KILLIN (CARL), ET AL. VS. BOGGS (EDWARD J.), ET AL.Annotate this Case
RENDERED: NOVEMBER 21, 2008; 2:00 P.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
CARL KILLIN AND HELEN KILLIN
APPEAL FROM BOYD CIRCUIT COURT
HONORABLE MARC I. ROSEN, JUDGE
ACTION NO. 06-CI-00696
EDWARD J. BOGGS AND
S & S READY MIX
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BEFORE: COMBS, CHIEF JUDGE; NICKELL, JUDGE; GRAVES,1 SENIOR
GRAVES, SENIOR JUDGE: Carl Killin and Helen Killin appeal from a summary
judgment granted against them on the basis of their failure to file suit within the
applicable statute of limitations. We affirm.
Senior Judge J. William Graves sitting as Special Judge by assignment of the Chief Justice
pursuant to Section 110(5)(b) of the Kentucky Constitution and KRS 21.580.
On November 20, 2002, the Killins and appellee, Edward J. Boggs,
were involved in an automobile accident. Boggs was driving a truck owned by S
& S Ready Mix. The Killins each alleged that they sustained injuries in the
accident. Helen Killin sought medical attention and her insurance company paid
basic reparation benefits. The last of these payments occurred on February 3,
2003. Carl Killin, however, did not seek medical attention and did not receive any
basic reparation benefits.
After the accident, the Killins attempted to negotiate a settlement of
their claims with S & S and Boggs’ insurance carrier, Federated Mutual Insurance
Company. The claims were not settled. On July 10, 2006, the Killins filed suit
against S & S and Boggs alleging negligence and gross negligence. The Killins
also brought a bad faith claim against Federated. The trial court granted summary
judgment in favor of S & S Ready Mix and Boggs based on the Killins’ failure to
file suit within the limitations period contained in Kentucky Revised Statutes
(KRS) 304.39-230. The trial court overruled Federated’s motion for summary
judgment. This appeal followed the grant of summary judgment.
KRS 304.39-230(6) states:
An action for tort liability not abolished by KRS 304.39060 may be commenced not later than two (2) years after
the injury, or the death, or the last basic or added
reparation payment made by any reparation obligor,
whichever later occurs.
The accident occurred on November 20, 2002. The last basic reparation benefit
paid to Helen Killin occurred on February 3, 2003. Carl Killin did not receive any
basic reparation benefits. The Killins filed suit on July 10, 2006.
The Killins argue that the filing of their complaint was delayed
because of alleged bad faith and unfair dealing on the part of Federated in the
settlement of their claims. We note that Federated has not been made a party to
this appeal. We are not cited to any authority that bad faith in settlement
negotiations by an insurance company tolls the statute of limitations for suit
against an alleged tortfeasor. However, in Milby v. Wright, 952 S.W.2d 202, 204
(Ky. 1997), our Supreme Court held that the denial of a request for reparation
benefits made outside the limitations period did not toll the statute. Likewise in the
case at bar, Federated made the Killins an offer of $2,000.00 to settle their claim
on July 22, 2004. The Killins rejected the offer. They reasserted their demand for
$25,000.00 on November 10, 2004. Federated requested additional medical
records for review on November 19, 2004. On December 9, 2004, Federated
informed the Killins that the claimed injuries did not appear to be related to the
automobile accident of November 20, 2002. On January 11, 2005, Federated sent
a request for additional medical records. Federated made no further
communications to the Killins’ inquiries.
We cannot conclude that a reasonable view of the evidence supports
the Killins’ assertion that the alleged bad faith of Federated prevented them from
timely filing their complaint against S & S Ready Mix and Boggs. The deadline
for filing the complaint was February 3, 2005. Federated’s final communication
occurred on January 11, 2005. The Killins responded on January 19, 2005. The
Killins did not seek further contact with Federated until May 5, 2005, more than
three months after the filing deadline. The actual complaint was not filed until July
10, 2006. Moreover, the alleged bad faith of Federated cannot be imputed to S & S
Ready Mix and Boggs because KRS 304.12-220 states “[f]or the purpose of KRS
304.12-230 (Unfair claims settlement practices), ‘person’ shall not mean an
Accordingly, the judgment of the Boyd Circuit Court is affirmed.
BRIEF FOR APPELLANTS:
BRIEF FOR APPELLEES:
Michael J. Curtis
Timothy A. West