Koenig et al v. Progressive Casualty Insurance Co. et al

Filing 30

MEMORANDUM OPINION & ORDER: (1) defendant General Motor's 7 Motion to Dismiss and defendant Progressive's 28 motion for judgment on the pleadings are GRANTED ; (2) Plaintiffs' 21 Motion to Amend is DENIED ; (3) Judgment shall enter concurrently herewith. Motions terminated. Signed by Judge William O. Bertelsman on December 5, 2016.(AB)cc: COR

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF KENTUCKY
NORTHERN DIVISION AT COVINGTON

CIVIL ACTION NO. 2:16-cv-50 (WOB-JGW)

DAVID KOENIG, ET AL

VS.

PLAINTIFFS

MEMORANDUM OPINION AND ORDER

PROGRESSIVE CASUALTY
INSURANCE CO., ET AL

DEFENDANTS

This is a wrongful death action in which plaintiffs allege
claims against defendant General Motors for negligence, strict
products liability, failure to warn, breach of warranties, and
loss of consortium.

Plaintiffs also allege a claim for bad

faith and seek a declaratory judgment against defendant
Progressive Casualty Insurance Company regarding uninsured
coverage.
This matter is before the Court on defendant General Motors’
motion to dismiss (Doc. 7), plaintiffs’ motion to amend (Doc. 21),
and defendant Progressive’s motion for judgment on the pleadings
(Doc. 28).
Having

reviewed

this

matter,

Memorandum Opinion and Order.

the

Court

now

issues

this

Factual and Procedural Background
This case arises from the tragic events of March 1, 2013,
when J.V.H., a five-year-old child, drowned when the car he was in
rolled into a pond near the house where he lived with his mother
and grandmother in Florence, Kentucky.
Impala,

was

owned

by

his

mother,

The car, a 2000 Chevrolet
plaintiff

Courtney

Harris

(“Harris”), and it was insured by Kentucky Farm Bureau Insurance
Company (“KFBIC”).
a

separate

Progressive

Courtney’s mother, Glenda Poe (“Poe”), carried

automobile
Casualty

insurance

Insurance

policy

Company

through

defendant

(“Progressive”),

which

included both uninsured and underinsured coverage.
A no-fault personal injury claim was filed with KFBIC, which
in turn petitioned the Boone District Court on March 19, 2015, to
open an estate for J.V.H to resolve claims resulting from J.V.H.’s
death.

On April 2, 2015, the Boone District Court appointed

plaintiff David Koenig as the Administrator of J.V.H.’s estate in
his capacity as public administrator.
By a check dated May 4, 2015, KFBIC paid J.V.H.’s estate
$50,000 for “Full and Final Payment for Bodily Injury.”

(Doc. 15-

3).
On February 29, 2016, Koenig and Harris filed an action in
Boone Circuit Court, which defendants timely removed to this Court.
(Doc. 1).
asserting

General Motors then promptly filed a motion to dismiss
various

grounds

for
2

dismissal,

including

that

plaintiffs’
limitations.

claims

are

barred

by

the

applicable

statutes

of

(Doc. 7).

The Court heard oral argument on the motion to dismiss on
June 14, 2016.

The same day, plaintiffs filed a motion to amend

their complaint to add a claim for fraudulent concealment against
General Motors.
During

(Doc. 21).

this

hearing,

plaintiffs’

counsel

conceded

that

plaintiffs’ claim against General Motors for breach of warranty
failed for lack of privity and that Harris’s claim for loss of
consortium was untimely.

(Doc. 24 at 5, 7).

Plaintiffs also

raised arguments not made in their briefs, and questions arose
regarding the nature of the $50,000 that KFBIC paid to J.V.H.’s
estate as it related to the Kentucky Motor Vehicle Reparations
Act’s (MVRA) statute of limitations.
Because of these issues, and because the motion to amend was
not fully briefed, the Court deferred ruling on the motion to
dismiss, gave the parties a limited period of discovery as to the
MVRA issue, and set briefing dates on the motion to amend.
23).

(Doc.

The Court also cautioned the parties about the requirements

of Rule 11 with respect to subsequent filings.

Id.

On August 24, 2016, Progressive filed a motion for judgment
on the pleadings on the grounds that under the express terms of
its policy, Harris’s car cannot be an “underinsured” motor
vehicle.

(Doc. 28).

Plaintiffs did not filed a response to
3

this motion.
On August 29, 2016, General Motions filed a response in
opposition to plaintiffs’ motion to amend.

(Doc. 29).

Plaintiffs did not file a reply brief in support of their motion
to amend.
Having reviewed this matter, it is abundantly clear that both
defendants’ motions are well taken and that plaintiffs’ claims
must be dismissed.
Analysis
A. Progressive’s Motion for Judgment on the Pleadings
Progressive

has

moved

for

judgment

on

the

pleadings

on

plaintiffs’ claims against it for uninsured motorist coverage
under the policy issued to Harris’s mother, Glenda Poe.
Plaintiffs have not responded to this motion, which is grounds
in and of itself for granting the motion. Joint Local Rule 7.1(c).
Dismissal on the merits, however, is also warranted.

The

Progressive policy in question excludes from the definitions of
“uninsured vehicle” and “underinsured vehicle” any vehicle “owned
by you or a relative or furnished or available for the regular use
of you or a relative.”

(Doc. 28-2 at 23).

It is undisputed on

the pleadings that the car in question was owned by Harris, Poe’s
daughter and thus relative.

Under the plain terms of the policy,

4

it is not an uninsured or underinsured vehicle.1
B. General Motors’ Motion to Dismiss and Plaintiffs’ Motion to
Amend
As noted, plaintiffs have conceded that their claims for breach
of warranty and loss of consortium are without merit, leaving only
their claims for negligence, strict liability, and the proposed
claim for fraudulent concealment against General Motors.
The KMVRA states that an action for tort liability arising out
of a motor vehicle accident “may be commenced not later than two
(2) years after the injury, or the death, or the last basic or
added reparation made by any reparation obligor, whichever later
occurs.

KRS § 304.39-230.

In its opposition to plaintiffs’ motion to amend, General
Motors has produced evidence that KFBIC notified Harris on August
26, 2013, that the $10,000 Personal Injury Protection and $500
Excess Medical Coverage limits of her policy had been exhausted.
(Doc. 29-3).
reparation

Such PIP and no-fault benefits are considered “basic

benefits”

under

Kentucky

law.

Lawson

v.

Helton

Sanitation, Inc., 34 S.W.3d 52, 53 n.1 (Ky. 2000).
As noted, plaintiffs filed no reply brief to challenge this
evidence.
Plaintiffs’ negligence and strict liability claims are thus
untimely because they were filed more than two years after both

1

Harris is also not a named insured under the policy.
5

J.V.H.’s death and the payment of the last reparation benefit,
under KRS § 304.39-230.
Finally, plaintiffs’ proposed fraudulent concealment claim is
barred by Kentucky’s ten-year statute of repose, as the car in
question was sold in 2000, and plaintiffs did not file suit until
2016.

See Gloyna v. Toyota Motor Mfg. N. Am., Inc., Civil Action

No. 2011-11 (WOB-JGW), 2014 WL 318563, at *2 (E.D. Ky. Jan. 29,
2014).

Therefore, having reviewed this matter, and being
sufficiently advised,
IT IS ORDERED that (1) defendant General Motors’ motion
to dismiss (Doc. 7) and defendant Progressive’s motion for judgment
on the pleadings (Doc. 28) be, and are hereby, GRANTED; (2)
plaintiffs’ motion to amend (Doc. 21) be, and is hereby, DENIED;
and (3) a judgment shall enter concurrently herewith.
This 5th day of December, 2016.

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