BRIEF FOR APPELLANT: Joseph B. Venters Somerset, Kentucky BRIEF FOR APPELLEE: Darrin W. Banks Paintsville, Kentucky
NOT TO BE PUBLISHED APPEAL FROM KNOX CIRCUIT COURT
HONORABLE MICHAEL O. CAPERTON, JUDGE
ACTION NO. 18-CI-00002 OPINION
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BEFORE: ACREE AND DIXON, JUDGES; BUCKINGHAM, SPECIAL JUDGE. BUCKINGHAM, SPECIAL JUDGE: Dakota Miller appeals from a summary judgment granted by the Knox Circuit Court dismissing his complaint against State Farm Mutual Automobile Insurance Company (State Farm). We affirm.
Retired Judge David C. Buckingham sitting as Special Judge by assignment of the Chief Justice pursuant to Section 110(5)(b) of the Kentucky Constitution.
Miller alleged in his complaint that, on December 30, 2016, he was waiting at the office of State Farm agent Jeffrey Branum at 109 Union Street, Barbourville, Kentucky, to purchase an insurance policy when a vehicle driven by Roger F. Hughes crashed into the building, breaching the exterior wall, and causing him serious injury. Miller subsequently filed suit against State Farm seeking recompense for his injuries resulting from the incident. State Farm filed a motion to dismiss "pursuant to CR 12.02 and/or CR 56.02." The trial court granted the motion and dismissed the complaint as to State Farm. This appeal by Miller followed.
Kentucky Rules of Civil Procedure.
CR 12.02/CR 56.02
Citing Fox v. Grayson, 317 S.W.3d 1 (Ky. 2010), Miller contends the trial court erred in ignoring his properly pled complaint and dismissing his claim against State Farm. Our Supreme Court in Fox held
[a] motion to dismiss for failure to state a claim upon which relief may be granted admits as true the material facts of the complaint. So a court should not grant such a motion unless it appears the pleading party would not be entitled to relief under any set of facts which could be proved. . . .Id. at 7 (citations and internal quotation marks omitted).
State Farm argues in response that a motion to dismiss filed pursuant to CR 12.02 is considered a summary judgment motion where matters outside the pleadings are presented. CR 12.02 provides in relevant part:
If, on a motion asserting the defense that the pleading fails to state a claim upon which relief can be granted, matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56.CR 56.02 states: "A party against whom a claim, counterclaim, or cross-claim is asserted or a declaratory judgment is sought may, at any time, move with or without supporting affidavits for a summary judgment in his favor as to all or any part thereof."
An affidavit from Jeffrey Branum was attached to the motion to dismiss. The affidavit was presented to and not excluded by the trial court. Therefore, State Farm's motion was properly treated as a motion for summary judgment.
Further, CR 12.02 states in part "all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56." State Farm's motion was filed in February 2018, and the court entered its order granting the motion in November 2018. Miller has raised no complaint about being denied the opportunity to conduct discovery. In short, the motion was properly considered by the trial court as a summary judgment motion under CR 56.
Miller's primary argument is that he produced sufficient evidence to overcome State Farm's summary judgment motion and that the trial court erred in awarding such judgment.
The standard for summary judgment is whether "the pleadings, depositions, answers to interrogatories, stipulations, and admissions on file, together with the affidavits, if any, show 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." CR 56.03. "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 [the nonmoving party's] favor." Steelvest, Inc. v. Scansteel Service Center, Inc., 807 S.W.2d 476, 480 (Ky. 1991).
In Hayes v. D.C.I. Properties-D KY, LLC, 563 S.W.3d 619 (Ky. 2018), our Supreme Court held: "In any negligence case, a plaintiff must prove the existence of a duty, breach of that duty, causation between the breach of duty and the plaintiff['s] injury and damages." Id. at 622. "The question of duty presents an issue of law." Mullins v. Commonwealth Life Ins. Co., 839 S.W.2d 245, 248 (Ky. 1992).
Miller argues he produced evidence showing either State Farm was the occupier of the premises through its agent or State Farm was independently liable as the accident was foreseeable. He sees the issue as whether State Farm had the right of control of the premises. State Farm, on the other hand, argues it owed no legal duty to Miller as it was neither the owner, occupier, or possessor of the property, nor did it have any control over it.
In Shelton v. Kentucky Easter Seals Society, Inc., 413 S.W.3d 901 (Ky. 2013), our Supreme Court stated, "a possessor of land owes a duty to an invitee to discover unreasonably dangerous conditions on the land and either eliminate or warn of them." Id. at 909 (citation omitted). Further, in Grubb v. Smith, 523 S.W.3d 409 (Ky. 2017), our Supreme Court stated, "In general, rather, the possessor of premises for premises-liability purposes is that person (or entity) in occupation of the premises (or entitled to immediate occupation) with the intent to control them." Id. at 422 (citation omitted).
Here, Branum is a licensed agent of State Farm and the owner of the business. He was not an employee of State Farm, but rather he sold State Farm insurance through an agency contract. Branum leased the premises from T & J Land Company, LLC. State Farm did not possess the premises, was not a party to the lease, and exercised no control over the property. Therefore, it owed no duty to a business invitee such as Miller. Thus, as the trial court properly granted State Farm summary judgment on Miller's complaint against it, we affirm.
ALL CONCUR. BRIEF FOR APPELLANT: Joseph B. Venters
Somerset, Kentucky BRIEF FOR APPELLEE: Darrin W. Banks