MUTUAL SERVICE CASUALTY INSURANCE COMPANY VS. HIMES (JO ANN), ET AL.
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RENDERED: JULY 11, 2008; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2005-CA-001329-MR
MUTUAL SERVICE CASUALTY
INSURANCE COMPANY
v.
APPELLANT
APPEAL FROM FAYETTE CIRCUIT COURT
HONORABLE THOMAS L. CLARK, JUDGE
ACTION NO. 02-CI-00623
JO ANN HINES; RON PENNINGTON
AND MELISSA PENNINGTON,
ADMINISTRATRIX OF THE ESTATE
OF WILLIAM R. BREWER
APPELLEES
OPINION AND ORDER
DISMISSING
** ** ** ** **
BEFORE: FORMTEXT CLAYTON, MOORE, AND TAYLOR,
JUDGES.
TAYLOR, JUDGE: Mutual Service Casualty Insurance Company (MSI) brings
this appeal from a June 2, 2005, summary judgment of the Fayette Circuit Court
determining that MSI owed liability insurance coverage for William Brewer. We
dismiss.
On August 19, 2001, Brewer, then thirteen years of age and
unlicensed to operate a motor vehicle, stole a truck belonging to his stepfather,
Ronald Pennington. While driving the truck, Brewer was involved in an accident
causing Jo Ann Himes to sustain severe injuries. The vehicle was insured under a
motor vehicle insurance policy with MSI issued to Pennington.
Himes filed a complaint alleging negligence against Brewer in his
operation of the vehicle, and alleging negligence and negligent entrustment against
Pennington. Himes sought recovery under Pennington’s motor vehicle insurance
policy issued by MSI. Himes further claimed MSI acted in bad faith by denying
coverage. MSI apparently denied coverage based upon an entitlement clause in the
insurance policy. Under this entitlement clause, coverage was excluded for any
person who operated a vehicle without a reasonable belief that he was entitled to
do so.
The trial court granted summary judgment to Pennington dismissing
Himes’ claim of negligent entrustment in an August 1, 2002, order. Brewer was
later killed in a separate unrelated automobile accident, and Himes amended her
complaint to substitute Brewer’s mother, Melissa Pennington, as administratrix of
Brewer’s Estate.
Himes filed a motion for summary judgment seeking adjudication that
the motor vehicle insurance policy issued by MSI provided coverage for Brewer.
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In the June 2, 2005, summary judgment, the trial court granted Himes’ motion. In
concluding that Brewer should be afforded coverage, the trial court reasoned that
Brewer was a family member of Pennington, and thus, a covered person as defined
under MSI’s policy of insurance.1
MSI filed a timely notice of appeal to the Court of Appeals and now
brings this appeal from the June 2, 2005, summary judgment. By order entered
June 4, 2008, this Court ordered the parties to show cause why the appeal should
not be dismissed as having been taken from a non-final and interlocutory order
(June 2, 2005, summary judgment). MSI responded and argued that the “legal
issue” on appeal “is the final determining factor on existence of insurance
coverage.” MSI urged this Court not to dismiss the appeal. However, MSI failed
to address the pivotal issue of whether the June 2, 2005, summary judgment is
interlocutory and, thus, non-appealable. For the reasons hereinafter delineated, we
conclude that the June 2, 2005, summary judgment is interlocutory.
A final and appealable judgment is one that adjudicates all the rights
of all the parties or is made final under Kentucky Rules of Civil Procedure (CR)
54.02. CR 54.01. In an action involving multiples claims and/or multiple parties,
CR 54.02 permits the trial court to make an otherwise interlocutory order final and
appealable in certain circumstances. However, courts recognize that “[w]here an
order is by its very nature interlocutory, even the inclusion of the recitals provided
Subsequently, it appears that Jo Ann Himes settled her injury claims against William R.
Brewer’s Estate and Ron Pennington. The bad faith claim against Mutual Service Casualty
Insurance Company remains unadjudicated or settled.
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for in CR 54.02 will not make it appealable.” Hook v. Hook, 563 S.W.2d 716, 717
(Ky. 1978)(citing Hale v. Deaton, 528 S.W.2d 719 (Ky. 1975)). An otherwise
interlocutory order may be made appealable under CR 54.02 only if there has been
a final adjudication of one or more of the claims in litigation. Hale, 528 S.W.2d
719 (Ky. 1975). In determining finality, a court must determine whether the order
grants or denies the ultimate relief requested or whether additional steps must be
taken to adjudicate their claims. Parsley v. Gray, 322 S.W.2d 123 (Ky. 1959).
The case sub judice involved multiple claims and multiple parties. In
the June 2, 2005, summary judgment from which MSI appeals, the circuit court
ruled the MSI policy of insurance extended coverage to Brewer. In so doing, the
trial court decided a mere legal issue presented in the case. It is uncontroverted
that further proceedings will be necessary to determine whether MSI acted in bad
faith, and upon resolution of the bad faith claim an appeal may be pursued to this
Court.2 This sort of piecemeal litigation is disfavored. Pankey v. Pound, 428
S.W.2d 777 (Ky. 1968). Consequently, we are of the opinion that the June 2,
2005, summary judgment does not constitute a final and appealable decision. As
the June 2, 2005, summary judgment is inherently interlocutory from which no
appeal can be pursued and being otherwise sufficiently advised;
We note that an apparent settlement of Jo Ann Himes’ claims against Ronald Pennington and
Melissa Pennington, Administratrix of the Estate of William R. Brewer leave only a single claim
remaining against a single party; however, this would not change the fact that the June 2, 2005,
summary judgment does not appear be a final adjudication of the remaining bad faith claim
against MSI. See Parsley v. Gray, 322 S.W.2d 123 (Ky. 1959).
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Now, therefore, be it ORDERED that Appeal No. 2005-CA-001329MR is DISMISSED as being taken from an interlocutory order.
ALL CONCUR.
ENTERED: July 11, 2008
//Jeff S. Taylor
JUDGE, COURT OF APPEALS
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Michael J. Darnell
Louisville, Kentucky
Melissa D. McQueen
Gerry L. Calvert
Lexington, Kentucky
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