Jan. 4, 2013 Tort Report for COA Decisions of Dec. 21, 2012

5. UNDERINSURED MOTORIST BENEFITS.  CHOICE OF LAW.  POLICY INTERPRETATION.
COA applied Virginia insurance policy’s offset for liability insurance in UIM policy.
BANDY (KAYLA)
VS.
BEVINS (INDIA BELL), ET AL.
OPINION AFFIRMING
THOMPSON (PRESIDING JUDGE)
ACREE (CONCURS) AND MOORE (CONCURS)
2011-CA-000020-MR
NOT TO BE PUBLISHED
PIKE

THOMPSON, JUDGE: Kayla Bandy appeals from a summary judgment finding that her automobile insurance did not provide underinsured motorist (UIM) benefits because an identical amount was available under the tortfeasor’s liability insurance benefits, requiring an offset under Bandy’s policy and Virginia law.

Our initial inquiry is whether Virginia or Kentucky law applies.

The test used in Kentucky to determine which state’s law should apply is “the most significant relationship test,” which requires the application of the law of the state with the most significant relationship to the transaction and the parties. Lewis v. American Family Ins. Group, 555 S.W.2d 579, 581 (Ky. 1977). In most cases, the law of the residence of the named insured will apply to determine the scope of the coverage. Id. at 582; Poore v. Nationwide Mut. Ins. Co., 208 S.W.3d 269, 271 (Ky. App. 2006). The location of the tort or residence of the tortfeasor is insufficient to require the application of Kentucky law to an insurance contract involving another state’s residents. Bonnlander v. Leader Nat’l Ins. Co., 949 S.W.2d 618, 620 (Ky.App. 1996); Snodgrass v. State Farm Mut. Auto. Ins. Co., 992 S.W.2d 855, 856–857 (Ky.App. 1998); Kentucky Nat’l Ins. Co. v. Lester, 998 S.W.2d 499, 503 (Ky.App. 1999).

We recognize that Virginia law differs from other states, including Kentucky. Our Supreme Court has explained that there are two differing views on the purpose of UIM coverage and, therefore, contrasting statutes.

Under the narrow view, the insured’s UIM coverage is always setoff or reduced by the tortfeasor’s liability limits. The purpose of the narrow view is to place the insured in the same financial condition that he would be in if the tortfeasor had liability limits equal to the insured’s own UIM limits. Under the broad view, UIM coverage is triggered when the insured’s damages exceed the tortfeasor’s liability limits, at which point the insured is entitled, if damages require it, to receive the full amount of the UIM policy. The public policy underlying the broad view is to provide full recovery to the injured party.

Philadelphia Indem. Ins. Co. v. Morris, 990 S.W.2d 621, 627 (Ky. 1999). Virginia has chosen to follow the narrow view. See Dyer v. Dairyland Ins. Co., 267 Va.726, 731, 594 S.E.2d 592, 594 (2004); Nationwide Mut. Ins. Co. v. Scott, 234 Va. 573, 575-576, 363 S.E.2d 703, 704-705 (1988).

Finally, Bandy claims that Nationwide is compelled to provide UIM coverage equivalent to what Kentucky offers under KRS 304.39-100. However, in Snodgrass, this Court rejected the argument that insurance companies doing business in Kentucky are compelled to provide underinsured motorist coverage to non-resident insureds pursuant to KRS 304.39-100(2). Snodgrass, 992 S.W.2d at 857; Bonnlander, 949 S.W.2d at 620-621.

Because Virginia law applies and no factual issues remain as to Bandy’s claim against Nationwide, summary judgment was proper. The summary judgment of the Pike Circuit Court is affirmed.

ALL CONCUR.

8. SOVEREIGN IMMUNITY.
COA held Kenton County shielded by sovereign immunity from suit for slip and fall personal injury claim.
KENTON COUNTY, ET AL.
VS.
WINTER (JANET)
OPINION REVERSING AND REMANDING
STUMBO (PRESIDING JUDGE)
CAPERTON (CONCURS) AND THOMPSON (CONCURS)
2011-CA-000667-MR
NOT TO BE PUBLISHED
BOONE

STUMBO, JUDGE: Kenton County and Kenton County Airport Board (“KCAB”) appeal from an interlocutory Order of the Boone Circuit Court overruling their CR 12 Motion for a Judgment on the Pleadings in the personal injury action of Janet Winter. Kenton County and KCAB argue that they are entitled to a Judgment on the Pleadings based on sovereign immunity and that the circuit court erred infailing to so find. We conclude that 1) Kenton County is shielded from tort litigation by sovereign immunity, and 2) additional proof is required to determine if KCAB is protected by sovereign immunity. Accordingly, we reverse the Order on appeal and remand the matter for further proceedings.

10.  WORKERS COMPENSATION “UP THE LADDER” DEFENSE ON CLAIMS.
COA affirmed summary judgment by trial court dismissing injured workers personal injury claim holding the defendant was an “up the ladder” contractor and not an independent contractor.
JACOBS (DAVID)
VS.
M. A. MORTENSON COMPANY
OPINION AFFIRMING
COMBS (PRESIDING JUDGE)
LAMBERT (CONCURS) AND NICKELL (CONCURS)
2011-CA-000991-MR
NOT TO BE PUBLISHED
JEFFERSON

12.  DISMISSAL OF CIVIL ACTION FOR LACK OF PROSECUTION.
COA affirmed trial court’s dismissal of pro se claimant’s civil action for lack of prosecution; special consideration as pro se plaintiff not applied.
AKINS (DERRICK D’KEITH)
VS.
KILFOILE (CANDACE AMBER), ET AL.
OPINION AFFIRMING
VANMETER (PRESIDING JUDGE)
CAPERTON (CONCURS) AND LAMBERT (CONCURS)
2011-CA-001335-MR
NOT TO BE PUBLISHED
HARDIN
VANMETER, JUDGE: Derrick D’Keith Akins appeals from a Hardin Circuit Court order dismissing his civil suit for lack of prosecution.

Akins contends that he should not be held to the same standard of pleading as legal counsel and that the rules are to be construed liberally in his favor. Nonetheless, “[w]hile pro se litigants are sometimes held to less stringent standards than lawyers in drafting formal pleadings . . ., Kentucky courts still require pro se litigants to follow the Kentucky Rules of Civil Procedure.” Watkins v. Fannin, 278 S.W.3d 637, 643 (Ky.App. 2009). In this case, the trial court’s reasons for dismissing Akins’s suit were fully supported by the evidence in the record. Its decision was neither “arbitrary, unreasonable, unfair, or unsupported bysound legal principles.” Wildcat Property Management, LLC v. Reuss, 302 S.W.3d 89, 93 (Ky.App. 2009).

The order of dismissal is affirmed. ALL CONCUR.

19. APPEALS.
COA dismissed appeal for failure to join indispensable party.
CHARLES (STEVE)
VS.
LOZIER (MARY)
OPINION AND ORDER DISMISSING
ACREE (PRESIDING JUDGE)
MOORE (CONCURS) AND THOMPSON (CONCURS)
2011-CA-001778-MR
NOT TO BE PUBLISHED
PIKE
ACREE, CHIEF JUDGE: The appellant asks us to determine if a judgment lien on real property filed after the death of the judgment debtor is void or is valid and therefore enforceable against the highest bidder in a judicial sale. Because an indispensible party was not named in the appeal, however, we lack jurisdiction to consider it.