*1 suspension, he has clients of his volun- to do
teered so. ACCORDINGLY, IT HEREBY OR- IS DERED:
(1) suspended from the The Movant is practice of law the Commonwealth (30) period thirty days. for period suspension shall commence entry on the date of of this Order. (2) In agreement, accordance with his Gregory notify shall his clients of his sus- pension. 3.450, Greg- accordance with SCR
ory all associated pay is ordered costs disciplinary proceedings against with these him, $1,387.68 including the amount of as- 2004,
sessed him as of October may and for which execution issue from finality upon Opinion this Court of this and Order.
All concur.
Entered: December 2004. E. Joseph Lambert /s/ Chief Justice STATE FARM MUTUAL AUTOMO- COMPANY;
BILE INSURANCE Darrell, Lawless, Bell, Barton D. Paul T. Casualty Compa- Farm Fire and P.S.C., Orr, Moore, Bowling Ayers & ny, Appellants, Green, Appellants. for Counsel Judd, III, E. Bishop, Michael K. Harlan MARLEY, Individually Carma and As Green, Hay, Hat- Bowling Richard Rhonda Marley; Next Friend of Rachel David field-Jeffers, Upchurch, A. Keith Somer- Infant; Marley, an Unmarried Scott, Scott, set, Forrest & David V. Larry Marley, Appellees. IN, Bourne, Albany, Ap- Counsel New No. 2002-SC-0846-DG. pellees.
Supreme Court of WINTERSHEIMER, Justice.
Dec. 2004. appeal
This is from an which determined *2 in erage policy the household exclusion contained the to the minimum limits re- liability policy void personal quired by Kentucky umbrella is the Motor Vehicle against Act, policy Common- Reparations KRS 304.39-110. Final- Kentucky. wealth of ly, judge pursu- trial determined that Kentucky ant to Farm Ins. Bureau Mut. questions presented are whether (1999), Ky., Thompson, Co. S.W.3d personal the household exclusion in the Larry Marley’s in the household exclusion liability policy upheld umbrella should be is valid and policy umbrella enforceable. valid; liability as personal whether policy optional coverage is that is on the The Court of reversed governed by Repa- the Motor Vehicle appealed. Distinguishing two issues Act; rations and whether decisions from supra, it held that the house- Thompson, jurisdictions foreign support courts in policy in the umbrella hold exclusion validity enforceability clauses of such liability coverage to automobile and should be followed. public policy void as of this was It Commonwealth and was unenforceable. Larry Marley,
On December coverage also held that the out-of-state insured, Indiana, a resident of enwas plaintiffs’ not limit the re- does family route to Florida in the van when he covery liability amount asleep fell at the wheel and lost control of child, Heather, in The insurance the vehicle. was contained the MVRA. One company sought discretionary review Sixteen-year-old killed. Rachel received injuries resulting paraplegia, pend- and her this Court. While that motion was mother, Carma, joint seriously injured. ing, stating was filed a motion David, Heather, 12-year-old relating that all to the automobile twin of claims Carma, injured. also Rachel and David had been settled and were now moot, to consider are all residents of Indiana and filed an and asked this Court damages against only relating to the household action for the father the issue policy. A This Simpson Circuit Court in exclusion the umbrella declaratory judgment granted discretionary action was review and separate joint brought to determine the amount of liabili- also the motion.
ty coverage Larry available to Enforceability Policy I.
under the automobile with limits of $100,000 accident, per person/$300,000 per critical a household issue whether Farm Mutual issued Indiana State liability umbrella personal exclusion in the and a Company, Automobile Insurance as it to automobile lim- personal liability with public policy. violates its of million issued $1 Co., Ky., In Lewis v. West American Casualty Company. Farm Fire & (1996), household exclu- interpreting sions in automobile
Applying regardless unenforceable policies, judge the trial found that the held be both they auto- limits because violate primary household exclusion Thompson it was held public policy. in Ken- mobile unenforceable only of the state ap- tucky. That decision has never been in automo- exclusions judge precludes The trial also found that household pealed. types not other policies, contained an “out-of- bile the automobile poli- farm owner liability policies such as coverage provision, state” which reduced Larry Marley’s liability cov- cies. the amount of adoption since the Kentucky courts insurance contract argues family or household held that the MVRA the freedom consistently recognized
have or eliminate clauses dilute contract, house- unambiguous and the *3 repara- of basic requirement um- personal liability hold exclusion this liability coverage of or tort tions benefits effect, upheld. policy brella should be void and unenforceable. were MVRA support Thompson Farm relies on State Co., Ky., 623 Ins. Bishop v. Allstate Lewis, supra, that of the contention (1981). Bishop court rea- The S.W.2d 865 policies per- and the limited to automobile purpose of that the stated soned an liability policy is not sonal insurance that a driver be to ensure MVRA was Marley policy. The automobile insurance Any exclu- a minimum level. insured to Kentucky courts have family responds pur- that contravenes the sion poli- consistently recognized that insurance insur- compulsory of the pose policy and public poli- which violate the cy provisions and essentially unenforceable ance act was are not enforceable. cy of this State ren- years Bishop Fifteen after void. under stipulated that The dered, held that all this Court Lewis claus- the household exclusion Indiana law insur- family clauses exclusion and enforce- policies es in both are valid repugnant policies ance are Marleys The were all residents able. therefore, are, void and policy Indiana. The were issued years Three after and unenforceable. primarily ga- and the vehicle was decision, Thompson consid- this Court only contact the raged in Indiana. The of the Lewis doctrine application ered the family Kentucky is that Marley had with poli- insurance to non-automobile driving accident occurred while case, had in effect Thompson In that cies. way through the on their Commonwealth policy a farm-owners to Florida. It could be said that a household exclusion. His that contained principles, choice of law the law traditional injured while rid- underage daughter was However, Ken- applicable. of Indiana is operat- and was ing on a tractor he owned tucky traditionally courts have refused to an action subsequently filed ing. She if that apply the law of another state negligent operation. against him for as de- state’s law violates a unenforceable as- Thompson held that the Kentucky legislature or by clared exclusionary provisions pects of Bevins, Barbee & Co. v. courts. See R.S. policies. limited to automobile Ky. Hopkins & S.W. here is whether practical issue (1917). longer It is no contested either is an automobile party Thomp- Clearly, required by Thompson. case. it case because from this son is different recognize family pro- We a covered under a farm tractor involved law, common in the automo- visions were once case Both statute and policy. farm industry pro- and served to within bile insurance is not an automobile a farm tractor company from lawsuits where KRS meaning tect of the MVRA. See 187.290(4) Bureau family relationship between Farm there was Vanover, injured Ky., See 506 S.W.2d party. and the Ins. Co. v. the tortfeasor Mut. (1974). in this The insurance Orange v. Farm Mut. Auto. (1969). accidents. covers automobile Ky., One case 443 S.W.2d as an that the is labeled validity of a mere fact to consider the first cases separately and written in an automobile umbrella family exclusion clause underlying policy, Foreign from the automobile or III. Authorities that it covers claims other than automobile argues question accidents, does not validate an exclusion whether household exclusion contained provision of this nature. personal liability is valid “security.”
The MVRA uses the term impres- is an issue of first enforceable The Act does not use the word “automobile company sion in The insurance Although insurance.” Thompson limited majority contends that of courts in the Lewis automobile insur- presented .an other states this issue have with only, ance we must conclude that it *4 enforceability upheld validity and of was not the intention of this Court to policies. such exclusions umbrella State permit household exclusions in umbrella eight Farm cites cases from six different policies underlying when the claim arose in support states of its contention. areWe from a motor vehicle accident. persuaded. Thompson The essential rationale in and
II. Optional/Mandatory Coverage
Lewis is based on the fact that automobile
liability
come within the
Farm contends that
umbrella cov-
ambit of
claim arises from
MVRA. This
erage
optional
governed
is
is not
by
and
ownership, operation
and
of a mo-
use
of
directions
the MVRA and
ac-
and,
tor vehicle within
conse-
cordingly
public policy question
there is no
disagree.
quently,
liability provisions
involved.
the automobile
We
of the umbrella
come
within
This
finds no
Court
reason
discrimi-
purview
interesting
of the
It
MVRA.
is
nate
minimum
between those with
cover-
recognizes
note that State Farm
age required by
higher,
law and those with
Washington
Appeals
of
Court
Safeco
optional coverage. See Lewis at 833. An
Ins. Co.
Illinois v. Automobile Club Ins.
of
umbrella insurance
must be consid-
(2001),
Wash.App.
ways fully compensated. are The house- STUMBO, JJ., concur. hold exclusion the umbrella as it COOPER, J., by separate opin- dissents to automobile vio- joined ion and is JOHNSTONE lates that and is void and KELLER, unenforceable. JJ. in the De- involved Justice, 7. The vehicle
COOPER, dissenting. accident, Dodge a 1997 cember repeats numerous majority opinion 2B6HB21Y6VK548866), (VIN # Van extrajudicial gratuitously facts recited as an insured vehicle was listed to the Court of Appellees their brief Policy Farm Mutual Automobile contains The record this case Appeals. 2776-B15-14J, principal- and was # 629 Specifically, no testimonial evidence. registered licensed and ly garaged, of the extent of there is no evidence Indiana. the state of injuries by any Appellees, sustained Larry Marley maintains a driver’s 8. declaratory judgment ac- and neither this by the state of Indiana. license issued complaint separate filed in the tion nor the by Appellees against Larry brought action Farm Mutual Automobile 9. State injuries Marley personal for their asserts Company is an insurance Insurance death of alleged wrongful claim for the through- does company which business family another member. The sub- America, in- out the United States declaratory judgment action to mitted this Kentucky, cluding the Commonwealth *5 only following “Stipu- the the trial court on in Illi- Bloomington, its home office with of lation Facts”: nois. 17, 1999, Larry 1. On December Casualty Farm Fire and 10. State acci- Marley was involved a one-car company Company is an insurance traveling Simpson dent while on 1-65 throughout which does business County, Kentucky. America, including the of United States passengers 2. The the vehicle be- Kentucky, with its Commonwealth of by Larry Marley at time ing driven Bloomington, Illinois. home office wife, of the accident included his Carma children, Marley, and three minor Ra- I. POLICY PROVISIONS. chel, Heather, Marley. and David Policy stipulation, Exhibit A to the accident, Larry At 3. the time of the (the poli- # 2776-B15-14J automobile Marley, Marley, Carma and their three the “named insured” cy), identifies children resided the same household “MARLEY, M” LARRY W & CARMA in the state of Indiana. I— and contains an exclusion Section accident, Larry 4. At the time inju- any bodily A Liability Coverage for — Marley was insured with Farm State ry to: Company Mutual Automobile Insurance Policy # under Automobile 629 2776- OR ANY MEM- c. ANY INSURED B15-14J, copy of which is attached BER AN FAMILY OF INSURED’S “A”. hereto as Exhibit THE IN INSURED’S RESIDING accident, Larry 5. At the time of the HOUSEHOLD. Marley was insured with # 14- stipulation, policy Exhibit B to the Casualty Company Fire and (the policy), also iden- 45-8111-8 Liability Policy Personal Umbrella “MARLEY, “named insured” as tifies the 14-45-8111-8, a is at- copy # which M.” Exclusion LARRY W & CARMA hereto “B”. tached as Exhibit section of EXCLUSIONS Larry Marley purchased poli- 6. said coverage: excludes (Exhibits B) cies A & in the state of injury named personal 10. for to the agent from an Indiana-based insured, anyone spouse or within Farm. a. meaning part or b. the definition The EXCLUSIONS section of the auto- following of insured. mobile also contained the provision: The DEFINITIONS section of the um- Coverage 1. Out-of-State brella defines “insured” as: If an insured under the cover- insured; a. the named and, age is in another state or Canada nonresident, subject to as a becomes following b. residents of the named compulsory motor insur- its vehicle insured’s household: ance, responsibility financial or similar relatives; the named insured’s ... law: interpreted a. will be law; give coverage required by Thus, both the and the automobile contain “household exclu given replaces b. so preclude coverage sion” clauses that any coverage in this injuries Marley sustained Carma or required by the law for extent parties stipulated of her children. operation, maintenance or insured’s the Court of that such exclusions poli- use of a car insured under this liability policies automobile are valid in cy. Henry, Indiana. Transamerica Ins. Co. v. (Ind.1990) (liabil 1265, 1268-69 563 N.E.2d provision comports This with state stat-
ity coverage); Jones v. State Farm Mut. *6 require doing that insurers business utes (Ind. Co., 200, Auto. Ins. 635 N.E.2d 203 minimum re- provide within the state to (underinsured Ct.App.1994) motorist cov coverages for their out-of-state in- quired erage). Such exclusions in automobile lia operating sureds while motor vehicles bility policies insurance are invalid in Ken 304.39-100(2): E.g., within the state. KRS Am. tucky. Ky., Lewis v. W. 927 (1996) An insurer authorized to transact or (contrary public S.W.2d in this Court) transacting business Common- by policy pronounced (plurality file ... a form ... declar- wealth shall justices in concurring with two re liability in- ing that in contract of sult); Bishop Ky., v. Allstate Ins. issued, injury, surance for wherever (contrary S.W.2d covering ownership, maintenance or by legislature if exclu established a motor vehicle ... while the use of minimum coverage sion eliminates re in shall vehicle is this Commonwealth be 304.39-110(1)(a)). quired by KRS We reparation provide deemed to the basic clarified in Bureau Mutu Farm coverage and minimum securi- benefits Ky., 1 Thompson, al Insurance Co. v. ty required by for tort liabilities (1999), holdings those subtitle, pro- a contract which except by mandated em were coverage only liability in ex- vides Reparations Motor for bodied Vehicle tort required cess (MVRA) apply Act and did not to house coverage.... hold exclusion clauses non-automobile added.) Thus, (Emphasis though “To the extent even policies. automo- language holding our in Lewis household exclusion clause law, broad, holding limit is valid under Indiana both overly we now bile 304.39-100(2) poli require KRS of that case to automobile insurance provide minimum limits lia- only.” cies Id. at 477. 110(1)(a) $25,000, the district court bility coverage while the insured vehicle liability cov However, that Evanoffs own concluded being operated requirement. Id. erage an satisfied of the statute excludes the last clause declined to hold specifically court statutory from that re- payment of required v. Allstate Bishop quirement. coverage mandat the minimum more than Coverage provision The Out-of-State or more ed the Act two under Indiana law State was construed same liability coverage for the provided Automobile Insurance Co. Farm Mutual accident. (S.D.Ind.1992). Smith, F.Supp. that the stat- Bishop, the court noted (Smith) There, pur- an Indiana resident is to assure purpose ed KMVRA policy liability chased in Indiana a insur- to a minimum driver be insured Farm to cover a vehicle ance from State level, exclu- and because the household in Indiana. Smith garaged licensed and effectively a driver unin- sion renders injuries Kentucky pas- while sustained or to the extent of the reduction sured being driven senger the vehicle then elimination, such an exclusion was held (Evanoff). lia- permissive user Evanoffs purpose to contravene bility policy limits to paid insurer its in the Act. The household exclusion paid Farm also its basic Smith. State render policy does not serve to Smith (BRB) reparation coverage benefits limits uninsured because Evanoff the driver Smith, denied but Smith’s provide liability cov- was insured and did claims under her own and underin- erage. (UIM) coverages sured motorist because coverages subject were to household
both Id. at 144-45. clauses. claimed those Smith that, court then held The district coverages payable under the Out-of- law, the household exclusion Coverage provision because house- un- recovery under the precluded clause hold exclusion clauses are invalid Ken- coverage, and that the derinsured motorist *7 tucky. Applying Indiana choice-of-law not Coverage provision did Out-of-State principles, the district court first held that result because underin- require a different Indiana the state of “most intimate was mandatory coverage is not sured motorist and, therefore, contact” that Indiana law at 145-46. KRS Kentucky. Id. See to determined whether Smith was entitled 304.39-320(2). payment policy’s liability under her coverages. at 144. The court
UIM Id. II. TRIAL COURT. then concluded that the Out^of-State Cov- judice, Simpson the In the case sub erage provision require did not “wholesale held that the household ex Circuit Court implementation Kentucky law.” Id. policy clusion clause say that out-of-state policy The does not law, Kentucky citing Kentucky valid under governed, or the inter- coverage is obviously con Thompson, Farm Bureau v. by the law of the state in which preted, not an that an umbrella is cluding occurs.... The Court finds the collision that policy; automobile language provide only for such such poli household exclusion the automobile mandatory coverage minimum as re- law, citing cy invalid under quired by the [MVRA]. American; but that Lewis v. West the au Coverage provision of mandatory minimum Out-of-State Noting Id. liabil- applied to reduce the by 304.39- tomobile liability coverage required KRS $25,000/$50,000, State ity citing Coverage provision applies only limits to State Smith, obviously concluding that when Indiana law would afford no cover- age but the the state where the law of validity Indiana law to the of the minimum man- requires accident occurred by household exclusion clause as modified Smith, Farm v. datory coverage. Coverage provision. the Out-of-State The F.Supp. Marley at 143-44. If Mr. had plaintiffs appealed. injured than a someone other member household, liability his limits of his III. COURT OF APPEALS. $100, automobile would have been reversed, conclud- The Court 000/$300,000no matter where the accident auto- ing the umbrella was an occurred. policy, mobile insurance thus was within of Lewis v. American. West holding It CHOICE OF LAW. IV. apply also held that it would not a stipulation have filed law to the because the household pertaining the effect that the claim to the exclusion clause violated the settled automobile has been The Court then held only that “the issue for consideration for 304.39-100(2) applies pol- KRS to umbrella pending Motion for Discre- purposes icies, quoting portion of the statute but tionary Review is whether household conveniently omitting language personal exclusion in a excepts from “a the statute contract which against unenforceable as policy is void and provides coverage only for in ex- public policy and of this violation Court’s required minimum tort cess of cov- American Ins. ruling Lewis v. West erage.” Finally, it held that the Out-of- (1996).” Ky., (Emphasis Coverage provision did not mean added.) majority opinion interprets clearly says: what it removing from stipulation this consider- attempts persuade State Farm this ation of whether law or the issue court that the intent of the applies interpretation Indiana law [liability] the amount of the convert (“It Ante at 35 longer is no policy. $100, coverage provided by policy, party contested either 000/$300,000, to amount case.”). I not con- applies to this do foreign re- required state. The stipulation broadly; strue the so interpretation sult of would be that such con- Indiana law to this insurance Marley operated while Mr. his vehicle tract, it would be *8 state of Indiana he would within the Kentucky apply that law in a policy of to enjoy greater coverage, a amount of Kentucky of is in- case where no citizen crossing line into upon while the state Kentucky’s only volved and contact with obligation is re- Kentucky, State Farm’s fact that is the fortuitous parties $25,000/$50,000,the minimum duced to circuit accident occurred here. The court .... required by Kentucky amount principles choice of law obviously applied course, that Indiana law to the reasoning deciding the fatal flaw in that Of by as modified Marley operating had been household exclusion clause is that Mr. Coverage provision. of Indiana the OuNof-State his vehicle within the state Likewise, occurred, addressed subject Appeals he the Court of when the accident erroneously no of before enjoyed coverage, not “a the choice law issue would have Kentucky’s coverage,” concluding public of than while that greater amount Appellant argues Kentucky. The overrides Indiana law. operating it Out-of- designed prevent The Erie rule was that household exclusion claus- its brief for the same transaction result that Appellees valid in Indiana where es are liti- a suit a nonresident issued. accident of and where the reside in a brief, n.6, in a federal court instead of gant at 10 17-18. The Appellant’s lead to a itself, away a block should addresses state court majority opinion, The different result. by citing substantially Barbee & choice of law issue R.S. Bevins, York said Ky. of New Hopkins & Co. v. (1917), apply this rationale would proposition Rederi that S.W. did not Supremacy if the Clause Kentucky not enforce the law of even will apply to and it to conform against require if that state’s law is another state Any of the federal statute. provisions of this Commonwealth. Ante, Thus, court’s Kentucky place would at 35. whether law other conclusion particularly on a hotly stamp approval remains a con- applies to this case of- forum-shopping. tested issue. fensive form v. MYS Const. Inc. Fite & Warmath majority’s Bar application of R.S. 729, 733 Corp., Ky., 559 S.W.2d & to the facts of this case is bee Co. added). (emphasis in that seriously misplaced. The issue into case was whether a contract entered juris- Kentucky’s choice of law Under Virginia could be enforced Ken West con- prudence, Indiana tucky resident. against insurance contract. The struction of this another mere fact that the law of
[T]he on this issue is Kentucky case seminal the law of degree state differs from Family Insurance Lewis v. American (1977). does not make it so obnoxious this state Ky., 555 Group, brothers, to our laws that our courts will case, two both residents it, ... enforce but our courts will not Indiana, injured in colli- a vehicular foreign recognize the existence of laws negligence caused sion in obnoxious to some well-founded are resi- motorist who was a of an uninsured rule of domestic established brought dent of brothers morals, safety protect the or welfare Kentucky against negligent par- suit people. our company an insurance ty and (UM) motorists cover- provided uninsured added). Id., (emphasis at 155 S.W. policy issued to their age in an insurance cannot be construed to hold that Barbee they resided. The UM uncle with whom apply provide our we will on two coverage, relying carrier denied they rights to nonresidents to which are here, res- As an Indiana policy exclusions. under the law of their home not entitled recover in sought ident all of the to this state. Because an Indiana in Indiana to issued (indeed, all action residents of Indiana are licensed and to cover a vehicle resident family), of the same are members initial in Indiana. The issue garaged in Indiana brought action could have been *9 gov- law Kentucky law or Indiana whether Larry Marley in is domi- the forum where application of the construction and erned Instead, because household exclu- ciled. policy exclusions. Indiana, they in clauses are valid sion must be de- issue which Kentucky in where The threshold brought their action Kentucky or cided is whether Indiana Forum-shopping clauses are invalid. such case. in this ought applied to be policy of Ken- law public is also Traditionally the rule has been tucky. 42 law, of a
validity
Kentucky
contract is to be determined
where insurance
by the laws of the state in which it was
in
to a
Virginia
Virginia
issued
resident
made,
providing coverage
while the remedies to be enforced
for a vehicle licensed
in
provided by
garaged
Virginia
though
are those
the state which and
in
even
in
Theobold,
brought. Fry
injured Kentucky
suit is
Bros. v.
sured was
in
in a vehicu
146,
(1924).
Ky.
by Kentucky
205
265
498
Such lar collision caused
resi
S.W.
dent) (disc.
14, 1999);
approach
longer
April
a mechanical
is no
fa-
rev. denied
Co., Ky.
vored. The modern test is “which state Bonnlander v. Leader Nat’l Ins.
(1997) (same
significant relationship
App.,
has the most
to
factual
43
in a
insur-
optional
in Ida
clause
of
though accident occurred
clusion
exclusion
invalid);
governed by any
Allstate
not
ho where exclusion was
ance that is
Hart,
526, 611 A.2d
v.
327 Md.
Ins. Co.
statute.
(1992)
100,102-04
law to
(applying Florida
v. All
Bishop
the decision in
Prior to
though
exclusion
accident occurred
enforce
state,
routinely upheld
Kentucky courts
against
Maryland
where exclusion was
clauses
validity of household exclusion
102,
noting,
that “there
public policy,
id at
invalidating
of
that had the effect
rejec
heavy
urges
on
burden
him who
coverage
automobile insurance
or UM
foreign
ground
public
law on the
of
tion of
Co.,
Allen v.
Am. Ins.
policies. E.g.,
W.
Inter-Ins.
Bonner v. Auto. Club
policy”);
(1971);
v.
Orange
123
Ky., 467 S.W.2d
Exch.,
925,
(Mo.Ct.App.
899 S.W.2d
929
443
Ky.,
Auto.
Farm Mut.
Ins.
1995)
in
(applying
uphold
Missouri law to
(1969); Third Nat'l Bank
650
S.W.2d
failure to
user
permissive
surer’s
defend
Ins.
Farm Mut. Auto.
Ashland v. State
household
against suit
insureds because
(1960).
Bishop
Ky.,
where exclusion Sotirakis insurance, that an liability and no-fault Ass’n, 123, Auto. United Serv. 106 Nev. exclusionary clause that reduced or elimi (1990) 788, 790-91 (applying 787 P.2d Cali liability coverage BRB or be nated either though law to enforce acci fornia exclusion required by minimum statute was low the exclusion dent occurred Nevada where 623 Bishop, and unenforceable. void invalid); Dairyland v. was Ins. Co. uphold “The at 866. cases which S.W.2d Co., Wash.App. Farm Mut. Auto. 41 family validity provisions exclusion (1985) 26, 806, P.2d 809 Ida (applying they to the dilute are overruled extent which, time, ho law under at that exclusion coverage re the minimum or eliminate though valid occurred accident of the MVRA.” Id. at 866-67. quirements invalid); Washington where exclusion was language, cue from this Taking its Olson, v. Urhammer 39 Wis.2d Fulton, held in v. Court of Staser Minneso (applying N.W.2d (1985), that S.W.2d Ky.App., 684 though ta law to enforce exclusion accident invalid as household exclusion clauses were Wisconsin, noting occurred that al limits statutory minimum though household exclusion clauses were to the extent that the but valid Wisconsin, invalid in it at 307. limits. Id. exceeded recognize Wisconsin broadly held Lewis v. West American con foreign enforce such in a provisions in “family tract). great As the wrote: Cardozo once public poli- insurance contracts violate are not to en “The courts free to refuse unen- and are cy of Commonwealth foreign right pleasure force at the Lewis, at 836. forceable.” of ex judges, to suit individual notion However, v. Farm Bureau or fairness.” pediency Loucks Standard upheld we a household exclu- Thompson, York, New 120 N.E. Oil Co. N.Y. pol- in a clause farmowner’s insurance sion (1918). 198, 202 that, lan- its
icy, explaining
despite
broad
V. KENTUCKY LAW.
only applied to automobile
guage, Lewis
policies.
Appellees
were residents
Even
precludes
held
the MVRA
Kentucky,
]
there is
[Lewis
no
family
of a
or household
application
ex-
enforcement of a household
precludes
*11
And,
course,
it at-
primary
extent
insurance.
tempts to
any coverage
eliminate
in an distinction that creates the difference be-
liability
policy,
automobile
tween an
policy
automobile insurance
and
including amounts in excess of the statu-
personal liability
a
policy
umbrella
is that
tory
Although
language
minimum.
our
definition,
policy, by
an umbrella
does not
admittedly
Lewis was
broad and provide
liability
the minimum
coverage re-
seemingly applicable
to all
in- quired by the
Bishop
MVRA—which both
contracts,
surance
our
only
intent was
Thompson
only
and
held
was the
hold unenforceable
family
those
exclu- policy that invalidates household exclusion
sion provisions found in automobile in-
clauses.
specifically
Unless
intended to
policy
surance
such as the
at
supply portion
of the minimum coverage
issue in
controversy
then before the
304.39-110(1),
required by
see
KRS
KRS
language
Court. To the extent that the
304.39-110(2), a circumstance that does
holding
of our
overly
Lems was
case,
not exist in this
an
policy
umbrella
broad, we now limit that case to auto-
provide any coverage required
does not
policies only.
mobile insurance
governed by any
the MVRA and is not
45 enforce policy is vehicle.” that the exclusion “automobile” or “motor words Co., 273 policy able.”); umbrella not an automo- v. Ins. Since an is Allstate Weitz policy, Simpson Circuit 548, 1040, bile insurance 642 1041-42 N.J.Super. A.2d correctly Thompson, that concluded (since un policy, (App.Div.1994) umbrella Lewis, ap- Kentucky precedent not is the subject not policy, automobile is like basic plicable to the clause household exclusion statutory public no regulation, to strict Marleys’ policy. umbrella of household policy prohibits enforcement by the supported clause); conclusion is This Megonnell v. United exclusion cf. majority jurisdictions overwhelming 758, Ass’n, 633, A.2d 368 Md. 796 Sen. Elec. Ins. that have considered the issue. (where did policy umbrella 772-73 (3d Rubin, 814, Co. v. 32 F.3d 818-19 household clause not contain exclusion law) Cir.1994) (construing Pennsylvania the insured’s not a “follow form” of (household in umbrella exclusion clause the household policy, automobile insurance Pennsylvania not policy did violate clause the automobile exclusion Pennsyl and did not violate coverage). apply did not umbrella Responsi vania’s Motor Vehicle Financial majority Appellant chides (MVFRL) umbrella bility Law because Ins. brief the case of citing its Safeco au policy required underlying existence of Co., v. Auto. Ins. 108 III. Club Co. of policy that conformed tomobile 468, (2001), 31 52 which Wash.App. P.3d MVFRL); Mut. Auto. Ins. Co. in an a household exclusion clause enforced (Del. 595, v. 840 A.2d Daprato, 598-99 fact, Ap policy. umbrella Ante at 36. 2003) (distinguishing holding that cases Washington in citing the pellant’s point public policy underlying responsi financial identify only case so case was to it as bility precludes law of house application had to note the court holding and that hold exclusion clauses in automobile basic that by mentioning decision prefaced its responsibility because financial law other have no cases from “the cited optional apply poli does not question.” have states that addressed cies); v. State Farm Mut. Auto. Walker Appellant’s at 28 n.8. P.3d at 54. brief 31 Ins., 882, (La.Ct.App. 850 So.2d 886-89 2003) (upholding exclusion household majority this Court is wont and re optional clause in expectations” cite the “reasonable that jecting argument responsibil financial determining validity of cover sureds case, because, ity in this um E.g., Mut. Nationwide age exclusions. only coverage in providing brella 36, 43 Hatfield, Ky., v. 122 S.W.3d Ins. Co. provided by compulsory to that addition Dicke, (2003); 862 Allstate v. Co. v. Na policy); automobile Costello course, majority at 329. Of 403, Md.App. Mut. Ins. tionwide Appel so because has not done this case (2002); Bogas A.2d 159-60 v. All reasonably expected have could not lees Mich.App. state Ins. their contains coverage since (1997) (“Because um N.W.2d is valid exclusion clause household issue, at an optional brella they re the law of Indiana where only insurance, side, they purchased where from the use of automobile but arising an licensed the insured vehicle is and where the in personal also other activities of Sen., garaged. Sotirakis United sured, any statutory not conflict does with (“[Ajssuming at 791 the insureds 787 P.2d provisions mandating clause, excludes, the family we hold aware of the household exclusion unlikely they expected it is the clause Nevada.”).
to be void travelling when *13 reasons, For these I would reverse the of Appeals judg- and reinstate the Simpson ment of the Circuit Court. Ac- ORDER OF TEMPORARY cordingly, I dissent. SUSPENSION Inquiry The Commission seeks to have JOHNSTONE, KELLER, JJ„ join McNew, Kay Donna a member of the Ken- dissenting opinion. Association, tucky Bar tempo- No.
rarily suspended from the practice of law 3.165(l)(a). pursuant to SCR Her last Avenue, known address was 624 Madison Covington, Kentucky. reports Commission there is
probable cause to believe McNew has INQUIRY COMMISSION, Complainant been misappropriating funds held for oth- use, ers to her own or has been otherwise improperly dealing with such funds. Kay McNEW, Respondent.
Donna No. 2004-SC-0848-KB. I. 20, 2003, On November a check in the
Supreme Court of $11,000.00 amount of from the Cincinnati Dec. 2004. Equitable Company Insurance was ren-
dered to a attorney client and McNew. signature appears client’s on the back endorser, alleges of the check as an but he signed that he never the check. The evi- dence signature indicates client’s a forgery and he never received addition, money. In a release of all 10, 2003, signed claims was on December signed but the client never a release. The question Campbell case in in the Circuit prejudice Court was dismissed with be- allegedly cause the matter had been set- tled. The client was unaware of such a impression dismissal and was under the awaiting that the case was still pending, depositions.
II. case, attorney another McNew set- personal injury
tled a claim client’s without knowledge, consent or authorization of general signed that client. A release was