RENDERED: SEPTEMBER 3, 2021; 10:00 A.M.

TO BE PUBLISHED



# Commonwealth of Kentucky

Court of Appeals

NO. 2020

- CA

- 0680

- MR

KRISTINA D. BRATCHER APPELLANT

v. APPEAL FROM JEFFERSON CIRCUIT COURT

HONORABLE BARRY WILLETT, JUDGE

ACTION NO. 16

- CI

- 005608

STATE FARM FIRE AND

CASUALTY COMPANY; STATE

FARM GENERAL INSURANCE

COMPANY; AND STATE FARM

MUTUAL AUTOMOBILE

INSURANCE COMPANY APPELLEES

OPINION

REVERSING AND REMANDING

**   **  **

BEFORE: DIXON, KRAMER, 1 AND M c NEILL

, JUDGES.

1 Judge Joy A. Kramer concurred in this Opinion prior to her retirement effective September 1,

2021. Release of the Opinion was delayed by administrative handling.- 2

-

M c NEILL, JUDGE: Kristina D. Bratcher (“Kristina”) appeals from an order of the

Jefferson Circuit Court granting summary judgment in favor of State Farm 2 on her

claims for underinsured motorist (“UIM”) benefits. After careful review, we

reverse and remand.

On April 16, 2016, Kristina was injured in a motorcycle accident

while riding on a motorcycle operated by Raymond Negron. Kristina filed a claim

for UIM benefits under three policies 3 issued by State Farm to Kristina ’ s parents,

Don and Tina Bratcher. The policy D eclarations P age lists the named insured as

“Bratcher, Don & Tina L, 439 Hillcrest Ave., Louisville, KY 40206

- 1508.”

At the time of the accident, Kristina was approximately 34 years old

and living at 107 Forest Court in Louisville, Kentucky, a rental property owned by

her parents. Her mother, who had recently separated from her father, was living

with her

. Kristina had not lived with her parents at the 439 Hillcrest address since

she was 17 years old.

The parties agree Kristina is not a named insured on the policy and

that she is entitled to coverage only if she qualifies as a “resident relative” under

the policy ’ s terms. The definitions section of the policy provides in relevant part:

2 The appellees are State Farm Fire and Casualty Company, State Farm General Insurance

Compa ny, and State Farm Mutual Automobile Insurance Company. For ease of reference, we

will refer to them collectively as “State Farm.”

3 The relevant language of the three policies is identical. Therefore, for simplicity, we will refer

to these policies as a singular policy.- 3

- Resident Relative means a person

, other than you

, who

resides primarily with the first person shown as a named

insured on the Declarations Page and who is:

1. related to that named insured or his or her spouse by

blood, marriage, or adoption, including an unmarried and

unemancipated child of either who is away at school and

otherwise maintains his or her primary residence with

that named insured; or

2. a ward or a fo ster child of that named insured, his or

her spouse, or a person described in 1. above.

The policy further defines “person” as “a human being.”

On November 10, 2016, Kristina filed suit against State Farm in

Jefferson Circuit Court seeking UIM benefits. State Farm moved for summary

judgment, arguing that Kristina did not qualify as a “resident relative” under the

terms of the policy. On October 25, 2019, the circuit court granted State Farm ’ s

motion for summary judgment, finding Kristina was not entitled to UIM benefits

because she did not “reside primarily with the first person shown as a named

insured on the Declarations page []

, ” which the Court found to be Don Bratcher,

based upon the fact that his name appears before Tina ’ s. This appeal followed.

On appeal, “[t]he standard of review

. . . of a summary judgment is

whether the circuit judge correctly found that there were no issues as to any

material fact and that the moving party was entitled to a judgment as a matter of

law. Summary judgment is appropriate where the movant shows that the adverse- 4

-

party could not prevail under any circumstances.” Pearson ex rel

. Trent v. Nat ’ l

Feeding Sys., Inc.

, 90 S.W.3d 46, 49 (Ky. 2002).

Further, the construction and interpretation of an insurance policy is a

question of law which we review de novo

. Isaacs v. Sentinal Ins. Co. Ltd.

, 607

S.W.3d 678, 681 (Ky. 2020). When interpreting insurance contracts, courts in

Kentucky are guided by two cardinal principles: “(1) the contract sh ould be

liberally construed and all doubts resolved in favor of the insured s ; and

, (2)

exceptions and exclusions should be strictly construed to make insurance

effective.” Kentucky Farm Bureau Mutual Insurance Co. v. McKinney

, 831

S.W.2d 164, 166 (Ky. 1992) (citation s omitted)

.

Kristina argues that the circuit court erred in finding that she was not a

“resident relative” under the policy. Specifically, Kristina argues the policy

language is ambiguous because “named insured” on the D eclarations P age is

singular and Don and Tina Bratcher are listed as a single insured: “Bratcher, Don

and Tina L.” She contends State Farm could have delineated which party was the

“first” insured, but it did not do so. Instead, the D eclarations P age lists the

Bratchers together, as husband and wife, giving them equal status as named

insureds. Kristina cites State Farm Mut ual Auto mobile Ins urance Companies v.

Queen

, 212 Mont. 62, 64, 685 P.2d 935, 936

- 37 (1984)

, in support of her position.- 5

- In that case, under similar facts, a divided Montana Supreme Court

held nearly identical policy language to be ambiguous. There, the D eclarations

P age listed the insureds as: “Queen, Gary A. and Rhonda R.” The majority noted

that the first

- named in the declaration was simply “Queen.” Id. , 212 Mont. a t 65,

685 P.2d at 937. Following the last name, the names Gary and Rhonda were

coupled. This suggested “an intention on the part of State Farm to grant no

preference to one of the individuals as a first

- named insured

. . . .” Id.

Here, the policy ’ s listing of “Bratcher, Don and Tina L” similarly

indicates an intention to not give preference to Don or Tina as the “first person

shown as a named insured on the declarations page.” Supporting this interpretation

is the fact that “name d insured” is singular on the D eclarations P age above where

“Bratcher, Don and Tina L ” is listed, suggesting Don and Tina were considered a

single unit. However, the circuit court found that Don Bratcher was the “first

person listed as a named insured,” based upon the simple fact that his name

appears before Tina ’ s on the D eclarations P age. Both interpretations are

reasonable. Therefore, we find the policy ambiguous. See Cantrell Supply, Inc. v.

Liberty Mut. Ins. Co.

, 94 S.W.3d 381, 385 (Ky. App. 2002) (citations omitted) (“A

contract is ambiguous if a reasonable person would find it susceptible to different

or inconsistent interpretations.”). “Additionally, we adhere to our long

- held

standard that when we interpret insurance contracts, perceived ambigu ities and- 6

-

uncertainties in the policy terms are generally resolved in favor of the insured.”

Thomas v. State Farm Fire & Cas. Co. , ___ S.W.3d ___, No. 2020

- SC

- 0061

- DG,

2021 WL 2603412, at *2 (Ky. Jun. 17, 2021) (citing Kentucky Ass’n of Ctys. All

Lines Fu nd Tr. v. McClendon , 157 S.W.3d 626, 630 (Ky. 2005)). Accordingly, we

hold both Don and Tina are first

- named insureds under the policy.

Because Kristina was residing with Tina at the time of the accident,

there is a genuine issue of material fact as to whether Kristina qualifies as a

resident relative under the policy. The policy defines “resident relative” as “ a

person, other than you, who resides primarily with the first person shown as a

named insured on the Declarations Page

. . . .” Based upon the record, it is unclear

whether Kristina “reside[d] primarily” with Tina at the time of the accident.

Kristina has lived at 107 Forest Court since 2001. Tina has lived at

439 Hillcrest since 1991 but moved in with Kristina around March of 2016. Tina

stated in her deposition that she believed her move to 107 Forest Court was

indefinite. However, Kristina testified that she did not view her mother as living

with her because she did not think the arrangement was permanent and her mother

came and went as she pleased. Kristina also stated her mother did not move her

clothing into the house but left it in the car, slept on the couch, and did not stay the

night every night. Additionally, while Tina stated she lived at 107 Forest Court for

six months, Kristina testified that it was less than two months.- 7

- “Residency and intent are questions of fact and not of law where the

evidence supports more than one inference upon which reasonable minds may

differ.” Perry v. Motorists Mut. Ins. Co.

, 860 S.W.2d 762, 764 (Ky. 1993).

Further, “while the meaning of words in an insurance contract is a question of law,

whether the conduct of the policyholder meets the definition of those words is a

question of fact for the jury.” Marshall v. Kentucky Farm Bureau Mut. Ins. Co.

,

618 S.W.3d 499, 502 (Ky. App. 2020), discretionary review denied (Mar. 17,

2021) (citation omitted).

We view any remaining contentions of error as being moot or without

merit.

For the foregoing reasons, the order of the Jefferson Circuit Court is

reversed, and this case is remanded for proceedings consistent with this Opinion.

KRAMER, JUDGE, CONCURS.

DIXON, JUDGE, CONCURS AND FILES SEPARATE OPINION.

DIXON, JUDGE, CONCURRING: I concur with the majority that

State Farm ’ s Declarations Page is ambiguous and requires reversal of the trial

court ’ s finding otherwise. I believe it is not at all clear under these insurance

policies who is, in fact, the first

- named insured. The policies define the insureds

as: “ You or Your means the named insured or named insureds shown on the

Declarations Page.” (Emphasis added

. ) While this definition makes a distinction- 8

-

for multiple insureds, the D eclarations P age makes no such distinction. That page

indicates only one “INSURED

, ” i.e.

, not more than one. Thus, it appears that the

Declarations Page itself recognizes only one insured

– the couple. Therefore, and as

argued by Appellant, the policies which are drafted solely by the insurance

company, “must be held strictly accountable for the language used.” St. Paul Fire

& Marine Ins. Co. v. Powell

- Walton

- Milward, Inc.

, 870 S.W.2d 223, 227 (Ky.

1994). Consequently, I would determine coverage in this regard includes Tina as a

first

- named insured.

However, I write separately to address what I believe to be of greater

concern. State Farm ’ s Declarations Page for the automobile insurance policies at

issue reflect s the following:

NAMED INSURED

BRATCHER, DON & TINA L

Appellant contends that by identifying the Bratchers together, State Farm has made

no distinction between husband and wife “being any particular class of insured

. ”

Appellant Brief, pg. 3. She argues there is nothing in the automobile policies

which would put a policyholder on notice of any differentiation between Don and

Tina. Thus, the sole question before us is whether Don should be considered the

first

- named insured where both spouses are referenced together by a husband ’ s

surname?- 9

- First, let us consider the cultural tradition of wives taking their

husband ’ s surnames upon marriage an d the resulting legal implications. This

practice historically was known as coverture.

Coverture is the legal concept of a married woman falling

under the authority of her husband without a legal

identity of her own. It appeared in England relatively

early

– a round the eleventh century, brought to the region

by the Normans. Yet, what emerged in formal legal

treatises did not manifest in everyday practice, as women

continued to exercise considerable autonomy in public

life. By about the eighteenth century, however, the rules

of coverture became firmly embedded and strictly

enforced within both private and public life. Women

were no longer permitted to own property in their own

right; where they had been inheriting fairly regularly

until around the fourteenth century, inheritance rules now

gave preference to males in the devising of property,

even distantly related ones, over direct female

descendants

.

Deborah Anthony, Eradicating Women ’ s Surnames: Law, Tradition, and the

Politics of Memory

, 37 C OLUM

. J. G ENDER & L. 1 , 8 (2018) (footnotes omitted).

What began as a custom soon became a command.

[T] he practice of a wife surrendering her name for her

husband ’ s was as close to a legal requirement during the

modern period as it could be without having any actual

legal support as such. The practice became so

entrenched, in fact, with such significant implications

attached thereto, that when American women began to

assert their common law right to choose their name in the

late nineteenth and early twentieth centuries, the legal

response was swift and negative. In the absence of legal

precedent, government and courts stepped in to create it

out of whole cloth. The circumstances under which such- 10

- cases arose were various. Although women could not be

definitively forced to adopt the surname of their

husbands in common usage, they could be

– a nd were

–

p unished for their refusal to do so in legal documents,

with the sanction of state and federal governments and

courts all the way into the 1970s. In a multitude of

contexts, courts refused to recognize the individual

identities of married women who had retained their birth

names, instead holding that their proper and correct

identification in the eyes of the law was as the wife of a

given man. The implications of such rulings are more

profound than the simple question of a person ’ s chosen

moniker; a woman ’

s entire legal existence was

contingent and relational. Allowing her an

independent name might also suggest an independent

identity, and courts were loath to permit that.

Id

. at 10

- 11 (footnotes omitted) (emphasis added). Kentucky courts, unfortunately,

were no different. In Whitlow v. Hodges

, 539 F.2d 582 (6 th Cir. 1976), a married

woman filed suit in the Eastern District of Kentucky after she was required to

make application for a driver ’ s license in the surname of her husband, despite the

fact she maintained her maiden name for all other purposes. Whitlow alleged this

policy violated her civil rights under the due process and equal protection clauses

of the Fourteenth Amendment. Id

. at 583. In affirming the district court ’ s

dismissal of Whitlow ’ s suit, the Sixth Circuit relied on a federal district court ’ s

decision in Alabama dismissing a factually similar case. Therein the Court,

reviewing Alabama common law which required a wife to take her husband ’ s

surname upon marriage, observed:- 11

- the plaintiff has

. . . attacked the Alabama Supreme

Court ’ s adoption of the common law rule which requires

a wife upon marriage to take her husband ’ s surname.

This judicial pronouncement, as with any state statute or

regulation, must have a rational basis. It is well settled

that “the Equal Protection Clause does not make every

minor difference in the application of laws to different

groups a violation of our Constitution.” Williams v.

Rhodes, 1968, 393 U.S. 23, 30, 89 S. Ct. 5, 10, 21 L. Ed.

2d 24. Thus, as a general rule, a law is not violative of

the Fourteenth Amendment, despite the existence of

discrimination in the technical or broad sense, where the

law at issue maintains some rational connection with a

legitimate state interest. E.g.

, McDonald v. Board of

Election Commissioners, 1969, 394 U.S. 802, 808

- 809,

89 S. Ct. 1404, 22 L. Ed. 2d 739; Kotch v. Board of

River Port Pilots Commissioners, 1947, 330 U.S. 552, 67

S. Ct. 910, 91 L. Ed. 1093. Furthermore, when a court is

presented with a challenge to a seemingly valid state law

on equal protection grounds, it must sustain that law if it

can discern any rational basis. E.g. Dandridge v.

Williams, 1970, 397 U.S. 471, 90 S. Ct. 1153, 25 L. Ed.

2d 491; Metropolitan Casualty Insurance Co. v.

Brownell, 1935, 294 U.S. 580, 55 S. Ct. 538, 79 L. Ed.

1070; Borden ’ s Farm Products Co. v. Baldwin, 1934, 293

U.S. 194, 55 S. Ct. 187, 79 L. Ed. 281.

Forbush v. Wallace

, 341 F.Supp. 217, 22 2 (M.D. Ala. 1971), aff ’ d

, 405 U.S. 970,

92 S. Ct. 1197, 31 L. Ed. 2d 246 (1972)

. The Court determined:

the state has a significant interest in maintaining close

watch over its licensees. The confusion which would

result if each driver were allowed to obtain licenses in

any number of names he desired is obvious. This would

be true not only of the maintenance of driving records,

but also of the identification purposes to which a license

is put, whether traffic

- related or otherwise. Thus, it is

reasonable for the Department of Public Safety to require

each driver to secure a license only in his “legal name.”- 12

-

Id

. at 221

- 22. The Court then concluded:

[t]he evidence in this case reflects that the State of

Alabama ’ s system of issuing drivers ’ licenses and

maintaining control over its licensees represents a

considerable investment. In balancing the interest of the

plaintiff and the members of plaintiff ’ s class against the

interest of the state, this Court concludes that the

administrative inconvenience and cost of a change to the

State of Alabama far outweigh the harm caused the

plaintiff and the members of plaintiff ’ s class. In

balancing these interests, this Court notes that the State

of Alabama has afforded a simple, inexpensive means by

which any person, and this includes married women, can

on application to a probate court change his or her name.

Title 13, Section 278, Code of Alabama (Recomp. 1958).

Thus, on balance, plaintiff ’ s injury, if any, through the

operation of the law is de minimis.

We conclude, therefore, that the existing law in

Alabama which requires a woman to assume her

husband ’ s surname upon marriage has a rational basis

and seeks to control an area where the state has a

legitimate interest.

Id

. at 222

- 23. Thus, the wife was required to request a name change, not by statute

but by common law, seeking a name change just to retain her maiden name.

It is within this context of history I turn to State Farm ’ s denotation of

Don as the first

- named insured. While much has changed in the past 50 years,

apparently much stays the same.

The law governing family relationships has developed

significantly during the latter half of the 20th Century;

married women are generally accorded the same rights as

unmarried women, and strides toward recognizing the

equality of women and men have been made and are- 13

- continuing. Nevertheless, there remain vestiges of the

historical treatment of women generally, and married

women in particular, within our law, a treatment which at

common law merged the married woman ’ s identity into

that of her husband.

5 W ILLISTON ON C ONTRACTS § 11:1 (4th ed. 2021 ) (emphasis added). Has Tina ’ s

identity herein been merged with that of her husband? The uncontested proof

indicates Appellant ’ s mother, Tina, purchased these insurance policies and paid the

premiums for them. Under normal contractual circumstances, Tina would be

considered the owner of the policies. Yet, State Farm representatives unilaterally

chose to list the “insured” as “Bratcher, Don & Tina L

, ” conducting a credit check

only on Don. Why not Tina? Is her credit irrelevant and insignificant? In fact,

Tina was the only one between the two with actual employment. Does she have no

independent identity? Nevertheless, due to the most random of circumstances,

State Farm contends that because Tina, not Don, resided with Appellant in a home

owned jointly by Tina and Don, their daughter

– Appellant

– is excluded from

coverage solely becau se Don is the first

- named insured. Thus, presumably, if Don

were residing with Appellant instead of Tina, she would be covered by the policies

in question. Such certainly smacks of the sex discrimination of a bygone era. Why

else would State Farm choose a man as first

- named insured over his wife who

actually purchased the insurance policies herein and who paid all of the premiums

for the policies? State Farm should not be allowed to benefit from such action.- 14

-

BRIEF S FOR APPELLANT:

Sarah Chervenak

Louisville, Kentucky

Kevin C. Burke

Jamie K. Neal

Louisville, Kentucky BRIEF FOR APPELLEE S :

Richard W. Edwards

Louisville, Kentucky