RENDERED: SEPTEMBER 19, 2025; 10:00 A.M. TO BE PUBLISHED
Commonwealth of Kentucky Court of Appeals NO. 2024-CA-0886-MR
LORIANE POWELL APPELLANT
APPEAL FROM MARSHALL CIRCUIT COURT v. HONORABLE ANDREA L. MOORE, JUDGE ACTION NO. 22-CI-00302
MICHAEL POWELL AND GEICO INDEMNITY COMPANY APPELLEES
AND
NO. 2024-CA-1385-MR
MICHAEL POWELL CROSS-APPELLANT
CROSS-APPEAL FROM MARSHALL CIRCUIT COURT v. HONORABLE ANDREA L. MOORE, JUDGE ACTION NO. 22-CI-00302
LORIANE POWELL AND GEICO INDEMNITY COMPANY CROSS-APPELLEES
AND NO. 2024-CA-1413-MR
GEICO INDEMNITY COMPANY CROSS-APPELLANT
CROSS-APPEAL FROM MARSHALL CIRCUIT COURT v. HONORABLE ANDREA L. MOORE, JUDGE ACTION NO. 22-CI-00302
LORIANE POWELL AND MICHAEL POWELL CROSS-APPELLEES
OPINION REVERSING AND DISMISSING IN PART, AND AFFIRMING IN PART
** ** ** ** **
BEFORE: CETRULO, KAREM, AND MOYNAHAN, JUDGES.
CETRULO, JUDGE: Loriane Powell (“Loriane”) appeals from the Marshall
Circuit Court judgments dismissing her claims against Michael Powell (“Michael”)
as settled, and granting summary judgment in favor of Geico Indemnity Company
(“Geico”) on her claims of bad faith. Geico and Michael filed cross-appeals from
the subsequent circuit court ruling permitting Loriane to pursue appeal of the
judgment as to Michael despite the late filing of the notice of appeal. Finding no
evidence of excusable neglect, we grant the relief requested by the cross-appeals,
rendering it unnecessary and inappropriate for us to address the merits of the
-2- circuit court’s earlier ruling as to Michael. We affirm the summary judgment in
favor of Geico.
PROCEDURAL BACKGROUND
The procedural and factual history of this case is rather convoluted.
Loriane and Michael, both Tennessee residents, are husband and wife who were
involved in a motorcycle accident in Kentucky in June 2022. Michael was
operating the motorcycle, and Loriane was riding on the back when she sustained
injuries.
Within weeks of the accident, Loriane contacted Geico, their
Tennessee insurance carrier on the motorcycle, and agreed to accept a settlement
offer of the policy limits of $25,000. This oral agreement was recorded, and Geico
followed up with a written release agreement which Loriane signed. However, the
check was sent to Air Evac EMS (“Air Evac”), a medical provider that had
contacted Geico, Loriane, and Michael, indicating it had a lien of $79,470.50. In
that earlier phone conversation, Loriane had acknowledged and agreed that Geico
should send this payment directly to Air Evac.
A few weeks later, Loriane, now represented, sued Michael and
Geico, asserting that Geico had erroneously paid the settlement to Air Evac and
therefore breached the settlement agreement. The complaint further included an
uninsured motorists (“UM”) claim against Geico. The complaint alleged that an
-3- unknown motorist had spilled or allowed bales of hay to come loose upon the
roadway, contributing to Michael losing control of the motorcycle. Finally, the
complaint included claims against Geico for violation of Kentucky’s Unfair Claims
Settlement Practices Act. These bad faith claims were promptly bifurcated by
agreed order.
In answering the suit, both Michael and Geico raised as an affirmative
defense that the claims against Michael should be dismissed as settled. Geico
further asserted that, in the recorded phone conversation, Loriane had specifically
authorized Geico to send the settlement draft to Air Evac. Michael promptly
moved for judgment on the pleadings, asserting accord and satisfaction; release
and settlement of the claims; and in support of his motion, attached the transcript
of the phone conversation. Loriane, for her response, argued that the court should
not even consider the oral agreement of the parties because parol evidence cannot
be considered to contradict the written agreement.
The record reflects that Geico and Loriane both ultimately determined
that Air Evac did not in fact have an enforceable lien, and Geico promptly sent a
second $25,000 check to counsel for Loriane. The record further indicates that the
parties then agreed in August 2023 to release and dismiss the claims against Geico
for UM benefits, upon its additional payment of policy limits of $25,000 in UM
coverage. The agreed order stated that only the remaining bad faith claims against
-4- Geico and the claims against Michael would proceed. On October 3, 2023, the
circuit court then entered an order dismissing the claim against Michael. The
circuit court found that the recorded conversation did not contradict the contract
and thus could be considered. In fact, the court found it showed that Loriane
settled the claim and agreed the check could go directly to Air Evac. Loriane
appealed that ruling to this Court.
In November 2023, this Court issued a show cause order, noting that
the October 2023 order did not resolve the remaining claims against Geico pending
in the Marshall Circuit Court, and the order did not contain finality language of
Kentucky Rule of Civil Procedure (“CR”) 54.02.1 Loriane failed to respond to the
show cause order, and on January 29, 2024, this Court dismissed the appeal.
Powell v. Powell, No. 2023-CA-1326-MR (Ky. App. Jan. 29, 2024). In that order,
we noted that the parties had engaged in continuing litigation in the circuit court
regarding the claims against Geico. Specifically, Geico had moved the circuit
court for summary judgment in its favor, arguing that Geico could not be held
liable for bad faith handling of Loriane’s bodily injury claim because she was not
entitled to liability or UM coverage under the Tennessee policy and Tennessee law.
1 A trial court’s failure to include both the recitations that the judgment is final and that there is no just reason for delay renders it interlocutory and non-appealable. Vorherr v. Coldiron, 525 S.W.3d 532, 540 (Ky. App. 2017).
-5- When the matter returned to the circuit court, Geico moved for a
status conference resulting in a discussion at motion docket at which all counsel
were present. At that time, the court indicated that it was “going to get an order
out within the week” and noted such on the docket sheet for the hearing. Within
days, the court did issue an amended order again dismissing the claims against
Michael by simply adding the words, “this is a final and appealable order and no
just cause for delay” to the previous dismissal order. That order was entered on
June 5, 2024. On June 10, the circuit court granted summary judgment in favor of
Geico on the remaining claims of bad faith.
Loriane timely filed a notice of appeal on July 9 from the judgment in
favor of Geico. On July 10, an amended notice of appeal was filed, now adding
that the notice of appeal was also from the June 5 ruling.
Counsel for Loriane then filed a motion before the circuit court
requesting an enlargement of time for filing the notice of appeal, asserting
excusable neglect under Kentucky Rule of Appellate Procedure (“RAP”) 3. In his
written motion for enlargement of time, he asserted without affidavit that he had
computer network problems on June 5 and that he then traveled to Louisville for a
continuing legal education conference shortly after the June 5 order was entered.
The motion further stated that counsel did not return to the office until the
following week, at which time he received and calendared the June 10 order
-6- granting summary judgment to Geico. At a hearing, counsel for Loriane candidly
stated, “I missed it,” referring to the June 5 order, and he was “not entirely sure
why.” After the hearing, the circuit court granted the motion allowing the appeal
to proceed.
On appeal, Loriane argues, as to dismissal of Michael, that the circuit
court erred in considering the recorded conversation as parol evidence, which she
claims contradicts the written settlement/release. She also argues that the court
erred in granting summary judgment in favor of Geico and asserts that the court’s
reliance upon State Farm Mutual v. Hodgkiss-Warrick, 413 S.W.3d 875 (Ky.
2013), and Kentucky Revised Statute (“KRS”) 304.39-090 was in error.
For their cross-appeals, No. 2024-CA-1385-MR and No. 2024-CA-
1413-MR, Geico and Michael both argue that the circuit court erred in enlarging
the time for Loriane to file her notice of appeal as there was not a sufficient
showing of excusable neglect.
JURISDICTION
Our Supreme Court has recently stated: “Our review of a defect in a
notice of appeal regarding its timely filing is essentially de novo.” Cabinet for
Health & Fam. Servs. v. D.W., 680 S.W.3d 856, 860 (Ky. 2023). Furthermore,
“[w]ithout the properly filed notice of appeal, the appellate court lacks jurisdiction
to consider the matter.” Cabinet for Health & Fam. Servs. v. H.C., 581 S.W.3d
-7- 580, 583 (Ky. 2020). There is no substantial compliance rule with regard to timely
filing of a notice of appeal, and the mandatory application of the Rule applies
“even when the appealing party makes a good faith effort to file the notice of
appeal.” D.W., 680 S.W.3d at 860. Our civil procedure rules make it clear that
“[t]he timely filing of a notice of appeal is jurisdictional.” RAP 2(A)(2). The only
means for a party to be granted the late filing of an appeal in a civil case such as
this is pursuant to RAP 3(D) which provides:
Upon a showing of excusable neglect based on a failure of a party to learn of the entry of the judgment or an order which affects the running of the time for taking an appeal, the trial court may extend the time for appeal, not exceeding 10 days from the expiration of the original time.
However, RAP 3(C) also specifically provides that failure of a party
to receive notice of the judgment or order does not affect the time to appeal except
as permitted above. Thus, it is clear from these appellate rules that there must be a
showing of excusable neglect; even then, the circuit court has only limited
discretion to extend the time not to exceed a period of 10 days. Here, in its
discretion, the circuit court granted that request, but we must determine whether
Loriane made a sufficient showing of “excusable neglect” to support that ruling
and give us jurisdiction.
While many of our rules and statutes speak in terms of excusable
neglect, they do not actually define the phrase. We must turn to the many
-8- examples of what constitutes excusable neglect found within our case law. In AK
Steel Corporation v. Carico, the Supreme Court stated that “a misunderstanding
over the filing date is not the type of excusable neglect that would enlarge the time
for filing the jurisdictional document after that time expired.” 122 S.W.3d 585,
586 (Ky. 2003). There, the attorney had confused the filing deadline with a
deadline in another case involving the same issue and party. Id.
In Cabinet for Health & Family Services v. H.C., supra, our Supreme
Court held that counsel’s misreading of the date of notation of service of the
judgment was not the type of excusable neglect that could extend the period for
filing a notice of appeal. 581 S.W.3d at 583. In that case, counsel had attempted
to file a notice within the 30-day period, but it was deemed ineffectual due to her
failure to include a motion to proceed in forma pauperis. Id. at 582. When she
refiled, it was four days past the 30-day window. Id. As here, counsel promptly
sought permission from the circuit court to proceed under RAP 3(D).2 Id. In that
case, the trial court found that counsel’s confusion over the filing date constituted
excusable neglect, and allowed the late filing. Id. However, our Supreme Court
reversed, holding that misreading of the entry date is not the type of excusable
neglect contemplated by our appellate rules. Id. at 583-84. As the Court
2 We cite to the RAP, even though it was actually under the prior analogous CR 73.02, which contained identical language.
-9- elaborated, counsel could have called the clerk’s office or performed an online
review of the case well before the expiration of the 30-day period. Id. at 584.
In D.W., supra, the Supreme Court found no excusable neglect when
counsel was allegedly blocked from e-filing the notice of appeal in a termination of
parental rights case, due to the sealing of the file by the clerk. 680 S.W.3d at 862.
The attorney then filed the notice in a related dependency, neglect, and abuse case,
noting that the termination case was sealed. Id. at 859. This Court permitted the
appeal to proceed, and the Supreme Court reversed, holding that the rules are
mandatory and that we had no jurisdiction to proceed with the appeal. Id. at 863.
Based on this precedent, we find that the failure to timely file the
appeal is not the type of excusable neglect to grant us jurisdiction to consider this
appeal. In this case, counsel for all parties attended a conference before the circuit
court on May 28, 2024. The sole purpose of the status conference was to
determine what remained to be done considering this Court’s prior dismissal of the
first appeal. The circuit court noted that it had neglected to include the finality
language to the previous ruling and it had been remanded because it “left out some
necessary language.”
The parties, including counsel for Loriane, advised the court that there
were also claims against Geico which needed to be ruled upon as Geico had moved
for summary judgment in the interim. Counsel for Loriane specifically stated that
-10- he wanted to be able to appeal both rulings together. The court then announced
(and noted it on the docket sheet) that it would “get an order out on this by the end
of the week” which did occur.
The order as to Michael’s dismissal was amended solely to add the
language that there was no just reason for delay. It was entered on June 5. The
order granting summary judgment in favor of Geico was entered five days later.
Loriane timely appealed from that second judgment and then attempted to file an
amended notice, five days too late, from the first order. On July 15, counsel
moved the court for more time, stating only that his office had experienced
significant network computer issues on June 5 which required the assistance of
outside consultants. Counsel’s motion also stated that he went to Louisville for a
continuing legal education program, but again provided no details as to why
attending a conference within the state constituted excusable neglect. He stated
that he returned to the office the following week and received the order as to Geico
which he noted on his calendar. There was no affidavit as to how long those
computer problems lasted, nor any indication that he did not ever actually receive
the court’s first order via e-filing. Indeed, as he candidly stated at the hearing on
the motion, it appears that he “just missed it.”
While we appreciate the candor of counsel, even being in another trial
or out of the country for weeks, based upon our precedent, simply does not
-11- constitute excusable neglect. See, e.g., Smith v. Lightstorm Props., LLC, No. 2023-
CA-1274-MR, 2024 WL 4575680 (Ky. App. Oct. 25, 2024) (unpublished
opinion);3 see also Motors Ins. Corp. v. Fields, 294 S.W.2d 518 (Ky. 1956).
Again, our appellate rules make it clear that even the failure of a party to actually
receive the judgment does not affect the time to appeal. See Estate of Reeder v.
Ashland Police Dep’t, 588 S.W.3d 160, 168 (Ky. App. 2019).
On appeal, counsel argues that the other parties were “on notice” of
his intent to appeal because he had attempted to appeal the ruling once before, and,
at the status conference, he made it clear that he would be appealing again.
However, the test is not whether allowing the appeal would cause any prejudice to
the other party. It is simply what constitutes excusable neglect so as to give
jurisdiction to this Court. If the other parties were “on notice,” then Loriane was
also on notice that the court would not be long in simply amending the prior order,
and the parties should have been expecting that ruling. Certainly when he received
the judgment in Geico’s favor on June 10, counsel should have investigated
whether the other order had also been entered as promised by the trial court.
Litigants have an obligation to keep a check on the progress of their
cases. Estate of Reeder, 588 S.W.3d at 168 (citation omitted). In Fields, the Court
held that the fact counsel was engaged in other litigation that consumed all of his
3 Pursuant to RAP 41, we cite this case merely as persuasive, not binding.
-12- time was not excusable neglect within the purview of the rules allowing additional
time to appeal. 294 S.W.2d 518. Similarly, illness or injury of counsel is not
sufficient to constitute excusable neglect. Wright-Starnes v. Cont’l Realty
Advisors, Ltd., No. 2014-CA-002066-MR, 2016 WL 2638152 (Ky. App. May 6,
2016) (unpublished opinion).4 We are not unsympathetic to Loriane’s plight in
being denied this appeal, particularly in light of the previous dismissal for lack of
finality. However, we cannot agree that this situation constitutes excusable
neglect, or every appellant who has missed the deadline for timely filing could
assert excusable neglect. See D.W., 680 S.W.3d at 862-63. To allow that in this
case would mean that timely filing is no longer the rule.
While this principle may seem harsh, our recent Supreme Court cases
make it clear that the timely filing of a notice of appeal is mandatory and
jurisdictional subject only to well-defined exceptions. Bruenger v. Miller, 706
S.W.3d 247, 261 (Ky. 2024); H.C., 581 S.W.3d at 584. For all the foregoing
reasons, we rule in favor of the cross-appellants and vacate the trial court ruling
which allowed the late filing of the appeal as to Michael. Having no jurisdiction to
consider it, we dismiss the appeal from the June 5 ruling in favor of Michael.
4 Pursuant to RAP 41, we cite this case merely as persuasive, not binding.
-13- SUMMARY JUDGMENT
The standard of review upon appeal of an order granting summary
judgment is “whether the trial court correctly found that there were no genuine
issues as to any material fact and that the moving party was entitled to judgment as
a matter of law.” Scifres v. Kraft, 916 S.W.2d 779, 781 (Ky. App. 1996) (citing
CR 56.03). Upon a motion for summary judgment, all facts and inferences in the
record are viewed in a light most favorable to the non-moving party and “all
doubts are to be resolved in his favor.” Steelvest, Inc. v. Scansteel Serv. Ctr., Inc.,
807 S.W.2d 476, 480 (Ky. 1991). The trial court “must examine the evidence, not
to decide any issue of fact, but to discover if a real issue exists.” Id. Thus, a
summary judgment looks only to questions of law, and we review de novo. Brown
v. Griffin, 505 S.W.3d 777, 781 (Ky. App. 2016).
As to the appeal by Loriane of the judgment in favor of Geico, the
notice of appeal from that ruling was timely. Loriane asserted that Geico
committed bad faith in its handling of the claims of Loriane against Michael and in
its handling of her claims for UM coverage. The circuit court disagreed and
granted summary judgment to Geico.
In its ruling, the court made note of the defenses by Geico that
Loriane was not entitled to bodily injury liability coverage under the Geico policy
due to the “household exclusion.” There is no dispute that it was a Tennessee
-14- policy and Tennessee law permits application of the household exclusion. That
policy specifically stated that it did not provide liability coverage for any bodily
injury suffered by a “covered person,” and a covered person is defined as “you and
any family member while using your covered cycle.” Loriane was both a named
insured, a covered person, and a spouse residing in the same household with
Michael.
While Kentucky does not generally enforce household exclusions,
Tennessee does. See Purkey v. Am. Home Assur. Co., 173 S.W.3d 703, 704 (Tenn.
2005) (citing Dockins v. Balboa Ins. Co., 764 S.W.2d 529, 530 (Tenn. 1989), and
Holt v. State Farm Mut. Auto. Ins. Co., 486 S.W.2d 734, 735 (Tenn. 1972)) (“This
Court has twice held that household and family exclusion clauses in automobile
insurance contracts are valid and enforceable.”). Geico moved for summary
judgment on this basis, asserting further that Tennessee law applied to this issue.
In response, Loriane argued that Kentucky’s Motor Vehicle
Reparations Act (“MVRA”) requires all operators to have minimum liability
coverage while in this Commonwealth, and the fact that the accident occurred in
Kentucky requires Geico to provide that coverage despite the policy language.
While the circuit court ruled in Geico’s favor, its order did not address the merits
of this legal issue, but simply noted that “regardless of its arguments” as to
-15- coverage, Geico had in fact paid the $25,000 policy limit within 30 days of the
accident.5
On appeal, this Court may affirm a circuit court order for any reason
sustainable in the record. Stephens v. Denison, 150 S.W.3d. 80, 82 n.1 (Ky. App.
2004). Here, it is clear from the record that the bad faith handling of the bodily
injury claim against Geico was properly dismissed as a matter of law.
In Hodgkiss-Warrick, our Supreme Court addressed a very similar
claim by an out-of-state resident who sustained injuries from an accident in
Kentucky. 413 S.W.3d at 881. The Pennsylvania policy in that case similarly
limited the recovery of a household member. Id. The injured party argued that
Kentucky’s public policy against such exclusions and our policy mandating
minimum liability coverage required provision of coverage for the injuries
sustained in Kentucky. Id. Our Supreme Court disagreed and emphasized that our
choice of law provisions require application of the other state’s law and policy
when the only connection is that the accident occurred within our borders.
In contract actions, the law of the state with the most significant contacts with the parties and the transaction is to be chosen absent an explicit, well-defined and dominant public policy that overrides that general choice of law rule. While our General Assembly, through the MVRA, has evinced an overriding public policy in the area of automobile liability coverage, a mandatory form of
5 According to its brief, Geico actually made two payments of $25,000 – one to both Loriane and her counsel, and one to Air Evac.
-16- insurance, there is no comparable public policy regarding underinsured motorist coverage, an optional coverage which may be purchased on the “terms and conditions” agreed to by the parties. Pennsylvania law governs this contract dispute and the Court of Appeals erred when it declined, on perceived public policy grounds, to apply that state’s law.
Id. at 887.
Loriane argues that Hodgkiss-Warrick is distinguishable because it
addressed UM benefits – which are not required coverage in Kentucky – and that
this claim concerns basic reparations benefits coverage or “security” that all
owners of motor vehicles operated in Kentucky are required to provide. It is true
that if an injured party is an insured from another state and has a foreign insurance
policy, and is involved in an accident in Kentucky, then KRS 304.39-100 requires
that the insured’s foreign policy must provide the minimum security on a motor
vehicle for tort liability. Dairyland Ins. Co. v. Assigned Claims Plan, 666 S.W.2d
746, 748 (Ky. 1984). However, here, Loriane’s reliance on KRS 304.39-100 is
misplaced. That statute specifically exempts “motorcycles” from the security that
owners are mandated to maintain, as follows:
in any contract of liability insurance for injury, wherever issued, covering the ownership, maintenance or use of a motor vehicle other than motorcycles while the vehicle is in this Commonwealth shall be deemed to provide the basic reparation benefits coverage and minimum security for tort liabilities required by this subtitle[.]
(Emphasis added.)
-17- In short, out-of-state insurers are not required to provide basic
reparation benefits or minimum security for tort liability for out-of-state
motorcycles when the out-of-state policy provides an enforceable exclusion.
We have long recognized that lesser protections for coverage to
motorcyclists in Kentucky are justifiable. Consider the following passage from our
Supreme Court in Preferred Risk Mutual Insurance Company v. Oliver:
It is common knowledge that motorcycle riders, as a class, are among the highest risk groups conceivable. Motorcycles offer no protection whatsoever from the front, back, sides or top, and leave the rider exposed to every peril of highway travel. The exclusion of such a class from coverage is clearly reasonable where, as here, the assured has the option of avoiding the excluded peril. An assured has no choice in selecting those uninsured motorists who may injure him, but he certainly does elect to ride a motorcycle. This volitional act triggers the exclusion and he accepts the consequences.
551 S.W.2d 574, 577 (Ky. 1977); see also Baxter v. Safeco Ins. Co. of Am., 46
S.W.3d 577, 579 (Ky. App. 2001).
In light of the exclusion of motorcycles from the purview of KRS
304.39-100(2) and consistent with Hodgkiss-Warrick, we find no strong public
policy that would require us to apply Kentucky law to afford coverage here to a
Tennessee resident whose policy explicitly denied it. Tennessee law and the policy
itself precluded coverage for Loriane against Michael. Thus, we affirm the circuit
court’s ruling in favor of Geico on the handling of the bodily injury claim.
-18- Turning to the claim of bad faith handling of the UM claim, we note
that the circuit court once again did not rule directly on the law discussed by the
parties, but simply noted that Geico had paid Loriane the UM limits of $25,000
within 20 days of an independent eyewitness being identified. As to whether the
handling of the UM claim was done in bad faith, we again affirm, although on
different grounds.
Geico’s policy provided that “if there was no physical contact with a
hit and run motor vehicle, the facts of the accident must be established by clear and
convincing evidence, other than evidence provided by an occupant of the covered
cycle.” Here, Loriane never claimed that an uninsured motorist struck her or
Michael’s motorcycle, but alleged that an unknown motorist dropped bales of hay
onto the roadway which ultimately caused her husband to lose control of his
motorcycle.6 For 11 months after the accident, Loriane did not reference any third
party witness to the accident; however, on May 11, 2023, she did so with an
affidavit from another driver stating that he did see a vehicle drop bales of hay onto
the highway on the day of the accident. Geico tendered its $25,000 uninsured
motorist policy limits on May 31, 2023.
6 Under Kentucky law, it is unlikely Loriane would have been entitled to UM coverage in the absence of physical contact. See Burton v. Farm Bureau Ins. Co., 116 S.W.3d 475 (Ky. 2003). However, here, the parties agree that Tennessee law applied to this claim for UM benefits.
-19- The circuit court found no bad faith on the part of Geico in light of
these facts. Loriane provides no dispute of these facts and did not produce any
evidence of intentional misconduct or reckless disregard of her rights to warrant
this matter proceeding to a jury. Wittmer v. Jones, 864 S.W.2d 885, 890 (Ky.
1993) (citation omitted). An insurer is entitled to challenge a claim and litigate it if
the claim is debatable on the law or facts. Belt v. Cincinnati Ins. Co., 664 S.W.3d
524, 535 (Ky. 2022) (citation omitted).
While it is actually debatable whether this claim could even be
pursued under Tennessee law, the circuit court did not address that issue, but
simply granted summary judgment in favor of Geico because it paid the UM claim
within 20 days of receipt of the witness affidavit. We find no error in that decision
based upon our own case law interpreting the Unfair Claims Settlement Practices
Act which was alleged herein. Neither does Loriane provide us with any
Tennessee authority that would support this matter proceeding against Geico for its
handling of the UM claim. Loriane, citing to Gatlin v. Tennessee Farmers Mutual
Insurance Company, merely states an insurer has the duty to deal with its insured
fairly and in good faith. 741 S.W.2d 324 (Tenn. 1987). (That is exactly what the
circuit court found Geico had done by promptly paying the claim upon receipt of
the affidavit.)
-20- Wittmer states three elements are required to prevail on a bad faith
claim:
(1) the insurer must be obligated to pay the claim under the terms of the policy; (2) the insurer must lack a reasonable basis in law or fact for denying the claim; and (3) it must be shown that the insurer either knew there was no reasonable basis for denying the claim or acted with reckless disregard for whether such a basis existed.
864 S.W.2d at 890.
Geico moved for summary judgment asserting that it was not
obligated to pay the claim under the terms of the policy. It initially denied it due to
Loriane’s failure to produce clear and convincing evidence of another involved
motorist. When that evidence was provided, payment was promptly made. In
response, Loriane produced no evidence of reckless disregard by Geico. “The
party opposing a properly supported summary judgment motion cannot defeat it
without presenting at least some affirmative evidence showing that there is a
genuine issue of material fact for trial[.]” Baptist Physicians Lexington, Inc. v.
New Lexington Clinic, P.S.C., 436 S.W.3d 189, 194 (Ky. 2013) (citation omitted).
Based on these principles, we cannot agree that the circuit court erred in granting
summary judgment to Geico. See Breedlove v. State Farm Fire & Cas. Co., 690
S.W.3d 904, 917 (Ky. App. 2024).
-21- CONCLUSION
Accordingly, we AFFIRM the summary judgments of the claims
against Geico; we VACATE the circuit court’s decision allowing more time for the
filing of a late notice of appeal; and DISMISS the appeal as to the claims against
ALL CONCUR.
BRIEFS FOR APPELLANT/CROSS- BRIEFS FOR APPELLEE/CROSS- APPELLEE LORIANE POWELL: APPELLANT MICHAEL POWELL:
David V. Oakes Ryan F. Quick Paducah, Kentucky Elizabethtown, Kentucky
BRIEFS FOR APPELLEE/CROSS- APPELLANT GEICO INDEMNITY COMPANY:
Charles E. Stopher Bethany A. Breetz Louisville, Kentucky
-22-