*1 11.42(10) any right does not establish on A complete even the best counsel. review part of an accused sentenced to death in this the record case demonstrates delay filing of his 11.42 motion. RCr Hodge fundamentally fair received procedures used to facilitate the or- trial with a reliable and fair sentence. derly disposition of petitions habeas denying The order of the circuit court legal entitlements the defendant 11.42 by Hodge the RCr motion is af- right pursue irrespective has a firmed. procedures contribution these make to- uncovering ward constitutional error. See STUMBO, J., except All concur who did Barefoot. not sit. prisoners
Death sentenced
equally prisoners situated to who have re simple prison
ceived a sentence because
the death sentence prisoner stay obtain a execution order to
prevent carrying out of the sentence. earlier,
As stated three-year time limit is a minimum maximum time rather than a BURTON, Appellant, Delbert time or entitlement for a convicted defen General, dant. As argued by Attorney a death sentenced every inmate has incen FARM BUREAU INSURANCE COM- tive to prolong process the valid legal PANY; and United States Fire In- delay order to the implementation of the Company, Appellees. surance death sentence. ordinary pris state oner who is specific sentenced to a term of No. 2001-SC-0573-DG.
years has an obvious filing incentive for Supreme Kentucky. Court of any collateral attack promptly hope of securing either a new trial or release. Aug. Parker, As noted in In re counsel for a Rehearing Denied Oct. prisoner death sentenced do not have the right to delay obtain a in the death sen
tence until such time as that attorney be
lieves he has had an adequate amount prepare time to a collateral attack mo judicial
tion. Such is for a determination.
Here, Attorney General and the
Governor have followed statutorily their
mandated duties. They have not violated Equal
either the Protection Clause or the
Separation of Powers doctrine.
Hodge reasonably received effective as- Any
sistance of defense counsel.
alleged ineffectiveness was not so serious deprive
as to him of a fair trial and there probability
is no reasonable that a differ-
ent result could have been achieved *2 Ashland, L. Dowling,
Michael R. Garis Pruitt, Catlettsburg, Appel- Counsel for lant. McDermott, Ashland,
Ralph Counsel T. Appellee for Farm Bureau Insurance Company. Hedrick, Ashland,
Patrick M. Counsel Appellee United Fire Insurance States Company. Busald, Kathman,
E. J. Andre William Busald, Jr., McGee, Funk, A. Zeve- Joseph Florence, PSC, ly, Counsel Amicus Cu- Kentucky Academy of Attor- riae Trial neys.
Opinion of the Court COOPER. injured
Appellant Burton Delbert employer’s his Mack semi- when he drove highway off of trailer truck he while into a He claims did so ditch. striking an taking action to avoid evasive red that had unidentified automobile highway crossed the center line of opposite approaching him in his lane travel. direction No contact occurred between truck left the red The automobile automobile. it nor and neither scene of accident operator or fur- has ever been located pre- report accident ther identified. The Boyd County De- Sheriff’s pared by independent indicates that partment version eyewitness Appellant’s verified the accident. brought this action Kentucky Court Circuit Company
Farm Bureau Mutual
(“Farm Bureau”),1
automobile
personal
his
process.
repeated through
appellate
Complaint
improperly
identified this
Company
properly
Complaint
as "Farm Bureau Insurance
identifies
Answer to the
Kentucky”
has
and that misnomer
insurer,
by “hit and
States Fire Insurance
that the accident was caused
United
run”)
(or,
(“U.S.Fire”),
accurately,
“miss and
more
Company
the insurer
truck,
vehicle.
seeking to
under the
Mack
recover
provisions
“hit and run”
of the uninsured
writing
on a clean slate. See
We
*3
(UM)
poli-
endorsements of both
Co.,
Ins.
Masler v. State Farm Mut. Auto.
granted
The
cies.
Circuit Court
(1995);
Ky.,
Belcher v.
based contact” (1987); Farm Mut. Auto. Ins. Co. v. State pro- in ment contained both “hit and run” Mitchell, (1977); Ky., 553 691 S.W.2d Jett Appeals The Court of affirmed. visions. Doe, v. See S.W.2d also Huelsman National Emblem Ins. applicable provision of the Farm In Ky.App., 551 S.W.2d policy Bureau includes within the defini- cases, physical each of the cited con tion of an motor “uninsured vehicle”: tact requirement upheld and the UM any [A] land motor vehicle or trailer of In coverage was deemed unavailable. type: Belcher, both Jett and requirement upheld though even is a hit and run Which vehicle whose eyewitness each case there was an to veri operator or owner cannot be identified was, fact, fy that accident and which hits: of an unidentified “miss and driver member; rim” vehicle that left the scene. any family
a. You or at at 953. you any family b. vehicle which or Masler, evidence that an unidentified semi occupying; member are or propelled trailer truck caused a rock to be your c. covered auto. in plaintiff’s striking into the added.) (Emphasis him, juring satisfy was held insufficient to applicable provision of the Fire U.S. policy includes within the definition of an provision. “hit and run” “uninsured motor vehicle”: land motor
[A] vehicle or trailer: 304.20-020(1) requires, KRS unless re-
jected insured, in writing by the named every liability motor vehicle c. That is a hit-and-run vehicle and policy include uninsured motorist neither the driver nor owner can protection persons “for the insured be identified. The vehicle must legally thereunder who are entitled to re- insured, hit an covered auto or damages operators or cover owners vehicle an occupying. insured is (Em- of uninsured motor vehicles ....” added.) (Emphasis added.) 304.20-020(2) phasis pro- KRS asserts that the that, in vides addition a vehicle contact,” “hit,” requirement or in the re uninsured, actually “the term ‘uninsured spective provisions “hit and run” shall, subject to the terms vehicle’ public poli UM endorsements coverage [emphasis violates and conditions such (1) statute, cy expressed added], in- the UM KRS deemed to include”: be 304.20-020, here, especially where, as sured vehicle whose insurer is unable to verify liability an independent pay legal there is witness to limits of its "Kentucky Company.” Farm Bureau Mutual (2) provisions per against an insured vehi- Such se insolvency; because liability public policy. than those cle with limits less quired (presently KRS 304.39-110 compa- It is our that insurance $50,000 $25,000 bodily injury per person, the right nies have to restrict the cover- $10,000 bodily injury per accident and age they beyond offer KRS 304.20-020 $60,000 limits); damage, single property protect themselves such (3) an insured vehicle whose fraudulent claims. by its coverage has been denied insurer. amendments, Except for minor technical [Ijnsurance any contracts are like other language of this statute has remained voluntarily contracts *4 in
unchanged since it enacted 1966 was by into parties. entered the Travelers initially compiled 304.682. as KRS good require “physical had reason to 1966).2 (eff.Oct. Acts, 1, Ky. ch. 55 1966 in its contact” contract with Belcher. Likewise, agreed to this Belcher limita- 304.20-020(1) Thus, KRS does not coverage. on his tion insurance require coverage damages by Belcher, at 953-54. vehicle,” e.g., a an “unidentified motor “hit if “phys- asserts that even the vehicle, status and run” whose insurance is requirement contact” is not an ical unrea- 304.20-020(2) unknown, does and KRS not limitation sonable on “hit and run” cover- include such a the additional vehicle within where, age, applied it should not be as definitions of an “uninsured vehi here, verify is an eyewitness there the Jett, However, supra, 222. the cle.” at insured’s version of the accident. Howev- recognize individual in statute does er, Belcher also held that an otherwise definitions, may, by pro surers contractual provision valid contractual does be- coverages and and conditions in vide terms against public policy come invalid as be- required addition to those the statute. particu- cause of variations in the facts of Virtually every liabili policy of automobile cases. lar its definition ty includes within “hit also note argument an “uninsured a We that the of motor vehicle” but, vehicle; policies “physical provision contact” should run” like two here, against public policy virtually every provision such be void when issue “physical present between are is without merit. also contact” witnesses “physical provision a contact” to be the “hit and vehicle and the insured For against policy, it must public insured a condition of void as be or the vehicle as against generally public interest. coverage. purpose of Here, court encourages Belcher this requirement “protect[] is to holding arising adopt in a that the insurer from fraudulent claims policy only injuries against public cases where the insured’s case-by- in his without certain situations. Such negligence, result of own in although analysis the law any case would distort intervention other pro- In referring to contract alleged that the accident was caused area. it is Ashland, visions, 246 City immedi Forbes unidentified which by vehicle (1932), 669, 917, Id.; 919 rec- Ky. see also Bel ately fled the scene.” cher, ognized that: supra, at 953. tucky Insurance Code was revised verbatim
2. The statute reenacted Acts, 20, 301, § Ky. ch. subtitle compiled as KRS when the Ken- 304.20-020 ... validity gen- is determined principle applies tions.” That to contrac made, tendency eral at the time it is ambiguities, tual United States Fid. & and, if this is opposed Preston, to the interests 145, Guar. Co. v. 26 S.W.3d invalid, public, it will be held (2000), pertains 148-49 not to whether though even par- the intention of the premium paid coverage that was good injury ties was and no to the clarity to the excluded but the exclusion public particular would result ary language. Motorists Mut. Ins. Co. v. case. The test tendency is the evil of Glass, 437, (1999); Ky., 996 S.W.2d injury the contract and not its actual Co., Ky., Simon v. Continental Ins. particular instance. proper 212-13 “[T]he logic, Under this that a hold contract inquiry area of is what the could [insureds] provision is either public policy reasonably expect light of what for_” or it is not. The pro- contact” actually paid Estate Swartz v. therefore, policy, vision Belcher’s can- Metropolitan Prop. Ky.App., & Cas. against public not be policy only when Certainly, Ap witnesses are available. pellant reasonably expected could not have type for this of accident when the Id. at 953. alsoWe note that to hold *5 UM statute does not a “hit and include subject otherwise could the insurer to a run” vehicle within the definition of an fraudulent claim if alleged eyewitness the uninsured motor the contractual was also a to the fraud. language respective of the poli insurance Uninsured motorists coverage public is a unambiguously physical cies con require policy by mandated statute. KRS 304.20- tact as a condition of coverage, and twen 020 has virtually remained unchanged ty-six years reported Kentucky of cases since 1966. It coverage for acci- consistently upheld validity have the of by vehicles, dents caused uninsured but requirement. Roy v. State Farm by unidentified vehicles whose Cf. insur- 392, Mut. Auto. Ins. 954 F.2d 395-96 ance status is unknown. The inclusion of (6th Cir.1992). “hit and run” vehicles within the UM cov- erage of particular policy insurance is a Accordingly, judgments the voluntary contractual extension of the stat- Circuit opinion Court and the of the Court utory definition of an “uninsured motor Appeals are affirmed. “subject vehicle” that can be to the terms coverage” per conditions of such KRS LAMBERT, C.J.; GRAVES, 304.20-020(2). For twenty-six years, we JOHNSTONE, WINTERSHEIMER, consistently have upheld validity the JJ., concur. “physical contact” limitation on “hit and coverage within UM endorsements. STUMBO, J., by separate dissents If legislature public poli- believed that opinion KELLER, J., joins. which cy required inclusion of “hit and run” cov- STUMBO, dissenting. erage UM endorsements or exclusion of thereon, contact” limitation it Respectfully, I must dissent. This would long have amended KRS 304.20-020 bar, Court has addressed the issue ago provide. to so necessary whether contact is a
Finally, reject argu recovery amicus’s element for of uninsured benefits driver, negligent ment a different result is mandated from a but unidentified by expecta- the “doctrine of many reasonable on occasions. has providing coverage offending
It our collective to the mo- Assembly when the General enacted KRS torist. 304.20-020, presume it “did not to write an If, Bu- by Appellee as contended Farm policy, merely gave uninsured motorist but reau, Assembly this Court and the General general coverage outline believe quired,” recognizing that the limits and express exists to of this coverage specifical- terms of such would be prevent claims, state to fraudulent and the ly and condi- defined reasonable terms record there was no evidence of reflects tions various insurance contracts. State fraud, Appellee negated reasoning has Christian,
Farm Auto. Ins. Mut. Co. non-payment. Ky., pay purchased insurance Risk Mutual Preferred bodily injury an accident Oliver, Company v. 551 S.W.2d arising operation, out of the maintenance (1977), that, we stated “it must be use of an motor uninsured vehicle. mandatory unin- purpose noted that the uninsured definition motor vehicle coverage sured provide is to those Appellant’s policy included a hit-and-run purchased liability with who or driver land vehicle whose owner protection that have if same would Appellant’s reasonable remains unknown. the uninsured motorist had carried the recovery had expectation for what he coverage.” minimum limits of paid for. repeatedly This has noted that Court This case the first is similar one of personal uninsured motorist involving hit-and-run cases we reviewed that we look at insured and must *6 situation, Doe, Ky., v. Jett S.W.2d expectation insured’s reasonable with re Jett, here insured was Like gard to the insurance which has injured when he tried to a collision avoid See, paid e.g., bought for. Chaf un- recklessly by driven an with vehicle Kentucky v. Farm Bureau Ins. fin identified driver. There was no (1990) Ky., 789 and Ohio Cas. the un- contact the vehicles and between Stanfield, Ins. Co. v. in either As identified drivers case. Jett, acci- Appellant argues since the quote To Leibson’s elo- dent was witnessed corroborated quent dissent Masler v. State Farm observer, impartial an Company, Mutual Automobile Insurance I recovery. to an unreasonable restriction (1995): Ky., 894 agree. provides The uninsured motorist law my come statutory coverage of an It is time has motorist, expecta- offending permit- public’s uninsured to address the reasonable I ting paid they purchase. include in to be for what company the insurance tion argument that a specified exceptions. persuaded by am three balancing convincing evi- Physical is not of those ex- of “clear one _The ceptions adequately be con- dence” more address statute should would protect the insur- including society strued an unidentified mo- interests as I see no industry against torist of an uninsured ance fraud. concept within because, justification for this Court’s endorsement offending when the unidentified, “fraud” recovery unproven of an unwarranted and motorist is no can com- company refuge that insurance be obtained from insurance assertion panies may issuing cower behind while
blanket denials claims like the one at
bar. Instead categorically excluding
covery to an entire class of plaintiffs be- fraud,
cause of possibility the mere place
should our jury’s ability faith in a
discover fraud in actually cases it where
exists. country, juries we utilize
decide capital whether defendants will live die; juries up to the task of deter-
mining injured whether an plaintiff’s claim genuine.
is fraudulent or
Therefore, I would reverse and remand
the decision of the Appeals. Court of
KELLER, J., joins this dissent. Christopher HART, Appellant,
Norman Kentucky,
COMMONWEALTH of
Appellee.
No. 2000-SC-0950-DG.
Supreme Court of Kentucky.
Sept.