UNDERWRITERS INSURANCE COMPANY VS. THE WELLS GROUP, LLC , ET AL.Annotate this Case
RENDERED: AUGUST 15, 2008; 2:00 P.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
APPEAL FROM PIKE CIRCUIT COURT
HONORABLE EDDY COLEMAN, JUDGE
ACTION NO. 04-CI-01701
THE WELLS GROUP, LLC, RODNEY
FLEMING AND JAMES MULLINS
** ** ** ** **
BEFORE: COMBS, CHIEF JUDGE; ACREE, JUDGE; HENRY,1 SENIOR
HENRY, SENIOR JUDGE: James Mullins was employed by Stanley Setup. He
was injured at work when Rodney Fleming, who was employed by Wells Group,
LLC dropped a steel ladder on Mullins' head. Stanley was insured by
Senior Judge Michael L. Henry sitting as Special Judge by assignment of the Chief Justice
pursuant to Section 110(b) of the Kentucky Constitution and KRS 21.580.
Underwriters Insurance Company for workers' compensation claims. Mullins
sought relief through a workers’ compensation claim as well as pursuing a civil
action against Fleming and Wells. Underwriters moved to intervene in the civil
action as the workers' compensation carrier. Mullins, Fleming, Wells and
Underwriters undertook an attempt to resolve all issues at mediation. Mullins
settled his claims with Fleming and Wells prior to trial. As part of those
settlements, Mullins was required to indemnify both Wells and Fleming from any
claims by Underwriters.
This appeal arose when Mullins, on his own behalf and as
indemnitor of Wells and Fleming, was granted summary judgment against
Underwriters. Underwriters argues the trial court erred when it granted summary
judgment before discovery was complete and that there were material issues of fact
between the parties, precluding summary judgment. After a complete review of
the record and the applicable law, we disagree and affirm the decision of the Pike
County Circuit Court.
Underwriters first argues that summary judgment was inappropriate
because discovery was not complete. “[S]ummary judgment is only proper after a
party has been given ample opportunity to complete discovery, and then fails to
offer controverting evidence.” Pendleton Bros. Vending Inc. v. Commonwealth
Finance & Admin. Cabinet, 758 S.W.2d 24, 29 (Ky. 1988). Underwriters
incorrectly summarizes the holding in that case to mean that until discovery is
complete, there cannot be summary judgment.
On September 22, 2005, Underwriters moved to intervene as the
workers’ compensation carrier. It filed an intervening complaint against Wells and
Fleming on October 5, 2005. An answer was filed and a trial date of May 8, 2006
was established. Five days before the scheduled trial date, Underwriters moved for
a continuance, which was granted over Mullins’ objection. Prior to that motion,
the trial court had ordered that witness lists be filed by March 19, 2006 and that
discovery be completed by April 18, 2006 in preparation for the May 8 trial date.
Underwriters failed to timely respond to those orders. Finally, on May 19, 2006,
Underwriters served Interrogatories and Requests for Production of Documents on
Mullins sought a protective order stating the requests were entirely
duplicative of discovery materials already exchanged by all parties prior to the
settlement of the claims with Wells and Fleming. That motion was overruled on
June 16, 2006. Mullins then moved for reconsideration. The trial court reexamined the record and on July 21, 2006 granted the motion for reconsideration,
and sustained Mullins’ motion for summary judgment.
Underwriters did nothing to further its claims for over seven months
and then only filed discovery requests for materials that had already been provided.
Underwriters was provided “ample opportunity to complete discovery.” Id. Even
more importantly however, Mullins’ affidavit in support of summary judgment
clearly delineated the lack of any issue and the appropriateness of summary
Kentucky Revised Statutes (KRS) 342.700(1) provides that in
situations where the employee acts to indemnify the workers’ compensation
insurance carrier, that indemnification shall not “exceed the indemnity paid and
payable to the injured employee, less the employee’s legal fees and expense.”
Mullins’ affidavit indicates he expended $176,192.08 on legal expenses.
Underwriters’ claim was $152,540.25. Mullins’ expenses exceeded the entire
claim by over $23,000.
The Kentucky Supreme Court has interpreted KRS 342.700(1) and
determined that the entire sum of legal expenses shall “be deducted from the
employer’s or insurer’s portion of any recovery.” AIK Selective Self Insurance
Fund v. Bush, 74 S.W.3d 251, 257 (Ky. 2002). When the worker’s legal fees and
expenses exceed the total amount paid by the insurer, the insurer is entitled to no
subrogation recovery pursuant to KRS 342.700(1). AIK Selective Self Insurance
Fund v. Minton, 192 S.W.3d 415 (Ky. 2006). Underwriters disagreed with
Mullins’ calculations pertaining to his fees and expenses, but the record establishes
clearly that Mullins’ legal expenses exceeded Underwriters’ claim. Summary
judgment on that issue was appropriate.
Underwriters next suggests that a material issue of fact does exist and
for that reason summary judgment was improper. This argument rests on the
finding that Mullins will be entitled to recover future medical expenses as part of
his ongoing treatment. It is incumbent on a party to provide some evidence to
rebut an allegation of an absence of material facts. Neal v. Welker, 426 S.W.2d
476 (Ky. 1968). Here, although the potential exists for an additional claim to arise
between the parties, Underwriters offered no concrete evidence to support its
position that an actual controversy exists. While it is possible that Mullins’ future
medical expenses may exceed the $23,000 overage already accumulated, it is also
possible that such a claim may never arise. We may not speculate on the issue.
Summary judgment was appropriate.
Finally, we note that in his brief, Mullins raises issues of damages and
costs pursuant to Kentucky Rules of Civil Procedure (CR) 73.02(4). Those same
issues were previously presented to this Court by motion and relief was denied at
that time. We will not revisit a matter already determined.
The judgment of the Pike County Circuit Court is affirmed.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Lawrence H. Belanger