SHIRLEY MITCHELL v. SHELTER INSURANCE COMPANY
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RENDERED:
November 7, 1997; 10:00 a.m.
NOT TO BE PUBLISHED
NO. 96-CA-001823-MR
SHIRLEY MITCHELL
v.
APPELLANT
APPEAL FROM TRIGG CIRCUIT COURT
HONORABLE BILL CUNNINGHAM, JUDGE
CIVIL ACTION NO. 92-CI-115
SHELTER INSURANCE COMPANY
APPELLEE
OPINION
AFFIRMING
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BEFORE:
WILHOIT, CHIEF JUDGE; EMBERTON and GUIDUGLI, Judges.
GUIDUGLI, JUDGE.
Shirley Mitchell (Mitchell) appeals from an
order of the Trigg Circuit Court entered on June 3, 1996,
granting summary judgment in favor of appellee, Shelter Insurance
Company (Shelter).
We affirm.
Mitchell owned a 1989 Dodge Shadow which was insured by
Shelter.
Under the terms of the policy, coverage was provided
for bodily injury in the amount of $50,000 per person/$100,000
per accident and underinsured motorist (UIM) coverage in the
amount of $50,000 per person/$100,000 per incident.
The "Exclusions" section of the policy issued to
Mitchell provided:
We will not pay . . . any damages an insured is legally obligated
to pay to the extent that such damages exceed the minimum limits
of liability required by the Kentucky Motor Vehicle Reparations
Act because of:
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(6) Bodily injury to any insured or any
member of the family of any insured residing
in the same household as the insured.
(emphasis deleted)
The UIM endorsement of the policy stated that for coverage
purposes, a vehicle "owned by or furnished or available for the
regular use of you or a relative" was not an underinsured motor
vehicle.
On September 29, 1991, Mitchell and her live-in
boyfriend, Phillip Peifer (Peifer) were returning from a family
reunion in the Dodge Shadow.
Peifer was driving the car and
Mitchell was in the passenger seat.
Peifer lost control of the
vehicle, causing it to flip several times.
As a result of the
accident Mitchell was ejected from the car and sustained serious
disabling injuries.
The parties are in agreement that the
accident was caused by Peifer's negligence and that Mitchell's
damages for medical treatment, permanent disability, and pain and
suffering exceed $100,000.00.
However, in reliance on the above-
referenced exclusions, Shelter paid Mitchell only $25,000 on her
claim representing the minimum limits of liability required by
the Kentucky Motor Vehicle Reparations Act.
Mitchell filed suit against Shelter on September 5,
1992, seeking to recover an additional $25,000 from Shelter under
the liability provisions of the policy and an additional $50,000
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under the provisions of the UIM endorsement.
In her motion for
summary judgment filed with the trial court on March 18, 1996,
Mitchell argued that the exclusions in the policy did not apply
to her because she had never been given a copy of the policy.
Mitchell further argued that the family exclusion clause should
be declared invalid, void, and repugnant to public policy.
In an
affidavit attached to her motion, Mitchell stated that she never
"received a copy of [the] automobile insurance policy from
Shelter . . . or any document explaining any exclusions in my
coverage."
Shelter filed its own motion for summary judgment with
the trial court on April 15, 1996.
Shelter attached an affidavit
of Tom McMurtry (McMurtry), the agent who sold the policy to
Mitchell.
In his affidavit, McMurtry stated that he gave
Mitchell a binder showing the type of coverage purchased and the
limits thereof.
McMurtry further stated that it was Shelter's
policy to mail a copy of the policy to the insured within a short
time after the purchase of the policy.
Shelter argued that it
fulfilled its obligation under the Kentucky Insurance Code by
giving the binder to Mitchell, and that it was under no duty to
provide her with a copy of the policy.
Shelter further argued
that the family member exclusion was unambiguous and valid.
In an order entered on June 3, 1996, the trial court
granted Shelter's motion for summary judgment.
The court found
that when Shelter gave Mitchell the binder, it complied with
Kentucky Revised Statutes (KRS) 304.39-310 (1), which requires an
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automobile insurer to provide its insured with a "certificate or
other evidence of insurance" upon issuance of coverage.
The
trial court stated that Shelter was not required to provide
Mitchell with a copy of her policy because in passing KRS 304.39310(1) the legislature had usurped the area.
The trial court
held that "the statute is controlling and there is no material
issue of fact that the requirement of it has been met."
The
trial court also upheld the validity of the family exclusions
clause.
This appeal followed.1
KRS 304.39-320 provides in part:
Every insurer shall make available upon
request to its insureds underinsured
motorists coverage, whereby subject to the
terms and conditions of such coverage not
inconsistent with this section the insurance
company agrees to pay its own insured for
such uncompensated damages as he may recover
on account of injury due to a motor vehicle
accident because the judgement recovered
against the owner of the other vehicle
exceeds the liability policy limits thereon,
to the extent of the underinsurance policy
limits on the vehicle of the party
recovering. (emphasis added)
KRS 304.39-320 (2).
This Court has interpreted this section to
mean that "the legislature intended to provide additional
protection to a victim where the underinsured party was a
1
One of Mitchell's arguments on appeal was that the trial
court erred in holding that the family exclusion clause was not
void as against public policy. However, during the pendency of
this appeal, the Kentucky Supreme Court invalidated family
exclusions clauses in Lewis v. West American Insurance Company,
Ky., 927 S.W.2d 829 (1996). As a result of the Lewis decision,
Shelter has conceded this issue and has tendered the remaining
$25,000 of its liability insurance coverage under the policy to
Mitchell.
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separate individual, and not the victim herself."
Windham v.
Cunningham, Ky. App., 902 S.W.2d 838, 840 (1995).
In so
interpreting the statute, we recognized that the statute defined
UIM coverage as uncompensated damages which arise because the
judgment recovered against the owner of the other vehicle exceeds
his or her policy limits.
Windham, 902 S.W.2d at 840.
In
holding that the plaintiff in Windham was unable to recover under
a UIM endorsement where the decedent was killed in a one-car
accident, we stated that "[t]he purpose of UIM coverage is not to
compensate the insured or his additional insureds from his own
failure to purchase sufficient liability insurance."
Id. at 841.
If we allowed Mitchell to recover under the UIM endorsement in
the absence of the exclusionary clauses, we would be compensating
her for her failure to purchase adequate liability insurance for
herself.
As much as we sympathize with Mitchell in that she was
seriously injured through no fault of her own, to adopt her
argument "simply stretches the purpose and scope of underinsured
coverage beyond the bounds of reason or common sense."
Id.
See
also Pridham v. State Farm Mutual Insurance Company, Ky. App.,
903 S.W.2d 909 (1995)(denying recovery of UIM benefits to insured
injured as result of one-car accident).
Having held that Mitchell is not entitled to UIM
benefits under the facts of this case, we need not reach the
other issues raised by Mitchell on appeal.
The order of the
trial court entered on June 3, 1996, granting summary judgment in
favor of Shelter is affirmed.
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ALL CONCUR.
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BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Jeffery A. Roberts
Murray, KY
John T. Soyars
Hopkinsville, KY
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