RENDERED: JANUARY 19, 2024; 10:00 A.M.

NOT TO BE PUBLISHED

Commonwealth of Kentucky

Court of Appeals

NO. 2022-CA-0840-MR

BETTY BALDWIN APPELLANT 

v. 

APPEAL FROM CALLOWAY CIRCUIT COURT

HONORABLE JAMES T. JAMESON, JUDGE

ACTION NO. 20-CI-00092

KENTUCKY NATIONAL 

INSURANCE COMPANY; AND 

HOLTON, MELUGIN AND 

HAVERSTOCK INSURANCE 

AGENCY, INC., D/B/A 

HAVERSTOCK INSURANCE 

AGENCY, INC. APPELLEES 

OPINION

AFFIRMING IN PART, REVERSING IN PART,

AND REMANDING

**   **  **

BEFORE: CALDWELL, JONES, AND TAYLOR, JUDGES.

TAYLOR, JUDGE: Betty Baldwin brings this appeal from a June 21, 2022, 

summary judgment of the Calloway Circuit Court in favor of Kentucky National 

Insurance Agency (KNIC) and Holton, Melugin, and Haverstock Insurance 
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Agency, Inc., d/b/a Haverstock Insurance Agency, Inc. (Haverstock). We affirm in 

part, reverse in part, and remand.

This appeal involves the denial of insurance coverage to Baldwin 

relating to the total loss of her home by fire in October of 2019. The circuit court 

summarized the facts as follows:

1. It is undisputed that Betty Baldwin, hereinafter 

“Baldwin,” incurred a fire loss in 1994. Baldwin 

received approximately $90,000 in insurance 

proceeds as a result of that fire. Baldwin rebuilt the 

existing structure damaged by fire. The new 

structure was a two-story home. Baldwin lived in 

this home until October 13, 2019.

2. On or about 2012, according to Baldwin’s 

Complaint in Calloway 20-CI-00120, Baldwin 

purchased homeowner insurance for the abovedescribed home from American Commerce through 

Holton, Melugin and Haverstock Insurance 

Agency, Inc., d/b/a Haverstock Insurance Agency 

Inc., hereinafter “Haverstock.” Specifically, 

Baldwin interacted with Van Haverstock.

3. Van Haverstock is an agent for multiple insurance 

companies, including American Commerce and 

Kentucky National Insurance Company.

4. Prior to procuring insurance through American 

Commerce, Baldwin called [Van] Haverstock due 

to her relationship with Haverstock’s brother, Gary 

Haverstock. Shortly after the initial call, [Van] 

Haverstock went to Baldwin’s home and performed 

an inspection of the premises. Baldwin’s brother, 

Jerry Davidson, was the only individual present at 

the home during the inspection. Neither Baldwin

nor her husband were present.
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5. Defendant had homeowner insurance from 

American Commerce until approximately 

November of 2017.

6. On or about 2017, Baldwin called [Van]

Haverstock. Baldwin asked Haverstock to look into 

cheaper options for homeowner insurance. [Van] 

Haverstock did not perform any inspections or 

present questions to Baldwin regarding a new 

application for homeowner insurance.

7. On or about November 21, 2017, Baldwin received 

a phone call from “Betsy” at Haverstock. Betsy 

advised Baldwin that she needed to come to the 

office and sign her application. On November 21, 

2017, Baldwin appeared at Haverstock’s office to 

sign the application. The secretary presented the 

application for homeowner’s insurance to Baldwin 

in the reception area of the office. The secretary 

instructed Baldwin on where her signature was 

needed. Without reading, Baldwin signed the 

application. The application was dated November 

21, 2017. Baldwin was not denied an opportunity 

to review the application before signing.

8. According to Baldwin in her deposition on 

September 14, 2021, two of the answers provided 

on the application were incorrect at the time of 

signing. Baldwin indicated in Question 28 that she 

did not specifically have a German Shepperd [sic]. 

Further, Baldwin in Question 32 indicated that she 

had never had a prior fire loss. See Attached 

Kentucky Homeowners Application.

9. Sometime after signing the Kentucky Homeowner 

Application, Baldwin purchased a homeowner 

insurance policy through Kentucky National 

Insurance Company.
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10. On October 13, 2019, a fire occurred and resulted 

in a total loss of the above-described home.

11. On March 5, 2020, after denying Baldwin’s 

coverage, Kentucky National Insurance Company 

(hereinafter “KNI”) filed a Complaint for 

Declaration of Rights and Monetary Damages 

arising from the house fire on October 13, 2019.

12. On March 26, 2020, Baldwin answered KNI’s 

complaint and filed her own counterclaims.

13. On March 26, 2020, Baldwin filed a separate action 

(Calloway Circuit 20-CI-00120) against 

Haverstock. Baldwin claimed that Haverstock was 

liable for the damages incurred by Baldwin which 

were caused by the representations of [Van] 

Haverstock.

14. On June 18, 2020, this case was consolidated with 

20-CI-00120. Third-Party Defendant, Holton, 

Melugin and Haverstock Insurance Agency, Inc., 

d/b/a Haverstock Insurance Agency, Inc., was 

joined because of the similarity in basic facts and 

circumstances.

Order on Summary Judgment at 1-3.

On March 10, 2022, KNIC filed a motion for summary judgment. 

KNIC alleged that Baldwin signed the application for insurance with KNIC and 

that the application contained two misrepresentations. According to KNIC, 

Baldwin answered in the negative as to whether she had any fire losses in the past 

and as to whether she owned a German Shepherd dog; however, KNIC pointed out

that Baldwin had a prior fire loss to her home in 1994 and owned a German 
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Shepherd dog.1 Because of these misrepresentations in the application, KNIC 

maintained that it was permitted to rescind the homeowner’s insurance policy 

pursuant to Kentucky Revised Statutes (KRS) 304.14-110 and Hornback v. 

Bankers Life Insurance Company, 176 S.W.3d 699 (Ky. App. 2005). Haverstock 

joined in KNIC’s motion for summary judgment and sought summary judgment in 

its favor.

Baldwin filed a response and argued that she did not make the 

misrepresentations in the application. Rather, Baldwin asserted that Van

Haverstock or an employee under his direction completed the application, and she 

merely signed same without reading it. Baldwin also alleged that Van Haverstock 

knew that her prior home was destroyed by fire and that she owned a German 

Shepherd dog but negligently completed the application. As Van Haverstock was 

an agent of KNIC, Baldwin maintains that KNIC was estopped from rescinding 

coverage and/or that Haverstock was liable for Van Haverstock’s negligence. 

On June 21, 2022, the circuit court rendered summary judgment in 

favor of KNIC and Haverstock. In so doing, the circuit court reasoned:

Plaintiff, in their renewed and second motion for 

summary judgment, argues that Hornback v. Bankers 

1 The record reflects that due to the 1994 fire loss, Betty Baldwin’s insurance company paid 

$90,000 on the claim. Additionally, the parties acknowledged at oral argument that the dog was 

not involved in causing the fire. Thus, the representation regarding the dog was not material to 

Baldwin’s fire loss claim in 2019.
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Life Insurance Company, 176 S.W.3d 699 (Ky. Ct. App.

2005) is controlling in the matter sub judice based on the 

facts and circumstances presented supra. This Court 

agrees. . . . 

The application process in Hornback is similar to 

the application process in the matter sub judice, though 

not identical. However, the outcome remains the same. 

In Hornback, Garrett, an employee of AMI and an agent 

of the insurer, renewed the application with the 

Hornbacks. The employee read the questions and 

completed the application based on the answers they 

supplied. After completing the application, the employee 

asked the Hornbacks to sign it. The Hornbacks

testified that they were hurried and did not read the 

application before singing it. The Hornbacks

further acknowledged that no one prevented them from 

either reading the form or filling out the answers 

themselves.

In the matter sub judice, some conversations were 

had between Baldwin and [Van] Haverstock. These 

conversations were held telephonically. [Van]

Haverstock, on one occasion, visited and inspected the 

premises. [Van] Haverstock, after the inspection, 

completed an application for homeowner’s insurance

through American Commerce in approximately 2012. 

Baldwin eventually purchased a policy through American 

Commerce. A few years later, in 2017, Baldwin sought a 

new, cheaper policy. The record reflects that Haverstock 

used information from Baldwin’s prior application for 

American Commerce to complete the new application for 

Plaintiff, Kentucky National Insurance Company. At no 

point, as the record reflects, did Haverstock direct new 

questions to Baldwin regarding her new policy. Once 

instructed to appear at Haverstock’s office to sign the 

application, Baldwin complied. Baldwin was not 

precluded from reviewing the application or altering 

answers contained therein. Most importantly, Baldwin 

did not correct the answers provided in Questions 28 and 
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32 – i.e., German Shepherd ownership and prior fire 

losses.

. . . .

Dating back to at least 1945, Kentucky Courts 

have long held that the statements written in applications 

for insurance coverage by a local agent, signed [by] the 

applicant without reading the contents therein, were 

actually or constructively known to the applicant and that 

“she may not thereafter repudiate the answers in the 

application and recover on the policy.” Commonwealth 

Life Ins. Co. v. Bruner, 299 Ky. 335, 185 S.W. 2d 408 

(1945). See also Reserve Life Ins. Co. v. Thomas, 310 

S.W. 2d 267, 269-70 (Ky. 1958). Here, it is undisputed 

that Baldwin did not read the application before signing 

it. Immediately above Baldwin’s Signature is the 

following language:

“I have read the entire application and I warrant that to 

the best of my knowledge and belief all of the statements 

made herein are true. I understand that this application is

part of my policy contract. I understand if any check or 

credit card offered in payment is not honored by my bank 

or credit card company, the Company shall be deemed 

not to have accepted the check or credit card, and the 

policy shall be deemed void from inception and I will be 

charged a processing fee.”

Thus, Baldwin by affixing her signature to the document, 

represented to Kentucky National Insurance Company 

that all statements were true. Baldwin represented to 

Kentucky National Insurance Company that she did not 

own a German Shepherd, a prohibited dog breed. 

Further, Baldwin represented that she had no prior fire 

losses. In fact, it is undisputed that Baldwin received

approximately $90,000.00 in insurance proceeds 

following a fire in 1994. Therefore, it is impossible for 

this Court to conclude anything other than that Baldwin 

made misrepresentations that were material to the 

insurer’s acceptance of the risk and that there is no 
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genuine issue of material fact in this regard. Thus, it 

would be impossible for Baldwin to produce evidence at 

trial that would result in a judgment in her favor. This 

Court concludes that Kentucky National Insurance 

Company is entitled to judgment, as a matter of law. 

Baldwin filed an original action against Haverstock for 

damages, in excess of the minimum jurisdictional limits 

of this Court, sustained by reason of the failure of 

Haverstock to properly and correctly answer the 

questions in the application for insurance with Kentucky 

National Insurance Company. The Court concludes that 

Hornback, again, is controlling. . . . There is no dispute 

in both matters that an agent or an employee of the agent 

for the insurer filled out the application in its entirety. In 

both instances, the insureds never read the application. 

Further, the insureds in both matters were not prevented 

from reading the application and making alterations. The 

Court in Hornback concluded, “as a matter of law, that 

the Hornbacks adopted and were responsible for the 

answers when they signed the application. Thus,

regardless of what disclosures were made to Garrett, the 

responsibility for the answers rests solely with the 

Hornbacks. Under these circumstances, Garrett and AMI 

were, as a matter of law, entitled to a judgment in their 

favor.” Id. at 704. Thus, this Court can only conclude 

that, when renewing the record in a light most favorable 

to Baldwin, there is no genuine issue of material fact, 

and, as a matter of law, Haverstock is entitled to a 

judgment in his favor because it would be impossible for

Baldwin to produce evidence at trial that would produce 

a judgment in her favor.

Order on Summary Judgment at 4-7. The circuit court also awarded KNIC “costs, 

fees, expenses and attorney’s fees.” Order on Summary Judgment at 8. This 

appeal follows.
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To begin, summary judgment is proper where there exists no material

issue of fact and movant is entitled to judgment as a matter of law. Steelvest, Inc. 

v. Scansteel Service Center, Inc., 807 S.W.2d 476 (Ky. 1991). All facts and 

inferences therefrom are to be viewed in a light most favorable to the nonmoving 

party. Seiller Waterman, LLC v. Bardstown Cap. Corp., 643 S.W.3d 68, 74 (Ky. 

2022). Additionally, this Court’s review of a summary judgment is always de 

novo. Id. at 74; Cunningham v. Kroger Ltd. P’ship I, 651 S.W.3d 199, 202 (Ky. 

App. 2022).

Baldwin asserts that the circuit court erred by rendering summary 

judgment in favor of KNIC. In particular, Baldwin argues that KNIC was estopped 

from denying coverage and rescinding her homeowner’s insurance policy. 

According to Baldwin, Van Haverstock or an employee under his direction filled 

out the application in its entirety, and she merely signed the application after being 

contacted to do so. Baldwin asserts that Van Haverstock or his employee 

incorrectly answered the questions in the application despite knowing that she 

owned a German Shepherd dog and that she had previously sustained a major fire 

to her home. Baldwin claims that Van Haverstock was KNIC’s agent, and KNIC 

should be estopped from rescinding her homeowner’s insurance policy.

In a strikingly similar case in 2005, this Court recognized that an 

applicant who signs an insurance application is on constructive notice of its 
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contents and is singularly responsible for the information contained therein. 

Hornback, 176 S.W.3d at 704. Therein, the Court held:

The court faced a similar situation in

Commonwealth Life Ins. Co. v. Bruner, 299 Ky. 335, 185 

S.W.2d 408 (1945). Therein, the applicant on a life 

insurance policy made false statements material to the 

risk in the application. Upon her son’s death, the 

applicant sought to recover under the policy. While it 

was clear that the answers given by the applicant in the 

application were false, the applicant claimed that she did 

not read it before signing it. Nevertheless, the court held 

that the statements written in the application by the local 

agent were actually or constructively known to the 

applicant and that “she may not thereafter repudiate the 

answers in the application and recover on the policy.”

Id. at 410. See also Reserve Life Ins. Co. v. Thomas, 310 

S.W.2d 267, 269-70 (Ky. 1958). In short, whether they 

read the application or not, the Hornbacks are held to 

have actual or constructive knowledge of its contents. 

Further, by signing the application, the Hornbacks 

adopted the answers as their own.

Hornback, 176 S.W.3d at 704. 

Baldwin believes that Hornback, 176 S.W.3d 699 is distinguishable 

from the case at hand; however, we do not read Hornback so narrowly. Hornback 

is clear that an applicant is, as a matter of law, responsible for the answers, correct 

or incorrect, in an insurance application when he or she signs their name. Id. It 

matters not whether the applicant or the insurance agent filled out the application. 

We, thus, reject Baldwin’s contention that KNIC should be estopped from denying 

coverage and rescinding the policy. 
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Baldwin next contends that the incorrect answers in the homeowner’s 

insurance application were not material per KRS 304.14-110(2), and as such, 

KNIC could not rescind the homeowner’s insurance policy. Baldwin asserts that 

her prior fire loss occurred some 23 years before she signed the application for 

homeowner’s insurance with KNIC. Baldwin points out “that C.L.U.E. 

(Comprehensive Loss Underwriting Exchange), the Nationwide database used by 

insurance companies to determine previous losses, only goes back” approximately 

seven years. Baldwin’s Brief at 6. Additionally, Baldwin maintains that American 

Commerce Insurance, her previous homeowner’s insurance company, only 

inquired about any loss over the last five years. To be material under KRS 304.14-

110(2), Baldwin claims that KNIC had to demonstrate that acting reasonably and 

in accordance with the usual industry practice, it would have not issued insurance 

coverage. In this instance, Baldwin asserts that the incorrect answers in the 

application were not material per KRS 304.14-110(2).

KRS 304.14-110 controls where a misrepresentation is made in an 

insurance application. KRS 304.14-110 provides:

All statements and descriptions in any application for an 

insurance policy or annuity contract, by or on behalf of 

the insured or annuitant, shall be deemed to be 

representations and not warranties. Misrepresentations, 

omissions, and incorrect statements shall not prevent a 

recovery under the policy or contract unless either:

(1) Fraudulent; or
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(2) Material either to the acceptance of the risk, or to the 

hazard assumed by the insurer; or

(3) The insurer in good faith would either not have issued 

the policy or contract, or would not have issued it at 

the same premium rate, or would not have issued a 

policy or contract in as large an amount, or would not 

have provided coverage with respect to the hazard 

resulting in the loss, if the true facts had been made

known to the insurer as required either by the 

application for the policy or contract or otherwise. 

This subsection shall not apply to applications taken 

for workers’ compensation insurance coverage.

Relevant to this appeal, under KRS 304.14-110(2), the insurer may rescind a policy 

where the misrepresentation was “[m]aterial either to the acceptance of the risk, or 

to the hazard assumed by the insurer[.]” An incorrect answer in the application is 

considered material” if the insurer, “acting reasonably and naturally in accordance 

with the usual practice of . . . insurance companies under similar circumstances, 

would not have accepted the application . . . .” John Hancock Mut. Life Ins. Co. v. 

Conway, 240 S.W.2d 644, 646 (Ky. 1951). And, under KRS 304.14-110(3), the 

insurer may rescind an insurance policy where the insurer, acting in good faith, 

would not have issued the policy, would not have issued it at the same premium, or 

would not have covered the hazard causing the loss if the true facts were known to

the insurer. It must be pointed out that the insurance company is permitted to 

rescind an insurance policy under subsection (1), (2), or (3) of KRS 304.14-110.
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In this case, it is undisputed that Baldwin suffered a major fire loss to 

her previous home in 1994 and was paid $90,000 by her homeowner’s insurance 

company. It is also uncontroverted that in the insurance application with KNIC, 

Baldwin was asked if she “ever had a fire loss,” and the answer was no.

The record contains KNIC’s underwriting guidelines filed with the 

Kentucky Department of Insurance. The guidelines provide that KNIC would not 

have bound a homeowner’s insurance policy if the applicant had previously 

incurred a total or major loss. A total or major loss was identified as “[r]isks with 

a prior total fire loss or a major loss including any fire or theft loss in excess of 

$5,000 or any other loss that is not weather or catastrophe related in excess of

$10,000 . . . .” In his depositional testimony, Gary Rogers, KNIC’s Vice-President 

of underwriting, stated if an applicant for homeowner’s insurance had previously 

incurred a major fire loss in excess of $10,000, KNIC would not issue a policy of 

insurance. According to Rogers, it is KNIC’s customary and usual practice to not 

issue homeowner’s insurance if the applicant previously suffered a major fire loss. 

Baldwin, however, failed to present any evidence disputing that it was 

KNIC’s usual and customary practice not to issue a homeowner’s insurance policy

if there has been a prior major fire loss. See Blackstone Mining Co. v. Travelers 

Ins. Co., 351 S.W.3d 193, 198 (Ky. 2010) (citing Lewis v. B&R Corp., 56 S.W.3d 

432, 436 (Ky. App. 2001)) (holding that the moving party carries the initial burden 
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of demonstrating that no genuine issue of material fact exists; thereafter, the 

burden shifts to the nonmoving party to present some evidence showing there is a 

genuine issue of material fact for trial). Based upon the above uncontroverted 

facts, it is clear that KNIC, acting in good faith, would not have issued the 

homeowner’s policy absent the misrepresentations in the application. Therefore, 

we conclude that KNIC was permitted to rescind the homeowner’s policy of 

insurance pursuant to KRS 304.14-110(3).2

Baldwin also maintains that the circuit court erroneously rendered 

summary judgment dismissing her negligence claim against Haverstock. Baldwin 

claims Van Haverstock knew that she had a previous major fire loss to her home 

and that she owned a German Shepherd dog. Despite such knowledge, Baldwin 

asserts that Van Haverstock or an employee acting under his direction incorrectly 

answered questions concerning same in the insurance application and was 

negligent by doing so.

Again, we view Hornback, 176 S.W.3d 699 as dispositive. In 

Hornback, the Hornbacks contended that an agent of an insurance company acted 

negligently and breached a fiduciary duty by incorrectly filling out the application 

2 Baldwin also maintains that the circuit court rendered summary judgment under subsection (2) 

of Kentucky Revised Statutes 304.14-110, rather than subsection (3). Nonetheless, the law is 

clear that we may affirm the circuit court upon any basis in the record, and our review of 

summary judgment is de novo. 
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of insurance by indicating that Hornback did not suffer from a disease of the heart. 

Id. at 701. The Hornbacks alleged that they disclosed Hornback’s heart condition 

to the agent. Id. In affirming the circuit court’s summary judgment in favor of the 

agent, the Court of Appeals pointed out that the Hornbacks did not read the 

application before signing it even though they were free to do so. Id. at 704. The 

Court held that “as a matter of law, the Hornbacks adopted and were responsible 

for the answers when they signed the application. Thus, regardless of what 

disclosures were made [to the agent], the responsibility for the answers rests solely 

with the Hornbacks.” Hornback, 173 S.W.3d at 704. The Court then concluded 

that the insurance agent was entitled to summary judgment upon the negligence 

claim and breach of fiduciary duty claim as a matter of law. Id.

Likewise, in our case, Baldwin signed the insurance application 

without reading it. Per Hornback, 173 S.W.3d at 704, Baldwin is solely 

responsible for the answers in the application, and Haverstock was entitled to 

summary judgment dismissing Baldwin’s claim of negligence. Absent any 

allegation or evidence of fraud by Haverstock, we are duty bound to follow 

Hornback and Bruner cited therein. Supreme Court Rule 1:030(8).

Baldwin lastly argues that the circuit court erroneously awarded 

attorney’s fees to KNIC. We agree.
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In Kentucky, it is well-established that attorney’s fees are not awarded 

to the prevailing party unless a statute or contractual provision specifically permits 

recovery thereof. Bell v. Commonwealth, Cabinet for Health and Fam. Servs., 423 

S.W.3d 742, 748 (Ky. 2014); AnyConnect U.S., LLC v. Williamsburg Place, LLC, 

636 S.W.3d 556, 565 (Ky. App. 2021). 

In its summary judgment awarding KNIC attorney’s fees, the circuit 

court did not cite to a statutory or contractual provision authorizing an award of 

attorney’s fees to KNIC, and we are aware of none. Moreover, KNIC fails to 

address its entitlement to attorney’s fees in its brief. Accordingly, we are of the 

opinion that KNIC was not entitled to an award of attorney’s fees, and the circuit 

court erred by awarding same in the summary judgment.

To summarize, we are of the opinion that the circuit court properly 

rendered summary judgment dismissing Baldwin’s claims against KNIC and 

Haverstock but improperly awarded KNIC attorney’s fees.

For the foregoing reasons, the summary judgment of the Calloway 

Circuit Court is affirmed in part, reversed in part, and remanded for proceedings 

consistent with this Opinion.

CALDWELL, JUDGE, CONCURS.

JONES, JUDGE, CONCURS IN RESULT ONLY.
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BRIEF FOR APPELLANT:

Robert L. Prince

Benton, Kentucky

ORAL ARGUMENT FOR 

APPELLANT:

Bethany Willcutt

Benton, Kentucky

BRIEF AND ORAL ARGUMENT 

FOR APPELLEE KENTUCKY 

NATIONAL INSURANCE 

COMPANY:

Ben E. Stewart

Paducah, Kentucky

BRIEF FOR APPELLEE HOLTON, 

MELUGIN AND HAVERSTOCK

INSURANCE AGENCY, INC., 

D/B/A HAVERSTOCK INSURANCE 

AGENCY, INC.:

Ben S. Fletcher, III

Hopkinsville, Kentucky