RENDERED: SEPTEMBER 4, 2020; 10:00 A.M.

NOT TO BE PUBLISHED

Commonwealth of Kentucky

Court of Appeals

NO. 2019-CA-001039-MR

ISAAC BURTON APPELLANT

APPEAL FROM LETCHER CIRCUIT COURT

v. HONORABLE JAMES W. CRAFT, II, JUDGE

ACTION NO. 18-CI-00304

LOIS WYATT APPELLEE

OPINION

VACATING AND REMANDING

**   **  **

BEFORE: COMBS, GOODWINE, AND LAMBERT, JUDGES.

COMBS, JUDGE: Isaac Burton appeals the summary judgment entered by the 

Letcher Circuit Court in favor of Lois Wyatt for the recovery of towing and storage 

fees incurred after Wyatt’s automobile was towed from the scene of a collision 

with Burton’s vehicle. After our review, we vacate and remand. 

This litigation arose after an automobile accident that occurred around 

noon on August 7, 2018, in Whitesburg. A draft of an accident report prepared by 
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the Whitesburg Police Department indicates that Wyatt was traveling north on 

Jenkins Road and was “not able to stop and struck [Burton’s] driver side door as he 

pulled into her path.” Fire and Rescue responded and provided first aid. Wyatt’s 

spouse was transported to Whitesburg Appalachian Regional Hospital for 

treatment. The draft accident report characterizes the damage to both vehicles as 

minor to moderate. Both vehicles were described as disabled, and both were towed 

from the scene. Wyatt’s Lincoln Town Car was towed to a storage lot by 

Anderson Towing. 

On August 30, 2018, Burton’s insurer, Kentucky National Insurance 

Company (KNIC), corresponded with Lois Wyatt. KNIC indicated that it had tried 

to contact her several times to no avail and explained that it would close its claim 

file if she did not respond by calling the telephone number provided. Wyatt talked 

with KNIC by telephone; her vehicle was inspected and photographed by a KNIC 

representative. 

On September 6, 2018, KNIC corresponded with Wyatt again. KNIC 

advised Wyatt that her Lincoln Town Car had been declared a total loss. KNIC 

valued Wyatt’s vehicle at $1,225.00. It offered to pay the sales tax and fee for 

transfer to a salvage title. These costs totaled less than $100.00. KNIC was 

willing to pay $1,319.50 to Wyatt for the loss after she transferred title to the car. 

Wyatt was permitted to retain the salvaged vehicle. 
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By September 10, 2018, Wyatt had retained counsel. Her counsel 

corresponded with KNIC on Wyatt’s behalf concerning the payment of the costs of 

medical treatment, the tow fee, and the storage fees incurred. KNIC immediately 

requested copies of medical bills, provider notes, reports, and other information 

necessary to evaluate the claim. With respect to the tow fee and storage fees, 

KNIC indicated as follows: “We will not pay Ms. Wyatt’s nephew, who is also 

going to repair the vehicle for her, storage charges. We will however reimburse 

Ms. Wyatt for the tow bill if you will supply a copy.”

By correspondence dated September 12, 2018, Wyatt’s counsel 

informed KNIC that the tow bill was $350.00. He indicated that he would provide 

KNIC with a copy of that bill. He also informed KNIC that the cost of storage for 

Wyatt’s vehicle was $45.00 per day. Calculating storage for 30 days, Wyatt’s 

counsel made a demand of $1,700.00, for towing and storage. In his 

correspondence, Counsel wrote as follows:

I do not understand why you feel you do not have to pay 

a storage bill. It makes no difference that it is Ms. 

Wyatt’s nephew. That has nothing to do with the storage 

bill.

Your adjuster apparently came to Anderson Towing’s 

storage lot and indicated your check would be processed 

quickly for the vehicle, storage and towing paid at 

$4,000.00.

...
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Ms. Wyatt does not want to retain the vehicle, if that 

affects your payment.

KNIC responded immediately. It indicated that a check had issued on 

September 7, 2018, and that it was ready to mail but that it would not be paid if 

Wyatt no longer wished to retain the salvage. KNIC explained as follows: “We 

will not be able to settle the total loss until [Wyatt] reconciles the tow and storage 

with her nephew so we can pick up the vehicle.” KNIC conceded that it had not 

discussed with Wyatt the value of her loss of use of the vehicle. It now offered to 

reimburse Wyatt $868.50 for the loss of use from August 7, 2018 until September 

6, 2018 – the date the initial offer for payment on her claim was extended. The 

offer now totaled $2,538.00. On a final note, KNIC reiterated that its obligation 

for reimbursement of the tow and storage fees ended on September 6, 2018. 

On November 13, 2018, KNIC again corresponded with counsel. It 

advised that it would void the check payable to Wyatt that had issued on 

September 7, 2018. It indicated that it was now aware that its appraiser had seen 

no reason that the Town Car could not be driven away and reiterated that its 

obligation to reimburse for towing and storage of the totaled vehicle had ended on 

September 6, 2018. 

On December 10, 2018, Wyatt’s counsel indicated through 

correspondence that she would accept $1,319.50 as reimbursement for the loss of 

her property. KNIC again responded immediately. It indicated that a check for 
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$1,319.50 would be issued after Wyatt had completed the paperwork necessary to 

process the vehicle’s salvage title. It requested that Wyatt advise once “she has 

worked out release of the driveable vehicle from her nephew’s lot so we can have 

it picked up.” It now declined to reimburse Wyatt for any storage fees. 

On December 12, 2018, Anderson Towing filed a complaint against 

Burton and KNIC. It propounded comprehensive discovery requests. Anderson 

Towing sought to recover $6,065.00 for towing and storage fees. It indicated that 

the daily cost of storage was $45.00 and that the total increased each day. In his 

answer, Burton denied that he was responsible for the automobile collision and 

denied liability for the payment of Wyatt’s towing and storage costs. KNIC also 

denied liability, and it filed a motion for judgment on the pleadings. 

On December 18, 2018, KNIC again corresponded with Wyatt’s 

counsel. It explained that it would send the check for $1,319.50 as soon as Wyatt 

signed a release of the property damage claim. 

On January 10, 2019, Anderson Towing filed a motion for summary 

judgment. 

In a memorandum filed on January 17, 2019, in support of its motion 

for judgment on the pleadings, KNIC observed that Anderson Towing had failed to 

include Lois Wyatt in the action -- a necessary party. 
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On January 23, 2019, Anderson Towing filed a motion for leave to 

file an amended complaint that included Wyatt as a party-plaintiff. The motion of 

Anderson Towing was granted, and the amended complaint was filed. 

By an order entered on February 19, 2019, the action of Anderson 

Towing against KNIC was dismissed with prejudice. Anderson Towing renewed 

its motion for summary judgment. It claimed that as a result of Burton’s 

negligence, it was entitled as a matter of law to recover from Burton the costs of 

towing and storing Wyatt’s vehicle. 

Burton responded. He argued that Anderson Towing had no tort or 

contract claim whatsoever to assert against him and that Wyatt had not shown that 

he was responsible for the accident itself -- much less that he was obligated to pay 

the storage costs that she had incurred as they were patently unreasonable. He 

contended that Anderson Towing could not maintain an action against him and that 

summary judgment in favor of Wyatt was premature because she had not filed a 

motion for judgment. Burton argued that Wyatt had not proven that he was 

negligent nor had she proven that she had actually incurred the storage fees 

claimed by Anderson Towing. 

On March 2, 2019, Wyatt filed a motion for summary judgment. She

contended that there were no genuine issues of material fact and that she was 

entitled to judgment as a matter of law by virtue of Burton’s negligence in the 
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operation of his vehicle. She sought to recover $1,319.50 for the loss of her 

property. 

By separate orders, each entered March 13, 2019, Wyatt’s claims 

against KNIC were dismissed with prejudice; Wyatt was granted summary 

judgment against Burton in the amount of $1,319.50; and Anderson Towing was 

granted summary judgment against Burton in the amount of $9,575.00. By an 

amended order entered on April 30, 2019, Wyatt was granted summary judgment 

against Burton in the amount of $9,575.00 for the towing and storage bill in 

addition to $1,319.50 for the property damage. Burton partially satisfied the 

judgment by paying $1,319.50 to Wyatt. On June 7, 2019, there being no just 

cause for delay, the summary judgment entered on April 30, 2019, was made final 

and appealable. This appeal followed. 

Our rules of civil procedure authorize summary judgment only where 

“the pleadings, depositions, and admissions on file, together with the affidavits, if 

any, show that there is no genuine issue as to any material fact and that the moving 

party is entitled to a judgment as a matter of law.” CR1 56.03. On a motion for 

summary judgment, “[t]he moving party bears the initial burden of demonstrating 

that no genuine issue of material fact exists and then the burden shifts to the party 

opposing summary judgment to produce at least some affirmative evidence 

 

1 Kentucky Rules of Civil Procedure. 
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showing that there is a genuine issue of material fact requiring trial.” First Fed.

Sav. Bank v. McCubbins, 217 S.W.3d 201, 203 (Ky. 2006). Summary judgment 

functions to terminate litigation only when it appears that the party opposing the 

motion cannot produce evidence at trial that would lead to a verdict in his favor. 

Steelvest, Inc. v. Scansteel Service Center, Inc., 807 S.W.2d 476, 482 (Ky. 1991). 

There is nothing in this case to indicate that Wyatt is entitled to 

judgment as a matter of law. Burton challenged both her allegation of liability and 

the nature and amount of her damages. The only evidence submitted prior to entry 

of the summary judgments was in support of the claims of Anderson Towing 

against Burton. The evidence consisted of the draft traffic collision reports, which 

provided little more than the names of the drivers; their operator’s license numbers, 

addresses, and birth dates; and a short, unsigned narrative. While the narrative 

suggested the possibility of Burton’s negligence, Burton’s counsel refused to 

concede his liability at the hearing conducted on February 28, 2019. Nor is there 

any evidence to support the amount of damages that Wyatt sought to recover. Her

motion for summary judgment was not properly supported, and Burton was under 

no obligation to submit evidence to overcome it. 

 Additionally, we note that Anderson Towing failed to comply with 

KRS2 376.275 to perfect a mechanic’s/garageman’s lien in the amount that it 

 

2 Kentucky Revised Statutes. 
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claims. Also troubling is the conflict as to the amount actually claimed: $7,495.00

demanded in Anderson Towing’s motion for summary judgment of January 10, 

2019, versus the amount of $9,575.00 awarded both to Anderson Towing and to 

Wyatt. That discrepancy needs to be addressed.

Numerous issues of material fact exist to render summary judgment

premature in this case. Consequently, we are compelled to vacate the summary 

judgments and to remand this case for further proceedings. 

ALL CONCUR.

BRIEFS FOR APPELLANT:

William J. Baird IV

Ryan M. Stratton

Pikeville, Kentucky

BRIEF FOR APPELLEE:

Daniel Fayne Dotson

Whitesburg, Kentucky