Troxell v. Trammell

• Decision Date: 21 May 1987
• Docket Number: No. 86-SC-504-DG,86-SC-504-DG
• Citation: 730 S.W.2d 525
• Parties: Johnny W. TROXELL, Appellant, v. Tommy TRAMMELL, Appellee.
• Court: United States State Supreme Court — District of Kentucky

Page 525

730 S.W.2d 525

Johnny W. TROXELL, Appellant, v. Tommy TRAMMELL, Appellee.

No. 86-SC-504-DG

Supreme Court of Kentucky.

May 21, 1987.

Tim Lavender, Whitley City, for appellant.

Robert L. Milby, London, for appellee.

Douglas Lamb, Louisville, for amicus curiae.

LEIBSON, Justice.

This case arises out of a motor vehicle accident that occurred on July 13, 1983, on a public highway in McCreary County, Kentucky, when a motorcycle owned and operated by the plaintiff/appellant collided with a pickup truck operated by the defendant/appellee.

The appellant filed his complaint on October 5, 1984, more than one year, but less than two years, after the date of the accident. The trial court sustained a motion to dismiss the action as barred by the one year limitation of actions provision in KRS 413.140(1)(a), the general personal injuries limitation statute. The appellant contends that his complaint was timely filed because it was filed within the two year period provided in the "Motor Vehicle Reparations Act ("MVRA")," which is "Subtitle 39" to KRS Chapter 304. Section -230 of the MVRA is styled "Limitations of actions" and -230(6) specifies in pertinent part: "An action for tort liability not abolished by KRS 304.39-060 may be commenced not later than two (2) years after the injury."

The trial court was of the opinion that a "motorcycle is not subject to the provisions of the MVRA," and therefore the one year general personal injury limitations statute applied. The Court of Appeals affirmed holding that "unless by appropriate proof the operator or passenger on a motorcycle shows he has acquired optional coverage entitling him to basic reparation benefits, he is excluded from the operation of the no-fault act." ¹

It is conceded on this appeal that the appellant had no "basic reparation benefits ("BRB")" insurance coverage (defined in -020(2)) and filed no written rejection of limitations on his tort liability (provided for in -060(5) and (6)). Nevertheless he claims tort liability for injuries and damages exceeding the threshold provisions in the Act.

Once again we are confronted with the question of whether the two year statute of limitation for an "action for tort liability" provided in the MVRA applies to all motor vehicle accident victims or only to those who elect to purchase what the Act designates as "basic reparations benefits."

Our cases of recent vintage confronting the issue have taken off in two opposite directions.

On the one hand, Bailey v. Reeves, Ky., 662 S.W.2d 832, 833 (1984) and Goodin v. Overnight Transportation Co., Ky., 701 S.W.2d 131 (1985) have applied the two year statute of limitation based on the "literal language" of the MVRA, which states that the two year statute of limitation provided in the Act applies to "[a]n action for tort liability not abolished by -060." (Emphasis added.) Section -060 "abolished" ² tort liability in only two instances which are clearly defined and narrowly limited in that section. Section -060 provides that an "action for tort liability" is "abolished" when (and only when) it is an action brought by or on behalf of a person who has not exercised his right to reject as permitted by -060(4) & (5), and then it is " 'abolished' ... to the extent" it seeks to recover for:

(a) items of damages covered by "basic reparation benefits" (KRS -060(2)(a)); or

(b) "non-economic detriment" (further defined as "damages in tort for pain, suffering, mental anguish and inconvenience") caused by an injury which fails to exceed one of enumerated thresholds (KRS 304.39-060(2)(b)).

No other aspect of "tort liability" is "abolished" by KRS 304.39-060. Thus the two-year statute of limitations provided in KRS 304.39-230(6) applies perforce to all other causes of action in tort for motor vehicle accident victims.

On the other hand, Hurley v. Downing, Ky., 717 S.W.2d 225 (1986) and Ashby v. Money, Ky., 717 S.W.2d 223 (1986) have held that the two-year statute of limitation in the Act does not apply to a motor vehicle accident victim who has failed to obtain BRB coverage and has rejected the accompanying limitations on his tort recovery, except where the victim is an out-of-state resident temporarily in transit on our Kentucky highways. The reasoning in Hurley and Ashby is that the victim who has failed to obtain BRB coverage and has elected to reject the limitations on his tort liability has "removed" himself from "the purview of the Act."

These two diverse lines of authority cannot be reconciled. Either tort liability to motor vehicle accident victims not covered by "BRB" is nevertheless covered by the two-year statute of limitations in -230(6), or it is not. The statute as written provides two years, not one. By so holding we are applying the statute exactly as written. To the extent that Hurley v. Downing and Ashby v. Money, supra, state otherwise, they are overruled.

Those persons within this state covered by a statute cannot reject the application of that statute to their situation unless the words of the statute provide for rejection. The words of the MVRA permit the individual to reject BRB coverage and the limitations on tort liability that go with such coverage, but none of the other provisions of the Act.

The MVRA applies alike to everyone who uses a motor vehicle on the public roads in Kentucky. The Act provides, in no uncertain terms, that "any person" who "uses a motor vehicle on the public roadways of this Commonwealth" is, "as a condition of such ... use," "deemed to have accepted the provisions of this subtitle [the MVRA]." KRS 304.39-060(1). This can only mean "any person" and all "provisions."

This necessarily includes motorcyclists, because:

(1) KRS 304.39-020(7) defines "motor vehicle" as "any vehicle which transports persons or property upon the public highways of the Commonwealth, propelled by other than muscular power," with certain specified exceptions which do not include motorcycles.

(2) The Act has several provisions expressly applicable to motorcycles, and to motorcycle owners, operators and passengers, viz.: -060(2)(c) & (9), and -040(3), none of which specify a different statute of limitations for motorcycle accident victims, directly or indirectly.

(3) The Motor Vehicle Reparations Act is remedial legislation for motor vehicle accident victims much broader than just basic reparations (or no-fault) benefits. Among other things, it also provides for compulsory liability insurance (Sec. -110) and underinsured motorist coverage (Sec. -320), both of which are provisions that still apply whether or not the insured rejects no-fault coverage.

The MVRA applies to motorcycles the same as it applies to all motor vehicles, in the same manner and to the same extent, except where the Act specifies otherwise.

Contrary to the Court of Appeals' opinion, Sec. -040(3) does not provide that a motorcyclist who fails to acquire optional coverage entitling him to basic reparation benefits is excluded from the operation of the MVRA. This section is confined to denying a motorcyclist the right to receive payment of "basic reparation benefits from any source" unless "purchased as optional coverage for the motorcycle." This section says nothing about denying the motorcyclist any other provisions of the Act. It says nothing about denying a motorcyclist who has a cause of action in tort the two year statute of limitations provided in Sec. -230(6) of the Act.

The Court of Appeals' opinion makes reference to certain commentary on the purposes of the "Uniform Motor Vehicle Reparations Act" as set out in the Uniform Laws Annotated. The Uniform Act differs fundamentally from our Kentucky Act both in substance and approach. Those differences are so substantial that in compiling footnotes to the Uniform Act the annotators do not cross reference to our Kentucky Act, instead noting that Kentucky's Act "contains numerous variations, omissions and additional matter which cannot be clearly indicated by statutory notes." 14 U.L.A. 1 (West Supp.1986).

In writing our MVRA the General Assembly started with the assumption that the Uniform Act would violate the Kentucky Constitution and, therefore, adopted an optional approach to requiring no-fault benefits. See Fann v. McGuffey, Ky., 534 S.W.2d 770 (1975). It then drafted an Act different in terms and broader in subject matter.

In Bailey v. Reeves, supra at 833-34, we stated:

"[T]he literal language of the MVRA extends the statute of limitations to two years for actions 'with respect to accidents occurring in this Commonwealth and arising from the ownership, maintenance or use of a motor vehicle,' when not 'abolished' by the Act."

....

"We are required to give the words of the statute written by the legislature their plain meaning. To do so restricts us from adding restrictive language to KRS 304.39-230(6) [the two-year statute of limitations] where it does not now exist."

The appellant's cause of action fits squarely within the language of the Act and the holding in Bailey v. Reeves. In the present case we cannot add "restrictive language to KRS 304.39-230(6) where it does not now exist."

Our decision in Bailey v. Reeves recognizes that "the purview of the Act is motor vehicle accident victims." The appellant makes his claim as a motor vehicle accident victim, and as such he is within the "purview of the Act." 662 S.W.2d at 835.

In Goodin v. Overnight Transportation Co., supra at 133 we stated:

"It is reasonable to assume that the legislature intended exactly what it said when it made the two year statute for 'an action for tort liability' prescribed in KRS 304.39-230(6) part of the Motor Vehicle Reparations Act, that two years applies to all tort actions not abolished by the Act."

Bailey v. Reeves, supra, is consistent with the express language in the principal case interpreting our MVRA, Fann v. McGuffey, Ky., 534 S.W.2d 770 (1975), which states that "[a]n action for tort recovery not foreclosed by KRS...