RENDERED: AUGUST 28, 2020; 10:00 A.M.

NOT TO BE PUBLISHED

Commonwealth of Kentucky

Court of Appeals

NO. 2019-CA-000846-MR

JEFFREY G. STAGNARO,

ADMINISTRATOR OF THE 

ESTATE OF DAVID BOUMA APPELLANT

APPEAL FROM CAMPBELL CIRCUIT COURT

v. HONORABLE DANIEL J. ZALLA, JUDGE

ACTION NOS. 17-CI-00308 AND 17-CI-00422

STATE FARM MUTUAL AUTOMOBILE

INSURANCE COMPANY APPELLEE

OPINION

AFFIRMING

**   **  **

BEFORE: GOODWINE, K. THOMPSON, AND L. THOMPSON, JUDGES.

GOODWINE, JUDGE: The estate of insured, an Ohio resident who was killed in 

a car accident in Kentucky, filed a claim for underinsured motorist (“UIM”) 

benefits. The Campbell Circuit Court denied coverage, finding Ohio law did not 

entitle insured to UIM coverage. After careful review, finding no error, we affirm.
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On March 15, 2016, decedent David Bouma (“Bouma”) was driving 

on the I-275 bridge crossing the Ohio River from Campbell County into Ohio 

when he was killed in an accident involving an R&L Carriers (“R&L”) tow truck 

and Brittany Asch (“Asch”). R&L had a $4,000,000 liability insurance policy 

limit, and Asch had a liability policy with a $100,000 limit. Bouma’s estate filed 

suit against the above-named at-fault parties, and after extensive litigation, they 

entered into a confidential settlement agreement. 

After Bouma’s estate settled with the tortfeasors, the only remaining 

issue before the circuit court was whether the estate was entitled to UIM benefits 

under Bouma’s State Farm Mutual Automobile Insurance Company’s (“State 

Farm”) policy. State Farm and Bouma’s estate filed cross-motions for summary 

judgment. The issues were whether Ohio or Kentucky law applied under the facts 

of the case and then whether the estate was entitled to UIM benefits of up to 

$250,000. State Farm argued Ohio law applied under the most significant 

relationship test, and the estate was not entitled to any UIM benefits. Under Ohio 

law, State Farm argued, the estate was not entitled to receive payment because the 

total amount of recovery from both parties exceeded Bouma’s $250,000 UIM 

coverage. Bouma’s estate argued Kentucky law applied and entitled him to the full 

amount of his $250,000 UIM coverage. Alternatively, Bouma’s estate argued, 

under Ohio law, it was entitled to recover $150,000 in UIM benefits because the 
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at-fault parties were severally liable, and it only recovered $100,000 from Asch’s 

liability policy.

The circuit court held Ohio law applied under the most significant 

relationship test. The court further found, under Ohio Law, the estate was not 

entitled to receive UIM benefits. This appeal followed. 

On appeal, Bouma’s estate argues the circuit court erred in 

determining: (1) Ohio law applied and (2) the estate was not entitled to $150,000 

in UIM coverage for Asch’s tortious conduct. “The questions presented are all 

purely legal ones concerning the scope of coverage provided by an insurance 

contract. Our standard of review, therefore, is de novo.” State Farm Mut. Auto. 

Ins. Co. v. Hodgkiss-Warrick, 413 S.W.3d 875, 878 (Ky. 2013) (citing Dowell v. 

Safe Auto Ins. Co., 208 S.W.3d 872 (Ky. 2006)).

First, Bouma’s estate argues Kentucky law applies under the most 

significant relationship test. In resolving “choice of law issues that arise in 

contract disputes[,]” we apply the following four factors to determine which state 

has the most significant relationship to the transaction and the parties: “the place 

or places of negotiating and contracting; the place of performance; the location of 

the contract’s subject matter; and the domicile, residence, place of incorporation 

and place of business of the parties.” Id. at 878-79 (citing RESTATEMENT (SECOND)

CONFLICT OF LAWS § 188(2) (1971)).
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Here, Bouma was an Ohio resident who entered into the State Farm 

insurance contract at issue in Ohio. The State Farm policy specifically provides 

Ohio law would apply to any claims brought under the policy. Bouma’s vehicle 

was garaged and licensed in Ohio. Although Bouma drove to Kentucky for work 

at times, the accident occurred in Kentucky, and Bouma’s estate was opened in 

Kentucky, these factors are far outweighed by the significant relationship Ohio has 

with the parties and the insurance transaction. As such, the circuit court correctly 

applied the most significant relationship test and found that Ohio law applied. 

The estate further argues that even if Ohio has the most significant 

relationship to the transaction, Kentucky law still applies because Ohio’s law 

violates Kentucky’s public policy. Our Supreme Court addressed this issue in the 

context of Pennsylvania law in Hodgkiss-Warrick and held that application of 

Pennsylvania law did not violate Kentucky’s public policy based on the following 

reasoning:

In Zeitz v. Foley, 264 S.W.2d 267, 268 (Ky. 1954), our 

predecessor Court, emphasizing that “contracts 

voluntarily made between competent persons are not to 

be set aside lightly,” and that “the right of private 

contract is no small part of the liberty of the citizen,” 

observed that public policy would not bar enforcement of 

a contract unless “it clearly appears that [the] contract has 

as its direct object and purpose a violation of the Federal 

or state constitution, Federal or state statutes, some 

ordinance of a city or town, or some rule of the common 

law.” More recently, in Kentucky Farm Bureau Mut. Ins. 

Co. v. Thompson, 1 S.W.3d 475, 476-77 (Ky. 1999), we 
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reiterated that public policy, invoked to bar the

enforcement of a contract, is not simply something courts 

establish from general considerations of supposed public 

interest, but rather something that must be found clearly 

expressed in the applicable law.

Hodgkiss-Warrick, 413 S.W.3d at 880-81. In determining whether the law of the 

state with the most significant relationship to the transaction violates Kentucky’s 

public policy, the key question is “whether the public policy was so strong as to 

require a Kentucky court to interject Kentucky law into a dispute having none but a 

fortuitous connection with Kentucky.” Id. at 882. 

Here, Bouma agreed Ohio law would apply to any claims arising from 

the policy when he entered into the insurance agreement with State Farm. The 

only connections this transaction has with Kentucky are that the accident occurred 

on the Kentucky side of a bridge crossing the river into Ohio and the estate was 

opened in Kentucky. As in Hodgkiss-Warrick, Ohio and Kentucky merely have 

competing public policies regarding UIM coverage, and no Kentucky resident is 

affected. Id. at 882-83. There is no reason to interfere with the contract between 

the parties or the balance of insurance coverage and insurance affordability Ohio 

has chosen for its residents. Id. Thus, the circuit court correctly found Kentucky 

public policy does not require application of Kentucky law in this instance. 

Second, the estate argues, if Ohio law applies, it was entitled to 

receive $150,000 in UIM coverage from State Farm because Asch’s policy limit of 
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$100,000 did not exceed Bouma’s UIM coverage of $250,000. R.C.1 3937.18(C)

establishes the conditions which must be present to receive payment of UIM 

coverage: 

If underinsured motorist coverage is included in a policy 

of insurance, the underinsured motorist coverage shall 

provide protection for insureds thereunder for bodily 

injury, sickness, or disease, including death, suffered by 

any insured under the policy, where the limits of 

coverage available for payment to the insured under all 

bodily injury liability bonds and insurance policies 

covering persons liable to the insured are less than the 

limits for the underinsured motorist coverage. 

Underinsured motorist coverage in this state is not and 

shall not be excess coverage to other applicable liability 

coverages, and shall only provide the insured an amount 

of protection not greater than that which would be 

available under the insured’s uninsured motorist 

coverage if the person or persons liable to the insured 

were uninsured at the time of the accident. The policy 

limits of the underinsured motorist coverage shall be 

reduced by those amounts available for payment under 

all applicable bodily injury liability bonds and insurance 

policies covering persons liable to the insured.

For purposes of underinsured motorist coverage, an 

“underinsured motorist” does not include the owner or 

operator of a motor vehicle that has applicable liability 

coverage in the policy under which the underinsured 

motorist coverage is provided.

In Clark v. Scarpelli, 744 N.E.2d 719 (Ohio 2001), the Supreme Court 

of Ohio addressed “the meaning of the ‘amounts available for payment’ language 

set forth in the statute.” Id. at 272. The Court noted “that the statute was intended 

 

1 Ohio Revised Code.
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to ensure that a person injured by an underinsured motorist should never be 

afforded greater protection than that which would have been available had the 

tortfeasor been uninsured.” Id. at 276. The Court held “that for the purpose of 

setoff, the ‘amounts available for payment’ language in R.C. 3937.18(A)(2) means 

the amounts actually accessible to and recoverable by an underinsured motorist 

claimant from all bodily injury liability bonds and insurance policies (including 

from the tortfeasor’s liability carrier).” Id. at 279-80; Littrell v. Wigglesworth, 746 

N.E.2d 1077, 1084 (Ohio 2001). 

Furthermore, in cases involving multiple tortfeasors, the Ohio Court 

of Appeals has held “the plain language of the statute requires that all liability 

bonds and insurance policies for all ‘persons liable’ to the insured be considered in 

toto.” Vawter v. Select Transp., Inc., No. 99AP-191, 1999 WL 1080114, at *5 

(Ohio Ct. App. Dec. 2, 1999); see also Masenheimer v. Disselkamp, No. CA2002-

08-200, 2003 WL 435785 (Ohio Ct. App. Feb. 24, 2003); Gray v. State Farm Mut. 

Auto. Ins. Co., No. CA2001-07-174, 2002 WL 336943 (Ohio Ct. App. Mar. 4, 

2002); Roberts v. Allstate Ins. Co., No. CA2001-06-133, 2001 WL 1598274 (Ohio 

Ct. App. Dec. 17, 2001). Although these cases addressing multiple tortfeasors are 

unpublished, the factual circumstances in each case are more comparable to the 

facts at hand than any published case law, and their holdings are consistent with 

the holding in Clark. As such, they are instructive in rendering our decision.
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Based on our review of the statute and relevant case law, we hold the 

limitation in R.C. 3937.18(C) applies to both tortfeasors jointly. The combined 

limits of coverage available for payment to Bouma from “all persons liable” is 

$4,100,000, which far exceeds the $250,000 limits of his UIM coverage. 

Therefore, the circuit court correctly found the estate was not entitled to any UIM 

benefits.

For the foregoing reasons, we affirm the judgment of the Campbell 

Circuit Court. 

ALL CONCUR.

BRIEFS FOR APPELLANT:

Tad Thomas

Lindsy Lopez

Louisville, Kentucky

BRIEF FOR APPELLEE:

Susanne M. Cetrulo

Edgewood, Kentucky