*1 553 usе, (31). (8), strictly personal 218A.010(16),(10), drugs If the were General his testi jury obviously disbelieved Assembly had deemed the word “transfer” but “distribute,” interchangeable mony. to further admitted that be with Rodefer likely gone lengths his, would not have to such cocaine was and that he “shared” aсcomplices to differentiate between those words cocaine with one of his two providing Thus, separate definitions. his own night of the crime. a testimony supported convic Whitmore, In v. 92 Commonwealth “transfer” al trafficking tion of under the cоncurring opin (Ky.2002), 76 S.W.3d 218A.010(34),though not ternative of KRS pointed [As ion out that “[t]he [General to [traf with intent “possession under the sembly ‘possession has not defined with In of Appellant’s alternative. view fic]” Id. trafficking.” the intent to transfer’ as fact, he, in committed testimony own (Keller, J., concurring). We 82 n. 3. convicted, he was the offense of which clearly agree, as the text of statute method, con by an we albeit alternative any language defining trafficking faulty instruction did not clude that the “possession as with the intent to transfеr.” injustice, result in manifest much less seri given “The words of the statute are to be fairness, ously integrity, pub or affect the plain their meaning unless do so would reputation judicial proceedings. lic of constitute an absurd result.” Executive Stephens, Branch Ethics Com’n v. Accordingly, reverse the decision of we 69, (Ky.2002). The S.W.3d General As Appeals, the Court of and reinstate sembly prerogative had the to include the Fayette judgment final Circuit in “possess term transfer with intent” Court.
language of the statute but chose not dо so. in part Inclusion of word one GRAVES, JOHNSTONE, COOPER, strong statute and exclusion in another is a SCOTT, ROACH, intent, legislative leading indicator of thus WINTERSHEIMER, JJ., concur. the Court to believe that the exclusion was C.J., LAMBERT, sitting. Therefore, purposeful. we hold that it was error for the trial court to include the
aforementioned in language the instruc given jury.
tions that were
Although agree we with the given the instruction disagree in improper, this case was we FOSTER, Appellant Janet pal with its conclusion that it constituted v. pable palpable error. A error is one which rights party affects the substantial KENTUCKY FARM BUREAU MUTU- injus and which has resulted manifest AL INSURANCE COMPANY tice. RCr 10.26. error must seri “[T]he Henry, Appellees. Elizabeth fairness, ously integrity public affect the No. 2004-SC-0461-DG. judicial reputation proceedings.” Brock Commonwealth, 24, (Ky. v. Kentucky. Supreme Court 1997). Here, Rodefer was arrested and April 20, 2006. possеssion abnormally found to of an In large illegal drugs. amount of cash and Court,
his brief to argues Rodefer *2 Frederick, Hersh- Joseph D. Paul
Carl Handmaker, LLC, Louis- & berg, Seiler ville, Appellant. Counsel for Travis, shortly Mail and thereafter was Ricketts & Tra- United William Clifton vis, Louisville, sorting mail Appellee. position a full time Counsel offered actually accepted. Before she which she
WINTERSHEIMER, Justice. follow-up job, her new she had started *3 to mentioned physician. from a decision of the visit with her She appeal This job, the and advised that she which reversed on him the new he the Farm Bureau. thе because of perform cross-claim could not work dispositive ques- that the it was panel The stated demands of and because physical company job tion the insurance sedentary was whether from her from different to had a reasonable foundation withhold laid off. which she had been With information, of work loss benefits and whether her counsel new she advised question should have been submitted company insurance and who contacted the jury adjudicated as a matter of earnings a claim for lost related to made law. newly position. obtained by parties questions presented The every that had in- Foster testified she an individual who is unem- whether however, job, taking tention of the new may ployed at the time of an auto accident advice, physician’s of her she was because joba collect work loss benefits for she is in- to said she had unable do so. She offered, by physi- later but is advised her formed United Mail that she could not cian to on account of the accident decline At position. applied take the the time she injuries a related and whether there is benefits, was still for the work loss she conflict between the Unfair as collecting unemployment compensation Claims Practiсes KRS Settlement being a result of laid off at Enro. 304.12-230, and the permitting statutes representative The claims service de- attorney and 18% interest fees for failure being the claim as without merit. clined pay to a no-fault claim without reasonable thаt be- representative testified she and KRS 304.39-210 person unemployed lieved that a who is 304.39-220. compen- the time of an accident should be injured Foster was in an ac- automobile only unemploy- thereafter for lost sated diagnosed cident in 1997. She was awith It was noted that Foster ment benefits. injuries number of soft tissue and contin- unemployment out to the com- held herself ued to receive treatment for several that she and available to mission was able months after the accident. The tort claims accept employment telling but now was prior litigation. were settled to company that she was disabled. accident, On the date of the Foster was alleging that the action policy covered an automobile insurancе Foster filed suit by Kentucky was a violation of the company issued Farm Bureau which reparation benefits. Foster Unfair Claims Settlement Practices basic duty a receiving unemployment benefits after and as violation job at to its The circuit having sewing been laid off from her owed insured. accident, Factory. pro- Enro After the court determined should Shirt case had initially sought reparation Foster ceed to trial as to whether the movant basic (BRB) probably only benefits for her medical еx- lost income from work she performed had she not been penses. Approximately two months after would have accident, being injured pro- she and whether the movant had while was still treated, proof of job for a at vided her insurer with reasonable Foster interviewed investigate Bureau was entitled Farm wage her lost.
the amount of Foster, job de- in favor of offered a verdict to whether Foster was returned as required that Farm Bureau was termining taken it in the would have whether she and that it did loss benefits pay work disabling injury. knowing of her absence delay- a reasonable foundation not have suffi- Farm Bureau with presented Foster $5,290 Foster was awarded ing payment. sought that she and had cient evidence 18% interest as plus in work loss benefits and that she employment offered been being overdue. for the benefits penalty than the fact accepted it other $40,202.75in attor- was also awarded She prevented beginning from that she was parties appealed. ney fees. Both physical of her condition because work on the Appeals reversed The Court of Thus, pre- she physician. the advice of *4 It company. cross-claim of the job of a offer and a statement proof sented was dispositive question stаted that the advising her treating physician from her company had rea- the insurance whether doing injuries her from prevented her that payments withhold foundation to sonable credibility and evaluation The the work. whether that of work loss benefits by Foster was presented of the evidence have submitted should been question jury The jury determination. proper of law. as a matter jury the or decided that Foster was enti- unanimously found that the insurance The concluded Court by that the denial to benefits and tled foundation did have a reasonable reasonable Farm Bureau was ques- and that the payments to withhold not have been submitted tion should decided have been jury, jury but rather should review of proper The standard of granted of law. This Court as а matter v. Bledsoe Sur- found in Lewis verdict is discretionary review. (Ky.1990). Mining Co. face case, the em- wrongful In that termination Benefits Unemployment I. employee its former alleged that ployer sedentary to do work
Foster was able by diligently damages mitigatеd had not always performed. had the kind that she jury seeking employment. substitute her that physician her advised Until employee based in favor of the found suitable, also not she sorting job mail was to locate testimony regarding efforts his performed that shе could have believed re- jobs. The Court other major regardless physical labor some versed, the ver- reinstated and this Court to reenter seeking injury. She her employee, emphasizing dict favor taking appropriate and was the workforce jury type in this the decision of the job. It acknowl- the new is begin action to lightly. not set aside question fact could was no evidence edged that there is true here. The same physical condition knew that her Foster the new perform her to not allow Question Damage II. Punitive sorting mail accepted the job when she position. argu Although recognize we Bu Kentucky Farm by presented ment Reparation
The Motor Vehicle
damage question is
punitive
that the
reau
(MVRA)
benefits
loss
Act
makes work
Court, we have
properly
not
before
prob
injured person
for work the
available
by both
arguments presented
reviewed
if
not
he had
performed
ably would
304.39-020(5)(b).
in this matter.
parties
injured. KRS
been
subjected
they
properly pay
if
fail to
Motor
are
Vehicle
304.39,
no-fault benefits.
Reparation
seq., pro
et
remedy
an
an
vides
exclusive
where
insur
Here,
judge
circuit
dismissed the
company wrongfully delays or
ance
denies
punitive damages
seeking
claim of Foster
of no-fault
Thеre is no
benefits.
Claims Settlement Prac-
under
Unfair
statute,
regulation or
other
case
suit based on the
tices
but allowed the
permits
law which
to claim work
Foster
trial.
proceed
to a
Because
MVRA
for BRB.
is the
loss
The MVRA
exclusive
remedy,
the MVRA’ is the exclusive
Evans,
remedy.
Grzyb v.
S.W.2d 399
judge
of the circuit
was correct.
decision
(Ky.1985),
where a
provides that
statute
speci
declares the
act and
of this
both
unlawful
It is the decision
available,
remedy
ag
punitive damages arguments presented
fies thе civil
here
Foster are without merit. As to
grieved party
remedy
is limited to the
claims,
that an
other
we decide
individual
by the
General
damages
statute.
unemployed
is
at the time of an auto
who
specific remedy
available when a
may
mobilе accident
collect work loss ben
provided such as in this case. KRS
offered,
job
from a
is later
efits
that she
penalty
any
304.39-210 states that the
*5
fulfill,
physician’s
cannot
of a
but
because
delay in payment
reparation
of basic
bene-
advice,
and such
is covered
conduct
fits is
interest
rate of
Kentucky MVRA statutes.
benefits,
per
delayed
12% annum on the
per
delay
18%
annum if the
was without
of Appeals
The decision of the Court
is
Interest,
reasonable foundation.
which is
reversed and remanded with directions to
out
set
certain situations
KRS
judgment
reinstate the
of the circuit court
304.39-220,
attorney
and
the award
fees
on the
verdict.
based
are the
to an
remedies
insured if
pay
an insurance
fails to
basic
All concur.
reparation
timely
benefits in
manner
J.,
SCOTT,
separate concurring
files a
reasonable
and/or
opinion.
Grzyb, supra,
special
involves a
SCOTT, Justice, concurring.
law,
body
Rights
Civil
FB
seq.
et
Ins. Co. v.
Court,
I
Opinion
concur with the
Jones,
(Ky.App.1993),
opinion “[t]he ..., Reparation provides
tor Vehicle remedy an
an exclusive where
company wrongfully delays pay- or denies
ment of no-fault benefits.” Insurance subject
companies to the same rules of are date, we not
conduct as others. To they “statutorily free” from
declared
common law claims of “bad faith” and I do this to the intent of this believe
statement in this case. EDMONDS, Appellant,
Todd Edward
v. *6 Kentucky,
COMMONWEALTH of
Appellee.
No. 2004-SC-1003-MR. Kentucky.
Supreme Court of
April 20, 2006.