STATE FARM FIRE & CASUALTY COMPANY; AND WADE HEMBREE v. CARYN GRATZ, EXECUTRIX OF THE ESTATE OF WILLIAM GRATZ, DECEASED; AND CARYN GRATZ; AND LEE ANN WILLIAMS, BY AND THROUGH HER NEXT FRIEND, GARY WILLIAMS
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RENDERED:
October 24, 2003; 2:00 p.m.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2002-CA-000809-MR
STATE FARM FIRE & CASUALTY
COMPANY; AND WADE HEMBREE
APPELLANTS
APPEAL FROM SHELBY CIRCUIT COURT
HONORABLE WILLIAM F. STEWART, JUDGE
ACTION NO. 00-CI-00134
v.
CARYN GRATZ, EXECUTRIX OF
THE ESTATE OF WILLIAM GRATZ,
DECEASED; AND CARYN GRATZ;
AND LEE ANN WILLIAMS, BY AND
THROUGH HER NEXT FRIEND,
GARY WILLIAMS
APPELLEES
OPINION
DISMISSING
** ** ** ** **
BEFORE:
BARBER, McANULTY, AND TACKETT, JUDGES.
BARBER, JUDGE:
The Appellants, State Farm Fire & Casualty
Company, and Wade Hembree, seek review of an order of the Shelby
Circuit Court denying their motion for summary judgment.
They
contend that the trial court erred, as a matter of law, in
interpreting an exclusion in the Gratzes’ homeowner’s policy.
We dismiss the appeal because it was not taken from a final and
appealable order.
The denial of a motion for summary judgment is
generally not appealable; however, an exception to the general
rule applies where the facts are not in dispute, the only basis
of the ruling is a matter of law, the motion is denied, and
there is entry of a final judgment with an appeal therefrom.1
In
the case sub judice, there was no appeal from a final judgment,
thus, we dismiss.
The essential facts relevant to the trial court’s
ruling are not in dispute.
On or about September 9, 1999, the
Appellee, Lee Ann Williams (Leigh Ann), went to the home of the
Appellees, Caryn and William Gratz (Gratzes), to play with their
daughter, Carli.
At that time, Lee Ann was ten years old.
The
girls were riding go-carts, owned by the Gratzes, on a tractor
path adjacent to their property.
Lee Ann failed to make a turn
in the path, and was injured when she drove the go-cart into a
dry creek bed.
At the time of the accident, the Gratzes were insured
by a homeowner’s policy with the Appellant, State Farm.
On
April 17, 2000, Lee Ann, by and through her next friend, Gary
Williams, filed a complaint against the Gratzes in the Shelby
Circuit Court, alleging that she was injured as a result of
1
Transportation Cabinet, Bureau of Highways, Commonwealth of
Kentucky v. Leneave, Ky. App., 751 S.W.2d 36, 37 (1988).
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their negligence.
On May 4, 2001, the Gratzes filed a motion
for leave to file a third party complaint against Wade Hembree,
the insurance agent, for breach of fiduciary duty, and against
State Farm, for a determination that it had a duty to provide
coverage and defend the subject lawsuit.
On May 10, 2001, the
trial court granted the Gratzes’ motion.
On November 5, 2001, State Farm filed a motion for
summary judgment, asserting that it had no coverage, and
therefore no duty to defend or indemnify the Gratzes.
State
Farm maintained that the go-cart was included in the policy’s
definition of “motor vehicle,” and that it had no coverage for
injuries arising out of the go-cart’s use, unless it occurred on
an insured location.
On January 24, 2002, the trial court
entered an order denying the motion for summary judgment,
because “[t]he plain reading of the exclusion does not include
‘go-cart.’”
On March 5, 2002, State Farm filed both a motion to
bifurcate “the trial of the claims asserted in the Third Party
Complaint from the trial of the underlying negligence suit” and
a motion to make the order denying its motion for summary
judgment “final and appealable.”
On April 9, 2002, the trial court granted the motion
to bifurcate, and ordered that the third-party claim against
State Farm and Wade Hembree be held in abeyance, pending final
adjudication of the underlying negligence claim against the
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Gratzes.
A second order was entered on April 9, 2002 that
states in relevant part:
[T]he January 24, 2002 Order overruling the Third
Party Defendant’s Motion for Summary Judgment and
finding a duty to defend and indemnify on behalf
of State Farm Fire & Casualty Company in regard
to the claims of the Plaintiff against the
Defendants/Third Party Plaintiffs, is hereby made
a final and appealable Order, the trial to
proceed on the merits simultaneously.
CR 54.01 provides:
A judgment is a written order of a court
adjudicating a claim or claims in an action or
proceeding. 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 Rule 54.02. Where the
context requires, the term "judgment" as used in
these rules shall be construed "final judgment"
or "final order".
The January 24, 2002 denial of summary judgment did not
adjudicate all the rights of all the parties.
Therefore, the
judgment was interlocutory and nonappealable and could only be
made final and appealable by compliance with CR 54.02(1).2
CR 54.02(1) provides that:
When more than one claim for relief is presented
in an action, whether as a claim, counterclaim,
cross-claim, or third-party claim, or when
multiple parties are involved, the court may
grant a final judgment upon one or more but less
than all of the claims or parties only upon a
determination that there is no just reason for
delay. The judgment shall recite such
determination and shall recite that the judgment
is final. In the absence of such recital, any
2
Hale v. Deaton, Ky., 528 S.W.2d 719 (1975).
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order or other form of decision, however
designated, which adjudicates less than all the
claims or the rights and liabilities of less than
all the parties shall not terminate the action as
to any of the claims or parties, and the order or
other form of decision is interlocutory and
subject to revision at any time before the entry
of judgment adjudicating all the claims and the
rights and liabilities of all the parties.
(Emphasis added.)
The April 9, 2002 order does not recite the
determination that there is no just reason for delay, as mandated
by the rule.
For the purpose of making an otherwise
interlocutory order final and appealable, the
trial court is required to determine 'that there
is no just reason for delay,' and the judgment
must recite this determination and also recite
that the judgment is final CR 54.02(1). The
omission of one of these requirements is fatal.
(Citation omitted.)3 (Emphasis added.)
The appeal is dismissed.
ALL CONCUR.
BRIEF FOR APPELLANTS:
Richard G. Segal
Louisville, Kentucky
BRIEF FOR APPELLEES, CARYN
GRATZ, EXECUTRIX OF THE ESTATE
OF WILLIAM GRATZ, DECEASED,
AND CARYN GRATZ:
C. Gilmore Dutton, III
Benjamin M. Salyers
Shelbyville, Kentucky
BREIF FOR APPELLEES, LEE ANN
WILLIAMS, BY AND THROUGH HER
NEXT FRIEND, GARY WILLIAMS:
Gregg Y. Neal
Shelbyville, Kentucky
3
Id., at 722.
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