Milby v. Wright

• Citation: 952 S.W.2d 202
• Decision Date: 04 September 1997
• Docket Number: 92-CI-239V,96-SC-117-DG,94-CA-2239-MR
• Parties: <PartyHeader>TERRY MILBY, APPELLANT v. MARK WRIGHT, INDIVIDUALLY AND AS AGENT OF H.D.B. CABLE COMMUNICATIONS, INC.; H.D.B. CABLE COMMUNICATIONS, INC.; AND DAVID ELAM, APPELLEES </PartyHeader>
• Court: Texas Court of Appeals

[2]

952 S.W.2d 202

[3]

TERRY MILBY, APPELLANT

v.

MARK WRIGHT, INDIVIDUALLY AND AS AGENT OF H.D.B. CABLE COMMUNICATIONS, INC.; H.D.B. CABLE COMMUNICATIONS, INC.; AND DAVID ELAM, APPELLEES

[4]

96-SC-117-DG

[5]

Kentucky Supreme Court

[6]

ON REVIEW FROM COURT OF APPEALS. 94-CA-2239-MR. PULASKI CIRCUIT COURT. HONORABLE DANIEL J. VENTERS, JUDGE. 92-CI-239V.

[7]	Released for Publication September 25, 1997.
[8]

September 4, 1997

[9]	Opinion OF The Court BY Justice Stumbo. All concur.
[10]	For Appellant: Joseph C. Souza, Anne Milton Mcmillin, Louisville, Ky.
[11]	For Appellees: Pamela Adams Chesnut, J. Warren Keller, Boyd F. Taylor, Mary-ann Smyth, William C. Stambaugh, Taylor, Keller & Dunaway, London, Ky.
[12]	The opinion of the court was delivered by: Stumbo
[13]	OPINION OF THE COURT BY JUSTICE STUMBO
[14]	AFFIRMING
[15]	This appeal questions the Court of Appeals' decision that held a personal injury suit was time barred by the two-year statute of limitations contained in KRS 304.39-230(6), and that neither KRS 304.39-040(2) nor KRS 413.270 provided additional time in which to file. We affirm.
[16]	Appellant, Terry Milby ("Milby"), was injured in a single-car accident on March 16, 1989. The car in question was owned either by Milby's employer, H.D.B. Cable Communications, Inc. ("H.D.B."), by David Elam and/or Harold LeMaster (co-owners of H.D.B.). It was driven by his co-worker, Mark Wright. Wright apparently suffered a seizure as the two travelled to lunch. Milby received both basic reparation benefits (BRB) from the car's insurer, State Farm, and benefits from his employer's workers' compensation carrier for a period of temporary total disability. He received his last BRB payment for a medical expense on March 5, 1990.
[17]	Milby filed a workers' compensation claim, with H.D.B. as the named defendant. The Administrative Law Judge eventually dismissed the claim, holding that because Milby was not performing a service for his employer at the time of the injury, the claim fell within the "coming and going rule" and was, thus, noncompensable. See, Baskin v. Community Towel Serv., Ky., 466 S.W.2d 456 (1971). That decision was affirmed at all levels on appeal, with this Court's opinion having been issued on March 24, 1994.
[18]	This personal injury claim was filed by Milby on March 16, 1992, against H.D.B., Mark Wright, David Elam, and Harold LeMaster. On April 8, 1992, Milby requested payment of a medical bill from Elam's insurer, State Farm. This was more than two years after the last BRB payment and the bill was for medical services rendered on August 12, 1991, some eight months earlier. State Farm refused to honor the bill on two grounds: because it believed that the statute of limitations had expired, and because the bill and accompanying medical report appeared to be associated with a work-related injury suffered during Milby's work for his then-current employer and not for the injuries received in the automobile accident.
[19]	Upon motion by the defendants below, the Pulaski Circuit Court dismissed the suit, holding that:
[20]	KRS 304.39-230(6) requires that a civil action for injuries sustained in a motor vehicle collision be commenced within two years of the injury or the last basic reparation payment, whichever occurred later. Basic reparation benefits were paid to the Plaintiff through March 5, 1990. The complaint . . . was filed more than two years after that date. It is therefore barred.
[21]	On the alternate argument that the saving statute, KRS 413.270, applied, the trial court held that the determination of whether the "coming and going rule" applied to bar Milby's workers' compensation claim was an issue of substantive law, not of jurisdiction. Therefore, the savings statute did not apply. In so ruling, the trial court also noted that the basis of and parties to the civil action were different than those asserted in the workers' compensation claim.
[22]	Milby's appeal raised both issues at the Court of Appeals, arguing additionally that State Farm wrongfully denied payment of the bill submitted in April of 1992, an issue raised at the trial court level but not resolved. Milby contended that because the bill was for treatment received within two years of the last BRB payment and should be assumed to be reasonable, the submission tolled the statute of limitations. The Court of Appeals agreed with the reasoning of the trial court on the two issues presented to it and rejected Milby's other argument. Citing the plain language of the statutes, the court held:
[23]	Although KRS 304.30-040(2) [sic] states that basic reparations obligors shall pay basic reparations benefits for loss from injury arising out of the use of

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