Opinion
NO. 2012-CA-000005-MR
02-01-2013
ROBERT HAMPTON AND KATHY HAMPTON APPELLANTS v. STACEY M. WATKINS APPELLEE
BRIEF FOR APPELLANT: Randy A. Byrd Cincinnati, Ohio BRIEF FOR APPELLEE: Stephen D. Wolnitzek Covington, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM BOONE CIRCUIT COURT
HONORABLE JAMES R. SCHRAND II, JUDGE
ACTION NO. 11-CI-01484
OPINION
AFFIRMING
BEFORE: CLAYTON, COMBS, AND NICKELL, JUDGES. COMBS, JUDGE: Robert and Kathy Hampton appeal the order of the Boone Circuit Court which granted summary judgment to Stacey Watkins in a case involving a vehicular accident. After our review of the record and the law, we affirm.
On October 21, 2008, the Hamptons were involved in a motor vehicle crash in Boone County. Watkins was the driver of the other car. The Hamptons are Ohio residents and are insured by Ohio Mutual Insurance Group, which does not conduct business in Kentucky. The Hamptons received medical pay insurance (med-pay benefits) that totaled $1804.39. The payments were made between March 17, 2010, and March 7, 2011.
On July 5, 2011, the Hamptons filed a complaint in Boone Circuit Court alleging that Watkins had negligently caused their injuries. Watkins filed a motion seeking summary judgment on October 24, 2011. The trial court granted the motion on December 2, 2011. This appeal follows.
Summary judgment is a device carefully utilized by the courts to expedite litigation. Ross v. Powell, 206 S.W.3d 327, 330 (Ky. 2006). It is a "delicate matter" because it "takes the case away from the trier of fact before the evidence is actually heard." Steelvest, Inc. v. Scansteel Service Center, Inc., 807 S.W.2d 476, 482 (Ky. 1991). In Kentucky, the movant must prove that no genuine issue of material fact exists and "should not succeed unless his right to judgment is shown with such clarity that there is no room left for controversy." Id.
The trial court must view the evidence in favor of the non-moving party. City of Florence v. Chipman, 38 S.W.3d 387, 390 (Ky. 2001). In order to overcome a motion for summary judgment, the non-moving party must present "at least some affirmative evidence showing the existence of a genuine issue of material fact." Id. See also CR 56.03. On appeal, the standard of review that we utilize 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). Because summary judgments do not involve fact finding, our review is de novo. Pinkston v. Audubon Area Community Services, Inc., 210 S.W.2d 188, 189 (Ky. App. 2006).
In this case, the trial court granted Watkins's motion for summary judgment because the Hamptons failed to file their complaint within the required statutory time frame. Kentucky Revised Statute[s] (KRS) 304.39-230(6) provides that "[a]n action for tort liability . . . may be commenced not later than two (2) years after the injury, or the death, or the last basic or added reparation payment made by any reparation obligor, whichever occurs later." The Hamptons argue that because they received the last medical pay insurance payment on March 7, 2011, their complaint was filed in a timely fashion. However, the court agreed with Watkins that because the accident occurred in October 2008 - nearly two-and-one-half years prior to filing the lawsuit - it was untimely.
The Hamptons' argument is that the medical pay insurance is equivalent to the basic and added reparation payments referred to in KRS 304.39-230(6), which toll the statute of limitations. The Supreme Court of our state has addressed this issue, however, and has held unequivocally that medical pay insurance does not toll the time frame. Lawson v. Helton Sanitation, Inc., 34 S.W.3d 52, 61 (Ky. 2000).
In Lawson, the injured party had received personal injury payments (PIP)and medical pay benefits. He filed his complaint more than two years after receiving the PIP payments but less than two years after the medical payments. Lawson argued to the Supreme Court that the medical payments served to extend the filing deadline. The Supreme Court disagreed in no uncertain terms:
PIP benefits are synonymous with basic reparation benefits. Lawson v. Helton Sanitation, Inc., 34 S.W.3d at 60.
There is no such thing as a generic no-fault payment which tolls the two-year period of limitations for filing a tort action. The only no-fault payment which tolls the period of limitations is a [basic reparations benefit] or [added reparations benefit payment][.]Lawson v. Helton Sanitation, Inc., 34 S.W.3d at 61.
The Hamptons attempt to distinguish Lawson from their situation because Lawson's insurance policy entitled him to basic reparations benefits while theirs did not. However, they were entitled to receive basic reparations benefits through Kentucky's Assigned Claims Plan. KRS 304.39-160(1)(b). The Hamptons do not contend (and the record does not suggest) that the Hamptons ever attempted to take advantage of the rights conferred upon them by the Assigned Claims Plan. Our court has held that when a plaintiff sues another individual in lieu of seeking remedy through the Assigned Claims Plan, dismissal of the suit is appropriate. Blair v. Day, 600 S.W.2d 477, 478 (Ky. App. 1979).
We note that the trial court relied upon Lawson in granting summary judgment to Watkins. While we appreciate the Hamptons' reasoning, the holding of the Supreme Court is good law, and we are not permitted to disregard it. Kentucky Rule[s] of the Supreme Court (SCR) 1.030(8)(a). Additionally, summary judgment was proper in light of Blair.
We affirm the order of summary judgment of the Boone Circuit Court.
ALL CONCUR. BRIEF FOR APPELLANT: Randy A. Byrd
Cincinnati, Ohio
BRIEF FOR APPELLEE: Stephen D. Wolnitzek
Covington, Kentucky