESTON, JUDGE ACTION NO. 17-CI-00211

PROGRESSIVE NORTHERN INSURANCE COMPANY; ADRIAN O. TURNER; AND GILL & SANDHU, INC. APPELLEES

OPINION AFFIRMING

** ** ** ** **

BEFORE: ACREE, JONES, AND K. THOMPSON, JUDGES.

ACREE, JUDGE: Lenwood Howell, individually and as administrator of the

Estate of Cora Howell, appeals the Lawrence Circuit Court’s August 23, 2019

order granting Progressive Northern Insurance Company’s motion for summary judgment. Howell argues Progressive insured a vehicle that struck the vehicle in

which he and his wife were traveling. The circuit court, after examining the

contract of insurance, concluded it was not. Howell believes the contract language

is sufficiently ambiguous to prevent judgment as a matter of law.

Because we agree with the circuit court that the contract is not

ambiguous, and that Progressive is entitled to judgment, we affirm.

BACKGROUND

On February 26, 2017, a tragic collision occurred at the intersection of

Highway 3 and U.S. 23 in Louisa, Kentucky. Adrian Turner, an employee of Gill

& Sandhu, Inc., ran a red light, driving a 2013 Freightliner. His vehicle struck the

car in which Lenwood and Cora Howell were traveling. Cora died from the

accident and Lenwood suffered serious injuries.

Lenwood sued Turner and Gill & Sandhu on his own behalf and on

behalf of his wife’s estate. Gill & Sandhu contracted with Progressive to provide

liability insurance for certain of its vehicles. Gill & Sandhu was identified as the

“Designated Insured” and Turner as identified as a “rated driver.”

On June 28, 2019, an agreed judgment was entered for $2,000,000

against Turner and Gill & Sandhu Inc. Insurance by a different insurer, Northland

Insurance, covered $920,000 of the settlement, leaving a balance of $1,080,000.

-2- Lenwood sought the amount from Progressive which argued the vehicle Turner

was driving was not covered under the policy it issued to Gill & Sandhu.

The circuit court heard arguments on the summary judgment motion

and concluded the vehicle involved in the accident was not covered under the

policy. This appeal followed.

STANDARD OF REVIEW

“Because summary judgment does not require findings of fact but

only an examination of the record to determine whether material issues of fact

exist, we generally review the grant of summary judgment without deference to

either the trial court’s assessment of the record or its legal conclusions.” Hammons

v. Hammons, 327 S.W.3d 444, 448 (Ky. 2010) (citing Malone v. Ky. Farm Bur.

Mut. Ins. Co., 287 S.W.3d 656, 658 (Ky. 2009)).

ANALYSIS

Gill & Sandhu is an insured under a contract of insurance issued by

Progressive. Lenwood claims that such contract insures the liability arising from

the accident that caused his wife’s death and his injuries. He argues the contract is

ambiguous and, under the doctrine of reasonable expectations, it must be construed

by the courts as providing coverage.

Notwithstanding that this doctrine “resolves an insurance-policy

ambiguity in favor of the insured’s reasonable expectation,” True v. Raines, 99

-3- S.W.3d 439, 443 (Ky. 2003) (emphasis added), Lenwood’s first task is to convince

this Court there is an ambiguity. “[T]he mere fact that [a party] attempt[s] to

muddy the water and create some question of interpretation does not necessarily

create an ambiguity[.] Only actual ambiguities, not fanciful ones, will trigger

application of the doctrine.” Id. (citations and internal quotation marks omitted).

“A contract is ambiguous if a reasonable person would find it

susceptible to different or inconsistent interpretations.” Cantrell Supply, Inc. v.

Liberty Mut. Ins. Co., 94 S.W.3d 381, 385 (Ky. App. 2002). Based on that

definition, and considering all undisputed material facts, this insurance contract is

not ambiguous.

The language of the policy pertinent to our review is as follows:

[Progressive] will pay all sums an “insured” legally must pay as damages because of “bodily injury” or “property damage” to which this insurance applies, caused by an “accident” and resulting from the ownership, maintenance, or use of a covered “auto”.[1]

(Policy Endorsement; Record (R.) 567) (emphasis added).

Section I of the policy defines “COVERED AUTOS” and limits

coverage to “SPECIFICALLY DESCRIBED AUTOS” identified as “[o]nly those

autos described in . . . the Declarations for which a premium charge is shown . . . .”

1 The policy defines the term “auto” broadly to include the type of vehicle Turner was driving at the time of the accident – “A land motor vehicle, trailer or semi-trailer designed for travel on public roads . . . .” (R. 561).

-4- (R. 548). The Declarations identify and charge a premium for three autos, none of

which is the vehicle Turner was driving when he collided with Lenwood’s vehicle.

(R. 626).

The circuit court found as fact that “[n]either the 2013 Freightliner nor

the trailer involved in the accident of this case were listed on the declarations page

of the Progressive policy.” Lenwood does not contest that finding of fact because

it is incontrovertible.

We agree with the circuit court that policy coverage applied only to

accidents “resulting from the . . . . use of a covered ‘auto[.]’” Because the accident

did not result from the use of a covered auto, the policy did not insure the subject

accident.

Lenwood argues ambiguity because the “Designated Insured

Endorsement” includes Gill & Sandhu as an additional insured and Turner as a

“rated driver.” However, we fail to see how the inclusion creates any ambiguity

regarding the other independent qualifier for coverage – use of a covered auto.

CONCLUSION

For the foregoing reasons, we affirm the Lawrence Circuit Court’s

August 23, 2019 order granting Progressive’s motion for summary judgment.

ALL CONCUR.

-5- BRIEFS FOR APPELLANTS: BRIEF FOR APPELLEE PROGRESSIVE NORTHERN Gregory L. Smith INSURANCE COMPANY: Anna S. Rueff Louisville, Kentucky William J. Baird, IV Pikeville, Kentucky

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