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Lavender v. American Physicians Assurance Corp.12/3/2004
recludes it from rescinding coverage for the Justice lawsuit. We note that Dr. Lavender cites no judicial authority directly in support of this argument. Kentucky case law is clearly against Dr. Lavender on this point. See State Farm Mut. Auto. Ins. Co. v. Crouch, Ky. App., 706 S.W.2d 203, 206 (1986) (rejecting similar argument that insurer was estopped from raising issue of material misrepresentation based on insurer's alleged negligent failure to investigate). " he rule is that as between the applicant and the insurance company it is the applicant's responsibility to see that the application is correctly filled out." Paxton v. Lincoln Income Life Ins. Co., Ky., 433 S.W.2d 636, 638 (1968). It is fundamental that "an insurer must have clear notice and full cognizance of the true facts to be bound by its policy." Crouch, 706 S.W.2d at 206.
DISPOSITION
We hold that Question 22 is subjective and this case will turn on whether Dr. Lavender honestly believed that a medical malpractice claim was unlikely. The facts of this case do not allow for only one conclusion respecting Dr. Lavender's true state of mind. Thus, summary judgment was prematurely granted. We need not decide whether Question 22 was vague and ambiguous as a matter of law. We vacate the trial court's order granting APAC'S motion for summary judgment and remand this case for trial.
EMBERTON, SENIOR JUDGE, CONCURS.
DYCHE, JUDGE, DISSENTS AND FILES SEPARATE OPINION. DYCHE, JUDGE, DISSENTING
I must respectfully dissent, as there is no final judgment in this declaratory judgment action. The Order from which the appeal is prosecuted "finds that said [summary judgment] motion is well taken and summary judgment is granted in favor of Plaintiff American Physicians Assurance Corporation." It declares no rights, it adjudicates nothing. A judgment should say, on its face, what it adjudicates or what it decides. The judgment, standing alone, should inform a reader of its nature and the result of its entry. We have none of that here, and therefore no final and appealable judgment.
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