RICHARDSON (ANGELA), ET AL. VS. PROGRESSIVE NORTHERN INSURANCE COMPANY
Annotate this Case
Download PDF
RENDERED: JANUARY 16, 2009; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2007-CA-002463-MR
ANGELA RICHARDSON;
ERIC RICHARDSON
v.
APPELLANTS
APPEAL FROM HARDIN CIRCUIT COURT
HONORABLE KELLY MARK EASTON, JUDGE
ACTION NO. 03-CI-01373
PROGRESSIVE NORTHERN
INSURANCE COMPANY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE: CAPERTON, DIXON, AND VANMETER, JUDGES.
VANMETER, JUDGE: Angela Richardson1 appeals from the Hardin Circuit
Court’s judgment and orders granting summary judgment in favor of appellee
1
Although Eric Richardson was named in the notice of appeal, he was not awarded damages
below and he raises no issues on appeal. In fact, the cover pages and arguments discussed in
both parties’ briefs on appeal treat Angela Richardson as the sole appellant in this proceeding.
Progressive Northern Insurance Company, and dismissing Progressive as a party to
the action below. We affirm.
Richardson was seriously injured in an April 2003 collision when a
truck driven by Gene Boes, and owned by Terry Stanton d/b/a Rock Bottom
Trucking, turned in front of her car. Richardson’s subsequent claim was filed
against Boes and Stanton in Division III of the Hardin Circuit Court. The claim
also named Progressive as Stanton’s insurer, and alleged in part that Progressive
had acted in bad faith and had violated the Unfair Claims Settlement Practices Act.
In April 2004, Progressive filed a declaratory action in Division II of
the Hardin Circuit Court, seeking a ruling as to whether it was obligated to provide
coverage to Boes and Stanton in Richardson’s Division III proceeding. A default
judgment in favor of Progressive was entered in Division II after Boes and Stanton
failed to respond.
Subsequently, Progressive filed a motion in the proceeding below,
seeking summary judgment on the ground that Stanton had failed to pay the
insurance premium due for the period between November 7, 2002, and May 7,
2003, i.e., the period including the collision date. Further, Progressive produced
documentary evidence to show that on December 18, 2002, it sent Stanton a
“notice of cancellation due to non-payment of premium” which advised that his
insurance would be canceled as of December 31, 2002, unless he paid his premium
by that date. The notice further advised Stanton that if he already had sent his
-2-
payment, he would “receive a reinstatement notice soon. If you do not receive a
reinstatement notice, this cancellation remains in effect.”
Although Boes and Stanton indicated below that they believed
insurance coverage was in effect at the time of the collision, they produced no
documentation to show that the premium was paid, the insurance was reinstated, or
the cancellation did not occur. After entering numerous discovery orders,
including for the purpose of discovering whether insurance coverage existed, in
August 2005 the court granted Progressive’s motion seeking:
Summary Judgment on all claims asserted by Kentucky
Farm Bureau Mutual Insurance Company against
Progressive Northern relating to the alleged subrogation
rights for basic reparation benefits and uninsured
motorists benefits it paid to Plaintiff Angela Richardson,
and the parties presently before the Court having had an
opportunity to respond, and the Court being otherwise
sufficiently advised,*
IT IS HEREBY ORDERED AND ADJUDGED
that Progressive Northern Insurance Company’s Motion
for Summary Judgment is GRANTED thereby
dismissing all claims of Kentucky Farm Bureau Mutual
Insurance Company against Progressive Northern, with
prejudice.
The court’s order included the judge’s asterisked, handwritten notation referencing
the Division II proceeding but stating that:
[r]egardless of the default judgment in other
litigation without Farm Bureau’s participation,
Progressive Northern has presented proof of cancellation
in this case. No evidentiary response has been made to
oppose this. Farm Bureau has had adequate time for
discovery as is evidenced by the order entered on
December 10, 2003.
-3-
The court subsequently dismissed the remaining claims against Progressive.
Eventually, a jury awarded Richardson damages against Boes and Stanton in the
total amount of $940,258.39. This appeal from the Division III orders, awarding
summary judgment and dismissal in favor of Progressive, followed.
First, Richardson asserts that the trial court erred by granting
summary judgment and dismissing her claim against Progressive, as genuine issues
of material fact exist as to Progressive’s coverage of Boes and Stanton. We
disagree.
A summary judgment shall be granted only if:
the pleadings, depositions, answers to interrogatories,
stipulations, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to
any material fact and that the moving party is entitled to a
judgment as a matter of law.
CR2 56.03. As the movant for summary judgment bears the burden of establishing
the nonexistence of any genuine issue of material fact, all doubts must be resolved
in favor of the nonmovant, and summary judgment should be granted only if it
would be impossible for the nonmovant to prevail at trial. Steelvest, Inc. v.
Scansteel Serv. Ctr., Inc., 807 S.W.2d 476, 483 (Ky. 1991); Gullett v. McCormick,
421 S.W.2d 352 (Ky. 1967). If the uncontroverted evidence shows the absence of
a genuine issue of material fact, the burden falls on the nonmovant to show that
evidence does in fact exist to justify a trial on the issue. Continental Cas. Co. v.
Belknap Hardware & Mfg. Co., 281 S.W.2d 914 (Ky. 1955).
2
Kentucky Rules of Civil Procedure.
-4-
Here, as noted above, Progressive provided documentary evidence
that Stanton was billed but failed to pay the insurance premium to secure coverage
for the period during which the collision occurred. Moreover, Progressive asserted
that Stanton did not pay the premium even after he was notified of the policy’s
pending cancellation, and that the policy was canceled effective December 31,
2002. Thus, according to Progressive’s evidence, the policy was not in effect
when the collision occurred in April 2003. Despite a lengthy discovery period,
Richardson produced nothing to indicate that coverage in fact existed at the time of
the collision.
Richardson nevertheless argues that genuine issues of material fact
exist as to whether Boes or Stanton knew of the cancellation or believed the truck
was insured by Progressive at the time of the collision. However, as any such
beliefs, without more, were irrelevant to the determination of whether coverage
existed, summary judgment was not precluded on this ground. Similarly, the issue
of whether the company with which Stanton contracted, TS Trucking, knew
whether a policy was in effect was irrelevant to determining whether coverage
existed. Therefore, no genuine issue of material fact existed as to whether
insurance coverage was in effect at the time of the collision, and the trial court did
not err by granting summary judgment and dismissing the claim against
Progressive.
Finally, we are not persuaded by Richardson’s contention that the trial
court prematurely dismissed her bad faith claim against Progressive. As
-5-
Progressive had no contractual obligation to pay a claim arising out of the
collision, we are constrained to conclude that the insurer did not act in bad faith,
“either at common law or by statute,” by failing to settle the claim arising out of
that collision. Davidson v. American Freightways, Inc., 25 S.W.3d 94, 100 (Ky.
2000). Moreover, any issues relating to the proper service of Boes, Stanton and TS
Trucking in the Division II proceeding are irrelevant to this proceeding, given that
the trial court expressly declined to rely on the outcome of the Division II
proceeding.
The court’s judgment is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Chandrika Srinivasan
Louisville, Kentucky
Tracey Clemmons Smith
Louisville, Kentucky
-6-
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.