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RENDERED: DECEMBER 22, 2005 TO BE PUBLISHED
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2004-SC-0065-DG

CHARLES K. BROWN, ADMINISTRATOR APPELLANTS
OF THE ESTATE OFJOSE GARCIA;
MARIA PUENTE SALANDA,
INDIVIDUALLY; MARIA PUENTE
SALANDA, AS NEXT FRIEND OF RUBEN
VILLICANA PUENTE; MARIA PUENTE
SALANDA, AS NEXT FRIEND OF MARIA
CONSUELO VILLICANA; AND MARIA
PUENTE SALANDA, AS NEXT FRIEND
OFJESUS VILLICANA PUENTE
ON REVIEW FROM THE COURT OF APPEALS
2003-CA-0113-MR
SHELBY CIRCUIT COURT NO. 2001-CI-0580

INDIANA INSURANCE COMPANY; APPELLEES DARREN AKERS; SHELBY AND FINCH GARDEN, LLC, D/B/A WILLOWBANK . GARDEN COMPANY; MATT ZEHNDER; CSX TRANSPORTATION; AND WENDY O'BANION, AS ADMINISTRATOX OF THE ESTATE OF CHASE O'BANION
CONSOLIDATED WITH:
2004-SC-0067-DG
SHELBY AND FINCH GARDEN, LLC, APPELLANTS D/B/A WILLOWBANK GARDEN COMPANY; MATTZEHNDER; AND DARREN AKERS
ON REVIEW FROMTHE COURT OFAPPEALS
V. 2003-CA-0113-MR SHELBY CIRCUIT COURT NO. 2001-CI-0580
INDIANA INSURANCE COMPANY; APPELLEES
WENDY O'BANION, AS ADMINISTRATRIX
OF THE ESTATE OFCHASE O'BANION;
CSX TRANSPORTATION; CHARLES K. BROWN,
ADMINISTRATOR OF THE ESTATE OFJOSE GARCIA;
MARIA PUENTE SALANDA, INDIVIDUALLY;
MARIA PUENTE SALANDA, AS NEXT FRIEND OF
RUBEN VILLICANA PUENTE; MARIA PUENTE
SALANDA, AS NEXT FRIEND OF MARIA CONSUELO
VILLICANA; AND MARIA PUENTE SALANDA,
AS NEXT FRIEND OFJESUS VILLICANA PUENTE
CONSOLIDATED WITH:
2004-SC-0070-DG

CSX TRANSPORTATION, INC. APPELLANT
ON REVIEW FROM THE COURT OF APPEALS
V. 2003-CA-0113-MR SHELBY CIRCUIT COURT NO. 2001-CI-0580
INDIANA INSURANCE COMPANY APPELLEE

CONSOLIDATED WITH:

2004-SC-0071-DG

WENDY O'BANION, AS APPELLANT ADMINISTRATRIX OF THE ESTATE OF CHASE O'BANION
ON REVIEW FROM THE COURT OF APPEALS
V. 2003-CA-0113-MR
SHELBY CIRCUIT COURT NO. 2001-CI-0580

INDIANA INSURANCE COMPANY; APPELLEES
CHARLES BROWN, ADMINISTRATOR
OF THE ESTATE OF JOSE GARCIA;
MARIA PUENTE SALDANA, INDIVIDUALLY;
MARIA PUENTE SALDANA, NEXT FRIEND
OF RUBEN VILLICANA PUENTE;
MARIA PUENTE SALDANA, NEXT FRIEND
OF MARIA CONSUELO VILLICANA;
MARIA PUENTA SALDANA, NEXT FRIEND
OF JESUS VILLICANA PUENTE;
SHELBY & FINCH GARDEN COMPANY
D/B/A WILLOWBANK GARDEN COMPANY;
MATTHEW ZEHNDER; CSXTRANSPORTATION;
AND DARREN AKERS

OPINION OF THE COURT BY JUSTICE COOPER
AFFIRMING

The issue presented by this appeal is whether a commercial automobile liability insurance policy affords coverage for damages sought in a tort action brought against the insured employer for the wrongful death of its employee, where the action would have been barred by the exclusive remedy provision of the Kentucky Workers' Compensation Act but for the fact that the employer failed to procure a policy of workers' compensation insurance. We hold that the automobile liability policy neither affords coverage for such an action nor requires the insurer to pay the cost of defending such an action.
On June 19, 2001, Jose Garcia and Chase O'Banion were killed when the pickup truck in which they were passengers collided with a CSX railroad train. The pickup truck was owned by Shelby and Finch Garden, LLC, d/b/a Willowbank Garden Company ("Willowbank"), a landscaping business, and was being driven at the time of
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Download 2004-sc-000065-dg.pdf

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