Opinion
NO. 2017-CA-001984-MR
10-26-2018
CHARLES DAVIS APPELLANT v. CLAUDE REYNOLDS INSURANCE AGENCY, INC. APPELLEE
BRIEFS FOR APPELLANT: Philip C. Kimball Louisville, Kentucky BRIEF FOR APPELLEE: Brian F. Haara Kristin E. McCall Louisville, Kentucky
NOT TO BE PUBLISHED APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE MARY M. SHAW, JUDGE
ACTION NO. 17-CI-004146 OPINION
AFFIRMING
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BEFORE: D. LAMBERT, NICKELL, AND TAYLOR, JUDGES. NICKELL, JUDGE: Charles Davis has appealed from the November 14, 2017, order of the Jefferson Circuit Court granting a motion to dismiss pursuant to CR 12.02(f) filed by Claude Reynolds Insurance Agency, Inc. (Reynolds), Claude M. Reynolds, III, and Matt Reynolds. We affirm.
Kentucky Rules of Civil Procedure.
Claude M. Reynolds, III, and Matt Reynolds were originally named as parties to the appeal. However, on April 18, 2018, Davis voluntarily abandoned the appeal of his claims against these two individuals.
"It is well settled in this jurisdiction when considering a motion to dismiss under [CR 12.02], that the pleadings should be liberally construed in a light most favorable to the plaintiff and all allegations taken in the complaint to be true." Mims v. Western-Southern Agency, Inc., 226 S.W.3d 833, 835 (Ky. App. 2007) (citing Gall v. Scroggy, 725 S.W.2d 867, 869 (Ky. App. 1987)). "Since a motion to dismiss for failure to state a claim upon which relief may be granted is a pure question of law, a reviewing court owes no deference to a trial court's determination; instead, an appellate court reviews the issue de novo." Fox v. Grayson, 317 S.W.3d 1, 7 (Ky. 2010) (citing Morgan v. Bird, 289 S.W.3d 222, 226 (Ky. App. 2009)).
The court should not grant the motion unless it appears the pleading party would not be entitled to relief under any set of facts which could be proved in support of his claim. In making this decision, the circuit court is not required to make any factual determination; rather, the question is purely a matter of law. Stated another way, the court must ask if the facts alleged in the complaint can be proved, would the plaintiff be entitled to relief?James v. Wilson, 95 S.W.3d 875, 883-84 (Ky. App. 2002) (citations omitted). With these standards in mind, we turn to the matter before us.
The historical facts, taken in a light most favorable to Davis, require only a brief recitation. For approximately ten years, Davis maintained automobile and homeowner's insurance policies with Safeco Insurance Company of Illinois (Safeco) issued through Reynolds. According to Davis, Reynolds assured him best efforts would be utilized to "optimize or minimize his premium exposure." Safeco calculated and charged all premiums due for the various policies. Shortly before instituting the instant suit, Davis communicated to Reynolds his belief Safeco had been significantly overcharging him for his premiums. Safeco subsequently reduced its premiums. Davis avers Reynolds subsequently "reneged" on a promise to obtain refunds from Safeco for the overcharged premiums.
On August 8, 2017, Davis filed suit against Safeco, Reynolds, Claude M. Reynolds, III, and Matt Reynolds, alleging claims arising from various theories of liability, including negligence, recklessness, breach of contract, constructive fraud, estoppel by admission, and Kentucky Consumer Protection Act (KCPA) violations. All defendants filed motions to dismiss pursuant to CR 12.02. Pertinent to this appeal, Davis objected to the motions and argued in favor of maintaining his hybrid negligence/recklessness claims and his claims for KCPA violations against Reynolds; he voluntarily abandoned the majority of his claims against Reynolds. The trial court granted Reynolds' motion and dismissed Davis' complaint without prejudice. Specifically, the trial court found many of Davis' claims relied on an alleged duty of insurance agents to obtain the best premium prices, a duty that does not exist under Kentucky law; his breach of contract claim was premised on an alleged contract which lacked clear and definite terms and was, therefore, unenforceable; and the failure to allege any fraudulent representation by Reynolds was fatal to the remaining claims. This appeal followed.
Kentucky Revised Statutes (KRS) 367.100 et seq.
In his complaint, Davis alleged Reynolds and/or its agents were negligent and reckless in failing to secure the lowest premiums possible. In subsequent pleadings, Davis attempted to mold these allegations into a breach of contract claim. --------
Before this Court, Davis admits his negligence and recklessness claims were superfluous and properly subject to dismissal. However, he argues the trial court erred in dismissing his entire complaint, asserting he presented two viable legal claims against Reynolds—breach of contract and KCPA violations. Both of these claims are premised on an alleged promise by Reynolds to "apply their best efforts to optimize, or minimize his premium exposure with respect to indemnity for the losses, if any, incurred to the insured objects." We discern no error.
Davis argues he presented a colorable claim for breach of contract against Reynolds. Our review of the record discloses the sole claim for breach of contract raised in the pleadings was based on an alleged failure to secure refunds of overcharged premiums from Safeco. Davis plainly and unequivocally abandoned this claim in the trial court. The breach of contract claim he now contends was viable is based on allegations related to Reynolds' failure to obtain the lowest possible premiums for his insurance coverage. A careful reading of the pleadings reveals these allegations were raised solely in relation to Davis' now-abandoned negligence and recklessness claims. His attempt to now recast those assertions into a discrete breach of contract claim is unavailing. Further, nowhere in the pleadings does Davis allege the three requirements for maintaining a breach of contract action relative to these allegations—existence of a contract, breach, and damages. Thus, this claim was clearly not presented to the trial court for consideration. "The Court of Appeals is without authority to review issues not raised in or decided by the trial court." Regional Jail Authority v. Tackett, 770 S.W.2d 225, 228 (Ky. 1989) (citations omitted).
Next, Davis contends his KCPA claims against Reynolds were sufficiently pled to overcome a motion to dismiss. Again, his assertion is not borne out by the record. As before, Davis attempts to argue Reynolds' alleged failure to obtain the lowest premiums possible gives rise to his claim. However, the claim he actually made in the trial court alleged the charging of unfair and excessive premiums constituted a violation of the KCPA. Only Safeco charged premiums; Reynolds was in no way involved in the process nor did Davis allege any such involvement. Any KCPA claim based on the allegations in the complaint would necessarily be applicable only to Safeco. Thus, with no valid claim raised against Reynolds, dismissal was appropriate.
For the foregoing reasons, the judgment of the Jefferson Circuit Court is AFFIRMED.
ALL CONCUR. BRIEFS FOR APPELLANT: Philip C. Kimball
Louisville, Kentucky BRIEF FOR APPELLEE: Brian F. Haara
Kristin E. McCall
Louisville, Kentucky