Progressive total-loss settlements in Kentucky: how to negotiate a fair offer

Kentucky regulates first-party automobile total losses through four layered authorities: the Unfair Claim Settlement Practices Act at KRS § 304.12-230 (which is unusual in that Kentucky recognizes a private right of action under the UCSPA), the prompt-payment statute at KRS § 304.12-235 (12% interest on unpaid amounts after 30 days), the implementing claim-handling regulation at 806 KAR 12:095, and the common-law tort of first-party bad faith recognized by the Kentucky Supreme Court in Wittmer v. Jones, 864 S.W.2d 885 (Ky. 1993). Kentucky does not impose a separate licensing requirement on a policyholder's appraiser invoked under the policy's appraisal clause. KRS § 304.12-230 — Unfair Claim Settlement Practices. The statute defines acts that constitute unfair claim settlement practices when committed in conscious disregard of the policy or with such frequency as to indicate a general business practice, including: misrepresenting pertinent facts or insurance policy provisions; failing to acknowledge and act with reasonable promptness on claim communications; failing to adopt and implement reasonable standards for the prompt investigation of claims; refusing to pay claims without conducting a reasonable investigation; failing to affirm or deny coverage of claims within a reasonable time; not attempting in good faith to effectuate prompt, fair, and equitable settlements when liability is reasonably clear; and compelling insureds to institute litigation to recover amounts due. The Kentucky Supreme Court in Curry v. Fireman's Fund Insurance Co., 784 S.W.2d 176 (Ky. 1989), held that an aggrieved insured has a private right of action under § 304.12-230 — a significant departure from the majority rule. KRS § 304.12-235 — Time Period for Processing Claims. The statute requires every insurer to pay or deny a claim within thirty days after receipt of proof-of-loss statements and documentation requested. If the insurer fails to pay within thirty days, simple interest at twelve percent (12%) per annum accrues from the date the claim was payable. 806 KAR 12:095 — Unfair Claim Settlement Practices Regulation. The regulation establishes specific standards for first-party automobile total-loss settlements: (a) Comparable vehicles. The insurer shall determine actual cash value using the cost of two or more comparable automobiles in the local market area, of like kind, quality, age, and mileage. (b) Dealer quotations. The insurer may, in lieu of comparable vehicles, base the settlement on two or more written quotations from licensed dealers in the local market area. (c) Statistically valid valuation source. The insurer may rely on a statistically valid fair-market-value source for the local market area, giving primary consideration to vehicles of the same model and year. (d) Adjustments. Adjustments for vehicle condition, mileage, prior damage, or required repair must be measurable, discernible, itemized, and specified in dollar amounts in the claim file. (e) Right of Recourse. If the insured cannot purchase a comparable vehicle in the local market area for the offered amount, the insurer shall reopen the claim and either locate a comparable, pay the difference, offer a replacement, or invoke the policy's appraisal clause. Wittmer v. Jones, 864 S.W.2d 885 (Ky. 1993), and Stevens v. Motorists Mutual Insurance Co., 759 S.W.2d 819 (Ky. 1988). The Kentucky Supreme Court recognized first-party bad faith as a tort and established a four-element test: (1) the insurer was obligated to pay the claim under the policy; (2) the insurer lacked a reasonable basis in law or fact for denying the claim; (3) the insurer either knew there was no reasonable basis for denying the claim or acted with reckless disregard for whether such a basis existed; and (4) the insurer's conduct caused the insured damages. Compensatory and punitive damages are available on appropriate factual showings. KRS § 186A.520 — Salvage Title Threshold. A vehicle for which the cost of repairs to its pre-loss condition equals or exceeds 75% of its retail value before the loss must be branded as a salvage vehicle. The 75% threshold sets the operational total-loss decision point. Kentucky does not impose a separate licensing requirement on a policyholder's appraiser invoked under the policy's appraisal clause.