ANITA RENEE COSLOW TYLER v. STATE AUTO PROPERTY & CASUALTY INSURANCE COMPANY
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RENDERED: April 2, 1999; 2:00 p.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
1997-CA-003240-MR
ANITA RENEE COSLOW TYLER
APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE JOHN WOODS POTTER, JUDGE
ACTION NO. 95-CI-006828
v.
STATE AUTO PROPERTY & CASUALTY INSURANCE COMPANY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
COMBS, DYCHE, and SCHRODER, Judges.
COMBS, JUDGE:
Anita Renee Coslow Tyler, the plaintiff in an
automobile accident lawsuit, appeals from orders disposing of
several post-judgment motions.
She contends that the trial court
erred by entering a judgment that conformed to her underinsured
motorists coverage policy limits, by failing to enter specific
findings of fact and conclusions of law with respect to its
decision to enter the judgment, and by denying her motion to file
an amended complaint.
As we disagree with each of these
contentions, we affirm.
On December 7, 1993, the appellant and Cassandra Allen
were involved in an automobile collision in which Allen was the
driver of the second vehicle.
personal injuries.
The appellant suffered severe
Allen's liability policy with The Colonial
Insurance Company of California, however, had limits of only
$25,000.
Allen's insurance company tendered its limits to the
appellant.
Tyler was insured through State Auto Property &
Casualty Insurance Company ("State Auto"), the appellee.
She had
two underinsured motorist coverage policies, which provided
coverage of $60,000.00 per policy for a total of $120,000.00 in
stacked underinsured motorist coverage.
On December 7, 1995,
Tyler filed this action against State Auto.
She alleged that her
damages exceeded the $25,000.00 received from Allen's liability
carrier and, therefore, that State Auto was liable to her
pursuant to the underinsured motorists coverage.
At trial, the jury returned a verdict in Tyler's favor
for $233,403.08.
Subsequently, appellant's counsel tendered to
the court a judgment against State Auto in the amount of
$198,403.08.1
1997.
The tendered judgment was entered on October 9,
On November 7, 1997, however, the trial court granted
State Auto's motion to vacate the former judgment in favor of an
amended judgment in the amount of $120,000.00.
The court denied
Tyler's subsequent motions requesting the trial court to set
aside the amended judgment, to set forth specific findings of
1
This amount was computed by reducing the jury verdict by
the amounts recovered from Colonial Insurance Company of
California and by the amounts provided earlier to Tyler by State
Auto in the form of basic reparations benefits.
-2-
fact and conclusions of law, and to permit her to file an amended
complaint alleging bad faith.
State Auto satisfied the amended judgment and paid
Tyler's court costs.
An Order of Satisfaction, filed on December
11, 1997, appears of record.
On December 15, 1997, Tyler filed a
Notice of Appeal,2 contending that the trial court erred by
vacating the initial judgment and entering the revised judgment
against State Auto in the amount of $120,000.00.
We disagree.
Tyler concedes in her brief that her policies with
State Auto provided for underinsured motorists coverage limited
to $120,000.00. She argues, however, that the amount of the
underinsured motorist coverage pertains only to "the issue of
collectability of a judgment."
(Appellant's brief at 6).
As a
result, she contends that the "amount of underinsured motorist
coverage should not have been substituted in the judgment for the
jury verdict."
Id.
Tyler's action against State Auto is one sounding in
contract.
She readily admits that she is entitled to recover a
maximum of $120,000.00 pursuant to the clear contractual langudge
of the policies at issue.
We find that the trial court did not
err by correcting the judgment to conform to the terms of the
insurance contract.
It appears that Tyler has adopted her position with an
eye toward a separately filed tort action against State Auto
premised upon common law first-party bad faith claims.
2
We fail
The appellee's motion to dismiss the appeal based upon
satisfaction of the judgment was denied by another panel of this
court on June 3, 1998.
-3-
to see, however, how the corrected judgment could adversely
affect her action against State Auto.
In Wittmer v. Jones, Ky.,
864 S.W.2d 885 (1993), the Kentucky Supreme Court addressed the
degree of proof necessary to sustain a claim of bad faith.3
It
announced the pertinent principles thus:
[A]n insured must prove three elements in order to
prevail against an insurance company for alleged
refusal in bad faith to pay the insured's claim: (1)
the insurer must be obligated to pay the claims 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. . . . [A]n insurer is . . . entitled to
challenge a claim and litigate it if the claim is
debatable on the law or the facts.
Id. at 890 (quoting Justice Leibson's dissenting opinion in
Federal Kemper Ins. Co. v. Hornback, Ky., 711 S.W.2d 844, 846-47
(1986)).
Neither the judgment nor the jury verdict rendered in
this action appears to be governed by the elements outlined in
Wittmer.
Next, Tyler contends that the trial court erred by
failing to make findings of fact and conclusions of law following
her motion requesting the court to restore the initial judgment
entered on November 13, 1997.
Pursuant to CR 52.01, the trial
court was not required to find facts nor to state conclusions of
law when rendering its decision on this post-trial motion.
Consequently, there was no reversible error.
3
Wittmer involved a statutory third-party bad faith claim.
However, the Court held that the same principles apply to thirdparty claims as to first-party claims.
-4-
Finally, the appellant contends that the trial court
erred by failing to permit her to file an amended complaint
asserting allegations of bad faith and violations of the Unfair
Claims Settlement Practices Act (UCSPA), KRS 304.12-230.
However, Tyler did not file this motion until after the trial
court entered judgment in her favor.
Thus, this issue is not
properly before us as it was not addressed as part of the final
judgment from which this appeal was taken.
The court’s judgment is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF AND ORAL ARGUMENT FOR
APPELLEE:
Steven D. Yater
Louisville, KY
James C. Hickey
Louisville, KY
Bixler W. Howland
Louisville, KY
ORAL ARGUMENT FOR APPELLANT:
Steven D. Yater
Louisville, KY
-5-
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