NATIONAL CASUALTY COMPANY, INC. v. BLONDIE-HOFFMAN PRODUCE COMPANY, INC
Annotate this Case
Download PDF
RENDERED: March 28, 2003; 2:00 p.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
2002-CA-000415-MR
NATIONAL CASUALTY COMPANY, INC.
APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE BARRY WILLETT, JUDGE
ACTION NO. 99-CI-006762
v.
BLONDIE-HOFFMAN PRODUCE COMPANY, INC
APPELLEE
OPINION AND ORDER
DISMISSING APPEAL
** ** ** ** **
BEFORE:
COMBS, KNOPF, AND TACKETT, JUDGES.
KNOPF, JUDGE:
National Casualty Company appeals from a summary
judgment order by the Jefferson Circuit Court in favor of
Blondie Hoffman Produce Company, Inc.
Finding that this appeal
was not taken from a final order, we dismiss the appeal.
The facts of this action are not in dispute and are
aptly summarized in the trial court’s opinion:
Blondie-Hoffman is a local produce
distributor. Lou Alice Fink (“Ms. Fink”)
is the owner of Blondie-Hoffman. The
company delivers fruits and vegetables to
restaurants and hotels. Blondie-Hoffman
leased its delivery trucks from General Car
& Truck Leasing Systems (“General
Leasing”). As part of the lease agreement,
Blondie-Hoffman was required to purchase
liability and collision insurance on each
vehicle, including substitute and
additional vehicles. On December 10, 1997,
National Casualty issued a Commercial Auto
Coverage policy in favor of BlondieHoffman. The policy covered two Ford vans
and a 1994 Mitsubishi van. Various
endorsements and amendments were made to
the policy between December 10, 1997 and
December 10, 1998, the relative [sic,
relevant] policy period. Chris Zavitson
(“Mr. Zavitson”) was the insurance agent
for Blondie-Hoffman.
A few days prior to October 3, 1998,
the date of the collision which is the
subject of this cause of action, the 1994
Mitsubishi van was returned to General
Leasing for repairs. On September 26,
1998, General Leasing provided BlondieHoffman with a 1995 Mitsubishi van as a
temporary substitute vehicle. On October
3, 1998, the 1995 Mitsubishi van struck a
rock wall and was determined to be a total
loss.
On October 5, 1998, Henrietta Deale
(“Ms. Deale”), an employee of Chris
Zavitson Insurance Agency, received a phone
call from Sharon, a representative of
Blondie Hoffman, advising that an accident
involving the 1995 Mitsubishi van had
occurred at approximately 9:00 a.m. on
October 3, 1998. In her deposition, Ms.
Deale stated that the 1995 Mitsubishi van
had never been added to the Blondie-Hoffman
policy. Ultimately, National Casualty
denied coverage for two reasons: (1) The
1995 Mitsubishi van, a temporary substitute
vehicle, was never listed on the policy and
(2) Assuming the vehicle did not have to be
2
listed separately, the policy did not
provide collision coverage.
On November 10, 1999, Blondie-Hoffman filed a
complaint against National Casualty, seeking to recover damages
for breach of the insurance policy.
National Casualty again
denied that the vehicle was covered under the policy.
Following a period of discovery, Blondie-Hoffman and National
Casualty filed cross-motions for summary judgment.
In a
memorandum opinion and order issued on January 25, 2002, the
trial court granted Blondie-Hoffman’s motion.
The court found
that the 1995 Mitsubishi van was covered under the policy as a
“temporary substitute vehicle”, and that the policy did not
clearly exclude collision coverage for such vehicles.
National
Casualty now appeals from this order.
Although the parties in this case have not raised
the issue, we conclude that the trial court’s order lacks
finality, thus precluding our review of the merits of National
Casualty’s appeal.
This Court has jurisdiction over appeals
from final judgments or orders of circuit courts.1
"A final or
appealable judgment is a final order adjudicating all the
rights of all the parties in an action or proceeding, or a
judgment made final under CR 54.02.”2
"This court on its own
motion will raise the issue of want of jurisdiction if the
1
2
KRS 22A.020(1).
CR 54.01. See also Commonwealth v. Taylor, Ky., 945 S.W.2d 420, 422 (1997).
3
order appealed from lacks finality."3
In fact, we are required
to do so.4
The trial court’s order of January 25, 2002, does not
recite that it is final and appealable, as required by CR
54.02.
The omission of this language does not necessarily
render the judgment not-final.5
Nevertheless, we find that the
trial court’s order did not conclusively adjudicate all of the
claims of the parties.
Specifically, Blondie-Hoffman did not bring a
declaratory judgment action seeking a finding that the 1995
Mitsubishi van is covered under the policy.
Rather, it brought
this action through a complaint against National Casualty,
seeking damages for breach of the insurance contract.
practical matter, the effect is the same.
As a
As a procedural
matter, however, the summary judgment in favor of BlondieHoffman does not finally resolve all of the issues between the
parties.
The trial court has not yet entered a judgment in
favor of Blondie-Hoffman.
In fact, the trial court scheduled a
hearing on damages in the summary judgment order, but
apparently, National Casualty’s notice of appeal pre-empted
that hearing.
In the absence of a final judgment in favor of
3
Huff v. Wood Mosaic Corp., Ky., 454 S.W.2d 705, 706 (1970).
Central Adjustment Bureau, Inc. v. Ingram Associates, Inc., Ky. App., 622 S.W.2d 681, 683 (1981), citing Hook
v. Hook, Ky., 563 S.W.2d 716 (1978).
5
Federal Savings & Loan Association of Mayfield v. Nesler, Ky., 697 S.W.2d 136, 138 (1985); citing Cerwin v.
Taub, Ky.App., 552 S.W.2d 675 (1977).
4
4
Blondie-Hoffman, National Casualty’s notice of appeal was
premature.
Based on the foregoing, it is hereby ordered that
this appeal is dismissed.
ALL CONCUR.
ENTERED: __March 28, 2003
__/s/ Wm. L. Knopf____
JUDGE, COURT OF APPEALS
BRIEF FOR APPELLANT:
No brief for appellees:
Blondie-Hoffman Produce Co.,
Inc.
Gregory L. Smith
Smith & Hoskins
Louisville, Kentucky
5
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
