Cause of Action. Kentucky is not a “direct action” state. Insurance company not proper defendant in wrongful death claim resulting in dismissal withOUT prejudice (Estate of Moore vs. Kentucky Farm Bureau Mutual Ins. Co. COA, NPO 2/21/2014)

Estate of Moore vs. Kentucky Farm Bureau Mutual Ins. Co
COA, NPO 2/21/2014 PJ Caperton Affirming in Part, Reversing in Part, and Remanding
Allen County
Affirmed dismissal of wrongful death claim (but without prejudice) asserted against insurer rather than insureds.

Dr. Ephraim McDowell, Danville,Kentucky marker in front of his home. Picture of home next post.

Dr. Ephraim McDowell, Danville,Kentucky marker in front of his home. Picture of home next post.

CAPERTON, JUDGE: The Appellant, Dovie Moore, Administrator of the Estate of Peyton Spencer Green (hereinafter “Moore”), appeals the February 5, 2013, order of the Allen County Circuit Court, dismissing her wrongful death claimagainst the Appellee, Kentucky Farm Bureau Mutual Insurance Company (hereinafter “Farm Bureau”). Upon review of the record, the arguments of the parties, and the applicable law, we affirm. However, because we also conclude that the dismissal should be without prejudice, we reverse that portion of the order and remand for entry of an order dismissing without prejudice.

This case arises out of the death of Peyton Spencer Green on July 2, 2011. On June 26, 2012, Julie Green, mother of Peyton Green, and her boyfriend, Tim Steen, were indicted in his death. On August 15, 2012, a petition for appointment of administrator was filed for the Estate of Peyton Spencer Green. Thereafter, on August 22, 2012, Dovie Moore, who is Julie’s mother and Peyton’s grandmother, was appointed as the Administrator of the Estate. On October 12, 2012, Dovie Moore filed a petition for declaratory judgment against Kentucky Farm Bureau alleging that the actions of Julie Green and Tim Steen were the cause of the child’s death, that Kentucky Farm Bureau may have issued a policy that would cover it, and that the Allen Circuit Court should issue a “judgment ordering Kentucky Farm Bureau to pay the maximum policy benefits under any homeowner’s policy that would provide coverage for this loss.”

Upon review of the record, the arguments of the parties, and the applicable law, we believe that the court appropriately dismissed Moore’s action for failure to state a claim upon which a relief can be granted. In her brief to this Court, Moore described her claim as, “[A] case in which Appellant, the Administrator of her dead 18 month old grandson’s estate, appeals the dismissal of her wrongful death claim against an insurance company that may provide coverage for this loss under a homeowner’s policy.” She further argued that, “Under KRS 411.130(1), KRS 413.180 and the Court of Appeals holding in Ragland v. Diguiro, 352 S.W.3d 908 (Ky. App. 2010), Dovie’s wrongful death claim against KFB should have been allowed to proceed and should not have been dismissed.” Ultimately, the grounds asserted in the petition filed by Moore do not support a cause of action against the only named party, Kentucky Farm Bureau. There was no allegation that Kentucky Farm Bureau was somehow negligent or caused or contributed to the wrongful death of Peyton Spencer Green.

As our courts have repeatedly held, Kentucky is not a direct action jurisdiction. State Auto Mutual Insurance Company v. Empire Fire & Marine Insurance Company, 808 S.W.2d 805 (Ky. 1991); and Cuppy v. General Accident Fire & Life Insurance Corp., 378 S.W.2d 629 (Ky. 1964). In ordinary circumstances, an injured party must first obtain judgment against the opposing party defendant and then seek enforcement of the judgment rendered in an action against the defendant’s indemnitor. State Farm at 809. Thus, Moore’s claim against Farm Bureau, if viable, would not be so until she has first proven that an insured of Farm Bureau was negligent and obtained a judgment against said individual for which Farm Bureau would be obligated to indemnify under an insurance policy. Accordingly, we believe that the court below appropriately dismissed this matter for failure to state a claim upon which relief can be granted.

In so finding, we recognize that the parties are in dispute concerning whether or not Moore’s claim is barred by the statute of limitations, and in so doing, direct this Court to our holding in Ragland v. Diguiro, 352 S.W.3d 908, 912 (Ky. App. 2010). This Court further understands that Moore has now filed a civil action against Timothy Steen, which is currently pending in the Allen Circuit Court. While the parties may argue the applicability of Ragland therein, that matter is not currently before this Court. The issue before this Court is whether or not Moore has stated a claim against Farm Bureau upon which relief can be granted. Finding that she has not, we affirm. 3

In affirming, we do note that the court below dismissed this action against Kentucky Farm Bureau with prejudice. The dismissal of an action with prejudice precludes another action on the same matter. Overstreet v. Greenwell, 441 S.W.2d 443 (Ky. App. 1969); Yocom v. Hayden, 566 S.W.2d 776 (Ky. App.

1978). In light of additional litigation currently pending with respect to this matter, we believe that the dismissal should not have been with prejudice, and we reverse that portion of the court’s order. In all other respects, for reasons previously set forth herein, we affirm.

Wherefore, for the foregoing reasons, we hereby affirm the February 6, 2013, order of the Allen Circuit Court, dismissing this matter for failure to state a claim upon which relief can be granted, and remand this matter for entry of a new order wherein the dismissal is without prejudice

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