Request By:
Honorable David A. Weinberg, P.S.C.
Attorney at Law
180 North Mill Street
Lexington, Kentucky 40507
Opinion
Opinion By: David L. Armstrong, Attorney General; By: Carl T. Miller, Jr., Assistant Attorney General
On January 13, 1984 this office issued a formal opinion, OAG 84-20, on a question you presented as Hearing Officer for the Board of Claims. The question dealt with in that opinion was whether the Board of Claims in making an award of damages resulting from negligent operation of a state-owned vehicle is required to deduct from the award the amount which the claimant has received as basic reparation benefits under the Kentucky No-Fault Insurance Law, KRS 304.39. Our answer was that in any case involving motor vehicle reparation benefits the Board of Claims should deduct from any award the amount which the claimant could have received as reparation benefits. That amount is currently $10,000.
Since OAG 84-20 was issued, an opinion of the Court of Appeals has been published, Thompson v. Piasta, Ky.App., 662 S.W.2d 223 (1983), which affirms our position that an automobile accident victim who is subject to Basic Reparation Benefits is not entitled to an award from a defendant in a trial on liability for any item of damages for which such benefits are payable under no fault provisions, regardless of whether Basic Reparation Benefits have been paid to the victim. Ibid. at 226.
Thompson v. Piasta, supra, also holds that the accident victim has the burden of proving he has rejected the "no fault" provisions as a threshold requirement for bringing an action in court for bodily injury up to the limit of Basic Reparation Benefits under KRS 304.39-060(2)(b).
In a letter to this office dated March 7, 1984, you present further questions which the Board of Claims would like to have answered. We will answer the questions as presented.
1. Are the present regulations of the Board of Claims sufficient to accomplish the end result set forth in OAG 84-20?
Answer: Yes. The Administrative Regulations of the Board of Claims, 108 KAR 1:010 deal only with practice and procedure, not with substantive rights.
2. What effective date should the Board use in determining awards based upon your opinions?
Answer: The effective date of the No-Fault Insurance Law, July 1, 1975. Any claim upon which the Board has not yet made a decision should be governed by OAG 84-20.
3. Would your opinion (OAG 84-20) extend to situations where a claimant suffers damages as a result of the use of a motor vehicle on a state-maintained highway or facility without another vehicle being involved, i.e., a defectively constructed or maintained highway, improper maintenance of a highway, or other improper finding, etc.?
Answer: Yes. KRS 304.39-060(2)(a) reads as follows:
"Tort liability with respect to accidents occurring in this Commonwealth and arising from the ownership, maintenance, or use of a motor vehicle is 'abolished' for damages because of bodily injury, sickness or disease to the extent the basic reparation benefits provided in this subtitle are payable therefor, or that would be payable but for any deductible authorized by this subtitle, under any insurance policy or other method of security complying with the requirements of this subtitle, except to the extent noneconomic detriment qualifies under subsection (2)(b) hereof."
We know of no court decision on this point but it is our opinion that a one-vehicle accident occurring because of a negligent condition in the highway is an accident "arising from the ownership, maintenance, or use of a motor vehicle" and, therefore (1) the driver and passengers in the vehicle involved in the accident are covered by basic reparation benefits and (2) the Commonwealth, the tort feasor, has no tort liability up to the sum of $10,000 because tort liability in that amount has been abolished.
4. Does KRS 304.39-070 require the reparation obligor of a claimant, if there be one, to intervene in a Board of Claims action or be forever barred from obtaining recovery?
Answer: Yes. When the Commonwealth is the tort feasor, the only way an obligor can obtain subrogation is through the Board of Claims because that is the only waiver of sovereign immunity in suits for negligence on the part of the Commonwealth. In Automobile Club Insurance Co. v. Commonwealth, Dept. of Highways, Ky., 414 S.W.2d 578 (1967), it was held that the Commonwealth could be required to pay contributions (or subrogation) through the Board of Claims. [See second appeal of same case 467 S.W.2d 326 (1971).]
When we say that the reparation obligor must "intervene" in the Board of Claims, we mean that the obligor must file a claim in the Board of Claims for subrogation. It can do this either by intervening in an original action brought by the injured party or, if no such action is brought because a settlement has been made for no more than $10,000, it may file an action in the Board of Claims and attempt to prove the negligence of the Commonwealth in order to gain subrogation. See Commonwealth, Dept. of Transportation v. All Points Construction Co., Ky.App., 566 S.W.2d 171 (1977), discretionary review denied June 6, 1978. The statute of limitations on a claim by an obligor for subrogation runs from the date the obligor pays the obligee, not from the date of the injury. Id.