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563 S.W.2d 736

Atchison v. Overcast

Court of Appeals of Kentucky

Decided December 2, 1977

Court of Appeals of Kentucky · decided 1977-12-02

Key passage — most relied on by later courts

“(4) Any person may refuse to consent to the limitations of his tort rights and liabilities as contained in this section. Such rejection must be in writing in a form to be prescribed by the Office of Insurance and must have been executed and filed with the office at a time prior to any motor vehicle accident for which such rejection is to apply. Such rejection form together with a reasonable explanation thereof shall be furnished by the reparation obligor with each policy to each prospective insurance applicant. Such rejection form shall affirmatively state in bold print that acceptance of this form of insurance denies the applicant the right to sue a negligent motorist unless certain ' requirements contained in the policy of insurance are met. Rejection by a person who is under legal disability shall be made on behalf of such person by his legal guardian, conservator or his natural parent. The failure of such guardian or a natural parent of a person under legal disability to file a rejection, within six (6) months from the date that this subtitle would otherwise become applicable to such person, shall be deemed to be an affirmative acceptance of all provisions of this subtitle. Provided, however, any person who, at the time of an accident, does not have basic reparation insurance but has not formally rejected such limitations of his tort rights and liabilities and has at such time in effect security equivalent to that required by KRS 304.39-110 shall be deemed to have fully r”

quoted by 1 later decision, including Stewart v. ELCO Administrative Services, Inc.

“If the accident causing injury occurs in this Commonwealth every person suffering loss from injury arising out of maintenance or use of a motor vehicle has a right to basic reparation benefits, unless he has rejected the limitation upon his tort rights as provided in KRS 304.39-060(4).”

quoted by 1 later decision, including Stewart v. ELCO Administrative Services, Inc.

Applies KY 304 § 304.39-030

Relies on Dixon v. Cowles

Good law ✅— No negative treatment on recordhow we know

Decided 1977-12-02

How this case has been cited

Cited by 6 later decisions — most recently May 2010

6 state decisions

4019771980199020002010decided

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

View the full empirical analysis of this case →

HAYES, Judge.

¶1 The parties to this appeal have stipulated the following facts:

¶2 (a) Kenneth Wayne Overcast, owns and operates an uninsured automobile.

¶3 (b) On September 2, 1975, in Murray, Kentucky, he was riding in an automobile owned and operated by his father-in-law who also was uninsured.

¶4 (c) Melvin Lee Atchison owned and operated an insured automobile which struck the rear of the automobile Overcast was a passenger in, thereby injuring Overcast.

¶5 (d) Neither Overcast nor his father-in-law had rejected the limitations of his tort rights and liabilities as prescribed by KRS 804.39-010-304.39-340.

¶6 (e) The sum total of all Overcast’s bills did not total $1,000.00 and there were no injuries sustained that would prevent the operation of the “no-fault” statute.

¶7 Overcast sued Atchison who plead the “no-fault” statute as a defense. The trial court sustained Overcast’s motion to strike this defense, and entered judgment for Overcast. Atchison appeals. The issue is whether Overcast is barred from bringing his common law tort action by reason of the “no-fault” statute.

¶8 In view of the decision rendered by this court in Dixon v. Cowles, Ky.App., 562 S.W.2d 639, 24 Ky.L.Summ. 12 (August 26, 1977), we must state that Overcast is subject to the “no fault” statute and may not bring a claim against the appellant Atchi-son.

¶9 Although the facts are not the same, because in Dixon the passenger did not own an automobile, the reasoning applied in the Dixon case would also apply here. Judge Vance in Dixon hinted that if Dixon had owned, operated, maintained or used an auto then the “no-fault” statute would come into play. It would make no difference whether that owned automobile would be insured or not when considering the “no-fault” statute.

¶10 KRS 304.39-030(1) states:

If the accident causing injury occurs in this Commonwealth every person suffering loss from injury arising out of maintenance or use of a motor vehicle has a right to basic reparation benefits, unless he has rejected the limitation upon his tort rights as provided in KRS 304.39-060(4).

¶11 KRS 304.39-060(1) states:

Any person who registers, operates, maintains or uses a motor vehicle on the public roadways of this Commonwealth shall, as a condition of such registration, operation, maintenance or use of such motor vehicle and use of the public roadways, be deemed to have accepted the provisions of this subtitle .

¶12 The plain intent of the above language is that all persons owning an automobile, whether insured or not, are subject to the limitations of “no-fault”, unless the owner actually rejects the limitation of his tort rights and liabilities under KRS 304.-39-060(1), which requires the rejections to be in writing.

¶13 It being stipulated that Overcast had not rejected the limitations of his tort rights and liabilities, therefore he comes under the provisions of KRS 304.39-060(1) and (2)(b) and since it was stipulated his loss was less than $1,000.00 with no permanent injuries or broken bones, he was precluded from bringing suit against appellant.

¶14 The judgment is reversed with directions to dismiss the complaint.

¶15 All concur.

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