Tammy Koch v. Owners Insurance Company , 586 F. App'x 209 ( 2014 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 14a0894n.06
No. 14-5601
FILED
UNITED STATES COURT OF APPEALS Dec 03, 2014
FOR THE SIXTH CIRCUIT DEBORAH S. HUNT, Clerk
TAMMY KOCH, )
)
Plaintiff-Appellant, )
) ON APPEAL FROM THE UNITED
v. ) STATES DISTRICT COURT FOR
) THE WESTERN DISTRICT OF
OWNERS INSURANCE COMPANY, ) KENTUCKY
)
Defendant-Appellee. )
*
BEFORE: BOGGS and GRIFFIN, Circuit Judges; HOOD, District Judge.
PER CURIAM. Tammy Koch, a Kentucky citizen, appeals through counsel the summary
judgment for Defendant-Appellee Owners Insurance Company (“Owners”) in this diversity
insurance case.
The record reveals that Koch suffered a traumatic brain injury in a motorcycle accident in
2007. She receives Social Security disability benefits. In 2008, a judgment was entered against
her in a Kentucky court in the amount of $2,412.79 by Capital One Bank. In 2009, a judgment
was entered against her in the amount of $864.35 by Midland Funding. When she applied for
homeowner’s insurance from Owners in 2010, however, she stated that there were no
outstanding judgments against her. When her home was damaged by fire in 2011, Owners did
not pay Koch’s claim, and she filed an action in Kentucky state court claiming bad faith failure
to pay. The action was removed to federal district court based on diversity jurisdiction.
*
The Honorable Joseph M. Hood, United States District Judge for the Eastern District of
Kentucky, sitting by designation.
No. 14-5601
Koch v. Owners Ins. Co.
Owners moved for summary judgment, arguing that it was justified in rescinding the
insurance policy based on Koch’s material misstatement in her application. In her deposition,
Koch testified that she was unaware of the judgments against her. The district court concluded
that Owners was justified in rescinding the policy based on the misstatement, regardless of
whether it was intentional and granted the motion for summary judgment. Koch’s motion for
reconsideration was denied. On appeal, Koch reasserts that she made no intentional
misrepresentation in her application for insurance. In her initial brief, she also argues that the
statement was not material, but in her reply brief she concedes that point.
Summary judgment is properly entered where there is no genuine dispute of material fact
and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). In this
case, the material facts are not in dispute. Under Kentucky law, when an insured misrepresents a
material fact on her application, the insurer is justified in rescinding the policy. Ky. Rev. Stat.
§ 304.14-110; Hornback v. Bankers Life Ins. Co., 176 S.W.3d 699, 705 (Ky. Ct. App. 2005).
Kentucky law also provides that a misrepresentation justifies rescission of a policy whether it
was made by mistake or intentionally. Nationwide Mut. Fire Ins. Co. v. Nelson, 912 F. Supp. 2d
452, 454, 457 (E.D. Ky. 2012) (collecting cases). Therefore, because the facts are not disputed
and Owners is entitled to judgment as a matter of law, we AFFIRM the judgment of the district
court.
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