Allstate Property and Casualty Insurance Company v. Kenneth Jarnigan
CourtKentucky Supreme Court
Date FiledOctober 22, 2026
Docket2024-SC-0451
JudgeNickell
StatusPublished
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Full Opinion
RENDERED: OCTOBER 22, 2026
TO BE PUBLISHED
Supreme Court of Kentucky
2024-SC-0451-DG
ALLSTATE PROPERTY AND APPELLANT
CASUALTY INSURANCE COMPANY
ON REVIEW FROM COURT OF APPEALS
V. NO. 2023-CA-0333
OHIO CIRCUIT COURT NO. 19-CI-00254
KENNETH JARNIGAN APPELLEE
OPINION OF THE COURT BY JUSTICE NICKELL
REVERSING AND REMANDING
We granted discretionary review to determine which party bears the risk
of loss when a liability insurance carrier makes a premature payment of
subrogation to the basic reparation benefits 1 (“BRB”) carrier in violation of the
1 “‘Basic reparation benefits’ mean benefits providing reimbursement for net
loss suffered through injury arising out of the operation, maintenance, or use of a
motor vehicle, subject, where applicable, to the limits, deductibles, exclusions,
disqualifications, and other conditions provided in this subtitle.” Kentucky Revised
Statutes (“KRS”) 304.39-020. “In legal parlance, they are often called ‘PIP benefits,’ a
term which arises from the use of the words ‘Personal Injury Protection’ on insurance
policies and forms. Robert D. Monfort, Ky. Motor Veh. Ins. Law § 11:1 (2025-2026
ed.); Stevenson ex rel. Stevenson v. Anthem Cas. Ins. Grp., 15 S.W.3d 720, 723 (Ky.
1999) (“Although the correct terminology is, of course, ‘basic reparation benefits,’ that
terminology has been used interchangeably with ‘personal injury protection’ (PIP)
benefits when describing what are generically known as ‘no fault’ benefits under
Kentucky law.”).
“made whole” doctrine set forth in the Kentucky Motor Vehicle Reparations Act
(“MVRA”), KRS 304.39-070(4) and KRS 304.39-140(3). Having carefully
reviewed the record, law, and arguments, we reverse the decision of the Court
of Appeals and remand with directions to reinstate the judgment of the Ohio
Circuit Court.
FACTS AND PROCEDURAL HISTORY
Because the underlying matter was decided on a motion for judgment on
the pleadings under CR 2 12.02(f), the factual record is not fully developed.
However, the following facts are not in dispute. On August 15, 2017, Kenneth
Jarnigan was injured in a collision with a vehicle driven by Deborah
Middleton. 3 Following the accident, Jarnigan’s insurer, Allstate Property and
Casualty Insurance Co. (“Allstate”), paid $10,000 in BRB on Jarnigan’s behalf
for various medical expenses. Prior to the resolution of Jarnigan’s claims for
bodily injury against Middleton, 4 Allstate demanded subrogation from
Middleton’s liability carrier, State Farm Mutual Automobile Insurance Co.
(“State Farm”), for its payment of BRB to Jarnigan. At some unspecified time
thereafter, while Jarnigan’s claims were still pending, State Farm sent payment
to Allstate in the amount of $9,000. 5
2 Kentucky Rules of Civil Procedure.
3 Jarnigan’s daughter was also involved in the accident, but her claims are not
relevant to the present appeal.
4 Jarnigan filed suit against Middleton on July 30, 2019.
5 This amount represents the full amount Allstate could receive in arbitration.
The Kentucky Insurance Arbitration Association (“KIAA”) Plan of Operation, Article 4,
Paragraph E specifically provides:
2
During discovery, State Farm informed Jarnigan that the limits of
Middleton’s liability policy were $50,000. On June 7, 2021, Jarnigan received
a letter from defense counsel stating:
We have spoken with the adjuster in this case and have received
authority to settle your client[’s] claims. It appears that due to a
lack of contact with your client prior to your representation, State
Farm reimbursed [BRB] in the amount of $9,000 out of the policy
leaving $41,000 in benefits still available under my client’s policy.
We have received authority to settle Mr. Jarnigan’s case for the
remaining policy limits of $41,000.
On July 20, 2021, Jarnigan settled his claim against Middleton for the
“remaining” $41,000 and executed a release which stated in pertinent part:
For the Sole Consideration of Forty-One Thousand Dollars
($41,000), the receipt and sufficiency whereof is hereby
acknowledged, the undersigned, Kenneth Jarnigan, (“Releasor”),
hereby releases and forever discharges Deborah Middleton . . .
[her] heirs, executors, administrators, agents, assigns . . .
(hereinafter all referred to as “Releasees”) liable or who might be
claimed to be liable, none of whom admit any liability to the
undersigned, but all expressly deny any liability from any and all
claims . . . which may have resulted . . . as a result an accident
which occurred on or about August 15, 2017, at or near Hartford,
Ohio County, Kentucky, which is the subject of the lawsuit in Ohio
Circuit Court . . . .
The undersigned reserves their right to pursue and recover all
future medical expenses, health care and related expenses . . . but
In order that there be fair allocation of significant losses, while at the
same time eliminating the unnecessary costs in the handling and shifting
of insignificant losses, no member shall make application for or be
entitled to receive, and no arbitration award shall be made for damages
paid or payable to the member reparations obligor for the first $1,000 in
the aggregate of loss so paid arising from a single occurrence without
regard to the number of persons to whom basic or added reparations
benefits are paid or payable.
(Available at https://kyinsplans.org/arbitration/). Subject to the approval of the
Commissioner of Insurance, the KIAA is authorized by statute to promulgate such “a
plan of operation and any amendments thereto necessary, or suitable to assure the
fair, reasonable, and equitable administration of the association.” KRS 304.39-290(5).
3
such reservation does not include the Releasees who are given a
full and final release of all claims, including all past, present, and
future claims for subrogation . . . arising out of the above
referenced accident.
The undersigned agrees to be responsible for, and to satisfy out of
the proceeds of this settlement, any and all . . . subrogated
interests, for medical treatment, health care and related expenses
and attorney’s fees, incurred by, or on behalf of, the undersigned,
for any injuries arising from the accident[.] This provision does not
relate to [BRB]/No Fault benefits paid as this settlement is
exclusive of such benefits and undersigned has no obligation to
repay any such benefits which have been paid or may be payable.
The trial court entered an agreed order of dismissal on July 23, 2021.
On October 28, 2021, Jarnigan amended his complaint against
Middleton to include two separate claims against Allstate: (1) he was entitled
to repayment of the $9,000 Allstate had received from State Farm because
Allstate prematurely received subrogation in violation of the priority established
by KRS 304.39-070 and KRS 304.39-140(3); and (2) Allstate violated its duty of
good faith and fair dealing in contravention of the common law and the Unfair
Claims Settlement Practices Act, as set forth in KRS 304.12-230, by failing to
inquire whether he intended to pursue a claim for personal injuries prior to
demanding subrogation from State Farm. In response, Allstate filed a motion
to dismiss for failure to state a claim pursuant to CR 12.02(f).
The trial court initially granted Allstate’s motion to dismiss in an order
entered on June 2, 2022. Jarnigan filed a timely motion to alter, amend, or
vacate, which the trial court granted. On March 2, 2023, the trial court again
granted the motion to dismiss, concluding:
4
While the Court may agree with the overall contention that Allstate
should not have received the repayment, the plaintiff’s argument
was against State Farm, not Allstate.
State Farm chose to pay Allstate for the BRB payments before the
right to subrogation arose. It should not have done so. Insurance
companies should not be permitted [to] collude with one another to
reduce the recovery of injured individuals such as the plaintiff by
paying subrogation claims before the resolution of underlying
cause of action. The plaintiff possessed a strong argument that
State Farm’s policy limits had not been reduced by State Farm’s
premature payment to Allstate. Rather than take the fight to State
Farm and require State Farm to pay the full amount under the
policy to the plaintiff, Jarnigan decided to settle his claims against
Middleton and State Farm, executing a full release of those claims.
As such, the Court finds that there is not a claim against Allstate
for which relief may be granted. There is no statute or contractual
obligation for Allstate to reimburse Jarnigan for monies it may
have received improperly from State Farm.
The trial court based its decision solely on the foregoing analysis and rejected
Allstate’s argument that repayment of the disputed $9,000 would result in an
improper double payment of BRB.
On direct appeal, the Court of Appeals reversed and remanded for further
proceedings. Jarnigan v. Allstate Prop. & Cas. Ins. Co., No. 2023-CA-0333-MR,
2024 WL 3836618 (Ky. App. Aug. 16, 2024). Specifically, the Court of Appeals
determined “that an insured party may recover directly from its insurer
(reparation obligor) such amount of the improperly received BRB
reimbursement that would have been available from a tortfeasor’s liability
carrier to compensate the insured for his damages” and “[i]n so doing, an
insured may claim that its insurer (reparation obligor) breached the implied
covenant of good faith and fair dealing in their insurance contract by obtaining
reimbursement for paid BRB from a tortfeasor’s liability carrier before the
5
insured is fully compensated for the damages incurred.” Id. at *4.
Acknowledging “neither KRS 304.39-070(4) nor KRS 304.39-140(3) specifically
sets forth a civil remedy for violation thereof[,]” the Court of Appeals opined an
insured could “[a]rguably . . . utiliz[e] KRS 446.070.” Id. at n.5. We granted
discretionary review.
LAW AND ANALYSIS
A. Standard of Review
As a preliminary matter, the parties dispute the appropriate standard of
review. Allstate contends the trial court appropriately applied the standard for
judgment on the pleadings under CR 12.02(f) while Jarnigan argues the Court
of Appeals properly applied the standard for summary judgment under CR
56.03. We agree the trial court applied the appropriate standard.
Although the Court of Appeals determined the “the [trial] court clearly
considered matters outside of the pleadings[,]” it did not specify any particular
matters so considered. Jarnigan, 2024 WL 3836618 at *3. Generally, when a
court considers matters outside the pleadings, a motion to dismiss is converted
to a motion for summary judgment. CR 12.02. However, when the documents
or exhibits are central to the issues raised in a plaintiff’s complaint and
referenced therein, even if not incorporated by reference or attached to the
complaint, “the records are subject to consideration without having to convert
the motion under review to a summary judgment motion.” Netherwood v. Fifth
Third Bank, Inc., 514 S.W.3d 558, 564 (Ky. App. 2017); see also Greenberg v.
Life Ins. Co. of Va., 177 F.3d 507, 514 (6th Cir. 1999) (document not fully
6
incorporated by reference or attached to complaint may be considered part of
pleadings when referred to in complaint and central to plaintiff’s claim). For
example, courts may generally “consider matters incorporated by reference or
integral to the claim, items subject to judicial notice, matters of public record,
orders, items appearing in the record of the case, and exhibits attached to the
complaint whose authenticity is unquestioned without converting the motion
into one for summary judgment[.]” Arthur R. Miller and A. Benjamin Spencer,
5B Fed. Prac. & Proc. Civ. (Wright & Miller) § 1357 (4th ed.)
From our review of the record, we are convinced the trial court limited its
consideration to matters within the pleadings, namely: the allegations
contained in the amended complaint, which also incorporated by reference the
original complaint; the letter from Middleton’s counsel, which was included as
an exhibit thereto; and the release, a copy of which was attached as an exhibit
to the response in opposition to Jarnigan’s motion for leave to file an amended
complaint, was otherwise included in the record, and was central to Jarnigan’s
pleading. Therefore, we will review this matter as a dismissal for failure to
state a claim under CR 12.02(f).
“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.’” Fox v. Grayson,
317 S.W.3d 1, 7 (Ky. 2010) (quoting Upchurch v. Clinton Cnty., 330 S.W.2d 428,
429-30 (Ky. 1959)). Such a motion must be denied “unless it appears the
pleading party would not be entitled to relief under any set of facts which could
be proved[.]” Id. (quoting Pari–Mutuel Clerks’ Union of Ky., Local 541, SEIU,
7
AFL–CIO v. Kentucky Jockey Club, 551 S.W.2d 801, 803 (Ky. 1977)). In Fox, we
further explained,
[t]his exacting standard of review eliminates any need by the trial
court to make findings of fact; “rather, the question is purely a
matter of law. Stated another way, the court must ask if the facts
alleged in the complaint can be proved, would the plaintiff be
entitled to relief?” Since a motion to dismiss for failure to state a
claim upon which relief may be granted is a pure question of law, a
reviewing court owes no deference to a trial court’s determination;
instead, an appellate court reviews the issue de novo.
Id. (footnotes omitted).
B. MVRA Subrogation Provisions
Do Not Impose Duty on BRB Carrier
To Ensure Injured Person Takes
Priority of Recovery
Allstate first argues the Court of Appeals erred by imposing a duty upon
a BRB carrier to ensure an injured person is fully compensated before
accepting a voluntary payment for subrogation from the liability carrier. We
agree.
“Subrogation is the rule of law which allows a party under a legal
obligation to satisfy the debt of another and acquire the rights of the creditor
against the debtor.” Wine v. Globe Am. Cas. Co., 917 S.W.2d 558, 561 (Ky.
1996). Stated differently, “subrogation is [a] ‘legal operation by which a third
person who pays a creditor succeeds to his rights against a debtor.’” Robert D.
Monfort, Ky. Motor Veh. Ins. Law § 12:6 (2025-2026 ed.) (quoting Fed. Deposit
Ins. Corp. v. Wilhoit, 180 S.W.2d 72, 76 (Ky. 1943)).
“Because the goal of subrogation is to accomplish justice between the
parties, under common law great care is taken to ensure that invoking the
8
doctrine does not impair one with a superior equitable right.” Wine, 917
S.W.2d at 561. Thus, “[u]nder general principles of equity, in the absence of
statutory law or valid contractual obligations to the contrary, an insured must
be fully compensated for injuries or losses sustained (made whole) before the
subrogation rights of an insurance carrier arise.” Id. at 562.
“An insured has been ‘made whole’ when the insured has been fully
compensated for the total amount of legally recoverable damages, i.e., the total
amount of damages the insured could have recovered from the wrongdoer in a
lawsuit.” Jeffrey E. Thomas, 13 New Appleman on Insurance Law Library
Edition § 158.06[4][c][ii] (2025). So far as our knowledge extends, the appellate
courts of Kentucky have not definitively stated whether a voluntary settlement
for less than policy limits amounts to full compensation in the subrogation
context. We observe the decisions from other jurisdictions are divided on this
point, 6 and the authorities are likewise split on the issue of “whether the
insured has been made whole by proceeds derived from a settlement with a
third-party tortfeasor or its insurance carrier is a question of fact” or “whether
6 Thomas, 13 New Appleman on Insurance at § 158.06[4][c][ii] (“If the insured
has chosen to settle its claim with the tortfeasor, some jurisdictions hold that the
insured has been made whole by the settlement because the insured chose to accept a
sum certain to resolve the claim. Other jurisdictions do not automatically consider a
settlement to be full compensation.”); William J. Schermer & Irvin E. Schermer, 4
Auto. Liability Ins. 4th § 26:7 (2026) (“There is authority holding that a settlement
should not presumptively be considered to subsume all the insured’s damages. . . .
But there is substantial authority which holds that a settlement conclusively
establishes made-whole compensation.”); Jordan R. Plitt, Steven Plitt, Daniel
Maldonado, & Joshua D. Rogers, 16 Couch on Ins. § 223:159 (2026) (“The mere fact
that an insured settled for less than the tortfeasor’s insurer’s policy limits does not
mean that the plaintiffs had been made whole.”).
9
an insured was made whole for subrogation purposes is a matter of law” for a
court to decide without a jury. 46A C.J.S. Insurance § 2066 (2026). “Under
either view, an injured insured’s settlement of a disputed tort claim does not
mean that the insured has been made whole as a matter of law.” Id.
We need not wade further into these murky waters today, and simply
observe, as a general matter, that the Kentucky approach is “to allow the
prejudgment settlement” fixing the amount of damages, “but to require some
assessment of the reasonableness of the award.” Associated Ins. Serv., Inc. v.
Garcia, 307 S.W.3d 58, 69 (Ky. 2010); O’Bannon v. Aetna Cas. & Sur. Co., 678
S.W.2d 390, 393 (Ky. 1984). This rule is consistent with the procedure
envisioned by KRS 304.39-070(3), which is quoted in full below and requires a
BRB carrier’s subrogation claim to be asserted before a court through
intervention in the injured person’s lawsuit or through binding arbitration
before the KIAA. For the present purpose of review from a judgment on the
pleadings, we accept as true, as we must, Jarnigan’s allegation that he was not
made whole by the settlement agreement. 7
Under the MVRA, “[t]he primary subrogation statute is KRS 304.39-070.”
Monfort, Ky. Motor Veh. Ins. Law at § 12:9. This statute provides in pertinent
part as follows:
7 In addition, the question of whether Jarnigan was made whole by settlement
or otherwise is distinct from the legal question whether his priority of entitlement to
recovery under KRS 304.39-070(4) and KRS 304.39-140(3) was respected and the full
limits of State Farm’s policy were properly made available to him. Therefore, we reject
the contention that the mere fact of Jarnigan’s settlement and release is dispositive of
the present appeal.
10
(1) “Secured person” means the owner, operator or occupant of a
secured motor vehicle, and any other person or organization legally
responsible for the acts or omissions of such owner, operator or
occupant.
(2) A reparation obligor 8 which has paid or may become obligated
to pay basic reparation benefits shall be subrogated to the extent
of its obligations to all of the rights of the person suffering the
injury against any person or organization other than a secured
person.
(3) A reparation obligor shall have the right to recover basic
reparation benefits paid to or for the benefit of a person suffering
the injury from the reparation obligor of a secured person as
provided in this subsection, except as provided in KRS 304.39-
140(3). The reparation obligor shall elect to assert its claim (i) by
joining as a party in an action that may be commenced by the
person suffering the injury, or (ii) to reimbursement, pursuant to
KRS 304.39-030, sixty (60) days after said claim has been
presented to the reparation obligor of secured persons. The right
to recover basic reparation benefits paid under (ii) shall be limited
to those instances established as applicable by the Kentucky
Insurance Arbitration Association as provided in KRS 304.39-290.
(4) Any entitlement to recovery for basic or added reparation
benefits paid or to be paid by the subrogee shall in no event exceed
the limits of automobile bodily injury liability coverage available to
the secured party after priority of entitlement as provided in this
section and KRS 304.39-140(3) has been satisfied.
(Footnote added). Under KRS 304.39-070(2), “the BRB payor is subrogated to
the extent of its BRB payments ‘against any person or organization other than
a secured person.’” Monfort, Ky. Motor Veh. Ins. Law at § 12:9 (footnote
omitted). “That party is normally the tortfeasor’s liability insurer, but could
8 “KRS 304.39–020(13) defines a reparation obligor as ‘an insurer, self-insurer,
or obligated government providing basic or added reparation benefits under this
subtitle.’” City of Louisville v. State Farm Mut. Auto. Ins. Co., 194 S.W.3d 304, 306 (Ky.
2006).
11
also be an uninsured tortfeasor or a governmental entity that has opted out of
purchasing coverage.” Id. (footnotes omitted).
KRS 304.39–070(3) “expressly authorizes a reparation obligor . . . to
recover basic reparation benefits from the reparation obligor of the secured
person.” State Auto. Mut. Ins. Co. v. Empire Fire & Marine Ins. Co., 808 S.W.2d
805, 807 (Ky. 1991). This right to recovery “allows subrogation between basic
reparation obligors provided available coverage is not exhausted and that
payments to the injured party are not diminished.” Id. (citing KRS 304.39–
070(4) and KRS 304.39–140(3)). “[T]he BRB carrier may assert its subrogation
rights [by] intervention in the tort suit or arbitration.” 9 Monfort, Ky. Motor Veh.
Ins. Law at § 12:9. “If arbitration is chosen, it is to be initiated 60 days after
the claim has been presented to the reparation obligor of the secured person.”
Id. (footnote omitted).
As referenced by the phrase, “priority of entitlement,” in KRS 304.39-
070(4), KRS 304.39-140(3) establishes the priority of an injured person’s
recovery in damages over the right of a reparation obligor to subrogation and
states as follows:
If the injured person, or injured persons, is entitled to damages
under KRS 304.39-060 from the liability insurer of a second
person, a self-insurer or an obligated government, collection of such
damages shall have priority over the rights of the subrogee for its
9 “One factor which may affect the choice is that there is a $1,000 per
occurrence deductible under arbitration, no application may be made to recover the
first $1,000 of BRB.” Monfort, Ky. Motor Veh. Ins. Law at § 12:9 (citing KIAA Plan of
Operation, Article 4, Paragraph E.).
12
reimbursement of basic or added reparation benefits paid to or in
behalf of such injured person or persons.
(Emphasis added). This provision codifies the “made whole” doctrine. Monfort,
Ky. Motor Veh. Ins. Law at § 12:9. “The Motor Vehicle Reparations Act clearly
subordinates the subrogation rights of a reparation obligor to the rights of a
victim of a motor vehicle collision when the tortfeasor is insured.” Wine, 917
S.W.2d at 565. “Thus, a reparation obligor’s right to subrogation does not arise
until its insured has been fully compensated for the injuries and losses
sustained as a result of the negligence of an uninsured motorist.” Id. at 565-
66.
Moreover, when read together, the function of KRS 304.39-070(4) and
KRS 304.39-140(3) is to prevent interference with the rights of injured persons,
Fireman’s Fund Ins. Co. v. Bennett, 635 S.W.2d 482, 484 (Ky. App. 1981), and
“[t]o avoid . . . controversies” over “priority of access to the tortfeasor’s
coverage” by “subordinat[ing] the [BRB] insurer’s reimbursement claim to prior
satisfaction of the insured’s claim.” Schermer, 4 Auto. Liability Ins. 4th at §
64:9. “Thus, even though the tortfeasor’s liability carrier may have made a
previous settlement of the [BRB] insurer’s claim, the tortfeasor’s liability limits
remain intact for the purpose of satisfying the [BRB] insured’s tort claim.” Id.
(Emphasis added). In other words, a voluntary subrogation payment, made in
violation of the priority established by statute, will not be deemed to reduce the
liability limits available to an injured person, and a liability carrier will not be
heard to complain that the process of making full compensation to the injured
13
person impairs the terms of its contract with the tortfeasor. Id. “[B]y writing
insurance in Kentucky,” a liability carrier “makes itself amendable to the
provisions of the Kentucky Law and necessarily assumes the obligations of KRS
304.39-070(3) [and (4)], notwithstanding the provisions of its contract with” the
tortfeasor. 10 Ohio Sec. Ins. Co. v. Drury, 582 S.W.2d 64, 67 (Ky. App. 1979)
(interpreting prior version of KRS 304.39-070); see also Schermer, 4 Auto.
Liability Ins. 4th § 64:9 (“The fact that the liability carrier’s obligation . . .
exceeds its liability limits does not create an unconstitutional impairment of its
contract with the insured, since the consequences of the dual obligation
implicit in the legislation could have been avoided by declining to write the
insurance.”).
Applying the foregoing principles and authorities, we discern no
statutory, contractual, or quasi-contractual basis to support a cause of action
by an injured person against a BRB carrier for reimbursement of a premature
subrogation payment and instead hold it is the duty of the liability carrier
under KRS 304.39-070(4) and KRS 304.39-140(3) to remain
cognizant of its primary obligation to an injured victim under the
no-fault law and, if it volunteers payment to the subrogated carrier
before the resolution of the claim of the injured party, it cannot
assert any right to reduce the available coverage for that injury by
the amount of the payment, and it must absorb the loss caused by
its folly.
10 Thus, we reject Jarnigan’s argument that Allstate’s position will force State
Farm to exceed its contractual limits.
14
Jordan R. Plitt et al., 16 Couch on Ins. § 225:83 (2026) (citing Pennsylvania
Mfrs’ Ass’n Ins. Co. v. Gov’t Emp. Ins. Co. (GEICO), 136 N.J. Super. 491, 347
A.2d 5, 9-10 (1975), aff’d, 72 N.J. 348, 370 A.2d 855 (1977), called into doubt
by statute on other grounds as stated in David v. Gov’t Emp. Ins. Co., 360 N.J.
Super. 127, 141, 821 A.2d 564 (App. Div. 2003)); Schermer, 4 Auto. Liability
Ins. 4th at § 64:9. In such circumstances, “[i]t is fair and equitable” to demand
that the liability carrier “bear the loss sustained by” the injured person.
Pennsylvania Mfrs’, 136 N.J. Super. 491, 347 A.2d at 9; see also Schermer, 4
Auto. Liability Ins. 4th § 64:9 (“[L]iability insurers incautious enough to have
made a prior settlement with the [BRB] insurer under these circumstances will
probably not be granted . . . relief.”).
Undoubtedly, the liability carrier is best equipped to evaluate the status
and extent of probable damages in any open bodily injury claim against its
insured of which it “alone ha[s] the right and power to settle.” Manchester Ins.
& Indem. Co. v. Grundy, 531 S.W.2d 493, 498 (Ky. 1975). Similarly, the
liability carrier is in the best position to seek deferment of arbitration by
providing “written notice of the existence of pending claims or suits arising out
of the same accident, occurrence or insured event[.]” KIAA Arbitration Rules,
Gen. § 8 (available at https://kyinsplans.org/arbitration/).
By contrast, the BRB carrier will have no knowledge or dependable
method to verify the status of any open bodily injury claim made by the injured
person against the tortfeasor unless and until an underinsured motorist claim
has been raised. See KRS 304.39-320. In addition, we cannot overlook the
15
fact that Jarnigan was aware of the premature subrogation payment and
nevertheless voluntarily chose to settle for less than the tortfeasor’s policy
limits. He could have insisted that State Farm, as the tortfeasor’s carrier, fully
compensate him for his injuries and held State Farm to the burden of
retrieving the premature subrogation. Therefore, under these circumstances,
Jarnigan’s remedy, if one there may be, 11 lies against State Farm as the
liability carrier and not against Allstate.
C. KRS 446.070 Does Not Support Cause of Action
Against BRB Carrier
Allstate next argues the Court of Appeals erred by identifying KRS
446.070 as support for Jarnigan’s claim for repayment of the premature
subrogation. We agree.
KRS 446.070 provides, “[a] person injured by the violation of any statute
may recover from the offender such damages as he sustained by reason of the
violation, although a penalty or forfeiture is imposed for such violation.”
Importantly, Jarnigan did not plead a cause of action under KRS 446.070 in
his amended complaint and has failed to adequately establish the application
of this statute in his brief to this Court. 12 These facts are alone sufficient to
11 We express no opinion on the validity of Jarnigan’s settlement and release as
against State Farm because this matter is not presently before this Court.
12 Jarnigan’s position on KRS 446.070, as set forth in his brief, is equivocal at
best. The heading to this argument reads “The Court of Appeals Exceeded Its
Jurisdiction When It Suggested That Jarnigan Could Pursue His Claim Through KRS
446.070.” He then describes the Court of Appeals’ discussion of KRS 446.070 as
“mere dicta” and refers repeatedly to the claim of bad faith which he pled in the
amended complaint. In framing the statutory cause of action issue, Jarnigan further
specified the matter “before the court is an amended complaint that states an action
against Allstate for bad faith refusal to settle. In the event that this court should
16
reverse the decision of the Court of Appeals on this issue. Norton Healthcare,
Inc. v. Deng, 487 S.W.3d 846, 852 (Ky. 2016). “The proper role for an appellate
court is to review for error—and there can be no error when the issue has not
been presented to the trial court for decision.” Id. (footnote omitted).
Moreover, an appellate court should not attempt “[t]o rescue [a litigant’s] claim
from the trial court’s summary judgment” or order of dismissal by invoking
unraised claims and defenses upon its own motion. Id.
However, for the sake of completeness, we briefly note that KRS 446.070
cannot impose or create a legal duty: instead, the statute “affirmatively creates
liability by virtue of the breach of [a pre-existing] duty.” Collins v. Hudson, 48
S.W.3d 1, 4 (Ky. 2001) (emphasis added). Because we have concluded KRS
304.39-070(4) and KRS 304.39-140(3) impose the duty on the liability carrier
to ensure an injured claimant’s tort recovery is properly prioritized, we disagree
with the Court of Appeals’ intimation that KRS 446.070 supports Jarnigan’s
claim for repayment against Allstate.
D. Unjust Enrichment Claim Fails
as a Matter of Law
For its third contention of error, Allstate argues any claim for unjust
enrichment must fail as a matter of law. We agree.
remand the case to the circuit court . . . these bad faith claims are still viable.” Thus,
read in context, when Jarnigan later argues his “claim” may proceed under KRS
446.070, he has presumably referred to his bad faith claim and not a cause of action
for a per se violation of the priority provisions of KRS 304.39-070(4) and KRS 304.39-
140(3).
17
Although Jarnigan did not assert a claim for unjust enrichment in his
amended complaint, “[a] party’s failure to assert the existence of unjust
enrichment does not serve to make it nonexistent.” Davis v. Davis, 489 S.W.3d
225, 230 (Ky. 2016) (quoting Rose v. Ackerson, 374 S.W.3d 339, 343 (Ky. App.
2012)). “As long as the trial court determines that the elements are present, it
is not precluded from making the legal conclusion that unjust enrichment
exists.” Id.
To the extent Jarnigan asserts such theory is fundamental to his claim
for repayment, we reject its application here. A claim for unjust enrichment
arises when a party receives a sum of money “without consideration, and for
which the law implies a duty to repay.” Salkeld v. Davis, 247 S.W.2d 517, 520
(Ky. 1952).
For a party to prevail under the theory of unjust enrichment, they must
prove three elements: (1) benefit conferred upon defendant at plaintiff's
expense; (2) a resulting appreciation of benefit by defendant; and (3)
inequitable retention of benefit without payment for its value
Jones v. Sparks, 297 S.W.3d 73, 78 (Ky. App. 2009). In considering whether a
defendant has benefited at the plaintiff’s expense, the plaintiff must be the
party who conferred the benefit. Id.; see also 42 C.J.S. Implied Contracts § 19
(2026) (“To prevail on a claim of unjust enrichment, a plaintiff must
demonstrate . . . a benefit conferred by a plaintiff upon a defendant[.]”); 66 Am.
Jur. 2d Restitution & Implied Contracts § 12 (2026) (“An essential element in
recovering under a theory of unjust enrichment is the receipt of a benefit by the
18
defendant from the plaintiff that would be inequitable to retain without paying
for its value.” Additionally, “for a plaintiff to recover on an unjust-enrichment
claim, the party from whom the plaintiff seeks recovery must have some
connection with the wrongdoing, and the plaintiff must have conferred some
benefit on the party.” 66 Am. Jur. 2d Restitution & Implied Contracts § 29
(2026) (footnoted omitted). The doctrine of “unjust enrichment is rooted in
equity[.]” Superior Steel, Inc. v. Ascent at Roebling’s Bridge, LLC, 540 S.W.3d
770, 778 (Ky. 2017).
While this Court is not without sympathy for Jarnigan’s plight, it is a
fundamental “tenet that if there is a statute or case precedent or rule going a
certain way, a trial court may not depart from it on the basis of equity.” Bell v.
Commonwealth, Cabinet for Health & Fam. Servs., Dep’t for Cmty. Based Servs.,
423 S.W.3d 742, 747-48 (Ky. 2014). Simply put, “[l]aw trumps equity.” Id. at
748. Thus, we decline to imply a duty on a party in equity where the
applicable statutes, KRS 304.39-070(4) and KRS 304.39-140(3), impose the
same duty and risk of loss upon another.
E. Bad Faith Claims Fail as a Matter of Law
Finally, Allstate argues Jarnigan’s claims for bad faith must fail as a
matter of law. We agree.
The elements of common-law and statutory first-party bad faith claims
are identical and have been commonly stated as follows:
[A]n insured must prove three elements in order to prevail against
an insurance company for alleged refusal in bad faith to pay the
insured’s claim: (1) the insurer must be obligated to pay the claim
19
under the terms of the policy; (2) the insurer must lack a
reasonable basis in law or fact for denying the claim; and (3) it
must be shown that the insurer either knew there was no
reasonable basis for denying the claim or acted with reckless
disregard for whether such a basis existed.
Belt v. Cincinnati Ins. Co., 664 S.W.3d 524, 532 (Ky. 2022) (quoting Wittmer v.
Jones, 864 S.W.2d 885, 890 (Ky. 1993)). At common law, “Kentucky courts
have recognized the inclusion of an implied covenant of good faith and fair
dealing in all insurance contracts.” Id. at 530 (footnote omitted). Similarly,
“the gravamen of” statutory bad faith claims “is that an insurer is required to
deal with the insured or third-party claimant in good faith.” Id. at 531. “[A]
showing of intentional misconduct or reckless disregard of the rights of an
insured is a prerequisite to the submission” of a bad faith claim to the jury. 13
Id. at 531-532.
At the outset, we disagree with the Court of Appeals’ remark that the trial
court made a finding of impropriety on the part of Allstate and “even suggested
that collusion may have been involved by the companies in reimbursing the
BRB payment[.]” Jarnigan, 2024 WL 3836618, at *2 n.3. Read in context, we
interpret the trial court’s statement, “[i]nsurance companies should not be
permitted [to] collude with one another to reduce the recovery of injured
individuals such as the plaintiff by paying subrogation claims before the
resolution of underlying cause of action[,]” as an expression of the general
13 Because the analysis for common law and statutory bad faith claims is
identical, “cases decided under the statute should serve as precedent under the
common law action, and vice versa.” Monfort, Ky. Motor Veh. Ins. Law at § 8:4.
20
harm at which the protections of the MVRA subrogation priority provisions are
directed. While Jarnigan made an allegation of bad faith against Allstate, a
factual finding of misconduct in the absence of an admission is clearly
inappropriate at this preliminary stage of litigation, and we do not read the trial
court’s order as having intended to resolve this matter. 14 Fox, 317 S.W.3d at 7;
Steelvest, Inc. v. Scansteel Serv. Ctr., Inc., 807 S.W.2d 476, 480 (Ky. 1991).
Turning to the merits of whether Jarnigan properly stated his claims for
bad faith, we must hold, as he appears to recognize, that these claims fail as a
matter of law. On page 13 of his brief, Jarnigan acknowledges he “conceded at
the trial court level that the survival of the bad faith claim[s] . . . depended on .
. . prevailing on the Issue in Count I [violation of duty under KRS 304.39-
070(4) and KRS 304.39-140(3)].” He further states that if Allstate is entitled to
dismissal on the statutory duty claim, then “the basis” for the bad faith claims
“will disappear.” Similarly, on page 27 of his brief, Jarnigan stated, “[i]n the
event that this court should remand the case to t