John Byrnes v. Kentucky Farm Bureau Insurance Company

RENDERED: JULY 21, 2023; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NOS. 2021-CA-1269-MR & 2021-CA-1375-MR
JOHN BYRNES APPELLANT/CROSS-APPELLEE
APPEAL AND CROSS-APPEAL FROM JEFFERSON CIRCUIT COURT
v. HONORABLE ERIC JOSEPH HANER, JUDGE
ACTION NO. 19-CA-001454
KENTUCKY FARM BUREAU
MUTUAL INSURANCE COMPANY APPELLEE/CROSS-APPELLANT
OPINION AND ORDER
DISMISSING
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BEFORE: THOMPSON, CHIEF JUDGE; ECKERLE, AND LAMBERT
JUDGES.
ECKERLE, JUDGE: The instant cases are before us following remand for an
evidentiary hearing in Byrnes v. Kentucky Farm Bureau Insurance Company, No.
2019-CI-1790-MR, 2021 WL 1583865 (Apr. 23, 2021). Because the parties have
appealed from an interlocutory opionion and order that did not adjudicate all the
claims, we dismiss the appeal.
John Byrnes (Byrnes) represented three individuals who had been
involved in a minor, motor vehicle incident. Kentucky Farm Bureau Mutual
Insurance Company (KFB) insured Byrnes’ clients and provided them their basic
reparations benefits (BRB). KFB then informed Byrnes that it had its own counsel
to pursue its personal injury protection BRB subrogation. KFB then instituted an
arbitration proceeding against the tortfeasor’s insurance company.
Byrnes successfully settled his clients’ claims with the tortfeasor’s
insurance carrier, and KFB successfully obtained reimbursement for BRB in the
arbitration proceeding. Byrnes then requested attorney’s fees from KFB pursuant
to KRS1 304.39-070(5).2 KFB refused the demand, asserting there was no legal
1
Kentucky Revised Statutes.
2
That statute reads:
An attorney representing a secured person in any action
filed under KRS 304.39-060 shall be entitled to a
reasonable attorneys’ fee in the event that reparations
benefits paid to said secured person by that secured
person’s reparation’s obligor are reimbursed by any
insurance carrier on behalf of a tortfeasor who is the
defendant in any such action filed by the said secured
person or in the event such potential “action” is settled by
said potential tortfeasor’s insurance carrier on his behalf
prior to the filing of any such suit.
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requirement to pay any attorney’s fee. Byrnes then filed a complaint in Jefferson
Circuit Court against KFB. The Trial Court granted summary judgment to KFB,
and on appeal we reversed and remanded for the Trial Court to conduct a hearing
pursuant to Baker v. Motorists Insurance Companies, 695 S.W.2d 415 (Ky. 1985),
and determine if Byrnes conferred a benefit upon KFB, thus entitling Byrnes to
attorney’s fees for said benefit. We further remanded Byrnes’ remaining claims,
including requests for compensatory and punitive damages raised under various
theories including an alleged violation of the Kentucky Unfair Claims Settlement
Practice Act. We specifically stated, “After the determination of entitlement to the
statutory fees, the circuit court then shall address Byrnes’ remaining claims, if not
otherwise rendered moot by the court’s ruling.” Byrnes v. Kentucky Farm Bureau
Insurance Co., 2021 WL 1582865, *5 (emphasis added).
The Trial Court conducted an evidentiary hearing and entered an
opinion and order finding Byrnes was entitled to $500 in attorney’s fees, but the
opinion and order is silent on Byrnes’ remaining claims. The opinion and order
does not contain any finality language per CR3 54.02. Indeed, it does not appear
that the opinion and order was intended to be a final determination of all claims, as
during closing arguments both parties noted there were additional claims
outstanding that would be moot only if there were no award of attorney’s fees.
3
Kentucky Rules of Civil Procedure.
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The Trial Court noted it needed additional proof on those claims, and KFB
specifically requested additional proceedings on those claims if there was an award
of attorney’s fees. The opinion and order granted attorney’s fees, thus there are
additional claims outstanding.
Curiously, both parties’ briefs have addressed a punitive damages
claim on appeal, though neither side has cited to any opinion or order on the
subject. KFB even states, “The Circuit Court’s Order dismissing these claims
should be upheld.” Appellee/Cross-Appellant’s Brief at 19. KFB provides no
citation to where we should find this order in the record, and we have discovered
no such order in our review of the record.
“Only a final order is appealable.” Town of Wallins v. Luten Bridge
Co., 291 Ky. 73, 163 S.W.2d 276, 279 (1942). See also Wright v. Ecolab, Inc.,
461 S.W.3d 753, 758 (Ky. 2015). Final judgments are those that either
“adjudicat[e] all the rights of all the parties in an action or proceeding” or have
been “made final under Rule 54.02.” CR 54.01. “While the parties did not raise
the issue of appellate jurisdiction in their briefs, we are the guardians of our
jurisdiction and thus are obligated to raise a jurisdictional issue sua sponte if the
underlying order appears to lack finality.” Padgett v. Steinbrecher, 355 S.W.3d
457, 459-60 (Ky. App. 2011) (citations omitted).
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The instant opinion and order lacks such finality. It neither
adjudicates all claims nor contains finality language. The parties below informed
the Trial Court that additional proceedings would be necessary if the Trial Court
awarded attorney’s fees. The Trial Court logically is expecting additional
proceedings, not an appeal of its interlocutory order. Byrnes’ claims alleging
negligence per se, statutory bad faith, and violations of the Kentucky Unfair
Claims Settlement Practice Acts, with corresponding requests for compensatory
and punitive damages, remain outstanding.
Accordingly, as the parties have appealed from a non-final judgment,
we DISMISS the instant appeal.
ALL CONCUR.
ENTERED: _July 21, 2023_____
JUDGE, COURT OF APPEALS
BRIEF FOR APPELLANT/CROSS- BRIEF FOR APPELLEE/CROSS-
APPELLEE: APPELLANT:
Jeffrey A. Sexton Brian D. Stempien
Louisville, Kentucky Louisville, Kentucky
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