UNDERINSURED MOTORIST BENEFITS – UIM, advances, estoppel/waiver of coverage: Bryant v. Hopkins (COA 10/9/2009)

Bryant v. Hopkins
2008-CA-002099 10/09/09 2009 WL 3231220 DR Pending
Opinion by Judge Lambert; Senior Judge Henry concurred; Judge Stumbo dissented by separate opinion.

The Court affirmed an order of the circuit court granting summary judgment and dismissing appellant’s complaint against the appellee insurer for underinsured motorist (UIM) benefits. The Court held that the trial court did not err in ruling that the insurer was not estopped from denying liability for UIM insurance benefits. The insurer’s election to protect its subrogation rights under Coots v. Allstate Insurance Company, 853 S.W.2d 895 (Ky. 1993), and KRS 304.39-320 by advancing payment, did not create a presumption or acknowledgement that the UIM insurance carrier had admitted coverage to the injured party beyond the amount advanced under its policy or that it waived any defense of non-coverage in any subsequent litigation. Simply discussing the claim prior to the initiation of litigation did not imply or create a reasonable presumption that the claim was accepted or admitted. Further, once the trial court permitted the insurer to amend its answer, the existence of an admission upon the record was essentially extinguished. Finally, the contract of insurance could not be created or enlarged by estoppel or waiver. Since appellant was not entitled to UIM benefits in the first place, estoppel was not available to provide benefits.

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