NOT RECOMMENDED FOR PUBLICATION File Name: 25a0119n.06
Case No. 24-5724
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT FILED Feb 28, 2025 KELLY L. STEPHENS, Clerk ) MICHAELA JEFFERY, ) ON APPEAL FROM THE Plaintiff - Appellant, ) UNITED STATES DISTRICT ) COURT FOR THE EASTERN ) DISTRICT OF KENTUCKY v. ) ) MEDICAL PROTECTIVE COMPANY, ) OPINION ) Defendant - Appellee. )
Before: McKEAGUE, KETHLEDGE, and READLER, Circuit Judges.
McKEAGUE, Circuit Judge. Michaela Jeffery received negligent periodontal care from
Dr. Justin Clemens. Jeffery sued Clemens for negligence in state court and obtained a default
judgment in her favor. Now, Jeffery wants Clemens’s insurance provider, Medical Protective
Company (MedPro), to indemnify the judgment.
But MedPro says it doesn’t have to pay. Under the terms of Clemens’s insurance policy,
MedPro was obligated to pay damages for a “potential claim” reported during the policy’s
coverage period. In MedPro’s view, Jeffery failed to provide the required information about her
“potential claim” against Clemens before his policy expired. The district court agreed and issued
summary judgment in MedPro’s favor.
On appeal, Jeffery argues that there is a genuine dispute of material fact as to (1) whether
MedPro must indemnify the judgment against Clemens under the terms of his insurance policy, No. 24-5724, Jeffery v. Medical Protective Company
and (2) whether MedPro acted in “bad faith” in violation of the Kentucky Unfair Claims Settlement
Practice Act (KUCSPA). Because Jeffery did not provide MedPro with “all reasonably obtainable
information” about her potential claim, MedPro had no contractual duty to Clemens. And because
there was no contractual duty, her KUCSPA claim necessarily fails. Thus, we AFFIRM the district
court’s grant of summary judgment to MedPro.
I.
A.
In October 2013, Jeffery had a problem with one of her teeth. Her regular dentist referred
her to Clemens, a periodontist, for a consultation. Jeffery told her dentist that she did not want her
tooth removed. But during the consultation, Clemens pulled her tooth and inserted two implants
in its place. He then charged Jeffery over $7,000 for the procedure.
After a follow-up visit with Clemens, Jeffery returned to her regular dentist’s office
because the procedure caused pressure and discomfort. The dentist made adjustments that provided
temporary relief. When Jeffery visited Clemens again in December 2013, Clemens said that the
area was healing normally. Clemens then asked for another $2,810.
In February 2014, Jeffery was in significant pain. She felt throbbing and aching all the way
into her eye. But when she called Clemens’s office to schedule a visit, Clemens was not available.
Eventually, Clemens’s fiancé—who was also a periodontist—told Jeffery that Clemens’s office
shut down. A scan of Jeffery’s teeth revealed that her implants failed and that she had an infection.
Jeffery needed extensive and expensive treatment to repair the damage.
Jeffery ultimately filed a complaint against Clemens with the Kentucky Board of Dentistry.
The Board determined that Clemens “may be unfit to practice dentistry” and ordered Clemens to
2 No. 24-5724, Jeffery v. Medical Protective Company
surrender his dental license. Board of Dentistry Order, R.46-3 at PageID 405. In the following
months, Jeffery attempted to contact Clemens via Facebook. Clemens never responded.
B.
Shortly after Jeffery learned that her implants failed, she retained attorney Alfred Welsh.
When Welsh agreed to represent Jeffery, he did not know which insurance company provided
professional liability coverage to Clemens. But based on his experience, Welsh knew that MedPro
frequently insured dentists and physicians. So on April 15, 2014, Welsh contacted MedPro to ask
if it covered Clemens.
Welsh called MedPro four times on April 15. During the first call, Welsh explained why
he was calling and asked whether MedPro insured Clemens. A MedPro representative confirmed
that it did. Welsh then asked for the name of the claims adjustor assigned to Clemens. Because
there was no open claim against Clemens at that time, the representative said that George Seifert,
a claims specialist, would handle the matter. The representative logged the call as a “new claim”
within MedPro’s internal database.
During the third call, Welsh contacted Seifert directly.1 Welsh explained that he
represented Jeffery and planned to pursue a claim against Clemens for his negligent periodontal
care. But Welsh did not provide specific information about Jeffery’s implants, pain, or visits to
Clemens’s office. Instead, Welsh was “very general” during the call because he did not know the
full extent of the damage to Jeffery’s tooth. Welsh Dep., R.64 at PageID 953. In short, whatever
specifics Welsh knew about Jeffery’s treatment were not discussed with Seifert.
1 Welsh’s second and fourth calls went to Seifert’s voicemail.
3 No. 24-5724, Jeffery v. Medical Protective Company
At Seifert’s request, Welsh faxed a letter to Seifert later that day. The letter reiterated that
Welsh represented Jeffery and asked Seifert to contact Welsh to discuss the matter. One month
later, Seifert sent a letter acknowledging receipt of Welsh’s faxed letter and confirming that
MedPro insured Clemens. Seifert then asked Welsh to provide additional materials supporting
Jeffery’s claim, including a written report from a healthcare professional, records, bills, and a
summary of Jeffery’s current condition.
In July 2014—nearly three months after his initial calls to MedPro—Welsh provided
detailed information about Jeffery’s treatment. He included the name of Jeffery’s regular dentist,
how much Clemens charged for the procedure, and details about her follow-up appointments. In
August, Welsh sent another letter with more information about the cost of Jeffery’s treatment. In
this follow-up letter, Welsh explicitly stated that he was “making a claim for the negligence of
Dr. Clemens which resulted in permanent problems.” Welsh Letter to MedPro, R.46-11 at PageID
417.
MedPro ultimately declined to cover Jeffery’s claim. In a letter to Welsh, MedPro’s outside
counsel explained that because Clemens failed to pay his insurance premium, his policy expired
on April 27, 2014.2 The letter further asserted that under the terms of Clemens’s policy, only
Clemens could report a claim, and he never responded to MedPro’s inquiries. The letter then noted
that even if a third party could report a claim, Welsh did not provide “an express written demand
for money as compensation for civil damages” during the coverage period. MedPro Letter to
2 Under the original terms of Clemens’s insurance policy, MedPro agreed to provide coverage from June 2013 to June 2014. But MedPro only had a duty to perform under the policy “upon payment of the premium when due.” Insurance Policy, R.46-15 at PageID 432. MedPro repeatedly notified Clemens that his policy would expire unless he paid his premium, but Clemens never responded. Jeffery does not dispute that because Clemens failed to pay his premium, the policy expired on April 27, 2014.
4 No. 24-5724, Jeffery v. Medical Protective Company
Welsh, R.46-13 at PageID 422. Since “no claim was timely reported,” MedPro denied coverage.
Id.
C.
Shortly after MedPro denied coverage, Jeffery filed a complaint against Clemens in state
court. MedPro did not appear on Clemens’s behalf or otherwise defend him in court. In 2016, the
court granted a default judgment in Jeffery’s favor and awarded her $283,095 in damages.
Over two years later, Jeffery filed a complaint against MedPro in state court, alleging that
MedPro was liable for the judgment under the KUCSPA and theories of promissory and equitable
estoppel. MedPro removed the case to federal court and moved for judgment on the pleadings. The
district court granted MedPro’s motion, but Jeffery successfully moved to amend her complaint.
In her amended complaint, Jeffery sought (1) a declaration that MedPro was obligated to
indemnify Clemens, and (2) relief under the KUCSPA. The court agreed to stay Jeffery’s
KUCSPA claim until the declaratory-relief claim was resolved.
After Jeffery filed her amended complaint, MedPro again moved for judgment on the
pleadings. MedPro argued that it was only obligated to provide coverage if it received notice of a
“claim” or a “potential claim” within the coverage period. In MedPro’s view, it received neither.
But the district court disagreed, concluding that Jeffery plausibly alleged that she provided notice
of a potential claim before Clemens’s insurance policy expired.
After discovery, both parties moved for summary judgment. Jeffery claimed that Welsh’s
phone call with Seifert and subsequent letter sufficiently notified MedPro of a potential claim. In
response, MedPro argued that (1) only Clemens could provide notice of a potential claim, and
(2) in any case, the phone call and letter did not sufficiently notify MedPro of a potential claim
because Welsh failed to provide “all reasonably obtainable information.”
5 No. 24-5724, Jeffery v. Medical Protective Company
The district court granted summary judgment to MedPro. The court first concluded that a
third party could, in theory, provide notice of a potential claim to MedPro. But in this case, Welsh
failed to provide MedPro with all the information that he and Jeffery knew about Clemens’s
treatment, as he admitted to being “aware of many details on April 15 that he did not share with
MedPro.” Order, R.61 at PageID 849. Because sufficient notice was a “condition precedent” to
MedPro’s performance under the insurance policy, the court held that MedPro had no obligation
to indemnify Clemens. Id.
After the district court granted summary judgment on the declaratory-relief claim—but
before it entered judgment—Jeffery moved to “alter or amend the judgment.” Jeffery claimed that
the court mischaracterized Welsh’s deposition, as Welsh never admitted to withholding
information. To support its motion, Jeffery attached an affidavit by Welsh stating that he told
MedPro “all relevant malpractice information [he] knew of as of April 15, 2014.” Welsh Affidavit,
R.67-3 at PageID 1023. The court denied Jeffery’s motion because she was merely “relitigat[ing]
the motion for summary judgment with new theories and evidence that were available to her when
she briefed the original motion.” Order, R.70 at PageID 1213. After additional briefing, the court
granted MedPro’s motion for summary judgment on Jeffery’s KUCSPA claim because “absent a
contractual obligation, there simply is no bad faith cause of action” under the KUCSPA. Order,
R.82 at PageID 1288 (citation omitted). The court then entered a final judgment in MedPro’s favor.
Jeffery timely appealed.
II.
Jeffery argues that the district court erroneously granted summary judgment to MedPro on
her claims for a “declaration of rights” and relief under the KUCSPA. We review the district
6 No. 24-5724, Jeffery v. Medical Protective Company
court’s grant of summary judgment, including the district court’s interpretation of contracts and
state statutes, de novo. See Cash-Darling v. Recycling Equip., Inc., 62 F.4th 969, 974–75 (6th Cir.
2023); AES-Apex Emp. Servs., Inc. v. Rotondo, 924 F.3d 857, 862 (6th Cir. 2019). We must affirm
when there is no genuine dispute of any material fact and the moving party is entitled to judgment
as a matter of law. See Fed. R. Civ. P. 56(a).
In her amended complaint, Jeffery asked the district court to declare that MedPro had a
contractual duty to indemnify the judgment against Clemens. But the court concluded that the
event triggering MedPro’s obligation under the policy—sufficient notice of a potential claim—did
not occur during the policy’s coverage period. On appeal, Jeffery claims that there is a genuine
dispute as to whether she provided the requisite notice to MedPro. We disagree.
1.
When evaluating Clemens’s insurance policy, we apply Kentucky law. See Talley v. State
Farm Fire & Cas. Co., 223 F.3d 323, 326 (6th Cir. 2000) (“In a diversity action involving an
insurance contract, a federal court applies the substantive law of the forum state.”). Kentucky law
provides that “[e]very insurance contract shall be construed according to the entirety of its terms
and conditions as set forth in the policy, and as amplified, extended, or modified by any rider,
indorsement, or application attached to and made a part of the policy.” Ky. Rev. Stat. § 304.14-
360. Courts generally resolve “perceived ambiguities and uncertainties in the policy terms” in
favor of the insured. Thomas v. State Farm Fire & Cas. Co., 626 S.W.3d 504, 507 (Ky. 2021). But
we cannot rely on a “nonexistent ambiguity” to “enlarge the risk to the insurer.” St. Paul Fire &
Marine Ins. Co. v. Powell-Walton-Milward, Inc., 870 S.W.2d 223, 226–27 (Ky. 1994). In other
7 No. 24-5724, Jeffery v. Medical Protective Company
words, “when the terms of an insurance contract are unambiguous and not unreasonable, they will
be enforced as written.” Foreman v. Auto Club Prop.-Cas. Ins. Co., 617 S.W.3d 345, 349 (Ky.
2021).
The key provision of Clemens’s insurance policy is an endorsement revising the original
terms of the policy. The endorsement provides:
In consideration of the payment of the premium and subject to the limits of liability and the other terms of this policy, [MedPro] hereby agrees to defend and pay damages, in the name and on behalf of the Insured or his or her estate,
A. In any claim first made, or potential claim first brought to the Insured’s attention, during the term of this policy based upon professional services rendered, or which should have been rendered, after the retroactive date by the Insured, or any other person for whose acts or omissions the Insured is legally responsible, in the practice of the Insured’s profession as hereinafter limited and defined.
However, [MedPro] shall have no duty to defend or pay damages:
1. on a claim unless it was reported to [MedPro] during the term of this policy or thirty (30) days thereafter. 2. on a potential claim unless it was reported to [MedPro] during the term of this policy and the report includes all reasonably obtainable information, including the time, place and circumstances of the incident; the nature and extent of the patient’s injuries; and the names and addresses of the patient and any available witnesses.
Insurance Policy, R.46-15 at PageID 442.
This provision does two things. First, it explains when Clemens could submit a claim to
MedPro. Specifically, Clemens’s policy is a “claims-made-and-reported” policy, which means that
it “provides coverage only for claims made against the insured and reported to the insurer during
the life of the policy.” Ky. State Univ. v. Darwin Nat’l Assurance Co., 677 S.W.3d 294, 305 (Ky.
2023) (quoting C.A. Jones Mgmt. Grp., LLC v. Scottsdale Indem. Co., No. 13-CV-173, 2016 WL
8 No. 24-5724, Jeffery v. Medical Protective Company
3460445, at *5 (W.D. Ky. June 21, 2016)). A claims-made-and-reported policy “must be construed
as it is written.” Id. at 306 (citation omitted).3
Second, the provision defines what information must be provided to MedPro. The policy
makes a distinction between “claims” and “potential claims.” The policy defines a “claim” as “an
express written demand for money as compensation for civil damages.” Insurance Policy, R.46-
15 at PageID 443. A “potential claim” is “an incident which the Insured reasonably believes will
result in a claim for damages.” Id. The district court concluded that MedPro did not receive notice
of a “claim,” and Jeffery does not dispute that finding here. Thus, the only remaining question is
whether Jeffery provided sufficient notice of a “potential claim” during Clemens’s coverage
period.4
Providing sufficient notice of a potential claim is a condition precedent to MedPro’s
obligations under the insurance policy. See Superior Steel, Inc. v. Ascent at Roebling’s Bridge,
LLC, 540 S.W.3d 770, 785 (Ky. 2017) (“Condition precedent is a legal term of art with a clear
meaning: An act or event, other than a lapse of time, that must exist or occur before a duty to
perform something promised arises.” (internal quotation marks omitted)). That is, MedPro had no
3 In the district court, the parties disagreed about whether the “notice-prejudice” rule applies to Clemens’s insurance policy. In short, the notice-prejudice rule provides that “an insurer cannot withdraw coverage on the ground that a notice condition has not been met unless the insurer can show that it was prejudiced by the act of the insured.” Jones v. Bituminous Cas. Corp., 821 S.W.2d 798, 801 (Ky. 1991). The Kentucky Supreme Court recently clarified that, generally, the notice-prejudice rule does not apply to claims-made-and-reported policies with unambiguous notice requirements. See Ky. State Univ., 677 S.W.3d at 306. Instead, the “[p]arties are bound by the clear and unambiguous terms of their contracts.” Id. (citation omitted). As Jeffery concedes on appeal, MedPro does not need to show that it was prejudiced by the insufficient notice of a potential claim. 4 In its motion for summary judgment, MedPro also argued that only Clemens—not a third party— could notify MedPro of a potential claim. But the district court found that Clemens’s policy did not bar a third party from reporting a potential claim on Clemens’s behalf. We assume, without deciding, that Clemens’s policy permitted a third party to put MedPro on notice of a potential claim.
9 No. 24-5724, Jeffery v. Medical Protective Company
duty to indemnify Clemens unless Jeffery provided MedPro with “all reasonably obtainable
information” about her potential claim before the policy expired on April 27, 2014. To determine
whether Jeffery satisfied this condition precedent, we compare the information that Jeffery and
Welsh could reasonably obtain with the information that Welsh disclosed to MedPro.
By the time Welsh spoke with Seifert, he knew several details about Jeffery’s periodontal
treatment. He was aware that the dispute arose when Jeffery’s regular dentist referred her to
Clemens. He also knew that (1) Clemens inserted two implants that later caused Jeffery to suffer
pain; (2) Jeffery called Clemens’s office and learned that Clemens had “absconded”; (3) Jeffery
went to Clemens’s office for an x-ray; (4) the x-ray revealed that Jeffery’s implants were missing;
and (5) Jeffery’s regular dentist was involved in her follow-up treatment. Moreover, Jeffery
retained Welsh in February 2014 and let him handle “pretty much all of” the dispute. Later that
month, Jeffery filed her complaint against Clemens with the Kentucky Board of Dentistry. In the
complaint, Jeffery described her initial conversation with her dentist, her visits to Clemens’s office,
her payments to Clemens, the pain she experienced after Clemens inserted the implants, her
attempts to contact Clemens before he disappeared, and the nature of her resulting injuries. Jeffery
listed Welsh as a person “who may provide additional information,” and Welsh admitted that he
“probably” knew the facts contained in the Board of Dentistry complaint prior to April 15.
But Welsh did not provide those details to MedPro during the April 15 phone calls. During
the initial call to MedPro, Welsh did not provide “specifics about the treatment.” Welsh Dep., R.64
at PageID 952–53. During the call with Seifert, Welsh was “very general.” Id. at PageID 953.
Welsh conceded that he would not have gone into “[w]hatever specifics [he] knew” about
Clemens’s negligent treatment. Id. at PageID 955. And in Welsh’s follow-up letter to Seifert later
that day, he did not include any additional information about the potential claim. Because Welsh
10 No. 24-5724, Jeffery v. Medical Protective Company
did not provide the “specifics” of what he knew about Jeffery’s case to MedPro on April 15, he
failed to provide all reasonably obtainable information before Clemens’s coverage period expired.
Thus, the condition precedent to MedPro’s duty to indemnify Clemens did not occur.
2.
Jeffery’s myriad counterarguments are unavailing. First, she argues that the scope of
“reasonably obtainable information” depends on who provided notice to MedPro. That is, the
proper question for the factfinder is whether Welsh provided notice of what he knew on April 15,
not what Jeffery knew. See Appellant Br. at 33–34 (“[T]he District Court erred by requiring Al
Welsh to provide everything that Michaela Jeffery knew about her claim to [MedPro].”). We first
note that the premise of Jeffery’s argument—that Welsh could not “reasonably obtain” information
from his own client—is dubious. But even if we accept Jeffery’s premise, her argument still fails.
Welsh admitted that by the time he called MedPro on April 15, he was personally aware of when
the dispute arose, the procedure Clemens performed, the pain Jeffery suffered, Clemens’s
abandonment, Jeffery’s subsequent x-ray, and the name of Jeffery’s regular dentist. Jeffery also
told him about her experience in “some general detail,” and he was “probably” aware of the facts
contained in Jeffery’s complaint to the Kentucky Board of Dentistry. Welsh Dep., R.64 at PageID
956. But during Welsh’s phone calls with MedPro on April 15, he did not provide “specifics”
about Jeffery’s treatment. Id. at PageID 955. Contrary to Jeffery’s suggestion, Welsh did not
“provide[] all obtainable information as of April 15, 2014 that was relevant to the claim.”
Appellant Br. at 33.
Second, Jeffery claims that because she was still receiving treatment in April 2014, it would
have been impossible to report “the nature and extent of [her] injuries” before Clemens’s insurance
policy expired. Insurance Policy, R.46-15 at PageID 442. We agree that Clemens’s insurance
11 No. 24-5724, Jeffery v. Medical Protective Company
policy cannot be read to require the disclosure of unascertainable information. Instead, the
condition precedent to MedPro’s obligation is satisfied if the notice of a potential claim “includes
all reasonably obtainable information.” Id. (emphasis added). So while Jeffery could not provide
the full extent of the damage caused by Clemens’s negligent periodontal treatment, she could
inform MedPro about her visits to Clemens’s office, the nature of the treatment, and the names of
possible witnesses. See First Pros. Ins. Co. v. Sutton, 607 F. App’x 276, 283 (4th Cir. 2015)
(concluding that MedPro’s insurance policy only requires the insured to “give the specific types
of information listed in the provision if that information is reasonably obtainable”). As described
above, she did not do so.
Third, Jeffery notes that MedPro used the term “claim” when describing her case in its
internal database and subsequent communications with Welsh. In her view, this is “extrinsic
evidence that proves all obtainable information was provided.” Appellant Br. at 36. This
conclusion relies on two assumptions: (1) by using the term “claim,” MedPro acknowledged that
Jeffery had a potential claim against Clemens, and (2) if MedPro recognized that Jeffery had a
potential claim, then she must have provided all reasonably obtainable information. Even if we
grant Jeffery’s first assumption, her second assumption runs up against the plain language of the
insurance policy. See Wehr Constructors, Inc. v. Assurance Co. of Am., 384 S.W.3d 680, 687 (Ky.
2012) (“[I]n the absence of ambiguity a written instrument will be enforced strictly according to
its terms, and a court will interpret the contract’s terms by assigning language its ordinary meaning
and without resort to extrinsic evidence.” (internal quotation marks omitted)). Clemens’s policy
defined a “potential claim” as “an incident which the Insured reasonably believes will result in a
claim for damages.” Insurance Policy, R.46-15 at PageID 443. It also provided that MedPro had
no duty to pay damages “on a potential claim unless it was reported to [MedPro] during the term
12 No. 24-5724, Jeffery v. Medical Protective Company
of this policy and the report includes all reasonably obtainable information.” Id. at PageID 442
(emphasis added). Because the policy distinguishes a “potential claim” from the requirement to
disclose “all reasonably obtainable information,” it does not follow that the former necessarily
contains the latter. Even when viewing the facts in the light most favorable to Jeffery, MedPro’s
terminology does not prove that Jeffery satisfied the condition precedent.
Fourth, Jeffery argues that we should reach the same conclusion as Sutton, a case in which
the Fourth Circuit analyzed an identical insurance policy provision and found that MedPro was
obligated to provide coverage. 607 F. App’x at 290–91. In Sutton, a doctor received a letter from
a hospital’s risk-management department informing her that a former patient submitted a request
for medical records. Id. at 278–79. The letter did not include details about the patient’s treatment
or hospitalization, and the doctor did not recall treating the patient. Id. at 279. Immediately after
receiving the letter, the doctor called MedPro and relayed the information contained in the letter,
but she did not identify the patient or provide any details about the patient’s treatment. Id. at 279,
286. The Fourth Circuit held that the district court did not clearly err in finding that the doctor
provided “all reasonably obtainable information” during the call and thus satisfied the condition
precedent to MedPro’s coverage. Id. at 286–87. Here, Jeffery argues that MedPro must indemnify
Clemens because Welsh provided “more evidence” to MedPro than the doctor did in Sutton.
Again, the question is not how much information Welsh provided during the April 15
phone calls, but whether he provided “all reasonably obtainable information.” In Sutton, the Fourth
Circuit acknowledged that the doctor provided “limited” information to MedPro and it was a “close
question” as to whether she satisfied the condition precedent. Id. at 286. But the district court also
found that the doctor “relayed all information that was then known to her at the time of the call,”
as the doctor did not remember the name of her patient or the treatment she provided. Id. at 279,
13 No. 24-5724, Jeffery v. Medical Protective Company
286 (emphasis added). By contrast, Welsh was personally aware of several details about Jeffery’s
treatment, yet he did not disclose “[w]hatever specifics [he] knew” during the phone calls to
MedPro. Welsh Dep., R.64 at PageID 955. So while he may have had “no reason” to call MedPro
“unless he [wa]s notifying them of a potential claim,” Appellant Br. at 40, we cannot “rewrite
contracts containing explicit terms.” Ky. State Univ., 677 S.W.3d at 306.
Fifth, Jeffery asks this court to consider an affidavit in which Welsh attempted to “clear up
confusion and inform the District Court that he told [MedPro] what he knew.” Appellant Br. at 47.
Welsh’s affidavit—dated one month after the court granted summary judgment—contradicted his
deposition testimony and stated that during the phone calls, he “told [MedPro] all relevant
malpractice information [he] knew as of April 15, 2014.” Welsh Affidavit, R.67-3 at PageID 1023.
Jeffery attached the affidavit to her motion to alter or amend the judgment. In denying Jeffery’s
motion, the district court discarded the affidavit because it “could have been submitted prior to
summary judgment.” Order, R.70 at PageID 1214.
We are in no position to consider Welsh’s belated affidavit for the first time on appeal. “In
general, an appellate court reviewing a grant of summary judgment cannot consider evidence that
was not before the district court at the time of its ruling.” Good v. Ohio Edison Co., 149 F.3d 413,
421 n.16 (6th Cir. 1998). This rule applies to affidavits submitted by a party after the court granted
summary judgment to the opposing party. See McKay v. Federspiel, 823 F.3d 862, 868 (6th Cir.
2016); 16A Charles Alan Wright et al., Federal Practice and Procedure § 3956.1, at 724 (5th ed.
2019) (“[O]rdinarily, the court of appeals will not consider matter that was filed with the district
court, if at all, after the date of the judgment or order that is challenged on appeal.”). As the district
court recognized, Jeffery could have filed an errata sheet or affidavit supplementing Welsh’s
deposition testimony before the court granted summary judgment. Instead, Jeffery filed Welsh’s
14 No. 24-5724, Jeffery v. Medical Protective Company
affidavit as an “eleventh-hour salvo attempt[] to . . . present new evidence,” and we will not
consider it here. Order, R.70 at PageID 1214.5
Sixth, Jeffery submits that we should “review” MedPro’s prelitigation conduct, which
purportedly made it “more difficult for [Jeffery] to prove that notice of a potential claim had
occurred.” Appellant Br. at 49–50. Specifically, she claims that (1) MedPro only considered
whether Jeffery provided notice of a claim—not a potential claim—when it denied coverage in
October 2014, and (2) MedPro was “hiding” the insurance policy from Jeffery until it removed
this case to federal court. In Jeffery’s view, these tactics allowed MedPro to “use[] the passage of
time and faded memory to its advantage.” Id. at 51.
Jeffery provides neither a legal basis nor any caselaw to support her “quasi-spoliation
argument.” Order, R.70 at PageID 1215. To be sure, the “passage of time can result in spoliation
of evidence, especially where, as here, an injury or event occurred several years in the past.” Jones
v. Pinter, 642 S.W.3d 698, 705 (Ky. 2022). But Jeffery has not provided evidence that MedPro
engaged in intentional or bad faith tactics to obtain an advantage in future litigation. Cf. Norton
Healthcare, Inc. v. Disselkamp, 600 S.W.3d 696, 730–31 (Ky. 2020) (describing the standard for
a “missing-evidence” jury instruction at trial). Moreover, Jeffery is at least partly responsible for
the “passage of time” between the April 2014 phone calls and the present litigation, as she waited
more than two years to file her complaint against MedPro after obtaining the default judgment
against Clemens.
5 We also note that MedPro’s motion for summary judgment referenced several portions of Welsh’s deposition transcript that were not attached to the motion. But the district court ordered MedPro to file the entirety of Welsh’s deposition into the record, and MedPro complied with the order.
15 No. 24-5724, Jeffery v. Medical Protective Company
* * *
This case presents an unfortunate set of circumstances. When Jeffery suffered significant
pain because of Clemens’s negligent periodontal treatment, Clemens abandoned her. When Jeffery
attempted to report a potential claim with Clemens’s insurer, she didn’t know she had to report
“all reasonably obtainable information.” And when Jeffery ultimately did provide all reasonably
obtainable information, Clemens’s insurance policy had already expired.
While we are sympathetic to Jeffery’s plight, she is asking this court to impose an
obligation on Clemens’s insurer that neither the insurance policy nor Kentucky law require.
Ambiguous insurance contracts must be construed against the insurer, but “this rule of strict
construction certainly does not mean that every doubt must be resolved against the insurer and
does not interfere with the rule that the policy must receive a reasonable interpretation consistent
with the plain meaning in the contract.” Tower Ins. Co. of N.Y. v. Horn, 472 S.W.3d 172, 174 (Ky.
2015). Under the plain meaning of Clemens’s policy, Welsh failed to provide “all reasonably
obtainable information” that he knew about Jeffery’s potential claim. Because he did not provide
the required notice to MedPro before Clemens’s coverage period expired, MedPro is not obligated
to indemnify the default judgment.
We now turn to Jeffery’s second claim: whether MedPro violated the KUCSPA by
engaging with Jeffery in bad faith. See Ky. Rev. Stat. § 304.12-230. In her complaint, Jeffery
alleged that Med Pro “fail[ed] to promptly provide a reasonable explanation for denying coverage
under [Clemens’s] insurance” and did not “attempt[] in good faith to effectuate prompt, fair, and
equitable settlements of claims in which liability had become reasonably clear.” Complaint, R.1-
2 at PageID 31. In her appellate briefing, Jeffery further claims that MedPro “continued to
16 No. 24-5724, Jeffery v. Medical Protective Company
misrepresent its policy” throughout this litigation. Appellant Br. at 52. Because MedPro had no
contractual obligation to Clemens, Jeffery is not entitled to relief under the KUCSPA.
“The KUCSPA comprehensively defines misleading insurance investigative practices and
prohibits insurers from engaging in certain activities in the course of settling claims.” Hollaway v.
Direct Gen. Ins. Co. of Miss., Inc., 497 S.W.3d 733, 737 (Ky. 2016). These activities include
“[f]ailing to promptly provide a reasonable explanation of the basis in the insurance policy . . . for
denial of a claim” and “[n]ot attempting in good faith to effectuate prompt, fair, and equitable
settlements of claims.” Ky. Rev. Stat. § 304.12-230(6), (14). The statute provides a cause of action
against the insurer for both the insured and a third-party claimant. See State Farm Mut. Auto. Ins.
Co. v. Reeder, 763 S.W.2d 116, 118 (Ky. 1988) (explaining that the KUCSPA creates a bad faith
cause of action when “read together” with Kentucky’s general cause of action statute, Ky. Rev.
Stat. § 446.070). “The gravamen of the KUCSPA . . . is that an insurer is required to deal with the
insured or third-party claimant in good faith.” Belt v. Cincinnati Ins. Co., 664 S.W.3d 524, 531
(Ky. 2022).
There is “a tall burden of proof on plaintiffs seeking to recover on a theory of bad faith.”
Hollaway, 497 S.W.3d at 737. Specifically, a plaintiff must prove that the insurer (1) was
“obligated to pay the insured’s claim under the terms of the policy”; (2) lacked “a reasonable basis
in law or fact for denying the claim”; and (3) “either knew there was no reasonable basis for
denying the claim or acted with reckless disregard for whether such a basis existed.” Mosley v.
Arch Specialty Ins. Co., 626 S.W.3d 579, 584 (Ky. 2021) (citing Wittmer v. Jones, 864 S.W.2d
885, 890 (Ky. 1993)). The Kentucky Supreme Court recently explained the difference between the
first and second elements: the first element is satisfied by “proof that the insured’s policy requires
17 No. 24-5724, Jeffery v. Medical Protective Company
the insurer to pay,” while the second element requires a showing that “the insured’s liability is
beyond dispute.” Id. at 585–86.
The district court correctly found that Jeffery failed to establish the first element. As
explained above, the condition precedent to MedPro’s obligation to indemnify Clemens—
sufficient notice of a potential claim during the coverage period—did not occur. Thus, MedPro
“had no contractual duty to pay the claims” against Clemens. Id. at 586. And “[a]bsent a
contractual obligation, there is simply no bad faith cause of action, either at common law or by
statute.” Davidson v. Am. Freightways, Inc., 25 S.W.3d 94, 100 (Ky. 2000); see also Est. of
Bramble v. Greenwich Ins. Co., 671 S.W.3d 347, 353 (Ky. 2023) (“[P]laintiffs must fully shoulder
the burden of proving the insurer is obligated to pay in order to prevail in a bad faith claim.”).
Jeffery asserts that we should ignore the Kentucky Supreme Court’s guidance and turn
instead to Elliott v. Liberty Mut. Fire Ins. Co., No. CIV. 09-178, 2010 WL 3294417 (E.D. Ky.
Aug. 19, 2010). In Elliot, the plaintiff brought claims under the KUCSPA against a hot dog
manufacturer, the manufacturer’s insurer, and the insurer’s claims manager. Id. at *1. The court
granted motions to dismiss by the manufacturer (because the statute of limitations expired) and the
claims manager (because the KUCSPA does not allow claims against individual adjusters). Id. But
the court found that the claims against the insurer could proceed, as the plaintiff “should not be
precluded from arguing that [the insurer] had an obligation to pay [the plaintiff’s] claims under the
terms of [the insurer’s] policy.” Id. at *3.
Elliott does not support Jeffery’s argument. The court explicitly recognized the first
element of a KUCSPA claim: “the insurer must be obligated to pay the claim under the terms of
the policy.” Id. at *2. In allowing the case to proceed, the court merely acknowledged that the
plaintiff could satisfy this element even though the plaintiff’s underlying tort claim against the
18 No. 24-5724, Jeffery v. Medical Protective Company
manufacturer was barred by the statute of limitations. Id. at *3. By analogy, Jeffery could
theoretically pursue a KUCSPA claim against MedPro even if her negligence claim against
Clemens was procedurally barred. But Jeffery would still need to show that MedPro was obligated
to indemnify Clemens, and she has not done so. Thus, she does not have a viable claim under the
KUCSPA.
III.
We AFFIRM the district court’s judgment.