Kenneth Alvin O'neil v. Dale Rae Hutchens Personally ( 2021 )

RENDERED: MAY 7, 2021; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2019-CA-1675-MR
KENNETH ALVIN O’NEIL AND APPELLANTS
KENTUCKY PLANNING PARTNERS
APPEAL FROM JEFFERSON CIRCUIT COURT
v. HONORABLE ANN BAILEY SMITH, JUDGE
ACTION NO. 19-CI-000214
DALE RAE HUTCHENS, APPELLEES
PERSONALLY AND AS GUARDIAN
FOR ADAM HAHN HUTCHENS;
AND JOHN HANCOCK LIFE
INSURANCE COMPANY (U.S.A.)
AND
NO. 2019-CA-1683-MR
JOHN HANCOCK LIFE INSURANCE APPELLANT
COMPANY (U.S.A.)
APPEAL FROM JEFFERSON CIRCUIT COURT
v. HONORABLE ANN BAILEY SMITH, JUDGE
ACTION NO. 19-CI-000214
DALE RAE HUTCHENS, APPELLEES
PERSONALLY AND AS GUARDIAN
FOR ADAM HAHN HUTCHENS
OPINION
AFFIRMING
** ** ** ** **
BEFORE: CLAYTON, CHIEF JUDGE; ACREE AND TAYLOR, JUDGES.
TAYLOR, JUDGE: Kenneth Alvin O’Neil and Kentucky Planning Partners
(Planning Partners) bring Appeal No. 2019-CA-1675-MR and John Hancock Life
Insurance Company (John Hancock) brings Appeal No. 2019-CA-1683-MR from
an Opinion and Order of the Jefferson Circuit Court denying O’Neil’s, Planning
Partners’, and John Hancock’s motions to dismiss and compel arbitration. We
affirm Appeal Nos. 2019-CA-1675-MR and 2019-CA-1683-MR.
BACKGROUND
On October 18, 2017, James Hutchens applied for term life insurance
in the amount of two million dollars and temporary life insurance in the amount of
one million dollars with John Hancock. James executed several documents related
to his application for life insurance with John Hancock, including a document
entitled Account Holder Acknowledgement. The Account Holder
Acknowledgment was signed by James and by O’Neil, who served as John
Hancock’s agent throughout the application process. Importantly herein, the
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Account Holder Acknowledgement included an arbitration provision. James also
tendered two months of premium payments at the time.
On November 28, 2017, James suddenly passed away from a cardio-
vascular event. James had designated Dale Rae Hutchens and Adam Hahn
Hutchens (collectively referred to as the Hutchens) as beneficiaries of the life
insurance with John Hancock. Upon James’ death, the Hutchens filed a claim with
John Hancock for the proceeds of the two-million-dollar term life insurance policy.
John Hancock, however, only paid one million dollars to the Hutchens under the
temporary life insurance issued to James. John Hancock maintained that it had
neither approved the application for nor issued the term life insurance policy of
two million dollars to James. Rather, at the time of James’ death, John Hancock
asserted that James was only covered by the temporary life insurance in the amount
of one million dollars.
As a result, the Hutchens filed a complaint in the Jefferson Circuit
Court against John Hancock, O’Neil, and Kentucky Planning Partners.1 In the
Complaint, the Hutchens alleged breach of contract, common law bad faith, unjust
enrichment, negligence and violation of Kentucky Revised Statutes (KRS) 304.12-
230, KRS 304.12-235, and KRS 304.12-010. In particular, the Hutchens claimed:
1
Kentucky Planning Partners, LLC, is an insurance agency, and one of its two members is
Kenneth Alvin O’Neil.
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Claims for Relief
A. John Hancock.
i. Breach of Contract.
35. Mr. Hutchens and John Hancock had an enforceable
agreement for the payment of $2 million in life insurance
benefits to Plaintiffs as his Beneficiaries.
36. Plaintiffs were the named, intended, and contractual
third-party beneficiaries of the $2 million life insurance
coverage.
37. John Hancock breached its contractual obligations.
By way of example, and without limitation, John
Hancock:
a. failed to timely issue payment of the life
insurance coverage.
b. failed to issue full-payment of the life
insurance coverage.
c. failed to pay the Acc. Benefit.
d. failed to comply with applicable
Kentucky insurance laws and regulations
incorporated as contractual terms.
38. As a direct and proximate result, Plaintiffs have been
damaged by John Hancock’s breach, thereby entitling
them to seek and to receive all available and appropriate
relief.
....
ii. Violation of KRS 304.12-230 (“UCSPA”).
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40. John Hancock is subject to Kentucky’s insurance
laws and regulations, including KRS 304.12-230 –
Kentucky’s Unfair Claims Settlement Practices Act
(“UCSPA”).
41. With respect to Mr. Hutchens’ Application and to
Plaintiffs’ claim for insurance benefits, John Hancock
failed to comply with the UCSPA. John Hancock’s
violation has continued unabated. By way of example
and without limitation, John Hancock:
a. misrepresented that the life insurance
coverage had not been approved and issued.
b. misrepresented that only half of the life
insurance coverage was payable.
c. misrepresented by omission the Acc.
Benefits due and payable.
d. failed to acknowledge and act with
reasonable promptness with respect to the
Plaintiffs’ claims.
e. failed to conduct a reasonable
investigation of Plaintiffs’ claims, including
not investigating the Acc. Benefit.
f. failed to attempt in good faith to resolve
Plaintiffs’ claims where liability was
reasonably clear – instead, refusing to
release documents.
g. compelled Plaintiffs to file a lawsuit in
order to recover the unpaid life insurance
coverage and the Acc. Benefit coverage,
including referring Plaintiffs’ claims to its
in-house legal department and then to
outside legal counsel.
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42. John Hancock’s actions were and continue to be
without a reasonable basis and are indicative of a reckless
disregard for Plaintiffs rights as Beneficiaries.
43. As a direct and proximate result, Plaintiffs have been
damaged by John Hancock’s violations of KRS 304.12-
230, thereby entitling them to seek and to receive all
appropriate relief.
....
iii. Common Law Bad Faith.
45. As a party to the Application, including the life
insurance coverage and Acc. Benefit, John Hancock
owed a common law duty of good faith
to Plaintiffs as the Beneficiaries.
46. John Hancock breached its duty of good faith.
John Hancock’s breach has continued unabated. By way
of example and without limitation, John Hancock:
a. misrepresented that the life insurance
coverage had not been approved and
issued.
b. misrepresented that only half of the
life insurance coverage was payable.
c. misrepresented by omission the Acc.
Benefits due and payable.
d. failed to acknowledge and act with
reasonable promptness with respect to
the Plaintiffs’ claims.
e. failed to conduct a reasonable
investigation of Plaintiffs’ claims,
including not investigating the Acc.
Benefit.
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f. failed to attempt in good faith to
resolve Plaintiffs’ claims where liability
was reasonably clear – instead, refusing
to release documents.
g. compelled Plaintiffs to file a lawsuit
in order to recover the unpaid life
insurance coverage and the Acc. Benefit
coverage, including referring Plaintiffs’
claims to its in-house legal department
and then to outside legal counsel.
47. John Hancock did not have a reasonable, legitimate,
or arguable reason for its actions. John Hancock had
actual knowledge that it lacked a legitimate or arguable
reason for its actions.
48. John Hancock’s actions were willful and with
reckless disregard to Plaintiffs’ rights as Beneficiaries
and under applicable Kentucky insurance laws and
regulations.
....
iv. Violation of KRS 304.12-235.
51. Pursuant to KRS 304.12-235(1), John Hancock was
obligated to remit the insurance proceeds within 30-days
of notice and proof of Plaintiffs’ claim.
52. Pursuant to KRS 304.12-235(2), for any claims paid
after the 30-day deadline, the statute requires John
Hancock to remit interest calculated at 12% per annum.
53. Pursuant to KRS 304.12-235(3), John Hancock is
further obligated to reimburse Plaintiffs for their
attorneys’ fees incurred in collecting the unpaid interest
and insurance proceeds.
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54. John Hancock was on notice and in receipt of proof
of Plaintiffs’ claim, for the life insurance coverage and
Acc. Benefit, no later than November 2017 – making the
proceeds due and payable within 30 days thereafter.
55. John Hancock did not comply with the statutory
requirement to timely remit the insurance proceeds. By
way of example, and without limitation, John Hancock:
a. delayed payment of ½ the insurance
proceeds – $1 million – until the following
June 2018 but failed to remit the statutory
12% interest.
b. failed to remit the balance of the
insurance proceeds – $1 million, with the
corresponding statutory 12% continuing
to accrue.
c. caused Plaintiffs to incur attorneys’
fees and expenses to recover the unpaid
insurance proceeds and the unpaid
interest.
....
v. Unjust Enrichment.
57. Mr. Hutchens conferred a benefit on John
Hancock when he remitted premiums, and that
John Hancock accepted, for the $2 million in life
insurance coverage.
58. Upon Mr. Hutchens’ death, John Hancock
failed to remit the full $2 million, remitting only
half of the coverage while retaining the full
premium paid by Mr. Hutchens.
59. The $1 million in unpaid coverage is a benefit
that was conferred on John Hancock at Mr.
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Hutchens’, and by extension the Plaintiffs as his
named Beneficiaries, expense.
60. John Hancock’s retention of the $1 million in
promised life insurance coverage is inequitable as
it deprives the Plaintiffs of the benefit conferred by
John Hancock’s acceptance and retention of the
insurance premiums.
....
vi. Negligence.
62. As the insurance company involved in Mr.
Hutchens’ application for insurance coverage, John
Hancock owed Mr. Hutchens a duty to ensure its agents:
(i) complied with Kentucky’s insurance laws and
regulations; and (ii) did not make any misrepresentations.
63. John Hancock breached its duties. The breach
continues unabated. By way of example, without
limitations, John Hancock:
a. failed to ensure its agents – specifically
KPP – were licensed and appointed in
Kentucky to act on its behalf.
b. allowed its agents to represent to Mr.
Hutchens that the $2 million in life
insurance had been approved and issued.
64. As a direct and proximate result, Plaintiffs have been
damaged by John Hancock’s negligence, thereby
entitling them to seek and to receive all appropriate
relief.
....
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vii. Punitive.
66. John Hancock’s actions were committed with the
requisite mind set so as to entitle Plaintiffs to an award of
punitive damages under Kentucky statutory and common
law.
B. O’Neil and KPP.
i. Negligence.
67. O’Neil and [Kentucky Planning Partners (KPP)]
owed Mr. Hutchens a statutory and common law duty in
the solicitation and sale of the $2 million life insurance
coverage with John Hancock.
68. O’Neil and KPP breached their respective duty to
Mr. Hutchens, and by extension the Plaintiffs as his
named Beneficiaries. The breach has continued unabated.
By way of example, and without limitation, O’Neil and
KPP:
a. failed to timely deliver the life insurance
policy to Mr. Hutchens.
b. failed to timely process the Application
and corresponding forms.
c. failed to accurately advise Mr. Hutchens
concerning the status of the Application.
69. As a direct and proximate result, Plaintiffs have been
damaged by O’Neil’s and KPP’s negligence, thereby
entitling them to seek and to receive all appropriate
relief.
....
ii. Misrepresentation.
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71. O’Neil and KPP made material representations to
Mr. Hutchens concerning the status of his Application
that, based on John Hancock’s subsequent refusal to pay
the Plaintiffs’ claims, were false.
72. O’Neil and KPP recklessly informed Mr. Hutchens
the insurance coverage had been approved and issued as
applied.
73. O’Neil’s and KPP’s representations were made with
the intent of obtaining Mr. Hutchens’ reliance.
74. Mr. Hutchens relied on O’Neil’s and KPP’s
representations, and as a result was damaged by John
Hancock’s subsequent refusal to pay Plaintiffs the entire
$2 million in life insurance coverage.
....
C. John Hancock, O’Neil and KPP.
i. Violation of KRS 304.12-010.
77. Kentucky’s insurance code prohibits unfair and
deceptive insurance practices based on the following
statutory language.
No person shall engage in this state in
any practice which is prohibited in this
subtitle, or which is defined therein as, or
determined pursuant thereto to be, an unfair
method of competition or any unfair or
deceptive act or practice in the business of
insurance.
KRS 304.12-010.
78. John Hancock’s, O’Neil’s, and KPP’s
(“Defendants”) individual and collective actions in the
solicitation and issuance of the life insurance coverage
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were unfair and deceptive. By way of example,
Defendants:
a. misrepresented that the Application
would be processed timely and with an
intended effective date of October 12,
2017.
b. misrepresented that the insurance
coverage had been approved and issued
as applied.
79. As a direct and proximate result, Plaintiffs have been
damaged by Defendants’ individual and collective
actions, thereby entitling them to seek and to receive all
appropriate relief.
Complaint at 6-14.
John Hancock, O’Neil, and Planning Partners filed answers and
motions to dismiss and compel arbitration. In the motions, it was argued that the
Hutchens’ claims were subject to arbitration under the arbitration provision
contained in the Account Holder Acknowledgement executed by James. In their
response, the Hutchens maintain that KRS 417.050(2) prohibited such a mandatory
arbitration provision as to insurance contracts. The Hutchens pointed out that this
statutory prohibition (KRS 417.050(2)) against arbitration was not preempted by
the Federal Arbitration Act (FAA) by operation of the McCarran-Ferguson Act.
In an October 8, 2019, opinion and order, the circuit court denied the
motions to dismiss and compel arbitration. The circuit court reasoned:
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This is an action on an application for an insurance
policy on the life of James Hutchens which [Hutchens]
claims ripened into an insurance contract that the
Defendant John Hancock breached by failing to pay the
face amount plus an accelerated benefit rider after Mr.
Hutchens died. All defendants have filed motions to
dismiss pursuant to CR [Kentucky Rules of Civil
Procedure] 12.02(f), claiming that an arbitration
agreement James Hutchens signed at the time of
application requires that the dispute by submitted to
binding arbitration pursuant to The Federal Arbitration
Act (“FAA”), 9 [United States Code (U.S.C.)] § 1 et seq.
The parties have filed briefs, the Court has carefully
considered the facts and law contained therein and
resolved the instant motion by applying Kentucky’s well-
known standard for motions to dismiss. Being
sufficiently advised, the Court DENIES the defendants’
motion to compel arbitration, finding, first, that
construing the allegations in the complaint in a light most
favorable to the plaintiff, the alleged arbitration
agreement is unenforceable pursuant to KRS 417.050(2)
because the agreement pertains to an insurance contract.
Second, the Court finds that a factual issue exists
concerning whether the form upon which the purported
agreement is contained was ever filed with and approved
by the insurance commissioner. If the commissioner did
not approve the form, the agreement is void.
October 8, 2019, opinion and order at 1-2 (citations and footnotes omitted). These
interlocutory appeals follow.2
2
An interlocutory appeal is permitted from an order denying a motion to compel arbitration.
Kentucky Revised Statutes (KRS) 417.220(1)(a); JP Morgan Chase Bank, N.A. v. Bluegrass
Powerboats, 424 S.W.3d 902, 908 (Ky. 2014).
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ISSUES PRESENTED
In both appeals (Appeal Nos. 2019-CA-1683-MR and 2019-CA-1675-
MR), John Hancock, O’Neil and Planning Partners (collectively referred to as
appellants) contend that the circuit court erred by determining that arbitration was
barred by operation of KRS 417.050(2). In particular, appellants argue that the
arbitration provision in the Account Holder Acknowledgement is enforceable
under the FAA and not barred by KRS 417.050(2). In support thereof, appellants
maintain that KRS 417.050(2) only bars an arbitration provision in an insurance
contract and that no insurance contract existed between John Hancock and James.
John Hancock points out that it had not issued the term life insurance of two
million dollars at the time of James’ death. In fact, John Hancock states that it was
still in the process of reviewing James’ application for the term life insurance when
James died. Thus, according to appellants, no insurance contract or policy existed,
thus rendering KRS 417.050(2) inapplicable. Alternatively, appellants argue that
the arbitration provision is governed by the FAA, and the FAA preempts state law
to the contrary, including KRS 417.050(2).3
STANDARD OF REVIEW
It is well-established that a person seeking to compel arbitration must
demonstrate that a valid arbitration agreement exists between the parties. Ping v.
3
The Federal Arbitration Act is codified in 9 U.S.C. § 1, et seq.
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Beverly Enters., Inc., 376 S.W.3d 581, 590 (Ky. 2012); Golden Gate Nat’l Senior
Care, LLC. v. Rucker, 588 S.W.3d 868, 871 (Ky. App. 2019). The existence of an
agreement looks to state law rules for contract formation. Ping, 376 S.W.3d at
590. And, as an appellate court, the review of a trial court’s interpretation and
construction of a contract is a matter of law, and we thus apply a de novo standard
of review. Lynch v. Claims Mgmt. Corp., 306 S.W.3d 93, 96 (Ky. App. 2010).
Finally, we review the circuit court’s findings of fact, if any, under the clearly
erroneous standard. N. Fork Collieries, LLC v. Hall, 322 S.W.3d 98, 102 (Ky.
2010); CR 52.01.
ANALYSIS
In this case, the arbitration provision found in the Account Holder
Acknowledgement provides:
ARBITRATION AGREEMENT: With respect to any
disputes that might arise out of this transaction, LPL
Insurance Associates, Inc. and its affiliates, its appointed
insurance agents, and the individual whose signature
appears below are giving up the right to sue each other in
court, including the right to a trial by jury, except as
provided by the rules of arbitration forum in which a
claim is filed; such rules being incorporated herein by
reference.
Account Holder Acknowledgement at 1. To determine whether the above
arbitration provision is valid and enforceable, we must initially determine whether
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KRS 417.050(2) is applicable, and if so, whether the FAA preempts its application
herein. Our analysis shall proceed accordingly.
KRS 417.050 reads, in relevant part:
A written agreement to submit any existing controversy
to arbitration or a provision in written contract to submit
to arbitration any controversy thereafter arising between
the parties is valid, enforceable, and irrevocable, save
upon such grounds as exist at law for the revocation of
any contract. This chapter does not apply to:
....
(2) Insurance contracts. Nothing in this subsection shall
be deemed to invalidate or render unenforceable
contractual arbitration provisions between two (2) or
more insurers, including reinsurers[.]
Under KRS 417.050(2), an arbitration agreement or arbitration provision in an
insurance contract is invalid and unenforceable unless such arbitration provision
is between insurers. Scott v. Louisville Bedding Co., 404 S.W.3d 870, 877-78 (Ky.
App. 2013). And, the term “insurance” is defined as a “contract whereby one
undertakes to pay or indemnify another as to loss certain specified contingencies or
perils called ‘risks,’ or to pay or grant a specified amount or determinable benefit
or annuity in connection with ascertainable risk contingencies, or to act as surety.”
KRS 304.1-030. Herein, we are concerned with the term “insurance contracts” as
used in KRS 417.050(2) and whether an application for insurance comes within its
ambit.
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Appellants advance a narrow interpretation of the term “insurance
contracts” and believe it encompasses only issued insurance policies. Hence,
appellants argue that KRS 417.050(2) does not apply to an application for
insurance. We reject such overly narrow and technical interpretation.
When interpreting a statute, the Court is primarily guided by
legislative intent or purpose of such statute. See Livingood v. Transfreight, LLC,
467 S.W.3d 249, 256 (Ky. 2015). A legislative purpose of KRS 417.050(2) has
been recognized as regulating the business of insurance. Scott, 404 S.W.3d at 880.
This legislative purpose would be undoubtedly frustrated by appellants’ proposed
narrow interpretation of KRS 417.050(2), as an insurance company would be free
to impose strict arbitration as to any issue related to the insurance application.
Also, we think an application for insurance can be viewed as being akin to an offer
under contract law; thus, such an application is inextricably interwoven with every
insurance contract. For these reasons, applications for insurance certainly come
within the purview of the term “insurance contracts” as utilized in KRS
417.050(2). Accordingly, we interpret KRS 417.050(2) as being equally
applicable to insurance applications as it is to issued insurance policies or
insurance contracts.
In this case, the arbitration provision was contained in the Account
Holder Acknowledgement. The Account Holder Acknowledgement was executed
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with other insurance application forms and specifically stated that it applied to
“any disputes that might arise out of this transaction.” As the arbitration provision
was contained in an insurance application form, we are of the opinion that the
arbitration provision comes within the scope of KRS 417.050(2) and is rendered
unenforceable thereby. And, although the term life insurance policy may not have
been issued to James at the time of his death, it is uncontroverted that James was
covered by temporary life insurance issued by John Hancock and in full force at
the time of James’ death.
As to the purported preemption of KRS 417.050(2) by the FAA, our
Court has specifically held that the McCarran-Ferguson Act precludes the FAA
from preempting KRS 417.050(2).4 Scott, 404 S.W.3d at 877-80. Thus, the FAA
does not preempt KRS 417.050(2).
Our decision that KRS 417.050(2) renders the arbitration provision
contained in the Account Holder Acknowledgement unenforceable is one of law
and based upon undisputed facts. Consequently, any alleged error committed by
the circuit court upon reviewing this matter under CR 12.02(f) is merely harmless.
We view any remaining contentions of error to be without error or
moot.
4
15 U.S.C. § 1012(a) and (b).
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To summarize, we conclude that the arbitration provision found in the
Account Holder Acknowledgement is invalid and unenforceable per KRS
417.050(2); hence, the circuit court properly denied appellants’ motions to compel
arbitration.
For the foregoing reasons, the Opinion and Order of the Jefferson
Circuit Court is affirmed.
ALL CONCUR.
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BRIEFS FOR APPELLANTS BRIEFS FOR APPELLEE DALE
KENNETH ALVIN O’NEIL AND RAE HUTCHENS, PERSONALLY
KENTUCKY PLANNING AND AS GUARDIAN FOR ADAM
PARTNERS: HAHN HUTCHENS:
Andrew J. Dorman Michael D. Grabhorn
Cleveland, Ohio Andrew M. Grabhorn
Louisville, Kentucky
Danielle J. Lewis
Andrew Pettijohn ORAL ARGUMENT FOR
Louisville, Kentucky APPELLEE DALE RAE
HUTCHENS, PERSONALLY AND
BRIEFS FOR APPELLANTS JOHN AS GUARDIAN FOR ADAM HAHN
HANCOCK LIFE INSURANCE HUTCHENS:
COMPANY (U.S.A.):
Michael D. Grabhorn
Steven P. DelMauro Louisville, Kentucky
Colleen M. Duffy
Tinton Falls, New Jersey
Jill F. Endicott
Jeremy S. Rogers
Louisville, Kentucky
ORAL ARGUMENT FOR
APPELLANTS KENNETH ALVIN
O’NEIL AND KENTUCKY
PLANNING PARTNERS:
Danielle J. Lewis
Louisville, Kentucky
ORAL ARGUMENT FOR
APPELLANTS JOHN HANCOCK
LIFE INSURANCE COMPANY
(U.S.A.):
Colleen M. Duffy
Tinton Falls, New Jersey
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Jill F. Endicott
Jeremy S. Rogers
Louisville, Kentucky
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