Isaac Burton v. Lois Wyatt ( 2020 )

RENDERED: SEPTEMBER 4, 2020; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2019-CA-001039-MR
ISAAC BURTON APPELLANT
APPEAL FROM LETCHER CIRCUIT COURT
v. HONORABLE JAMES W. CRAFT, II, JUDGE
ACTION NO. 18-CI-00304
LOIS WYATT APPELLEE
OPINION
VACATING AND REMANDING
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BEFORE: COMBS, GOODWINE, AND LAMBERT, JUDGES.
COMBS, JUDGE: Isaac Burton appeals the summary judgment entered by the
Letcher Circuit Court in favor of Lois Wyatt for the recovery of towing and storage
fees incurred after Wyatt’s automobile was towed from the scene of a collision
with Burton’s vehicle. After our review, we vacate and remand.
This litigation arose after an automobile accident that occurred around
noon on August 7, 2018, in Whitesburg. A draft of an accident report prepared by
the Whitesburg Police Department indicates that Wyatt was traveling north on
Jenkins Road and was “not able to stop and struck [Burton’s] driver side door as he
pulled into her path.” Fire and Rescue responded and provided first aid. Wyatt’s
spouse was transported to Whitesburg Appalachian Regional Hospital for
treatment. The draft accident report characterizes the damage to both vehicles as
minor to moderate. Both vehicles were described as disabled, and both were towed
from the scene. Wyatt’s Lincoln Town Car was towed to a storage lot by
Anderson Towing.
On August 30, 2018, Burton’s insurer, Kentucky National Insurance
Company (KNIC), corresponded with Lois Wyatt. KNIC indicated that it had tried
to contact her several times to no avail and explained that it would close its claim
file if she did not respond by calling the telephone number provided. Wyatt talked
with KNIC by telephone; her vehicle was inspected and photographed by a KNIC
representative.
On September 6, 2018, KNIC corresponded with Wyatt again. KNIC
advised Wyatt that her Lincoln Town Car had been declared a total loss. KNIC
valued Wyatt’s vehicle at $1,225.00. It offered to pay the sales tax and fee for
transfer to a salvage title. These costs totaled less than $100.00. KNIC was
willing to pay $1,319.50 to Wyatt for the loss after she transferred title to the car.
Wyatt was permitted to retain the salvaged vehicle.
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By September 10, 2018, Wyatt had retained counsel. Her counsel
corresponded with KNIC on Wyatt’s behalf concerning the payment of the costs of
medical treatment, the tow fee, and the storage fees incurred. KNIC immediately
requested copies of medical bills, provider notes, reports, and other information
necessary to evaluate the claim. With respect to the tow fee and storage fees,
KNIC indicated as follows: “We will not pay Ms. Wyatt’s nephew, who is also
going to repair the vehicle for her, storage charges. We will however reimburse
Ms. Wyatt for the tow bill if you will supply a copy.”
By correspondence dated September 12, 2018, Wyatt’s counsel
informed KNIC that the tow bill was $350.00. He indicated that he would provide
KNIC with a copy of that bill. He also informed KNIC that the cost of storage for
Wyatt’s vehicle was $45.00 per day. Calculating storage for 30 days, Wyatt’s
counsel made a demand of $1,700.00, for towing and storage. In his
correspondence, Counsel wrote as follows:
I do not understand why you feel you do not have to pay
a storage bill. It makes no difference that it is Ms.
Wyatt’s nephew. That has nothing to do with the storage
bill.
Your adjuster apparently came to Anderson Towing’s
storage lot and indicated your check would be processed
quickly for the vehicle, storage and towing paid at
$4,000.00.
…
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Ms. Wyatt does not want to retain the vehicle, if that
affects your payment.
KNIC responded immediately. It indicated that a check had issued on
September 7, 2018, and that it was ready to mail but that it would not be paid if
Wyatt no longer wished to retain the salvage. KNIC explained as follows: “We
will not be able to settle the total loss until [Wyatt] reconciles the tow and storage
with her nephew so we can pick up the vehicle.” KNIC conceded that it had not
discussed with Wyatt the value of her loss of use of the vehicle. It now offered to
reimburse Wyatt $868.50 for the loss of use from August 7, 2018 until September
6, 2018 – the date the initial offer for payment on her claim was extended. The
offer now totaled $2,538.00. On a final note, KNIC reiterated that its obligation
for reimbursement of the tow and storage fees ended on September 6, 2018.
On November 13, 2018, KNIC again corresponded with counsel. It
advised that it would void the check payable to Wyatt that had issued on
September 7, 2018. It indicated that it was now aware that its appraiser had seen
no reason that the Town Car could not be driven away and reiterated that its
obligation to reimburse for towing and storage of the totaled vehicle had ended on
September 6, 2018.
On December 10, 2018, Wyatt’s counsel indicated through
correspondence that she would accept $1,319.50 as reimbursement for the loss of
her property. KNIC again responded immediately. It indicated that a check for
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$1,319.50 would be issued after Wyatt had completed the paperwork necessary to
process the vehicle’s salvage title. It requested that Wyatt advise once “she has
worked out release of the driveable vehicle from her nephew’s lot so we can have
it picked up.” It now declined to reimburse Wyatt for any storage fees.
On December 12, 2018, Anderson Towing filed a complaint against
Burton and KNIC. It propounded comprehensive discovery requests. Anderson
Towing sought to recover $6,065.00 for towing and storage fees. It indicated that
the daily cost of storage was $45.00 and that the total increased each day. In his
answer, Burton denied that he was responsible for the automobile collision and
denied liability for the payment of Wyatt’s towing and storage costs. KNIC also
denied liability, and it filed a motion for judgment on the pleadings.
On December 18, 2018, KNIC again corresponded with Wyatt’s
counsel. It explained that it would send the check for $1,319.50 as soon as Wyatt
signed a release of the property damage claim.
On January 10, 2019, Anderson Towing filed a motion for summary
judgment.
In a memorandum filed on January 17, 2019, in support of its motion
for judgment on the pleadings, KNIC observed that Anderson Towing had failed to
include Lois Wyatt in the action -- a necessary party.
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On January 23, 2019, Anderson Towing filed a motion for leave to
file an amended complaint that included Wyatt as a party-plaintiff. The motion of
Anderson Towing was granted, and the amended complaint was filed.
By an order entered on February 19, 2019, the action of Anderson
Towing against KNIC was dismissed with prejudice. Anderson Towing renewed
its motion for summary judgment. It claimed that as a result of Burton’s
negligence, it was entitled as a matter of law to recover from Burton the costs of
towing and storing Wyatt’s vehicle.
Burton responded. He argued that Anderson Towing had no tort or
contract claim whatsoever to assert against him and that Wyatt had not shown that
he was responsible for the accident itself -- much less that he was obligated to pay
the storage costs that she had incurred as they were patently unreasonable. He
contended that Anderson Towing could not maintain an action against him and that
summary judgment in favor of Wyatt was premature because she had not filed a
motion for judgment. Burton argued that Wyatt had not proven that he was
negligent nor had she proven that she had actually incurred the storage fees
claimed by Anderson Towing.
On March 2, 2019, Wyatt filed a motion for summary judgment. She
contended that there were no genuine issues of material fact and that she was
entitled to judgment as a matter of law by virtue of Burton’s negligence in the
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operation of his vehicle. She sought to recover $1,319.50 for the loss of her
property.
By separate orders, each entered March 13, 2019, Wyatt’s claims
against KNIC were dismissed with prejudice; Wyatt was granted summary
judgment against Burton in the amount of $1,319.50; and Anderson Towing was
granted summary judgment against Burton in the amount of $9,575.00. By an
amended order entered on April 30, 2019, Wyatt was granted summary judgment
against Burton in the amount of $9,575.00 for the towing and storage bill in
addition to $1,319.50 for the property damage. Burton partially satisfied the
judgment by paying $1,319.50 to Wyatt. On June 7, 2019, there being no just
cause for delay, the summary judgment entered on April 30, 2019, was made final
and appealable. This appeal followed.
Our rules of civil procedure authorize summary judgment only where
“the pleadings, depositions, 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.” CR1 56.03. On a motion for
summary judgment, “[t]he moving party bears the initial burden of demonstrating
that no genuine issue of material fact exists and then the burden shifts to the party
opposing summary judgment to produce at least some affirmative evidence
1
Kentucky Rules of Civil Procedure.
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showing that there is a genuine issue of material fact requiring trial.” First Fed.
Sav. Bank v. McCubbins, 217 S.W.3d 201, 203 (Ky. 2006). Summary judgment
functions to terminate litigation only when it appears that the party opposing the
motion cannot produce evidence at trial that would lead to a verdict in his favor.
Steelvest, Inc. v. Scansteel Service Center, Inc., 807 S.W.2d 476, 482 (Ky. 1991).
There is nothing in this case to indicate that Wyatt is entitled to
judgment as a matter of law. Burton challenged both her allegation of liability and
the nature and amount of her damages. The only evidence submitted prior to entry
of the summary judgments was in support of the claims of Anderson Towing
against Burton. The evidence consisted of the draft traffic collision reports, which
provided little more than the names of the drivers; their operator’s license numbers,
addresses, and birth dates; and a short, unsigned narrative. While the narrative
suggested the possibility of Burton’s negligence, Burton’s counsel refused to
concede his liability at the hearing conducted on February 28, 2019. Nor is there
any evidence to support the amount of damages that Wyatt sought to recover. Her
motion for summary judgment was not properly supported, and Burton was under
no obligation to submit evidence to overcome it.
Additionally, we note that Anderson Towing failed to comply with
KRS2 376.275 to perfect a mechanic’s/garageman’s lien in the amount that it
2
Kentucky Revised Statutes.
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claims. Also troubling is the conflict as to the amount actually claimed: $7,495.00
demanded in Anderson Towing’s motion for summary judgment of January 10,
2019, versus the amount of $9,575.00 awarded both to Anderson Towing and to
Wyatt. That discrepancy needs to be addressed.
Numerous issues of material fact exist to render summary judgment
premature in this case. Consequently, we are compelled to vacate the summary
judgments and to remand this case for further proceedings.
ALL CONCUR.
BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:
William J. Baird IV Daniel Fayne Dotson
Ryan M. Stratton Whitesburg, Kentucky
Pikeville, Kentucky
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