BROCK (ABBIE), ET AL. VS. BEGLEY (BETTY), ET AL.
Annotate this Case
Download PDF
RENDERED: MAY 9, 2008; 2:00 P.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2007-CA-000960-MR
ABBIE BROCK, INDIVIDUALLY; ABBIE
BROCK, AS EXECUTRIX OF THE ESTATE
OF WILEY BROCK, DECEASED
v.
APPELLANT
APPEAL FROM POWELL CIRCUIT COURT
HONORABLE FRANK ALLEN FLETCHER, JUDGE
ACTION NO. 06-CI-00310
BETTY BEGLEY, INDIVIDUALLY; BETTY
BEGLEY, EXECUTRIX OF THE ESTATE OF
FINLEY BEGLEY, AUTO AUCTION & RIVERSIDE
AUTO AUCTION; EMPIRE FIRE & MARINE
INSURANCE COMPANY; AND ZURICH INSURANCE
GROUP
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE: LAMBERT AND TAYLOR, JUDGES; BUCKINGHAM, SENIOR JUDGE.
LAMBERT, JUDGE: Abbie Brock, individually and as executrix of the estate of Wiley
Brock, appeals a summary judgment entered in favor of Betty Begley, individually and
as executrix of the estate of Finley Begley, Empire Fire and Marine Insurance
Company, and Zurich Insurance Group. After careful review, we affirm.
This case involves an accident between a 1989 Ford Aerostar test-driven
by Wiley Brock but owned by Riverside Auto Auction, and a 1988 Oldsmobile Cutlass
Ciera driven by Willard Shepherd. The accident occurred on October 26, 2004, on
Kentucky Highway 82, in Powell County, Kentucky. Kentucky Highway 82 is a two-lane
highway with one lane in each direction. The Cutlass Ciera driven by Willard crossed
the yellow center line, striking the oncoming Aerostar. Both Willard and Wiley were
killed, as well as the passenger and employee of Riverside Auto, Finley Begley.
Shortly after the accident, Abbie Brock, Wiley Brock’s widow, retained the
law firm of Johnson and Engel to represent the Estate of Wiley Brock and to recover all
benefits available. The liability insurance carriers for Shepherd settled the case, and
attorneys Johnson and Engel then wrote Empire Fire and Marine Insurance Company
(hereinafter “Empire”), a division of Zurich Insurance Group (hereinafter “Zurich”) and
the insurers of Riverside Auto, on December 10, 2004, advising of their representation
and further making a demand for underinsured motorists (hereinafter “UIM”) limits. In
response to the letter, Empire waived its subrogation interest and then immediately
offered its UIM limits of $25,000.00. The offer was accepted and on January 4, 2005,
Empire issued check #153738 in the amount of $25,000.00 to the estate of Wiley Brock.
Settlement proceeds were distributed and the file was closed by both Johnson and
Engel and Empire as settled.
Almost two years passed from the date the file was closed until Betty
Begley, Empire, and Zurich were served with an amended complaint regarding the
October 2004 accident. Wiley’s estate was then represented by Ronald Polly not
Johnson and Engel. The amended complaint alleged that Finley Begley, not Wiley
Brock, negligently drove the 1989 Ford Aerostar thus causing injury to Wiley, and
-2-
therefore sought to recover damages under both liability and UIM policy provisions of
the Empire policy.
Betty Begley, Empire, and Zurich filed a motion for summary judgment as
to all claims and therewith filed three affidavits as to who was driving the Aerostar. By
order entered March 1, 2007, the trial court dismissed the cause of action for loss of
consortium and denied all other motions for summary judgment. Upon renewed motion
for summary judgment by Betty Begley, Empire, and Zurich, the court entered a
summary judgment on April 11, 2007, dismissing all causes of action for liability against
Finley Begley as an alleged driver, the partnership auto auction business, and the
underinsured causes of action from the liability of the other driver, Willard Shepherd,
based upon the court’s determination that case law precludes recovery both for
underinsured benefits and liability benefits from the same policy. This appeal followed.
“The standard of review on appeal of a summary judgment is whether the
trial court correctly found that there were no genuine issues as to any material fact and
that the moving party was entitled to judgment as a matter of law.” Scifres v. Kraft, 916
S.W.2d 779, 781 (Ky.App. 1996); CR 56.03. We are mindful that “[t]he record must be
viewed in a light most favorable to the party opposing the motion for summary judgment
and all doubts are to be resolved in his favor.” Steelvest, Inc. v. Scansteel Service
Center, Inc., 807 S.W.2d 476, 480 (Ky. 1991).
Abbie first argues that the trial court erred in concluding that UIM coverage
and liability coverage were not both recoverable under the Riverside Auto’s policy with
Empire. We disagree.
KRS 304.39-320 states that:
every insurer shall make available upon request to its
insureds underinsured motorist coverage, whereby subject
to the terms and conditions of such coverage not
inconsistent with this section the insurance company agrees
-3-
to pay its own insured for such uncompensated damages as
he may recover on account of injury due to a motor vehicle
accident because the judgment recovered against the owner
of the other vehicle exceeds the liability policy limits thereon,
to the extent of the underinsurance policy limits on the
vehicle of the party recovering.
“Conceptually, the purpose of the statute is to give the insured the right to purchase
additional liability coverage for the vehicle of a prospective underinsured tortfeasor.”
See Motorist Mutual Ins. Co. v. Glass, 996 S.W.2d 437, 449 (Ky. 1999) (citing LaFrange
v. United Services Automobile Association, 700 S.W.2d 411, 414 (Ky. 1985)). The
statute does not, however, authorize recovery against both the liability and UIM
coverages of the same policy. See Glass, at 449; Pridham v. State Farm Mutual
Insurance Co., 903 S.W.2d 909 (Ky.App. 1995); Windham v. Cunningham, 902 S.W.2d
838 (Ky.App. 1995). Moreover, since UIM coverage is conceptually additional liability
coverage for an insured hit by an underinsured motorist, it would be counterintuitive to
hold that UIM and liability could be stacked in light of the history of Kentucky case law
finding that liability policies are unable to be stacked. See Butler v. Robinette, 614
S.W.2d 944, 947 (Ky.1981) (quoting Emick v. Dairyland Insurance Company, 519 F.2d
1317 (4th Cir. 1975)(holding that the basic purpose of liability insurance has always been
conceived to be the protection of the policyholder against loss resulting from legal
liability caused by his operation of a motor vehicle)).
As part of Abbie’s attempt to obtain liability and UIM benefits from the
Empire policy, she alleges that Finley Begley was the actual driver of the Aerostar, and
therefore she should recover both UIM and liability due to the comparative negligence
on Finley Begley’s part. However, the evidence, as the trial court stated, “is almost
overwhelming that, in fact, Wiley Brock was the driver.” The police reports and
affidavits of those who saw Wiley and Finley leaving the Riverside Auto lot support that
Wiley was the driver. Therefore, even viewing the facts in a light most favorable to
-4-
Abbie, we simply cannot say that there exists an issue of fact as to whether Wiley was
driving the Aerostar. Accordingly, we find that the trial court did not err in granting
summary judgment in favor of Betty Begley, Empire, and Zurich on the issue of
collecting both liability and UIM coverage under the same policy.
Abbie additionally contends that she is allowed to “stack” the UIM benefits
of the Empire policy, which would have insured far more than just the Aerostar in light of
the fact that it was a policy for Riverside Auto Auction’s entire inventory. The first
question for our consideration then is whether guest passengers are entitled to stack
UIM coverage in the same manner as insured persons and members of their family.
In Allstate Ins. Co. v. Dicke, 862 S.W.2d 327 (Ky.
1993), [the Kentucky Supreme Court] held an anti-stacking
policy provision void with respect to UIM coverage. In so
doing, [it] adopted the logic and rationale of [its] earlier cases
dealing with the issue of stacking in the context of uninsured
motorist coverage. See, e.g., Hamilton v. Allstate Ins. Co.,
789 S.W.2d 751 (Ky. 1990); Chaffin v. Kentucky Farm
Bureau Ins. Co., 789 S.W.2d 754 (Ky. 1990); Ohio Casualty
Ins. Co. v. Stanfield, 581 S.W.2d 555 (Ky. 1979); Meridian
Mutual Ins. Co. v. Siddons, 451 S.W.2d 831 (Ky. 1970). In
those cases, [it] held that, pursuant to the doctrine of
“reasonable expectations,” when one has paid separate
premiums on separate vehicles, he may reasonably expect
to be able to stack those coverages.
See James v. James, 25 S.W.3d 110, 113 (Ky. 2000). Abbie argues that both the
holding and the rationale of Dicke support her contention that she is entitled to stack the
UIM coverages from the Empire policy.
Abbie, however, ignores the Kentucky Supreme Court holding in Ohio
Casualty Ins. Co. v. Stanfield, 581 S.W.2d 555 (Ky. 1979), where it found that the
doctrine of “reasonable expectations” supported the injured party's contention that he
must be allowed to stack uninsured coverages from his own personal automobile
insurance policy, but the Court precluded him from stacking uninsured coverages from
his employer's policy, even though the accident occurred while he was using a vehicle
-5-
insured by his employer. The reasoning was premised upon the distinction between
what the Court called “insureds of the first class” and “insureds of the second class.” Id.
at 557-59.
Insureds of the first class include the named insured-he or
she who bought and paid for the protections and the
members of his or her family residing in the same
household. Insureds of the second class are those who fall
outside the first class, but who are nevertheless entitled to
protection for damages from injury inflicted while they are
occupying an insured vehicle.
James, at 313 (citing Stanfield, at 557). The policy at issue here, like the policy in
Stanfield, distinguishes between the named insured and his or her relatives on the one
hand, and “others” on the other hand.
In Stanfield, the Kentucky Supreme Court adopted the reasoning for
distinguishing first class insured and second class insured from the Virginia Supreme
Court’s holding in Cunningham v. Insurance Co. of North America, 213 Va. 72, 189
S.E.2d 832 (1972).
The named insured in a policy receives coverage, and a
contract benefit, for which he has paid a consideration. He
seeks indemnity based on the payment of that premium and
where he has paid separate premiums he is entitled to the
additional coverages. However, this argument and
reasoning does not apply to a permissive user of a vehicle
who pays no premium and does not receive the broader
uninsured motorist coverage of a named insured.
Stanfield, at 558 (quoting Cunningham, 189 S.E.2d at 836). Therefore, in light of
established Kentucky law, we find that the trial court was correct in determining no
material issue of law or fact existed as to whether Brock could stack the UIM coverages
under the Empire policy.
Brock finally argues that the trial court improperly found that her claim was
barred by KRS 411.130. First, KRS 411.130 establishes no such statute of limitations
for wrongful death. Instead, KRS 413.140(1)(a) states that “[a]n action for an injury to
-6-
the person of the plaintiff, or of her husband, his wife, child, ward, apprentice, or
servant” must be commenced within one year after the cause of action is accrued.
Therefore, we review this issue in light of KRS 413.140(1)(a) rather than KRS 411.130.
The one-year statute of limitations applicable to personal injury or wrongful
death, found in KRS 413.140(1)(a), operates as a general statute of limitations. It does
not make mention of motor vehicle accidents specifically. Conversely, KRS 304.39230(6) is a special statute of limitation, which is part and parcel of an assimilated and
extensive statutory scheme, the Motor Vehicle Reparations Act (hereinafter “MVRA”),
addressing the rights and liabilities of persons involved in motor vehicle accidents. See
Troxell v. Trammell, 730 S.W.2d 525, 528 (Ky. 1987); Worldwide Equipment, Inc. v.
Mullins, 11 S.W.3d 50, 59 (Ky.App. 1999).
The MVRA provides: “[a]n action for tort liability not abolished by KRS
304.39-060 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.” KRS 304.39-230(6).
Our rules of statutory construction are that a special statute
preempts a general statute, that a later statute is given effect
over an earlier statute, and that because statutes of
limitation are in derogation of a presumptively valid claim, a
longer period of limitations should prevail where two statutes
are arguably applicable. Thus the statutory language in KRS
304.39-230(6) applies rather than the statutory language in
KRS 413.140(1)(a) in the present situation where the cause
of action is both a motor vehicle accident and a [wrongful
death] claim.
Worldwide, at 528. As such, the causes of action asserted against Betty Begley,
Empire, and Zurich in Brock's amended complaint are not foreclosed by either KRS
304.39-230 or KRS 304.39-060. Pursuant to the authority set forth above, the two-year
statute of limitations must necessarily apply, and we agree that the trial court erred in
finding otherwise. In light of the issues previously discussed, however, we find the error
-7-
harmless, and we accordingly affirm the summary judgment entered in favor of Betty
Begley, Empire, and Zurich.
The judgment of the Powell Circuit Court is hereby affirmed.
BUCKINGHAM, SENIOR JUDGE, CONCURS.
TAYLOR, JUDGE, CONCURS IN RESULT.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEES:
Ronald G. Polly
Polly & Smallwood
Whitesburg, Kentucky
Heather M. McCollum, Esq.
Fowler Measle & Bell PLLC
Lexington, Kentucky
-8-
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
