NOT TO BE PUBLISHED

OPINION

DIXON, Judge.

Appellant, Grange Property & Casualty Insurance Company, appeals from an order of the Jefferson Circuit Court granting Appellee, Tomira Chappell's, motion for summary judgment and ordering Grange to pay her 18% interest on medical expenses that it delayed payment of, as well as Chappell's attorney fees. For the reasons set forth herein, we reverse the judgment of the trial court and remand for further proceedings consistent with this opinion.

On December 18, 2015, Chappell was involved in an automobile accident wherein her vehicle was rear-ended. The police report documented that both vehicles sustained "very minor" damage and both drivers reported "no injuries." Photographs show that neither vehicle received more than scratches in the collision. At the time of the accident, Chappell was insured by a policy issued by Grange that provided, among other things, $10,000 in personal injury protection ("PIP") coverage. Chappell subsequently sought chiropractic treatment for injuries she alleged she sustained in the accident. She thereafter made a claim for benefits under the Kentucky Motor Vehicle Reparations Act ("MVRA"), KRS Chapter 304.39 et seq., which entitles a claimant to receive basic reparation benefits (BRB) for motor vehicle accident related losses.

On February 12, 2016, Grange received a letter of representation on behalf of Chappell from the Gladstein Law Firm. Ten days later, Grange sent a responsive letter acknowledging representation and advising Chappell's counsel that her bills were pending until it completed its investigation as to whether her medical treatment was reasonable, medically necessary, and related to the automobile accident. Grange then arranged to take Chappell's recorded statement on April 1, 2016. Chappell failed to show for the appointment and her counsel thereafter withdrew from representation citing "non-compliance."

On April 8, 2016, Grange received a letter from Chappell's current counsel advising of his representation of Chappell and stating, "[a]t this time I am demanding that you make NO PIP payments to any healthcare provider without my written instructions." Grange responded, again requesting a recorded statement from Chappell "regarding the facts of the accident, injuries incurred, treatment obtained, and whether or not your client was working within the scope of his/her employment at the time of the accident." Grange's letter continued,

Grange sent a second letter to Chappell's counsel on April 28, 2016, again requesting her recorded statement. In the interim, however, Chappell filed the instant action in the Jefferson Circuit Court on April 26, 2016, claiming that Grange's refusal to pay the reparations benefits was a breach of the insurance contract and a violation of KRS 304.39-210, for which she was entitled to 18% interest, as well as attorney fees pursuant to KRS 304.39-220.

During discovery, Grange obtained sufficient information regarding Chappell's claim to resolve the outstanding bills with her medical provider. Grange also paid Chappell the statutory 12% interest to settle her claim pursuant to KRS 304.39-210(2). Chappell thereafter filed a motion for summary judgment seeking 18% interest pursuant to KRS 304.39-210(2) and for attorney's fees pursuant to KRS 304-39.220. Both statutes provide for such recovery only when the insurance obligor's denial or delay of payment was "without reasonable foundation." Grange responded that it did have "a reasonable foundation" to delay the PIP payments, and that it acted reasonably under Kentucky law.

On August 2, 2017, the trial court entered an order granting summary judgment in favor of Chappell and awarding her 18% interest and attorney's fees. Therein, the trial court noted,

Significantly, the trial court did not make any explicit finding that Grange's delay in payment was "without reasonable foundation." Following the denial of Grange's CR 59.05 motion to alter, amend or vacate the trial court's order, it appealed to this Court as a matter of right.

Our standard of review on appeal of a 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." Scifres v. Kraft, 916 S.W.2d 779, 781 (Ky. App. 1996). Summary judgment shall be granted "if 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 judgment as a matter of law." CR 56.03. The trial court must view the record "in a light most favorable to the party opposing the motion for summary judgment and all doubts are to be resolved in his favor." Steelvest v. Scansteel Service Center, Inc., 807 S.W.2d 476, 480 (Ky. 1991). Summary judgment is proper only "where the movant shows that the adverse party could not prevail under any circumstances." Id.

Summary judgment is an extraordinary remedy that should be "cautiously applied and should not be used as a substitute for trial." Id. at 483. Instead, summary judgment is only appropriate "to terminate litigation when, as a matter of law, it appears that it would be impossible for the respondent to produce evidence at the trial warranting a judgment in his favor and against the movant." Paintsville Hosp. Co. v. Rose, 683 S.W.2d 255, 256 (Ky. 1985). "Impossible," of course, should be interpreted in "a practical sense, not in an absolute sense." Perkins v. Hausladen, 828 S.W.2d 652, 654 (Ky. 1992). A motion for summary judgment is to be reviewed in a light most favorable to the opposing party, but the opposing party cannot defeat the motion "without presenting at least some affirmative evidence showing that there is a genuine issue of material fact for trial." Steelvest, 807 S.W.2d at 482. After all, a trial court's role is "not to resolve any issue of fact, but to discover whether a real fact issue exists." Shelton v. Kentucky Easter Seals Society, Inc., 413 S.W.3d 901, 905 (Ky. 2013).

An appellate review of summary judgment does not involve fact-finding since only legal questions must be resolved. Davis v. Scott, 320 S.W.3d 87, 90 (Ky. 2010) (citing 3D Enterprises Contracting Corp. v. Louisville and Jefferson County Metropolitan Sewer Dist., 174 S.W.3d 440, 445 (Ky. 2005)). Moreover, an appellate court need not defer to the trial court's decision on summary judgment and reviews the issue de novo because only legal questions and no factual findings are involved. See Lewis v. B & R Corp., 56 S.W.3d 432, 436 (Ky. App. 2001).

In this Court, Grange argues that summary judgment was inappropriate because there exists a material issue of fact as to whether it delayed payment "without reasonable foundation" as is required by KRS 304.39-210(2). Further, Grange contends that the trial court erred in concluding that Chappell was entitled to judgment as a matter of law based upon the language of KRS 304.280(3). We agree.

Kentucky's MVRA, which became effective on July 1, 1975, requires automobile insurers in Kentucky to provide coverage for reasonable and necessary medical expenses arising from a covered automobile accident without regard to fault. These insurance benefits are referred to as basic reparations benefits ("BRB") but are also commonly referred to as personal injury protection ("PIP") benefits or "no-fault" benefits. The purpose of the Act, as set forth in KRS 304.39-010, is as follows:

Kentucky's "MVRA is to be liberally interpreted in favor of the accident victim." See Fields v. Bellsouth Telecommunications, 91 S.W.3d 571, 572 (Ky. 2002) (quoting Lawson v. Helton Sanitation, Inc., 34 S.W.3d 52 (Ky. 2000)). Blue Cross and Blue Shield Inc. v. Baxter, 713 S.W.2d 478, 480 (Ky. App. 1986)1 ("[I]n enacting no-fault legislation, the intent was to provide a remedy to automobile accident victims that could not be impinged upon by any means whatsoever. This was the victim's reward for sacrificing traditional tort rights. . . . It is remedial in nature and thus will be broadly construed to carry out its beneficial purpose of providing compensation for persons injured by automobiles. 7 Am.Jur.2d Automobile Insurance § 28 (1980)").

Accordingly, Kentucky's MVRA requires an insurer to pay a medical expense within 30 days of receiving "reasonable proof of the fact and amount of loss realized[.]" KRS 304-39-210(1). Significantly, "[t]here shall be a presumption that any medical bill submitted is reasonable." KRS 304.39-020(5)(a). Further, "[o]verdue payments bear interest at the rate of twelve percent (12%) per annum, except that if the delay was without reasonable foundation the rate of interest shall be eighteen percent (18%) per annum." KRS 304.39-210(2). Finally, "a reasonable attorney's fee for advising and representing a claimant on a claim or in an action for basic or added reparation benefits may be awarded by the court if the denial or delay was without reasonable foundation." KRS 304.39-220(1). Thus, recovery of interest of 18% and recovery of attorney's fees are predicated on two things — the benefits must be overdue because of failure to pay within 30 days after receipt of "reasonable proof of the fact and amount of loss realized," and the delay or denial must have been "without reasonable foundation."

The trial court herein ruled that this case was governed by KRS 304.39-280, which provides in relevant part,

The trial court essentially concluded that Grange was required to petition the court for a discovery order to obtain the information it sought to determine the validity of Chappell's claims, and that its failure to do so warranted an award of 18% interest and attorney's fees. As previously noted, however, despite its ruling, the trial court never explicitly made the requisite finding that Grange's delay in payment was "without reasonable foundation."

Recently, in State Farm Mutual Automobile Insurance Company v. Adams, 526 S.W.3d 63 (Ky. 2017), our Supreme Court addressed a similar factual scenario. Following an automobile accident, three passengers in one of the vehicles made claims with State Farm seeking PIP and uninsured motorists' benefits. After making initial payments, State Farm perceived inconsistencies between the claimants' versions as to what had happened on the day in question, as well as inconsistencies between their statements and the police report. Consequently, State Farm sought to question the claimants under oath to resolve the following issues:

Id. at 64. Two of the claimants refused to submit to questioning and State Farm declined payment of additional benefits to both. The two claimants then filed suit against State Farm, which filed a counterclaim seeking a declaratory judgment that it did not have to provide coverage because the claimants failed to cooperate with its investigation. The trial court agreed with State Farm and dismissed the claimants' action. On appeal, a panel of this Court reversed and held that State Farm was required to seek a court order requiring the claimants to submit to discovery. Adams v. State Farm Mutual Automobile Insurance Company, No. 2013-CA-002152-MR (Ky App. June 15, 2015).

The Kentucky Supreme Court subsequently granted discretionary review and reversed this Court's decision. Adams, 526 S.W.3d at 63. The Court first noted that "[b]ecause a claimant is only entitled to receive BRB for motor vehicle accident-related losses, reparation obligors are entitled to conduct a reasonable investigation to determine if such relationship exists." Id. at 66. In order to expedite that investigation, the Court cited to KRS 304.39-280(1)(b) and (3), which provides for the disclosure of certain medical information and a remedy if that information is not forthcoming or if a dispute arises about a claimant's physical or mental condition. The Court then concluded,

Id. at 68.

Significantly, however, and pertinent to the matter herein, the Court further observed that "the MVRA does not specifically provide for the disclosure of information regarding the underlying motor vehicle accident." Id. at 67. Turning to the issues about which State Farm sought additional discovery, the Court noted that the first issue concerned medical information and State Farm should have resolved it through the relevant provisions of the MVRA. However, "[t]he second and third issues are related to the accident itself and are proper subjects for questioning under oath." Id. Finally, because the fourth issue involved both medical and accident-related questions, the Court held that the provisions of the MVRA controlled. Id.

As in Adams, Grange sought discovery of both medical and accident-related information. Questions concerning Chappell's injuries and the treatment she sought involved medical information and Grange should have sought an order pursuant to KRS 304.39-280(1)(b) and/or (3) when Chappell refused to cooperate. Notwithstanding, any information related to the facts of the accident and whether Chappell was working within the scope of her employment at the time of the accident were clearly accident-related questions and Grange was not required to obtain a court order to take Chappell's recorded statements as to those issues. Thus, we are of the opinion that the trial court erred in concluding that Grange was required to seek a court order to discover any of the information it sought.

Chappell has argued in this Court that Adams is inapplicable because it had not been rendered when the trial court granted summary judgment herein and because it "deviates from the long-standing rule in Kentucky." We disagree. Although the trial court did not have the benefit of the Adams decision, we do not believe that the decision in any manner deviates from existing law. Rather, it merely explains the plain language of the pertinent statutory provisions and the investigation of accident-related issues outside the province of Kentucky's MVRA.

We further disagree with the trial court's finding that Chappell's refusal to cooperate was not relevant to whether Grange unreasonably delayed payment. In the trial court, Grange cited to the unpublished decision of this Court in Hamlet v. Allstate Insurance Co., 2014-CA-000219-MR (Ky. App. January 29, 2016),2 for the argument that an additional interest and attorney's fee claim is improper when the delay is caused by the claimant. In Hamlet, the appellant was injured in an automobile accident while riding in an uninsured vehicle. After settling with the other driver, the appellant filed an application for no-fault benefits with the Kentucky Assigned Claims Plan ("KACP") seeking payment for medical treatment and lost wages incurred due to the accident. After noting inconsistencies in the appellant's information as well as the possible existence of additional insurance coverage, Allstate denied coverage for the appellant's medical expenses pending a final determination of her eligibility for benefits under the KACP. Instead of providing Allstate the information it requested to complete its eligibility investigation, the appellant filed an action against Allstate alleging she was entitled to no-fault benefits which had been wrongfully withheld, as well as entitlement to interest and attorney's fees. In denying the appellant's summary judgment motion, the trial court concluded that Allstate had timely paid the appellant's benefits after determining her eligibility and any delay was reasonable.

On appeal, a panel of this Court rejected the appellant's argument that Allstate should have been liable for 18% interest and attorney's fees under KRS 304.39-210(2) and KRS 304.39-220(1) because its delay in paying her medical bills was "without reasonable foundation." We observed,

Slip op. p. 3.

The trial court herein ruled not only that Hamlet was not binding because it is unpublished, but also that it was not applicable because it concerned benefits through KACP pursuant to KRS 304.39-160. We are of the opinion, however, that Hamlet's rationale with respect to a claimant's cooperation is persuasive as to the situation herein. Chappell refused to provide a recorded statement. Further, Chappell's counsel specifically directed Grange not to issue any payments absent his directive. Yet, less than three weeks later, Chappell filed the instant action asserting that Grange had unreasonably delayed payment. We do not believe that Chappell can claim she has "clean hands" when "the record reveals the lack of cooperation in the investigation phase which created the delay of which she now complains." Id.

This Court has held that an insurance obligor is entitled to assert a legal defense to a claim and that such defense, even if eventually unsuccessful, does not trigger the penalties of 18% interest and attorney's fees, as it does not necessarily amount to an unreasonable delay. Automobile Club Insurance Co. v. Lainhart, 609 S.W.2d 692, 695 (Ky. App. 1980). "It is our opinion that the assertion of a legitimate and bona fide defense by the reparation obligor constitutes reasonable foundation for delay under KRS 304.39-210 and KRS 304.39-220, and this is not changed by the fact that the case is ultimately decided against the obligor." Id.

Based on the record herein, we conclude that Grange produced sufficient evidence to demonstrate that there were substantial issues of fact as to whether it acted reasonably in delaying payment pending its investigation. The trial court, although finding that Chappell was entitled to interest and attorney's fees, not only failed to specifically find that Grange acted "without reasonable foundation" but erroneously concluded that it was required to obtain a court order to discover the accident-related information it sought from Chappell.

For the reasons set forth herein, the order of the Jefferson Circuit Court is reversed, and this matter is remanded for further proceedings.

ALL CONCUR.