Originally from:
Fundamentals of Insurance Coverage in all 50 States - 3rd Edition - Hardcover
Fundamentals of Insurance Coverage in all 50 States - 3rd Edition - Electronic
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Kentucky
Bradley W. Matthiesen, Gary L. Wickert & Douglas W. Lehrer
I. THE CONTRACT OF INSURANCE
A. Proving the Existence and Terms of Insurance Policies
Under Kentucky law, the insured has the burden of proving the contract of
insurance and its terms, as well as the loss. Desjardins v. Desjardins, 193 F.
Supp. 210 (E.D. Ky. 1961), modified, 308 F.2d 111 (6th Cir. 1962). The insurer
must prove the contents of any exclusions or limitations on the amount of
coverage on which it relies in defense. Colker v. Connecticut Fire Ins. Co., 224
Ky. 837, 7 S.W.2d 502 (Ky. 1928), later appealed, 229 Ky. 113, 16 S.W.2d 761
(Ky. 1929).
B. Missing Insurance Policies
1. Proof of Contents of Missing Policies
The best evidence rule provides that, with some exceptions, no evidence
other than the original of a writing is admissible to prove the contents of a
writing. Catlin v. Justice, 288 Ky. 270, 156 S.W.2d 107 (Ky. 1941). Secondary
evidence may be admitted to prove the contents of the writing if the original has
been lost or destroyed unless the writing was lost or destroyed by the proponent
of the writing “in bad faith” or with fraudulent intent Hi Hat Elkhorn Coal Co.
v. Kelly, 205 F. Supp. 764 (E.D. Ky. 1962) (a carbon copy may be treated as an
original); Gus Dattilo Fruit Co. v. Louisville & N.R. Co., 238 Ky. 322, 37
S.W.2d 856 (Ky. 1931) (a duplicate is admissible as primary evidence);
Davidson v. Davidson, 49 Ky. 115 (Ky. 1849).
II. PROCEDURAL CONSIDERATIONS
A. Law Governing the Insurance Policy
Questions of choice-of-law are determined in Kentucky by the Restatement
(Second) of Conflict Law. Under this approach, the law of the state having the
most significant relationship to the transaction and the parties is applied.
KENTUCKY
I. The Contract of Insurance
A. Proving the Existence and Terms of Insurance Policies
B. Missing Insurance Policies
1. Proof of Contents of Missing Policies
II. Procedural Considerations
A. Law Governing the Insurance Policy
B. Direct Action Statutes
C. Statutes of Limitations
1. Breach of Contract
2. Tort--Bad Faith
III. Construction and Interpretation
A. What Is an Ambiguity?
B. General Contract Rules for Resolving Ambiguities
C. Rule That Ambiguities Are Resolved against Insurer
IV. Extent of Risks and Coverage
A. Insurable Risks
1. Expectations of the Parties
2. Liability Created by Statute
B. Insurability of Punitive Damages
C. Assignment and Transfer of Policies of Insurance
1. Transfer of Insured Property
2. Assignability of Policy
3. Reorganizations and Acquisitions
V. Rights and Obligations of the Parties
A. Duty of Insurer to Defend
1. Trigger of the Duty
2. Consequences of Failure to Defend
3. Control of the Defense
VI. Insurer's Duty of Good Faith and Fair Dealing
A. Insurer's Duty to the Insured
1. Statutory Source/Unfair Claims Settlement Practices Act
(K.R.S. § 304.12-230)
2. Implied Covenant of Good Faith and Fair Dealing
VII. Policy Defenses
A. Cooperation
B. Notice
C. Misrepresentation
1. False Statements
2. Materiality
3. Intent
D. Breach of Warranty
E. Failure to Pay Premiums
VIII. Environmental Issues and Insurance Law
A. Duty to Defend PRP Notice Letter
B. Occurrence/Accidental Event
1. Property Damage and Trigger of Coverage
2. Expected/Intended
C. Damages and Equitable Relief
D. Policy Exclusions
1. Pollution Exclusion Clause
2. Insured's Owned Property Exclusion Clause
3. Care, Custody or Control Exclusion Clause
