ESTATE OF TONY TURNER, BY & THROUGH ADMINISTRATRIX, GERALDINE TURNER v. GLOBE INDEMNITY COMPANY
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RENDERED: MARCH 2, 2007; 2:00 P.M.
TO BE PUBLISHED
MODIFIED: JUNE 15, 2007; 10:00 A.M.
Commonwealth of Kentucky
Court of Appeals
NO. 2005-CA-002580 -MR
ESTATE OF TONY TURNER, BY & THROUGH
ADMINISTRATRIX, GERALDINE TURNER
v.
APPELLANT
APPEAL FROM HARLAN CIRCUIT COURT
HONORABLE D. JEFF CHOATE, SENIOR JUDGE
ACTION NO. 03-CI-00506
GLOBE INDEMNITY COMPANY
APPELLEE
OPINION
AFFIRMING
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BEFORE: ACREE AND TAYLOR, JUDGES; KNOPF,1 SENIOR JUDGE.
ACREE, JUDGE: The Estate of Tony Turner, by and through its Administrator,
Geraldine Turner, brings this appeal from a December 5, 2005, summary judgment of the
Harlan Circuit Court dismissing its case against Globe Indemnity Company (Globe). For
the reasons set forth below, we affirm.
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Senior Judge William L. Knopf sitting as Special Judge by assignment of the Chief Justice
pursuant to Section 110(5)(b) of the Kentucky Constitution and KRS 21.580.
Prior to his death, Tony Turner (Turner) resided in Harlan, Kentucky, and
was employed as a news anchorman at WYMT-TV (WYMT) in Hazard. WYMT is
owned by Gray Communication System, Inc. (Gray). It was Turner’s custom each week
to drive from his home in Harlan to WYMT in Hazard and pick up a company vehicle.
He customarily kept the company vehicle for the duration of the week. On Monday
morning, June 10, 2002, Turner called into WYMT to tell them he would be working
from Harlan that day. However, Turner was later assigned to a news story in Whitley
County. He did not drive to Hazard to pick up a company vehicle nor did he call WYMT
to inquire as to the availability of a company vehicle. Turner instead drove directly from
Harlan to Whitley County. After completing his work on the news story, while on his
trip back to his home, Turner’s car was struck by another vehicle. Turner died of his
injuries on June 30, 2002.
Turner’s wife, Geraldine Turner (Ms. Turner), settled with the driver of the
vehicle that struck her husband’s car for the policy limits of that driver’s insurance. She
also collected the underinsured motorist (UIM) coverage limits under Turner’s private
automobile policy. Ms. Turner also made a claim for UIM coverage from Gray’s
insurance carrier, Globe. Globe denied coverage on the grounds that Turner was not
driving a covered vehicle.
Under Globe’s policy, UIM coverage was only available to occupants of
autos owned by Gray or a temporary substitute for a covered auto. The UIM coverage
endorsement to Globe's policy defines an insured as:
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Anyone else occupying a covered auto or a temporary
substitute for a covered auto. The covered auto must be out of
service because of its breakdown, repair, servicing, loss or
destruction.
Based on this definition, Globe filed a Motion for Summary Judgment with
the trial court. It argued that Turner's personal vehicle was not a temporary substitute and
therefore was not covered for UIM purposes. Globe supported its motion with the
affidavits of Wayne Martin, WYMT's President, and Ernestine Cornett, General Manager
of WYMT in Hazard, to the effect that: Turner was driving his vehicle by his own choice;
no company vehicles were out of service for any reason; and, more specifically, no
vehicles were out of service because of breakdown, repair, servicing, loss or destruction.
Ms. Turner, on behalf of her husband’s estate, argued that her husband was
compelled to use his personal vehicle on June 10, 2002, as a temporary substitute for a
company vehicle that was unsuitable to drive the terrain from Harlan to Whitley County.
Two affidavits were submitted in support of this argument. Ms. Turner's affidavit alleged
that her husband used his vehicle that day because at least two of the company vehicles
were unsafe and broken down. She also asserted that her husband often drove his own
vehicle because he believed the company vehicles were unsafe. The second affidavit was
from an auto mechanic, Dan Walker (Walker). Walker reviewed the available repair
records for the WYMT fleet of ten vehicles. He determined that one vehicle had been
repaired seventeen days after Turner’s accident and concluded that the vehicle was in
need of repair and not in driving condition on June 10, 2002.
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On December 5, 2005, the Harlan Circuit Court granted summary judgment
in favor of Globe and dismissed Turner’s case with prejudice. The Court held that there
were no material facts in question because Turner was not an “insured” for UIM purposes
under the terms of Globe’s insurance policy with Gray.
Our standard of review of an order granting summary judgment is wellsettled. That standard is “whether the trial court correctly found that there were no
genuine issues as to any material fact and that the moving party was entitled to judgment
as a matter of law.” Scrifres v. Kraft, 916 S.W.2d 779, 781 (Ky.App. 1996). Summary
judgment is proper when it appears that it would be impossible for the adverse party to
produce evidence at trial supporting a judgment in his favor. James Graham Brown
Foundation, Inc. v. St. Paul Fire & Marine Ins. Co., 814 S.W.2d 273, 276 (Ky. 1991).
We must review the record in a light most favorable to the party opposing the motion and
must resolve all doubts in his favor. Steelvest, Inc. v. Scansteel Service Center, Inc., 807
S.W.2d 476, 480 (Ky. 1991).
We agree with the trial court's analysis that for Ms. Turner to prevail, she
needed to provide some evidence to show: (1) that no company vehicle was available for
her husband because of breakdown, repair, servicing, loss or destruction, and (2) that
Turner was driving his personal vehicle because of this unavailability. While we are not
without sympathy for Ms. Turner in the loss of her husband, we believe the trial court
correctly concluded that there were serviceable fleet vehicles available to Turner, and that
he chose to drive his own vehicle for his own convenience. We are thus compelled to
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conclude, as did the trial court, that Ms. Turner did not present the evidence necessary to
create an issue of fact in support her claim.
Mr. Walker’s affidavit attempts to establish that a company vehicle was out
of service on June 10, 2002, based on its service records. However, even if we were to
accept that this particular vehicle was out of service on June 10, there is still no evidence
before us indicating that any of the other company vehicles were unavailable for Turner’s
use. Ms. Turner’s affidavit contains only statements made to her by her husband,
constituting information outside her own personal knowledge. At trial, that information
would constitute inadmissible hearsay. Kentucky Rule of Civil Procedure (CR) 56.05.
There being no genuine issue of material fact regarding Turner's claim, we find no error
in the trial court's grant of summary judgment.
For the foregoing reasons, the Harlan Circuit Court's order granting
summary judgment to Globe Indemnity Company is affirmed.
ALL CONCUR.
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BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Russell D. Alred
Harlan, Kentucky
Deborah C. Stevens
Summer H. Stevens
Knoxville, Tennessee
ORAL ARGUMENT FOR
APPELLANT:
ORAL ARGUMENT FOR
APPELLEE:
Fred M. Busroe, Jr.
Harlan, Kentucky
Melany Taylor
Lexington, Kentucky
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