Dudas v. Kaczmarek

• Decision Date: 20 May 1983
• Citation: 652 S.W.2d 868
• Parties: John DUDAS, Appellant, v. Richard KACZMAREK, Appellee.
• Court: Kentucky Court of Appeals

Page 868

652 S.W.2d 868

John DUDAS, Appellant, v. Richard KACZMAREK, Appellee.

Court of Appeals of Kentucky.

May 20, 1983.

John G. Crutchfield, Ewen, MacKenzie & Peden, P.S.C., Louisville, for appellant.

W. David Klingman, Frockt & Klingman, Louisville, for appellee.

Before DUNN, LESTER and WILHOIT, JJ.

WILHOIT, Judge.

The sole question presented in this appeal is whether an injured party in a vehicular accident may recover in his negligence action against an alleged tortfeasor amounts which he has received, or is entitled to receive, from an insurance company as basic reparation benefits [BRB] under the Kentucky Motor Vehicle Reparations Act, KRS 304.39-010 to -340. We hold that when this is properly objected to, he may not.

The appellant, John Dudas, was found by a jury of the Jefferson Circuit Court to have been the driver of a vehicle in which the appellee, Richard Kaczmarek, was a passenger. Kaczmarek claimed in his complaint to have sustained injuries as the result of a collision between Dudas's automobile and another vehicle; the driver and owner of the second vehicle were granted a summary judgment dismissing with prejudice all claims against them. The jury found for Kaczmarek on his claim against Dudas and awarded him damages for hospital and medical expenses of $7,894.84, lost wages of $12,806.24, and pain and suffering of $5,000.00, a total of $25,701.08. Although the circuit court initially ordered that the judgment on the jury's verdict was to "omit[ ] benefits paid by [Kaczmarek's] insurer as BRB[,]" the court subsequently set aside that order and entered the judgment appealed from, awarding Kaczmarek the total amount of damages found by the jury. An agreed statement filed in the record indicates that Kaczmarek's insurer, who was not a party to the action below, paid him $8,008.85 in medical expenses and lost wages as a result of the collision.

Although no direct authority is cited, the appellee argues that it was necessary for the appellant to raise the nonrecoverability of basic reparation benefits from him as an affirmative defense in his answer to the appellee's complaint. That complaint alleged, in substance, that the appellee had been injured through use of a motor vehicle on a public highway of this Commonwealth; he is, therefore, deemed to have accepted the provisions of the Motor Vehicle Reparations Act, including, of course, KRS 304.39-060(2)(a) ¹. See KRS 304.39-060(1). If the appellee intended to pursue recovery of the first $10,000 of his economic loss, which is payable as BRB under the Act, in this action, then his was the burden of showing the inapplicability of the Act. D & B Coal Co. v. Farmer, Ky., 613 S.W.2d 853 (1981). We do not believe that this matter constituted an affirmative defense.

In Hargett v. Dodson, Ky.App., 597 S.W.2d 151, 152 (1979), we recognized that "KRS 304.39-060 expressly abolishes tort liability to the extent compensated by BRB." In Progressive Casualty Insurance Co. v. Kidd, Ky., 602 S.W.2d 416 (1980), the Supreme Court quoted this language from the Hargett opinion and stated that "under the Kentucky No-Fault Act, an injured party is not entitled to an award of damages from the defendant in the trial on liability for any item of damages which was compensated by BRB." Id. at 417. In reluctantly permitting the injured party a double recovery on items encompassed in basic reparation benefits, the Court in Kidd was not faced with the situation that we have here. The appeal in Kidd did not result from a challenge by the tortfeasor to the injured party's being awarded damages encompassed in basic reparation benefits in a negligence action, as we have here, but rather from a separate declaratory judgment action on disbursement of funds paid to satisfy the judgment in a negligence action. Kidd provides no authority for a double recovery in the present case. Indeed, the Supreme Court closes its opinion in Kidd by expressing its hope that in the future "damages will not be awarded to injured parties who have already been provided BRB when the insurer is not a party to the action." 602 S.W.2d at 418.

Having determined that the appellee is not entitled to a double recovery, we are confronted with the more troublesome question of whether the appellant is to receive a reduction in the judgment by $8,008.85 (the amount of BRB paid) or by $10,000.00 (the maximum amount of BRB payable). The jury awarded the appellee $20,701.08 for medical expenses and lost wages; the first $10,000 in damages sustained for these items are...