Lewis P. FLOYD, Hartford Bakery, Inc., and Audrey Floyd, Movants, v. Thomas A. GRAY, Ruby A. Gray, and State Farm Mutual Automobile Insurance Company, Respondents.
Supreme Court of Kentucky.
Aug. 31, 1983.
Rehearing Denied Nov. 2, 1983.
657 S.W.2d 936
J. Quentin Wesley, Wesley & Simpson, Morganfield, for respondents.
STEPHENS, Chief Justice.
The major issue we decide on this appeal is whether the statutory tort of loss of consortium is within the purview of the Motor Vehicle Reparations Act thus making the two year statute of limitations therein applicable. The Court of Appeals answered the question in the affirmative. We disagree, and reverse that part of the opinion. In all other respects, we affirm.
This appeal arises from a judgment of the Union Circuit Court in which a jury returned a verdict for the respondent Thomas Gray, against the movants Lewis Floyd and Hartford Bakery, Inc., in the amount of $31,308.22, and a verdict for respondent Ruby A. Gray, in the amount of $50,000. On appeal, the Court of Appeals affirmed the judgment. We granted discretionary review.
This case arose from a collision which occurred on a snow covered road in Union County on February 19, 1979. Movant Floyd, an employee of Hartford Bakery, Inc., was making a regular bread delivery in a company owned truck. Floyd was proceeding eastward on a two-lane road, toward a grocery store. The road is relatively straight, and descends into a slough, and then ascends to the grocery. Floyd was traveling between 35 and 40 miles per hour, when he noticed a bank of fog covering the road at the slough. He could see the roadway beyond the fog on the other side of the slough, and no vehicles were visible. Upon entering the fog, Floyd saw Thomas Gray‘s car, also headed eastward stopped in his
Movants urge six alleged errors: (1) that the claim of the intervening movant, Ruby Gray, for loss of consortium is barred by the one year statute of limitations; (2) that the trial court erred in permitting the filing of the amended complaint in violation of CR 24; (3) that the damages rendered for loss of consortium were excessive; (4) that the respondent, Thomas A. Gray, was contributorily negligent as a matter of law; (5) that there was no causative negligence on the part of movant, Lewis Floyd; (6) that the trial court erred in giving the jury unnecessary and prejudicial instructions.
Movant‘s first contention is that the claim of the intervening movant, Ruby Gray, for loss of consortium is barred by the one year statute of limitations. We agree and reverse the Court of Appeals.
The Court of Appeals affirmed the trial court‘s decision that the wife‘s claim for a loss of consortium was subject to the two year statute of limitations set out in the MVRA rather than the one year statute of limitations set out in
Relying on the case of Tucker v. Johnson, Ky.App., 619 S.W.2d 496, 497 (1981), the Court of Appeals reasoned that the two year statute of limitations in the MVRA was enacted to provide a limitation for those actions involving motor vehicle accidents which would fall within the parameters of No Fault benefit except for the fact that the statutory thresholds have been exceeded, thereby making tort recovery possible. The Court felt that a claim for loss of consortium is “akin” to a claim for replacement services under the No Fault statute, and therefore the tort was within the aegis of the MVRA. Since Mrs. Gray‘s damages exceeded the statutory thresholds, the court held that the two year statute of limitations was applicable.
We agree with the Court of Appeals that
Loss of consortium is an independent cause of action authorized by
The claim of the intervening plaintiff, Ruby A. Gray, for loss of consortium is barred by the one year statute of limitations because the claim was brought nearly fifteen (15) months after the injury. Therefore the trial court erred when it permitted the intervening complaint for loss of consortium.
Loss of consortium is not a recoverable injury within the purview of the MVRA. Under the MVRA, the injured party‘s right of recovery is his entitlement to basic reparation benefits without proof of fault. Fann v. McGuffey, Ky., 534 S.W.2d 770, 773 (1975). Personal injury in the na-
The two year statute of limitations set forth in the MVRA applies only to those actions within the purview of the statute. Not all actions arising out of motor vehicle collisions are covered by the MVRA and its two year statute of limitations. See, Gray v. State Farm Mutual Automobile Insurance Company, Ky.App., 605 S.W.2d 775, 776 (1980). Rather, the two year statute of limitations applies only to the institution of a suit by an injured person or in the event of injury resulting in death, by those entitled to survivor‘s benefits. Id. at 776.
While Mrs. Gray may have suffered a loss by reason of her husband‘s injuries, any such injuries are not injuries covered by the MVRA and consequently, not within the two year statute of limitations contained therein.
Thus the proper inquiry is whether Ruby A. Gray‘s claim for loss of consortium was timely. Her claim for such loss, brought nearly fifteen months after the injury, is barred by the applicable one year statute of limitations:
Our disposition of Movant‘s first issue renders discussion of issues two and three irrelevant.
Movants fourth contention is that the trial court erred by failing to direct a verdict in favor of them. They argue that Thomas Gray was contributorily negligent as a matter of law when he voluntarily stopped on the main traveled portion of the highway thereby violating
Evidence was presented that Gray‘s car had become disabled within two or three minutes of the collision and that he had attempted to start the car. Additional testimony revealed that Gray‘s car had stalled on at least two prior occasions. No evidence was presented that once the car became disabled it was possible for respondent to remove the car from the main traveled portion of the road. We hold that the trial court properly submitted the issue of respondent‘s contributory negligence to the jury.
The third argument urged by movants is that respondent‘s failure to warn other motorists of his stopped car was the proximate cause of the collision and as such constituted contributory negligence as a matter of law. Movants cite Armes v. Armes, 424 S.W.2d 137 (1968) in support of their argument. Armes, however, is distinguishable because the driver of a stopped vehicle in that case was under a statutory duty to warn oncoming traffic with flares or lanterns because the incident occurred at night.
Movant‘s contention that no causative negligence on their part was shown and
Movants next contend that the trial court erred by giving unnecessary and prejudicial instructions on agency because it had been stipulated that an agency relationship existed between movants. While unnecessary, the giving of such jury instructions was not so prejudicial as to require a new trial.
We direct the Union Circuit Court to enter a judgment consistent with this opinion.
STEPHENS, C.J., AKER, WINTERSHEIMER, and STEPHENSON, JJ., concur.
VANCE, J., not sitting.
LEIBSON, J., dissents in an attached opinion.
GANT, J., joins in this dissent.
LEIBSON, Justice, dissenting.
I dissent from that portion of the majority opinion holding that Ruby Gray‘s claim for loss of consortium is barred for failure to file within one year of the date of the occurrence.
In my judgment, there are two reasons why the majority opinion is in error: First, under
The issue in this case is a narrow one. The statute of limitations formerly applicable to all actions for damages resulting from personal injury from whatever cause was one year.
The “Policy and Purpose” of MVRA is set out in
The “Limitations of Actions” section,
“An action for tort liability not abolished by
KRS 304.39-060 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 later occurs.”
Fann v. McGuffey, Ky., 534 S.W.2d 770, 775 (1975), paraphrases this section as covering “an action for tort recovery not foreclosed by
In my judgment the language of
The basic problem with the majority opinion is failure to recognize the true nature of the action for damages for loss of consortium. Such an action is derivative in nature, arising out of and dependent upon the right of the injured spouse to recover. Mrs. Gray‘s claim arises out of the same personal injury as does her husband‘s claim. It is from the same cause. It is subject to all of the same defenses as are available against her husband, such as the contributory negligence claim that the jury rejected. Limitations is simply one of those defenses, statutorily provided.
When a person sustains personal injury in a motor vehicle accident, the injury may give rise to multiple claims for tort liability deriving from the same injury. This occurs when there is a spouse who suffers from loss of consortium from that same injury. It is illogical to suppose that the legislature intended separate statutes of limitations for two claims arising out of one injury. We should not suppose that the legislature intended to be intentionally illogical, nor should we interpret the statute to bring about an obviously illogical result.
The situation is analogous to Blackburn v. Burchett, Ky., 335 S.W.2d 342 (1960). In Blackburn we held that the parent‘s claim for loss of services and medical expenses incurred by reason of injuries inflicted on his child was limited by the statute of limitations pertaining to personal injury. We stated at p. 343:
“Plaintiff takes the position that an infant has one cause of action for his injuries and his parent has a separate cause of action for loss of services and medical expenditures. This is true. However, the parent‘s cause of action arises out of an injury to his child.”
The Kentucky Court of Appeals decided the present case following as precedent a published opinion in an earlier case squarely in point, decided by the same court — Tucker v. Johnson, Ky.App., 619 S.W.2d 496 (1981). In Tucker we denied discretionary review. Clyde Tucker was injured in a motor vehicle accident on June 13, 1978. Clyde and Gladys Tucker filed Clyde‘s personal injury claim and Gladys’ loss of consortium claim 22 months later. The complaint setting out the claim for loss of consortium on behalf of Mrs. Tucker has been filed in the “Appendix” to the Grays’ Brief in the present case. The claim is the same as Mrs. Gray‘s claim. In Tucker the Court of Appeals analyzed the “limitations of actions” section of MVRA and the language of this Court in Fann v. McGuffey, supra, and concluded (as I have) “that
Speaking to both the husband‘s claim and the wife‘s claim for loss of consortium, Tucker states at p. 497:
“This is such a case. The damages allegedly received by the Tuckers exceed the thresholds, and thus they have sought tort recovery as a remedy. Their action was initiated within two years after the injuries received in the accident. . . . (T)he action of the Tuckers was not barred.”
In sum, loss of consortium derives out of the spouse‘s injury. Whatever the source of the injury to the spouse, it gives rise to a cause of action in two persons. If the source is a motor vehicle accident, it is “tort liability” arising out of the motor vehicle accident, and as such is covered with specificity by the language of
The majority opinion fails to address the fact that Mrs. Gray‘s claim for loss of consortium was presented in an amended complaint. The original complaint for personal injury on behalf of her husband was filed two months after the accident occurred. Under CR 15.03(1) the rule that covers relation back of amendments to the pleadings for a claim arising out of the occurrence set forth in the original pleading, the complaint filed by Thomas Gray two months after the accident tolled the statute of limitations as to Mrs. Gray‘s claim for loss of consortium.
It is a new claim for a new party. But it derives from the same injury. The test, as set out in Rule 15.03(1), is whether the new claim “arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading.” When it does, as it does here, “the amendment relates back to the date of the original pleading.”
In Perkins v. Read, Ky., 616 S.W.2d 495 (1981), we held that an amended complaint asserting a claim for a wife‘s damages arising from personal injuries she sustained in an automobile collision related back to the date of an original pleading wherein “the relief sought was limited to a claim of damages for (husband‘s) wrongful death and destruction of the Perkins automobile.”
In Perkins the original claim for wrongful death filed on behalf of the husband‘s estate was designated a complaint filed by the widow individually and in her capacity as executrix of her husband‘s estate. But naming herself individually was surplusage because the wrongful death claim on behalf of her husband‘s estate could be filed only in her capacity as personal representative. The decision turned on the fact that the defendants “were apprised of her personal injuries from the outset even though this claim was not asserted in the original complaint.” We concluded that the amended complaint should be allowed because “it cannot be said that (the defendants) will be unduly prejudiced by allowing the complaint to be amended.” In Perkins we state at p. 496:
“Hence the important consideration is not whether the amended pleading presents a new claim or defense, but whether the amendment relates to the general factual situation which is the basis of the original controversy. Clay, Ky.Prac.3rd Ed. Civil Rule 15.03.”
The opinion in Perkins cites an earlier case, Wimsatt v. Haydon Oil Co., Ky., 414 S.W.2d 908 (1967), in which we held that a claim that asserted a cause of action only for wrongful death of the wife and property damage to the husband‘s automobile could be amended to present an additional claim for personal injuries to the husband from the same accident, even though the husband‘s personal injury claim would have been otherwise barred by the statute of limitations. The principle of relation back under CR 15.03 was applied.
In Wimsatt we said at p. 911:
“There was only one cause of action, and that arose by reason of the negligently induced collision.” (emphasis added).
I would affirm the decision of the Court of Appeals.
GANT, J., joins in this dissent.