RENDERED: MARCH 4, 2022; 10:00 A.M.

NOT TO BE PUBLISHED

Commonwealth of Kentucky

Court of Appeals

NO. 2019-CA-1154-MR

CURTIS LEE APPELLANT

APPEAL FROM JEFFERSON CIRCUIT COURT

v. HONORABLE SUSAN SCHULTZ GIBSON, JUDGE

ACTION NO. 18-CI-003290

PHOENIX AMERICAN ADMINISTRATORS, 

LLC; AND PHOENIX AMERICAN 

WARRANTY COMPANY, INC. APPELLEES

OPINION

REVERSING AND REMANDING

**   **  **

BEFORE: ACREE, DIXON, AND K. THOMPSON, JUDGES.

THOMPSON, K., JUDGE: Curtis Lee appeals from the Jefferson Circuit Court’s

order granting summary judgment in favor of Phoenix American Administrators, 

LLC and Phoenix American Warranty Company, Inc. (collectively referred to as 

Phoenix American) and dismissing the case. This case involves certain provisions 
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found in a guaranteed asset protection (GAP) waiver addendum entered by Lee in 

the course of purchasing and financing a motor vehicle. In rendering its judgment, 

the trial court determined that Lee had not submitted his claim to Phoenix 

American in a timely and complete fashion pursuant to the terms of the written

agreement. Having reviewed the record and the arguments of the parties, 

we reverse and remand.

In 2014, Lee purchased a used Kia Optima from Kia Store East in 

Jefferson County. Lee financed this purchase for a 72-month term with Regional 

Acceptance Corporation (Regional) as lender and lienholder on the automobile. At 

the time of his purchase of his car, Lee also purchased a GAP waiver addendum 

(the GAP Waiver) for an additional $750 which, in the event of a total loss, 

provided for the forgiveness by Regional of any amounts Lee might still owe on 

the vehicle after any payment made to Regional for the loss by a third party

automobile insurance carrier. The GAP Waiver describes the entities “Phoenix 

American GAP” and “Phoenix GAP” variously as Administrator, program 

administrator, and Plan Administrator. Phoenix GAP and Phoenix American GAP 

are listed at two different Miami, Florida addresses within the GAP Waiver;

however both entities are listed with the same phone number. The GAP Waiver

defines the amount of the waiver provided as “the difference between the actual 

cash value of the vehicle and the outstanding balance[.]” In sum, such protection 
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would ostensibly protect Lee if he were “upside down” on the vehicle (still owing 

Regional more than the car was worth) when the car might be totaled. 

On September 24, 2017, Lee was involved in a collision and his Kia 

was declared a total loss. Lee was not at fault in this collision. The at-fault 

driver’s insurance company paid out the fair market value of Lee’s vehicle to 

Regional on November 9, 2017. This payment represented the date of the “total 

loss payment” referenced in the GAP Waiver. Such payment did not cover the 

balance that Lee still owed Regional on the vehicle thereby triggering Lee’s rights 

pursuant to the GAP Waiver. The November 9 date also triggered the running of a 

120-day window within which Lee was responsible for submitting his claim to 

Phoenix American pursuant to the terms of the GAP Waiver. 120 days after the 

total loss payment was therefore March 9, 2018. These facts are not disputed. 

Lee, by affidavit, testified that “[a]fter the wreck occurred, I contacted 

[Phoenix American] by phone” and “[t]hey told me they were going to mail me 

forms which I never received.” Despite calling Phoenix American, Lee asserted 

that he did not receive the claim form in a timely manner and “[t]he first time I 

received any forms whatsoever from [Phoenix American], I believe was on March 

21 or 22, 2018.” Lee’s assertions are material to the contractual issues presented, 

and therefore would be questions of fact for a jury. In the subsequent order 

granting summary judgment, the trial court stated that “[a]lthough Plaintiff’s 
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Response asserts that the affidavit of Lee is attached as an exhibit, there is no 

affidavit attached, nor is there an affidavit of Lee in the record.” Such finding 

appears to have been incorrect. The record on appeal as certified by the Jefferson 

County Circuit Clerk contains not only the affidavit itself, but also individually 

references the affidavit as “Exhibit (2)” to Lee’s memorandum at pages 113 to 114 

within the index for volume one of the record on appeal. 

Phoenix American, by counsel, denied receiving a call from Lee to 

initiate the claim and asserted that it was not made aware of the collision until 

February 15, 2018, when it received notification of the loss, not from Lee, but from 

Regional, the lender and lienholder, which reported the claim. According to 

Phoenix American, on February 16 it mailed Lee a letter advising him of the 

documents he needed to tender and a blank claim form. Hearing no response from 

Lee, Phoenix American asserted that it re-sent the letter and claim form to him 

again on March 16, 2018. Like Lee’s assertions, Phoenix American’s allegations 

would present questions of fact for a jury. According to Phoenix American, Lee 

finally contacted them by phone on March 19, 2018 and informed them of his 

current address. Phoenix American again sent out their letter and claim form and 

received documents back from Lee on March 29, 2018 (more than 120 days after 

the triggering event of the total loss payment) and, even then, not all the required 

documents were tendered. On the date that it received the materials, Phoenix 
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American determined to deny Lee’s claim as untimely. Phoenix American 

provided business records including what appears to be a claim-activity log to 

substantiate its factual allegations, however, these business records were not 

certified as required by Kentucky Rules of Evidence (KRE) 902(11). Also, and 

unlike Lee, Phoenix American’s representations of fact were neither supported by 

affidavit, nor were they in the form of attested discovery responses or sworn 

deposition testimony. 

Lee instituted an action to enforce the agreement and Phoenix 

American ultimately moved for summary judgment asserting that Lee breached the 

terms of the GAP Waiver by failing to submit his claim to Phoenix American in 

accord with its claim procedure section of the agreement. 

The trial court considered the requirement for claims to be “submitted 

within 120 days from the date of total loss” to be the primary contractual issue 

before it. As stated on the second page of the agreement under the heading of 

“CLAIM PROCEDURE,” it was Lee’s responsibility to:

In the event of a total loss, you shall promptly provide 

the following documentation to the Program 

Administrator at the address shown below. All copies 

must be complete and legible. Any claim must be 

submitted within one hundred twenty (120) days from the 

date of total loss of the vehicle or total loss payment you 

received from your primary insurer, whichever is longer. 

Any claim submitted after the one hundred (120) days 

period is void. 
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Thereafter, the agreement identified the six categories of the 

documentation Lee was to “promptly provide.” The first of those listed documents 

is a “[c]ompleted GAP Claim form.” As an initial matter we must be note that a 

GAP Claim form is not contained within or attached to the GAP Waiver 

agreement. Therefore, Lee would have been dependent upon Phoenix American to 

first provide such a form to him before he could return a completed form. 

The remaining five categories of documents to be “promptly 

provid[ed]” were: 

(2) A copy of the applicable primary insurance policy 

and declaration sheet clearly indicating coverages and 

deductibles[,] (3) A copy of the primary insurance 

company claim settlement check(s) and/or settlement 

statement[,] (4) A copy of the police report made for the 

incident if applicable. Such report shall include the date 

of loss, the vehicle mileage as of the date of loss, and the 

circumstances involved in the total loss[,] (5) A copy of 

the original Financial Agreement, proof of the proceeds 

recovered from cancellation of refundable items, and a 

copy of the GAP Waiver addendum[, and] (6) 

Documentation detailing the outstanding balance as of 

the date of loss and a statement regarding any past due 

amount(s) or other charge(s), if any. You shall also 

provide any other reasonable documentation requested by 

us necessary to complete your claim. 

 In granting Phoenix American’s motion for summary judgment and 

finding Lee’s claim to be time-barred by the terms of the GAP Waiver, the trial 

court found that:
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The record reflects that Lee submitted the GAP form and 

supporting documents to [Phoenix American] on March 

29, 2018, he submitted (1) a completed claim form, (2) a 

primary insurance claim settlement check, and (3) a 

primary insurance claim settlement statement; but did not 

submit (1) his primary insurance policy, including 

declarations; (2) his insurer’s evaluation report; (3) the 

police report; (4) the financing agreement; (5) a vehicle 

service contractor cancellation refund check; (6) a copy 

of the GAP Waiver Addendum; (7) documentation of the 

outstanding balance on the financing agreement; or (8) 

documentation of his payment history.

(Emphasis added.)

Lee appealed and asserts that it was error for the trial court to 

determine that Lee had violated the terms of the GAP Waiver relative to his 

submission of a claim. Furthermore, Lee argues that genuine issues of material 

fact precluded summary judgment and that both Kentucky law and public policy 

precluded summary disposition.

On appeal, this matter presents both questions of law and fact. As a 

factual matter, when did Lee “submit” his claim? The trial court could not, and did 

not, make factual determinations as to whether Lee called Phoenix American first, 

when Phoenix American mailed claims forms to Lee, or why those claims forms 

were initially going to an incorrect/old address. Thus, the actual cause of the 

delay(s) in adjusting Lee’s claim was not resolved. As an issue of contract law, the 

issue is was Lee’s submission of his claim either late or incomplete in violation of 

the clear and unambiguous terms of the GAP Waiver? 
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As to factual issues presented, the standard of review on appeal when 

a trial court grants a motion for summary judgment is “whether the trial court 

correctly found that there were no genuine issues as to any material fact and that 

the moving party was entitled to judgment as a matter of law.” Lewis v. B & R

Corporation, 56 S.W.3d 432, 436 (Ky.App. 2001). In making its determination, 

the trial court must view the evidence in the light most favorable to the nonmoving 

party, and summary judgment should be granted only if it appears impossible that 

the nonmoving party will be able to produce evidence at trial warranting a 

judgment in his favor. Steelvest, Inc. v. Scansteel Service Center, Inc., 807 S.W.2d 

476, 480-82 (Ky. 1991). Because summary judgment involves only legal 

questions and the existence, if any, of disputed material issues of fact, an appellate 

court need not defer to the trial court’s decision and will review the issue de novo. 

Scifres v. Kraft, 916 S.W.2d 779, 781 (Ky.App. 1996); Palmer v. International

Ass’n of Machinists and Aerospace Workers, AFL-CIO, 882 S.W.2d 117, 120 (Ky. 

1994); Kentucky Rules of Civil Procedure (CR) 56.03.

When Lee finally submitted documentation to Phoenix American and 

what documentation he submitted is not in dispute. However, the date when Lee 

first contacted Phoenix American is at issue. According to his affidavit, Lee

contacted Phoenix American “within weeks” of the accident and was told that he 

would receive documents from Phoenix American in the mail. For purposes of 
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summary judgment and this appeal, we must view the record in the light most 

favorable to Lee and will presume that he did in fact contact Phoenix American by 

phone to alert them to his claim in a timely manner. The issue then becomes 

whether such contact was a sufficient “submission” of Lee’s claim pursuant to the 

GAP Waiver’s contractual terms. If Lee’s phone call to Phoenix American to 

initiate his claim was insufficient, then the timing of such call would be 

immaterial. The trial court determined that the agreement required Lee to not only 

make contact with Phoenix American to report the claim, but to provide his 

completed claim form and all of the other documents listed on the GAP Waiver 

agreement to Phoenix American all within 120 days as well. 

The interpretation of a contract, including determining whether a 

contract is ambiguous, is a question of law for the courts and is subject to de novo 

review. First Commonwealth Bank of Prestonsburg v. West, 55 S.W.3d 829, 835 

(Ky.App. 2000); Morganfield Nat’l Bank v. Damien Elder & Sons, 836 S.W.2d 

893, 895 (Ky. 1992). In reviewing this contract, it is important to recognize that 

there is a distinction between submitting a claim and providing supporting 

documentation. The agreement states that the claimant shall “promptly provide” 

the listed documentation, but it does not state that each and every described 

document must also be “provided” before the claim will be considered 

“submitted.” The relevant paragraph in the GAP Waiver states that “[i]n the event 
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of a total loss, you shall promptly provide the following documentation to the 

Program Administrator at the address shown below” and that “[a]ll copies must be 

complete and legible.” The term “promptly” is not defined by the agreement. 

More importantly, as we have already discussed, a claimant would have to first 

notify Phoenix American of a total loss, and await receiving the “GAP Claim 

Form” from Phoenix American, before he or she would be able to then return a 

“Completed GAP Claim Form” which is the very first document listed that a 

claimant must provide. 

If, after notifying Phoenix American of a total loss accident, a 

claimant does not receive a GAP Claim Form from Phoenix American in a timely 

manner, he or she could be precluded from “promptly provid[ing]” all of the 

documents described in the agreement. This would also be true if the form is not 

forwarded to the claimant’s current address as occurred here. 

After the clauses concerning providing documentation, the paragraph 

next states that “[a]ny claim must be submitted within one hundred twenty (120) 

days from the date of total loss of the vehicle or total loss payment you received 

from your primary insurer, whichever is longer” and then, “[a]ny claim submitted 

after the one hundred (120) days period is void.” The GAP Waiver does not define 

a “claim” or what constitutes a claim being “submitted.” 
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Phoenix American argues that the paragraph requires that a claimant 

(a) notify Phoenix American of the claim, (b) await a GAP Claim Form, (c) 

complete the form, and (d) return it and all other listed documents (whether or not 

the claimant possesses each of them), all within 120 days. While it is arguable that 

the paragraph read as a whole may imply such, it is not what the agreement 

actually says. 

Kentucky law is quite clear about the interpretation of contracts. If 

the contract is unambiguous, we must stay within the four corners of the document 

to determine its meaning. 3D Enterprises Contracting Corp. v. Louisville and

Jefferson County, 174 S.W.3d 440, 448 (Ky. 2005). Such is “doubly true” when 

interpreting its legal meaning. Cantrell Supply, Inc. v. Liberty Mutual Insurance

Comp., 94 S.W.3d 381, 384 (Ky.App. 2002). 

However, if we interpret the GAP Waiver as Phoenix American 

asserts, the ambiguity becomes clear. Phoenix American’s reading does not 

distinguish between “claims” which are to be “submitted within 120 days” and the 

listed supporting “documents” which are thereafter to be “promptly provid[ed].” 

When the language of an agreement is ambiguous, the court’s primary objective is 

to effectuate the intentions of the parties. Id. We must also be guided in our 

interpretation of this agreement by “the contract interpretation canon historically 

known by the useful Latinism, contra proferentem: When interpreting contracts 
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susceptible to two meanings, we construe ambiguity against the 

drafter[.]” Majestic Oaks Homeowners Association, Inc. v. Majestic Oaks Farms,

Inc., 530 S.W.3d 435, 441 (Ky. 2017). 

If Phoenix American wanted to have not only notification of a claim, 

but all listed documents (including its own form) returned to it within 120 days of a 

loss, it could have simply reworded its position stating, “Phoenix American must 

receive both notification of your claim and all the documents listed below within 

one hundred twenty (120) days or this agreement is void and your claim will be 

rejected.” 

This Court finds that if Lee reported his claim to Phoenix American 

within 120 days of his total loss, he met his initial obligations under the agreement. 

Consequently, whether or not Lee did in fact contact Phoenix American to report 

his claim “within weeks” of the collision is a genuine issue of material fact which 

could not be determined by the trial court, and thus, summary judgment in Phoenix 

American’s favor was erroneous.

Having addressed the issue of how a claim is submitted pursuant to 

the GAP agreement, we must now discuss the documentation which a claimant 

must thereafter provide. In reviewing this issue, the Court notes that the record 

does not reflect Phoenix American or Regional questioning whether or not Lee was 

in an accident, that a total loss occurred, that Lee’s insurance had already paid an 
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appropriate amount to Regional for the loss, whether Lee was current on his 

payments, or was otherwise in breach of his financing agreement with Regional. 

In sum, the record reflects that Lee incurred a valid claim pursuant to the GAP 

Waiver. Once Lee’s insurance provider paid the value of the totaled vehicle to 

Regional, Regional should have forgiven any remaining balance Lee owed under 

the financing agreement. Lee had paid the not-insubstantial sum of $700.00 in 

consideration of this promise. Instead of forgiving the balance on the financing 

agreement, Phoenix American (as agent for Regional) denied Lee’s claim citing 

the necessity of additional documents which appear wholly unnecessary in this 

particular instance to a prompt review of the claim. A review of each of the 

documents that had not been tendered within the 120-day period reinforces this 

fact.

Regional had already received and accepted payment for the fair 

market value of Lee’s vehicle directly from Lee’s insurance and Regional itself 

reported the event to Phoenix American. There is no evidence that Regional 

believed that such payment was improper or insufficient; therefore the production 

of Lee’s “primary insurance policy, including declarations” appears irrelevant. 

The same is true for the “insurer’s evaluation report” and “the police report” 

assuming either one exists or were ever in Lee’s possession. The “primary 

insurance claim settlement check” had already been sent to, received by, and 
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negotiated by Regional. The “financing agreement” had been in Regional’s 

possession since the car was purchased by Lee. It cannot be assumed that a 

“vehicle service contractor cancellation refund check” even existed. The “GAP 

Waiver Addendum” should be in the possession of either Regional and/or Phoenix 

American as they are the ones who sold it to Lee. Finally, Regional itself would 

know “the outstanding balance on the financing agreement” and Lee’s “payment 

history.” Most importantly, Phoenix American has shown no prejudice to it or 

Regional from any delay in receiving, or not receiving, the listed documents from 

Lee.

The GAP Waiver is clearly a contract of adhesion insofar as it is 

offered to consumers on essentially a “take it or leave it” basis without affording 

the consumer any real opportunity to bargain. Adhesion contracts are not per se

improper; however, oppressive terms ancillary to the main bargain may be 

concealed in fine print and couched in vague or obscure language within such 

contracts. In consumer transactions, our Courts are willing to scrutinize such 

contracts and have refused to enforce egregiously abusive ones. Conseco Finance 

Servicing Corp. v. Wilder, 47 S.W.3d 335, 342 n.20 (Ky.App. 2001). Based on the 

circumstances before us we find that Phoenix American’s denial of Lee’s claim, 

premised upon strict production of unnecessary documentation, makes those 

clauses of the GAP Waiver unconscionable. 
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Lastly, Phoenix American argues in its response brief that the trial 

court erred by not also granting summary judgment based upon a lack of privity of 

contract between Phoenix American and Lee. The trial court made specific rulings

on that issue within its memorandum and order and rejected the argument, finding 

that Lee could pursue his claim as a third-party beneficiary of the contract between 

Phoenix American and Regional Acceptance Corporation. Phoenix American did 

not file a cross-appeal on the issue of privity and this argument is not properly

before us. Brown v. Barkley, 628 S.W.2d 616, 618-19 (Ky. 1982). To the extent 

that Phoenix is suggesting that we affirm upon this alternative ground for granting 

summary judgment, we decline to do so. 

Accordingly, we reverse and remand the Jefferson Circuit Court’s 

order granting summary judgment and dismissing the case. 

ACREE, JUDGE, CONCURS IN RESULT ONLY.

DIXON, JUDGE, CONCURS IN RESULT ONLY.

BRIEFS FOR APPELLANT:

Timothy McCarthy

Louisville, Kentucky

BRIEF FOR APPELLEE:

Erin Celeste Sammons Izzo

Gregory Alan Jackson

Leslie P. Vose

Lexington, Kentucky