RENDERED: SEPTEMBER 24, 2020

TO BE PUBLISHED

Supreme Court of Kentucky

2018-SC-0070-DG

DIANA METZGER AND GARY METZGER APPELLANTS

ON REVIEW FROM COURT OF APPEALS

V. CASE NO. 2016-CA-1625-MR

JEFFERSON CIRCUIT COURT NO. 15-CI-000020

AUTO-OWNERS INSURANCE COMPANY 

AND

OWNERS INSURANCE COMPANY

APPELLEES

OPINION OF THE COURT BY JUSTICE WRIGHT

AFFIRMING

I. BACKGROUND

Appellants, Diana Metzger and her husband Gary, are members of a pet 

and feed supply store limited liability company (Metzger’s Country Store, LLC) 

along with Gary’s brother and sister. The LLC bought a commercial automobile 

insurance policy from Appellee, Auto-Owners Insurance Company, which 

included underinsured motorist (UIM) coverage for the LLC’s vehicles.

1 This 

appeal involves the interpretation of that policy.

 

1 The LLC also bought a separate tailored protection policy (TPP) which provided 

commercial general liability coverage and commercial property and inland marine 

coverage for the LLC. The Metzgers argue that some terms present in the TPP policy 

make the auto policy ambiguous. However, these policies are separate and distinct 

from one another and we will not read any terms from the TPP policy into the 

automobile policy. 
2

Diana Metzger drove her personally-insured vehicle to a feed supply store to 

purchase inventory for resale at the LLC. It is undisputed the sole purpose of 

her trip was to conduct business on behalf of the LLC. After Metzger 

purchased the items intended for resale, she was struck by an automobile in 

the parking lot while walking to her personal vehicle. Courtney Gebben, the 

driver of the vehicle which struck Metzger, carried only $25,000 in liability 

insurance. Metzger sustained severe injuries to her left ankle requiring six 

surgeries and resulting in the accrual of more than $200,000 in medical 

expenses. Due to the disparity in the amount of Gebben’s liability coverage 

and Metzger’s injuries, Gebben was an underinsured motorist pursuant to KRS 

304.39-320.

After Gebben’s insurer paid Metzger its $25,000 limits, Metzger settled 

with her personal insurance UIM policy for an undisclosed amount (though the 

maximum coverage she had under her personal policy was $100,000). The 

payments from Gebben’s liability insurance and Metzger’s personal UIM policy 

did not fully compensate Metzger for her injuries or Gary for his loss of 

consortium. Metzger then submitted a UIM claim to the LLC’s automobile 

insurance carrier, Auto-Owners. 

Auto-Owners had issued a commercial automobile policy with UIM 

coverage to Metzger’s Country Store, LLC. The LLC was the only named 

insured on the Auto-Owners policy. The policy had combined liability limits of 

$1,000,000 and UIM coverage limits of $1,000,000 per person. Four vehicles 

were covered under the Auto-Owners commercial automobile policy and the 
3

personal vehicle Metzger drove on the day of the accident was not among the 

scheduled vehicles. The declarations in the policy contained a list of scheduled 

drivers which included Metzger, the other three LLC members, and several LLC 

employees. None of these scheduled drivers, however, was a named insured. 

The policy’s liability form included several definitions and defined “You or 

Your” as the “first named insured shown in the Declarations, and if an 

individual, your spouse who resides in the same household.” (Emphasis 

added.) The policy’s relevant language concerning UIM coverage provides:

2. Coverage

a. We will pay compensatory damages, including but not limited to

loss of consortium, any person is legally entitled to recover from 

the owner or operator of an underinsured automobile because 

of bodily injury sustained by an injured person while

occupying an automobile that is covered by SECTION II—

LIABILITY COVERAGE of the policy.

b. If the first named insured in the Declarations is an individual, 

this coverage is extended as follows:

(1) We will pay compensatory damages, including but 

not limited to loss of consortium, you are legally 

entitled to recover from the owner or operator of 

any underinsured automobile because of bodily 

injury you sustain:

(a) when you are not occupying

an automobile that is covered by

SECTION II—LIABILITY COVERAGE

of the policy; or

(b) when occupying an automobile 

you do not own which is not covered by

SECTION II—LIABILITY COVERAGE

of the policy.

Based on the language of the commercial automobile policy, AutoOwners denied Metzger’s claim. She then filed a declaratory action in Jefferson 
4

Circuit Court, asking the trial court declare that Auto-Owners was obligated to 

provide UIM benefits under the terms of the commercial policy. Gary filed a 

derivative claim for loss of spousal consortium. Auto-Owners filed a motion for 

summary judgment arguing that Metzger was not entitled to UIM coverage 

because she was not occupying a scheduled vehicle at the time of the accident, 

as required by the policy. The trial court granted Auto-Owners summary 

judgment motion and the Court of Appeals unanimously affirmed the trial 

court’s ruling. The Metzgers then filed a motion for discretionary review to this 

Court, which we granted. We now affirm the Court of Appeals. 

II. ANALYSIS

It has long been the law in this Commonwealth that summary judgment 

“should only be used ‘to terminate litigation when, as a matter of law, it 

appears that it would be impossible for the respondent to produce evidence at 

the trial warranting a judgment in his favor and against the movant.’” 

Steelvest, Inc. v. Scansteel Serv. Ctr., Inc., 807 S.W.2d 476, 483 (Ky. 1991) 

(3quoting Paintsville Hosp. Co. v. Rose, 683 S.W.2d 255, 256 (Ky. 1985)). 

Furthermore, Kentucky Rules of Civil Procedure (CR) 56.03 states that 

summary judgment should be granted if the evidence shows 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. “The record must be viewed in a light 

most favorable to the party opposing the motion for summary judgment and all 

doubts are to be resolved in his favor.” Steelvest, 807 S.W.2d at 480.
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“Because summary judgments involve no fact finding, this Court will 

review the circuit court’s decision de novo.” 3D Enters. Contracting Corp. v. 

Louisville & Jefferson Cnty. Metro. Sewer Dist., 174 S.W.3d 440, 445 (Ky. 2005).

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 

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). 

The trial court granted Auto-Owners’ motion for summary judgment. 

Because “[i]nterpretation and construction of an insurance contract is a matter 

of law,” Kemper Nat’l Ins. Cos. v. Heaven Hill Distilleries, Inc., 82 S.W.3d 869, 

871 (Ky. 2002), we review the raised issues de novo, giving no deference to the 

trial court.

The Metzgers first argue the Court of Appeals erred in holding the 

commercial automobile policy was unambiguous. In support of this argument, 

they assert the policy is rife with ambiguity, as it uses familial and individual 

terms and terms that are confusing and undefined. We disagree.

Recently we held “Kentucky public policy does not bar reasonable UIM 

exclusion provisions.” Philadelphia Indem. Ins. Co. v. Tryon, 502 S.W.3d 585, 

592 (Ky. 2016). In reaching that holding, we stated, “there is nothing either in 

the MVRA or our public policy prohibiting enforcement of exclusion of UIM 

coverage in certain scenarios. The reasonable expectations of coverage are 
6

satisfied so long as the plain meanings of the terms of the underlying policies 

are clear and unambiguous.” Id. Here, no ambiguity existed. 

The Metzgers would have this Court hold the policy was ambiguous due 

to use of the terms “you,” “your,” “relative,” and “person.” However, the policy 

defines “You or Your” as the “first named insured shown in the Declarations, 

and if an individual, your spouse who resides in the same household.” 

(Emphasis added.) The phrase “if an individual” clearly contemplates a 

scenario in which the named insured is not an individual (as is the case here, 

where the only named insured is an LLC). Clearly an LLC has neither a spouse 

nor other relatives. While an LLC is, likewise, not referred to as “you” in 

common parlance, the policy specifically defines the word “you” to include any 

named insured—be it an individual or an entity. These terms create no 

ambiguity in the policy. 

The Metzgers also argue an ambiguity is created by the fact the policy 

contains language inapplicable to the LLC (all the language “extending” the 

coverage if the named insured is an “individual”). While we agree with the 

Metzgers that insurance policies can be complex, confusing documents filled 

with ambiguities, the applicable portions of the policy in the case at bar are

not. The policy language makes it clear that if the first named insured is an 

“individual,” the coverage is extended past the occupancy of a scheduled 

vehicle. However, if the first named insured is not an “individual,” then an 

individual is only covered by the UIM policy when occupying a scheduled 

automobile. There is no ambiguity here. The LLC is the only named insured 
7

on the policy—and the LLC is not an “individual.” Therefore, the UIM policy 

only covered losses sustained by Metzger while occupying a scheduled 

automobile. 

The fact Metzger was undisputedly carrying out business on behalf of the 

LLC is of no consequence, as the policy neither requires an individual to be 

conducting the business of the LLC at the time of his or her injury nor 

guarantees coverage if he or she is conducting the business of the LLC. It is 

simply immaterial to our analysis, as it is immaterial to the terms of the policy. 

The Metzgers further argue the policy’s use of the undefined term 

“individual” creates ambiguity. They assert the term could mean either a 

person or an entity. We need look no further than the definitions included in 

the policy to resolve this claim. Again, we note the policy defines “You or Your” 

as the “first named insured shown in the Declarations, and if an individual, 

your spouse who resides in the same household.” (Emphasis added.) It would 

be nonsensical to substitute the word “entity” for “individual” here. It is 

obvious the policy contemplates an “individual” as a natural person. 

The Metzgers next argue the Court of Appeals erred in holding they had 

no reasonable expectation of coverage. However, the doctrine of reasonable 

expectations, “applies only to policies with ambiguous terms.” True v. Raines, 

99 S.W.3d 439, 443 (Ky. 2003). As we have already held the policy was 

unambiguous, the doctrine does not apply. 

Finally, the Metzgers argue the Court of Appeals erred in holding the UIM 

coverage was not illusory or against public policy. The coverage herein is not 
8

illusory. Rather, it simply does not apply to Metzger under the facts of this 

case. Had she been the named insured under the policy or had she been an 

occupant of a covered auto at the time of the accident, Auto-Owners’s UIM 

policy would have covered her. However, those are simply not the facts of this 

case. Because the LLC was the named insured—and not Metzger herself—

Metzger (or any other individual) was only covered by the UIM policy when 

occupying a scheduled vehicle. 

As to the Metzgers’ argument the coverage was against public policy, we

have held “UIM coverage exclusions are not impermissible under Kentucky 

public policy and parties are at liberty to negotiate and customize policies to fit 

their own needs and desired levels of coverage.” Id. This is a reasonable UIM 

exclusion provision, and we will not disturb the parties’ contractual rights in 

the absence of an ambiguity. Here, Metzger was not the named insured. She 

did not purchase the coverage, nor did her name appear on the policy’s 

declarations page. The policy’s terms unambiguously distinguished between 

policies in which the named insured was an individual and those in which the 

named insured was not. 

III. CONCLUSION

Viewing the record in a light most favorable to the Metzgers, we affirm 

the Court of Appeals’ opinion affirming the trial court’s grant of summary 

judgment. Here, the trial court correctly found there were no issues as to any 

material fact and that Auto-Owners was entitled to a judgment as a matter of 
9

law. Because Metzger was not covered under the terms of the Auto-Owners

commercial UIM policy, Metzger could not prevail under any circumstances.

All sitting. All concur.

COUNSEL FOR APPELLANTS:

Kevin Crosby Burke

Burke Neal PLLC

Kevin B. Sciantarelli

Sciantarelli Law Firm

Jamie Kristin Neal

Burke Neal PLLC

COUNSEL FOR APPELLEES:

Catherine Marie Cundiff Sewell

Sewell & Neal, PLLC

Peter J. Sewell

Sewell & Neal, PLLC

Thomas Nathan Peters

Louisville, KY