WESTERN-SOUTHERN LIFE ASSURANCE COMPANY v. ALFREDA MADDOX
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RENDERED:
NOVEMBER 14, 2003; 10:00 a.m.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2002-CA-001080-MR
WESTERN-SOUTHERN LIFE ASSURANCE COMPANY
APPELLANT
APPEAL FROM GREENUP CIRCUIT COURT
HONORABLE LEWIS D. NICHOLLS, JUDGE
ACTION NO. 99-CI-00068
v.
ALFREDA MADDOX
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
BUCKINGHAM, DYCHE AND JOHNSON, JUDGES.
JOHNSON, JUDGE:
Western-Southern Life Assurance Company has
appealed from a final order and judgment of the Greenup Circuit
Court entered on August 29, 2002, which, following a jury trial,
granted Alfreda Maddox a judgment against Western-Southern based
on a life insurance policy owned by her.
Having concluded that
no reversible error occurred, we affirm.
On the evening of September 4, 1998, Kevin Wade
Maddox, son of Alfreda Maddox, went for a ride on his
motorcycle.
Kevin was accompanied by another motorcyclist, his
friend Lewis Evans.
As the two young men crossed the Ohio River
and entered Russell, Kentucky, Officer Denver Stewart of the
Russell Police Department attempted to stop Kevin.
According to
Officer Stewart, he suspected that Kevin was driving impaired
when he observed Kevin “wobble[ ]” and “appear[ ] to be
unstable” while operating his motorcycle.
Officer Stewart
testified that after he turned on the rotating lights of his
marked police cruiser, Evans immediately pulled his motorcycle
over, but Kevin did not.
Rather than pulling over, Officer
Stewart testified that Kevin “turned right on U.S. 23 and sped
up.”
Officer Stewart stated that he then realized Kevin did
not intend to stop and he activated his police siren.
According
to Officer Stewart, a pursuit ensued in which his police cruiser
and Kevin’s motorcycle reached speeds of 65-70 miles per hour in
speed zones ranging between 45-55 miles per hour.
As the chase
neared Raceland, Kentucky, Officer Elaine Elder of the Raceland
Police Department offered her assistance in attempting to stop
Kevin.
Officer Elder stationed her cruiser at the intersection
of U.S. 23 and Pond Run Road.
Officer Stewart testified that
Kevin almost hit Officer Elder’s cruiser as he turned left off
of U.S. 23 onto Pond Run Road.
Shortly after turning onto Pond
Run Road, Kevin lost control of his motorcycle, left the road,
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and hit a tree.
Kevin died as a result of the injuries he
sustained in the accident.
Approximately 17 years prior to Kevin’s fatal
accident, Alfreda had purchased a life insurance policy on her
son with Western-Southern, naming herself as the beneficiary.
Alfreda made all of the required monthly premium payments.
On
November 12, 1998, approximately two months after the accident,
Western-Southern mailed a letter to Alfreda stating that it did
not intend to pay the death benefit on her life insurance
policy.
As the basis for its refusal to pay, Western-Southern
cited an exclusion in the policy which stated that no benefits
would be paid if, inter alia, the death resulted from the
commission of a felony.
Western-Southern’s letter to Alfreda
stated that “according to the police[,] the insured was
resisting the order to stop his motor vehicle, while driving
under the influence of alcohol.
This is a felony.”
On February 12, 1999, Alfreda filed her complaint in
Greenup Circuit Court seeking to recover $25,000.00 in damages,
the amount of the life insurance policy in question.
The case
proceeded to a jury trial, which was conducted on April 15 and
16, 2002.
At the close of evidence, motions for a directed
verdict by both parties were denied by the trial court.
Following deliberations, the jury returned a verdict in favor of
Alfreda in the amount of $25,000.00.
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The trial court entered an
order and judgment on April 17, 2002, for the policy amount of
$25,000.00, plus post-judgment interest at the rate of 12%.
On
August 29, 2002, the trial court entered an amended judgment in
favor of Alfreda in the amount of $31,849.40, plus 12% postjudgment interest.
The $6,849.40 increase reflected pre-
judgment interest at 8% that was calculated from November 12,
1998, the date of Western-Southern’s letter refusing payment,
until the entry of judgment on April 17, 2002.
This appeal
followed.
Western-Southern’s principal argument on appeal is
that the trial court erred in not granting its motion for a
directed verdict at the conclusion of proof.
As the basis for
this argument, Western-Southern claims that it conclusively
established at trial that Kevin had violated KRS1 520.095, a
Class D felony.
In Taylor v. Kennedy,2 this Court discussed the
standard for a trial court to follow when ruling on a motion for
a directed verdict:
In ruling on either a motion for a
directed verdict or a motion for
judgment notwithstanding the verdict, a
trial court is under a duty to consider
the evidence in the strongest possible
light in favor of the party opposing
the motion. Furthermore, it is
1
Kentucky Revised Statutes.
2
Ky.App., 700 S.W.2d 415, 416 (1985).
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required to give the opposing party the
advantage of every fair and reasonable
inference which can be drawn from the
evidence. And, it is precluded from
entering either a directed verdict or
judgment n.o.v. unless there is a
complete absence of proof on a material
issue in the action, or if no disputed
issue of fact exists upon which
reasonable men could differ [emphasis
added][citation omitted].
Further, in Bierman v. Klapheke,3 our Supreme Court discussed the
standard for an appellate court to follow when reviewing a trial
court’s ruling on a motion for a directed verdict:
When engaging in appellate review of a
ruling on a motion for directed verdict, the
reviewing court must ascribe to the evidence
all reasonable inferences and deductions
which support the claim of the prevailing
party. Once the issue is squarely presented
to the trial judge, who heard and considered
the evidence, a reviewing court cannot
substitute its judgment for that of the
trial judge unless the trial judge is
clearly erroneous [citations omitted].
For the following reasons, we hold that the trial court did not
err in denying Western-Southern’s motion for a directed verdict.
Under KRS 520.095, a person is guilty of fleeing or
evading police in the first degree when, inter alia, the
following elements have been proven:
(a) When, while operating a motor vehicle
with intent to elude or flee, the person
knowingly or wantonly disobeys a direction
to stop his or her motor vehicle, given by a
person recognized to be a police officer,
3
Ky., 967 S.W.2d 16, 18 (1998).
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and at least one (1) of the following
conditions exists:
. . .
2. The person is driving under the influence
of alcohol or any other substance or
combination of substances in violation of
KRS 189A.010;
. . .
4. By fleeing or eluding, the person is the
cause, or creates substantial risk, of
serious physical injury or death to any
person or property[.]
In the case at bar, there is no dispute between the
parties that Kevin either “knowingly or wantonly disobey[ed] a
direction to stop” his motorcycle.
The dispute lies with
whether the proof offered at trial established that Kevin
violated either subsection 1, driving under the influence as
defined in KRS 189A.010, and/or subsection 4, causing or
creating a substantial risk of serious physical injury or death.
Western-Southern first argues that it was entitled to
a directed verdict on the issue of Kevin’s alleged intoxication
at the time of his accident.
On the date Kevin was killed, KRS
189A.010 stated that a person was guilty of driving under the
influence if his blood alcohol content measured 0.10 or greater.4
At trial, Western-Southern introduced evidence that Kevin’s
blood alcohol content near the time of his accident measured
4
Since that time, KRS 189A.010 has been amended.
alcohol content is 0.08.
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The current maximum blood
0.189.
This evidence was introduced in the form of expert
testimony by Dr. Cristin Roth, a physician who performed an
autopsy on Kevin on behalf of the state medical examiner’s
office.
Western-Southern argues that this evidence, coupled
with the statutory presumption of intoxication under KRS
189.520(3)(C),5 entitled Western-Southern to a directed verdict
with regard to the driving under the influence element of KRS
520.095.
We disagree.
In Bridges v. Commonwealth, our Supreme Court stated
that although KRS 189.520 creates a presumption of intoxication
if one’s blood alcohol level is above the legal limit, that
presumption is rebuttable by other evidence.6
Further, the
ultimate question of intoxication is a question properly
reserved for the jury to determine.7
In the case sub judice,
although there was evidence suggesting that Kevin’s blood
alcohol level was above the legal limit at the time of his
accident, there was also evidence to the contrary.
5
At the time of Kevin’s accident, KRS 189.520(3)(C) stated “[i]f there was
0.10 percent (1/10%) or more by weight of alcohol in such blood, it shall be
presumed that the defendant was under the influence of intoxicating
beverages.”
6
Ky., 845 S.W.2d 541, 542 (1993)(holding that “[e]ven the statutory
presumption of KRS 189.520(3)(c), that a concentration of 0.10 percent or
greater by weight of alcohol in the blood renders a person under the
influence, is rebuttable”).
7
Marcum v. Commonwealth, Ky., 483 S.W.2d 122, 127 (1972)(holding that “[i]t
is true that the instruction made it clear that the results of the test
created a rebuttable presumption which the jury was to consider with all of
the evidence, and it left the determination of intoxication for the jury to
resolve, as it must be”).
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Evans, Kevin’s riding companion on the night of the
accident, testified that the two men had only consumed two beers
each in a four-hour period, and that he did not notice anything
improper with regard to Kevin’s handling of his motorcycle.
Dr.
Roth also conceded that as a body decomposes, the blood alcohol
level can rise postmortem, and that no determination was made as
to the stage of the decomposition of Kevin’s body.8
Further,
Ralph Ginter, a Kentucky State Trooper who conducted a
reconstruction of the accident, testified that there was no
smell of alcohol at the scene, and that Officer Stewart made no
mention to him of the possibility that alcohol was a factor in
the accident.
Based upon this evidence, we cannot conclude that
“no disputed issue of fact exist[ed] upon which reasonable men
could differ,” nor can we conclude that the trial court’s denial
of Western-Southern’s motion for a directed verdict was “clearly
erroneous.”
Accordingly, Western-Southern was not entitled to a
directed verdict on this issue.
Western-Southern next argues that it was entitled to a
directed verdict on the issue of whether Kevin was causing or
creating a substantial risk of serious physical injury or death
under KRS 520.095(4).
In addition, Western-Southern argues that
the trial court erred by not including this provision as a
8
The autopsy was conducted on September 6, 1998, approximately 36 to 48 hours
after Kevin’s death.
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possible defense to its liability in the jury instructions.
For
the following reasons, we reject both arguments.
Pursuant to KRS 304.12-230, it is considered an unfair
claims settlement practice to, among other things, “[fail] to
promptly provide a reasonable explanation of the basis in the
insurance policy in relation to the facts or applicable law for
denial of a claim or for the offer of a compromise
settlement[.]”9
In the case sub judice, Western-Southern, in its
letter to Alfreda, wherein it refused to pay the benefits under
the policy, stated that the sole basis for this refusal was its
belief that Kevin had been under the influence of alcohol at the
time of the accident.
Further, no mention of the alleged
defense under KRS 520.095(4) was made in Western-Southern’s
answer to Alfreda’s complaint.
Hence, we conclude that Western-
Southern’s failure to offer this defense in a timely manner was
a proper basis for the trial court to deny Western-Southern’s
motion for a directed verdict, and to refuse to include such a
defense in the instructions to the jury.
Finally, Western-Southern argues that the trial court
erred in not including an instruction to the jury stating that
Kevin’s blood alcohol level was above 0.10.
9
First, we note that
See also Kentucky Administrative Regulations (KAR) 806 KAR 12:092(2)(9).
“When a claim is denied, written notice of denial shall be sent to the
claimant within fifteen (15) calendar days of the determination. The notice
shall refer to the policy provision, condition, or exclusion upon which the
denial is based.”
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Western-Southern has failed to adhere to CR10 76.12(4)(c)(v),
which requires that a brief contain “reference to the record
showing whether the issue was properly preserved for review and,
if so, in what manner.”
Second, under the recommended jury
instructions for an alleged violation of KRS 189A.010, there is
no instruction such as the one proposed by Western-Southern.11
Accordingly, the trial court committed no error in refusing to
give Western-Southern’s proposed instruction.
Based on the foregoing, the judgment of the Greenup
Circuit Court is affirmed.
BUCKINGHAM, JUDGE, CONCURS.
DYCHE, JUDGE, DISSENTS.
BRIEF AND ORAL ARGUMENT FOR
APPELLANT:
BRIEF AND ORAL ARGUMENT FOR
APPELLEE:
Phillip Bruce Leslie
Greenup, Kentucky
Richard W. Martin
Ashland, Kentucky
10
Kentucky Rules of Civil Procedure.
11
See 1 Cooper, Kentucky Instructions to Juries § 8.64A (4th ed. 1999).
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