ALLSTATE INSURANCE COMPANY VS. HATFIELD (WINONA MARIE), ET AL.
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RENDERED: MAY 28, 2010; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2009-CA-000604-MR
ALLSTATE INSURANCE COMPANY
v.
APPELLANT
APPEAL FROM WHITLEY CIRCUIT COURT
HONORABLE PAUL E. BRADEN, JUDGE
ACTION NO. 07-CI-00466
WINONA MARIE HATFIELD;
AND JAMAHL MACQUIS BERRY
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE: VANMETER, ACTING CHIEF JUDGE; KELLER AND MOORE,
JUDGES.
VANMETER, ACTING CHIEF JUDGE: Allstate Insurance Company appeals
from a summary judgment entered by the Whitley Circuit Court, in favor of
Winona Marie Hatfield, in a matter relating to uninsured motorist insurance
benefits. For the reasons stated hereafter, we affirm.
In August 2006, Jamahl Macquis Berry was following Hatfield on I75 when his vehicle struck Hatfield’s vehicle in the rear. According to the record,
Hatfield suffered a broken collarbone as well as injuries to her head, neck, back
and shoulder. Hatfield indicated in her December 2007 deposition that in addition
to receiving medical and physical therapy treatment, she continued to rely on the
daily use of medication and a TENS unit for the treatment of pain. Hatfield stated
that Berry’s putative insurer reimbursed her for the value of her vehicle.
In July 2007, Hatfield filed the underlying action against Berry and
her own insurer, appellee Allstate. She alleged that Berry negligently and
carelessly operated his vehicle so as to collide with hers, causing “severe and
permanent mental and physical injuries which have resulted in and will continue to
result in medical expenses, pain and suffering, and lost wages.” Hatfield further
alleged that her ability to earn money was permanently impaired as a result of
Berry’s negligence, and she sought underinsured motorist benefits from Allstate.
An attempt was made to serve Berry with a copy of the summons at
the Wheeler Wood Road address in Augusta, Georgia, which was listed on the
police report of the accident. Although the summons was returned to the circuit
court clerk as undelivered, on July 17 an attorney entered his appearance on
Berry’s behalf and requested receipt of all pleadings and correspondence. The
attorney filed an answer on Berry’s behalf, admitting only that Berry was involved
in the collision. Four weeks later, the attorney moved to withdraw, stating that his
employer, Berry’s putative insurance carrier, had determined Berry in fact was not
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insured by it or its subsidiaries at the time of the collision. A copy of the
attorney’s motion was served on Berry at the Wheeler Wood Road address,
modified only by the addition of “Apt. C.” For reasons not disclosed in the record,
the order granting the motion was served on Berry at a different address on
Wrightboro Road in Augusta.
Subsequently, the court entered an agreed order permitting Hatfield to
file an amended complaint to add an uninsured motorist’s claim against Allstate.
The order and Allstate’s response again listed Wheeler Wood Road as Berry’s
address for service, and it appears from the record that the order was returned as
unable to be forwarded. Allstate then filed a motion to take Hatfield’s deposition,
listing for Berry a variation of the Wrightboro Road address.
Hatfield next sought summary judgment against Berry after Berry
failed to answer the request for admissions which Hatfield mailed both to Berry at
the Wheeler Wood Road address and to Allstate’s attorney. According to
Hatfield’s summary judgment motion, Berry’s failure to respond conclusively
established:
1. Defendant Berry was negligent or at fault for causing
the subject accident . . . ;
2. Defendant Berry did not have automobile liability
insurance at the time of the subject accident;
3. . . . Hatfield, suffered injuries and damages as a direct
and proximate result of Defendant Berry’s negligence
in causing the subject accident.
4. The value of [Hatfield’s] injuries and damages as a
result of the subject accident is in excess of $50,000.
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The court agreed and granted partial summary judgment in accordance with the
admissions, utilizing the finality language set out in CR1 54.02(1). The judgment
was served on Berry at the Wheeler Wood Road address.
Allstate moved to alter, amend or vacate the partial summary
judgment, noting Berry’s pro se status and his failure to respond to the request for
admissions. Allstate indicated it had timely opposed2 the motion for summary
judgment and had raised issues of fact concerning Hatfield’s damages.
Anticipating Hatfield’s argument that Allstate was obligated to pay her $50,000 as
uninsured motorist benefits, Allstate requested amendment of the partial summary
judgment to permit a jury determination of damages. Alternatively, Allstate
argued it should not be collaterally estopped from contesting issues of liability and
damages. The court denied Allstate’s motion in May 2008. No appeal followed.
Some seven months later, in December 2008, Hatfield sought
summary judgment against Allstate, claiming that the uninsured motorist
provisions of the insurance policy obligated Allstate to pay those damages which
Hatfield is legally entitled to recover from Berry. Hatfield asserted that under the
“essential facts” approach, she is required only to establish that Berry was at fault,
and the extent of the resulting damages. U.S. Fidelity & Guar. Co. v. Preston, 26
S.W.3d 145, 147 (Ky. 2000). Allstate objected, arguing that issues of fact exist
1
Kentucky Rules of Civil Procedure.
2
A copy of Allstate’s response was not included in the original record on appeal but, by order of
this court, was added as part of a supplemental record.
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regarding the extent of Hatfield’s damages. The trial court granted summary
judgment for Hatfield, and this appeal followed.
Allstate first addresses issues of standing and preservation. The
record shows Hatfield’s complaint was filed against both Berry and Allstate, and
the partial summary judgment against Berry contained CR 54.02(1) language
which resulted in the judgment’s finality. The trial court denied Allstate’s motion
to alter, amend or vacate the partial summary judgment, and no timely appeal
followed. Thus, the liability and damages issues were finally resolved by the
partial summary judgment against Berry, and they are not properly before this
court on appeal from the subsequent judgment against Allstate. Absent a timely
appeal from the partial summary judgment against Berry, questions regarding
Allstate’s standing to challenge that judgment are rendered moot. Thus, the merits
of the judgment against Berry, including issues regarding liability and the amount
of damages, shall not further be discussed on appeal. Similarly, the various issues
raised by Allstate regarding the court’s failure to alter, amend or vacate the
judgment against Berry are not properly before this court in this appeal and will
not be addressed.
Next, Allstate makes a multi-faceted argument in support of its claim
that the trial court erred by granting summary judgment against Allstate. More
specifically, Allstate contends that genuine issues of material fact exist regarding
the extent of Hatfield’s damages. It asserts that the court erred by relying on either
Berry’s failure to respond to the request for admissions, or the partial summary
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judgment against Berry, as the basis for determining liability and damages.
Finally, Allstate argues that it is not bound by Berry’s failure to respond to the
request for admissions. We disagree.
Summary judgment shall be granted only if “the pleadings,
depositions, answers to interrogatories, stipulations, and admissions on file,
together with the affidavits, if any, show that there is no genuine issue as to any
material fact and that the moving party is entitled to a judgment as a matter of
law.” CR 56.03. The trial court must view the record “in a light most favorable to
the party opposing the motion for summary judgment and all doubts are to be
resolved in his favor.” Steelvest, Inc. v. Scansteel Serv. Ctr., Inc., 807 S.W.2d 476,
480 (Ky. 1991). Further, “a party opposing a properly supported summary
judgment motion cannot defeat it without presenting at least some affirmative
evidence showing that there is a genuine issue of material fact for trial.” Id. at 482.
On review, the appellate court must determine “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.” Scifres v. Kraft, 916 S.W.2d
779, 781 (Ky.App. 1996).
CR 36.01(2) provides in pertinent part that when a party, in writing,
requests another party to admit the truth of a matter,
[t]he matter is admitted unless, within 30 days after
service of the request, . . . the party to whom the request
is directed serves upon the party requesting the admission
a written answer or objection addressed to the matter,
signed by the party or by his attorney[.]
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Further, CR 36.02 states that “[a]ny matter admitted under Rule 36 is conclusively
established unless the court on motion permits withdrawal or amendment of the
admission.” A judicial admission “‘has the effect of removing a fact or issue from
the field of dispute; it is conclusive against the party and may be the underlying
basis for a summary judgment, directed verdict, or judgment notwithstanding the
verdict.’” Berrier v. Bizer, 57 S.W.3d 271, 279 (Ky. 2001) (quoting R. Lawson,
The Kentucky Evidence Law Handbook § 8.15, at 386 (3d ed. 1993)). This rule
holds true even if the admission goes to the ultimate issue in the case. Lewis v.
Kenady, 894 S.W.2d 619, 621 (Ky. 1994). Further, admissions may conclusively
address and eliminate issues of damages, including the amount owed. Manus, Inc.
v. Terry Maxedon Hauling, Inc., 191 S.W.3d 4, 10 (Ky.App. 2006).
Here, as noted above, Hatfield made several requests for admission to
Berry, including requests regarding Berry’s liability and Hatfield’s damages.
Because Berry did not respond, the matters necessarily were admitted pursuant to
CR 36.01(2), providing a basis for the partial summary judgment against him.
When no appeal was taken, the final partial summary judgment became subject to
enforcement.
Part V of the parties’ insurance policy, addressing coverage, required
Allstate to “pay those damages that [Hatfield] is legally entitled to recover from the
owner or operator of an uninsured auto[.]” The policy therefore contractually
entitled Hatfield to recover from Allstate the damages, up to the $50,000 policy
limit for uninsured motorist coverage, which Hatfield was legally entitled to
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recover from Berry by virtue of his admissions and the partial summary judgment
against him. Allstate’s argument that it should have had additional opportunities to
litigate damages is negated by the reasoning set out in 9 Couch on Insurance §
124:19, which addresses the impact that a judgment against an uninsured motorist
may have on an insurer:
Whether a judgment against an
uninsured/underinsured motorist has res judicata effect
on an UM/UIM insurer typically depends on whether the
insurer was given an appropriate opportunity to defend
its interests in the original lawsuit. However, even where
an insured obtains a default judgment against an
uninsured/underinsured motorist, a court may still find
the judgment binding against the insurer if it determines
that the insurer had been sufficiently involved in the
lawsuit. This is because UM/UIM coverage is triggered
when an uninsured motorist is deemed legally liable to an
insured, not when an insured obtains judgment against
the insurer.
(Footnotes omitted.)
Here, Allstate was involved in the proceeding from its inception.
Allstate therefore was on notice that Berry was uninsured, that he was not
represented by counsel, that Hatfield claimed Berry was legally liable to her for
damages in excess of $50,000, and that Hatfield sought uninsured motorist
coverage under the terms of her insurance contract with Allstate. Nevertheless,
Allstate elected to take no action when Berry was served and failed to respond to
the critical requests for admission, despite Berry’s pro se status and the fact that
under CR 36.01(2), Berry’s failure to respond necessarily resulted in the admission
of fault and damages. Consistent with the “essential facts” approach described in
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U.S. Fidelity & Guar. Co. v. Preston, 26 S.W.3d 145 (Ky. 2000), Hatfield
established through the request for admissions both that Berry was at fault, and that
damages exceeded the policy limits of $50,000. As noted above, no appeal was
taken from the partial summary judgment against Berry, and Berry is not a party to
this appeal. Thus, any issues relating to the partial summary judgment’s impact on
Berry are not properly before us. Further, although Allstate was a named party and
an active participant in the proceedings below, it made no timely attempt to protect
its own interests by ensuring Berry responded to the critical request for admissions.
Once the partial summary judgment based on such admissions became final and
legally enforceable against Berry, no factual issues remained for a jury’s
determination in the claim against Berry. Allstate then was contractually
obligated, under the terms of its policy, to pay “those damages” that its insured was
“legally entitled” to recover from Berry as an uninsured driver, and the trial court
did not err by failing to involve a jury in the determination of damages.
Allstate next asserts that the trial court committed palpable error by
failing to serve, or by failing to require Hatfield to serve, Berry at his correct
address. Although the issue was not raised below, Allstate claims that relief is
necessary in order to prevent manifest injustice. We disagree.
As noted above, the initial pleading was sent to Berry at the address
listed on the police report but was returned to the circuit court clerk. Nevertheless,
Berry obviously received notice of the proceeding since he initially was
represented by counsel. Subsequently, documents were sent to Berry either at the
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address listed on the police report, or at one of several versions of a second
address. Although it appears that after October 2007 Allstate served various
pleadings on Berry by sending mail to a version of the second address, the record
contains no document advising the court or other parties of a changed address for
Berry.
CR 5.02 permits service upon a party by mailing a document to the
party “at his last known address or, if no address is known, by leaving it with the
clerk of the court[,]” and “[s]ervice by mail is complete upon mailing.” Although
Allstate complains on appeal regarding the sufficiency of notice to Berry because
of address discrepancies, the record shows the initial complaint was answered by
counsel on Berry’s behalf, a notification of changed address was never filed, and
even Allstate served Berry at several different addresses without notifying the
court of any known discrepancies. Allstate thus has not shown that service was
improper pursuant to CR 5.02. Moreover, Allstate was not entitled to sit on the
purported notice issue and then raise it for the first time on appeal.
The summary judgment of the Whitley Circuit Court is affirmed.
ALL CONCUR.
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BRIEFS FOR APPELLANT:
Mindy G. Barfield
Stephen D. Thompson
Lexington, Kentucky
BRIEF FOR APPELLEE WINONA
MARIE HATFIELD:
Todd K. Childers
Corbin, Kentucky
NO BRIEF FOR APPELLEE
JAMAHL MACQUIS BERRY
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