 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Anderson v. National Security Fire and Casualty Co.7/30/1993
HOWERTON, JUDGE. Mary Virginia Anderson, mother of and appointed fiduciary for the estate of Ginger Anderson, appeals from two orders of the Jefferson Circuit Court. Ginger was one of six children, ages 9-14, who perished in a tragic house fire. The first order dismissed Anderson's allegation of bad faith and violation of Kentucky's Consumer Protection Act against National Security Fire and Casualty Company. The second order granted summary judgment in favor of the Estate of Eunice M. Tucker (formerly Gaither). The summary judgment held that any negligence on Tucker's part was superseded by that of Tucker's daughter, Beverly Diane Gaither. We affirm the first order, as the record contains no evidence of bad faith by National Security. However, we conclude that there is a genuine issue of material fact concerning Tucker's occupancy of her insured dwelling which could allow for $25,000 personal liability coverage for Beverly's negligence. We note that Anderson demanded a jury trial in her original complaint, and we therefore reverse the summary judgment and remand this case for further proceedings consistent with this opinion.
FACTS
The fire took place in a home owned by Eunice Tucker but occupied by her daughter, Beverly Gaither, and Beverly's two children, Donjuan and Diane. They were two of the six children who perished in the fire. Beverly and her children had lived in the home for approximately one year prior to the fire, and until four months before the fire, Tucker also resided in the home. Mrs. Tucker had been admitted to a hospital with end-stage congestive heart failure, and from there, she entered a nursing home where she remained until her death approximately six weeks after the fire.
Electricity to the house had been turned off for nonpayment, and the source of the fire was traced to a candle. Bars on the windows and dead bolt locks on the doors, requiring a key to unlock them from the inside, prevented the children's escape. Beverly had locked and left the house on the evening of the fire.
National Security paid for Tucker's property losses, but it rejected any liability claims on the basis that Tucker no longer occupied the house. Anderson and others filed wrongful death actions against Tucker's estate and Beverly Gaither on behalf of the estates of the six children, including Beverly's two children. By amended complaint, National Security was added as a defendant. Tucker's estate filed a cross-claim against Beverly, and National Security filed a separate declaration of rights action, which was consolidated with the wrongful death suit. Beverly was not represented in the trial court, and she never filed a responsive pleading. She was not only in default, but also the court determined as a matter of law that her negligence was the cause of the tragedy.
The two orders were entered essentially resolving all issues, and both were made final and appealable. No request had been made for the court to fix any damages against Beverly, but the posture of the case at that time was that, without insurance, any significant recovery was unlikely.
THE APPEAL
Two separate appeals were filed from the orders. The first notice of appeal was styled:
MARY VIRGINIA ANDERSON, individually
and as Administratrix and Personal
Representative of the Estate of
Ginger Anderson, et al PLAINTIFFS/APPELLANTS
vs.
THE ESTATE OF EUNICE M. TUCKER,
formerly Eunice M. Gaither, et al DEFENDANTS/APPELLEES
The body of the notice read, "Come Mary Virginia Anderson, et al., Plaintiffs-Appellants, by Counsel, and file their Notice of App
Page 1 2 3 4 Kentucky Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|