*1 ASSOCIATION, BAR KENTUCKY Sr., Plаintiff, GOODIN, Clyde Lee Complainant, OVERNIGHT TRANSPORTATION MURPHY, (Casey John W. Jr. CO., Defendant. County), Respondent. Kentucky. Supreme Court of
Supreme 19, Dec. 1985. Dec. AND
OPINION ORDER
In disciplinary proceeding, the Board of the Kentucky
Governors of Bar Association respondent, John W.
concluded Jr.,
Murphy, guilty of unethical
unprofessional bring to calculated disre- Kentucky
the bench and bar
pute. Board the re- recommends that
spondent publicly reprimanded, and that be required pay
he to of this be the costs
action.
Having decision reviewed Board’s 3.370(7), adopts
pursuant to SCR the court of the findings and recommendations respondent
Board of Governors. The reprimanded and is directed
hereby publicly proceeding.
hereby pay the costs of this
All concur. 19, 1985.
ENTERED December F, Stephens
Robert
Chief Justice
132 (ii)
elude ... conduct in the course of vehicle the unless the conduct occurs while en- into, tering it.” alighting from (7) ‘Motor vehicle' any means vehicle transports which persons proper- Added.) ty_” (Emphasis Thus the term of “utilization the motor vehicle as a used in vehicle” as Middlesboro, Hayes, A. William Lowell 304.39-020(6) primary pur includes as a Barbourville, Lundy, plaintiff. for pose transportation the property. of De London, Keller, J. John Warren G. Prath- alleged negligently fendant is to have con er, Somerset, for defendant. activity. ductеd this glean We from the Brief for Defendant LEIBSON, Justice. plaintiff’s original Complaint and the which Siler, Jr., Eugene The Hon. E. Chief was filed therewith as an “Appendix,” that Judge, United States District East- question presented the to the answer is ern of Kentucky, District certifies to us for important pending in the resolution the following question resolution the of law case Complaint because the was filed ten at presently issue in his court: days year if one late the limita- personal injury provid-
“Dоes the term ‘Use of a Motor Vehicle’
tions for
as
actions
304.39-020(6)
in
as defined KRS
include
applies,
timely
ed in
413.140
if
parameters
within its definitional
the un-
years
by
ap-
two
as authorized
the MVRA
loading of the
trailer of
hitched but
plies.
304.39-230(6)provides:
truck,
semi
oc-
“An
liability
action
tort
not abolished
curs while inside said trailer to an indi-
by
may
commenced
KRS 304.39-060
be
vidual
same.”
who
(2) years
after the
later than
death,
injury, or the
last basic or
specifies
The Certification Order further
reрaration payment
by any
made
added
as “RELEVANTFACTS”:
reparation obligor,
later
whichever
oc-
time of
here in
ques-
“At the
curs.”
tion,
unloading goods
Plaintiff was
from
the inside of an unlit tractor-trailer when
argues
case
present
the dеfendant
through
he
stepped
a hole
the trailer
legislature
year
did not
the two
intend
question
bed. The hole in
had been cov-
of limitations in
to cover the
MVRA
which,
aby
ered
board
unbeknownst to
situation,
present
plaintiff
whereas the
ar-
Plaintiff,
by
had
removed
been
gues
statutory language speaks
goods
the truck to enable the
driver of
express
of KRS 304.-
words
for itself.
be
heretofore mentioned to
removed.”
39-230(6)
liability
“an
tort
cover
action for
not аbolished KRS 304.39-060” without
provides “Definitions”
KRS 304.39-020
limitation.
to be utilized
administration
Subtitle
“Motor Vehicle
Act
recently
interpret
We have
undertaken
(MVRA).”
provides in
KRS 304.39-020
304.39-230(6)
Reeves, Ky.,
in Bailey
pertinent part:
(1984).1 Bailey v.
The Court of
opinion
STEPHEN-
dissenting
in which
place where the
oc-
ment that the
SON, J., joins.
We need
“purely
was
fortuitous.”
curred
year
in
Limitations
Appeals’
413.140 or the
note
the Court of
decision
We
2.
304.39-230(6)
304.39-020(6)
applied.
construing
in Clark v.
germane
Young, supra
not
to the ultimate
Appeals applied
involving
the “re-
ve-
The Court
motor
decision.
It
to accidents
is limited
language of
to save the
part
hack"
CR 15.03
it is
of the MVRA and
lation
hicles because
actiоn,
413,
general
wheth-
Limita-
Chapter
so that it did not matter
statute on
cause of
year personal
statute KRS
er the one
tion of Actions.
WINTERSHEIMER, Justice, dissenting.
always
unload is not
covered
no-
fault
Loading
act.
unloading presum-
I
respectfully
must
dissent from the
ably
successfully
cannot be
accomplished
opinion certifying the law in this
I
matter.
without
point
at some
in some
manner
do not
term
believe the
“use of a motor
fashion occupying, entering
alight-
into or
vehicle” as
304.39-020(6),
defined KRS
ing from the vehicle to be loaded
unload-
includes
of a
trailer
legislative
ed. The
including
intent then in
by a worker
called upon
who is
to assist in
while
en-
unloading.
tering into,
from a vehicle
August 12,
On
Goodin
assisted
must be read insоfar as such
oc-
the unloading of merchandise from a trail-
curs in the use
motor
vehicle as
er
by Overnight
owned
Transportation
vehicle.
I would not
coverage
extend
Company.
delivering
The trailer was
pal-
ordinary negligence actions
which were
*4
lets to a facility of the Delaware Powder
contemplated by the drafters. The unload-
Company where Goodin worked. The
ing herein was not incidental to the
or
use
Overnight
by
driver was assisted
four Dеl-
utilization of a motor vehicle as a vehicle.
employees including
aware
Goodin. While
The condition of the truck
the
bed inside
pallet
unloaded,
the
being
last
was
Goodin
vehicle is
apparently
inju-
what
caused thе
entered the unlit
and stepped
trailer
into a
ry. As
previously pointed
has been
out
hole
bed of
truck injuring his
this
basic automobile
poli-
back.
insurance
cies are
driving
intended
cover
ve-
August 22, 1984,
On
he filed suit for
hicle and
repairing
unlоading
not
or
mer-
personal injuries in
United
States Dis-
chandise from it. See Commercial Union
trict Court for the Eastern District of Ken-
Company Howard,
Assurance
tucky
diversity jurisdiction.
based on
Ov-
(1982).
S.W.2d 647 at 649
As noted in that
ernight moved to dismiss the federal suit
oрinion,
coverage
well-reasoned
additional
413.140,
based on
provides
which
provided by appropriate policies
should be
one-year
a
person-
of limitations for
particular
intended
purposes.
for those
al injury
actions
Goodin al-
Here,
provided
Goodin was
with Workers’
leges
brought
the action is
under the Motor
Compensation by
employer
his
and could
Act,
304.39-010,
Vehicle
brought
personal
injury
have
a
action
two-year
which sеts out a
statute of limita-
against Overnight
one-year
within the
stat-
personal
tion for
injury actions arising out
ute of
Overnight
limitation.
would be cov-
of the use of a motor vehicle.
ered
general
under a
liability policy which
304.39-020(6), provides
рart
that
most businesses
size
its
maintain.
the use of a motor
means any
vehicle
uti-
In my opinion this Court has considered
lization of the
as a
vehicle
it
but
this issue and has decided the matter
does not include conduct in the course of
аgainst
argument.
the Goodin
See Com-
loading
unloading
the vehicle unless the
Union, supra.
mercial
The Commercial
conduct
occupying, entering,
occurs while
repair
Union case was a
case and
an
not
alighting
from it.
unlоading case,
I
legal
believe
rea-
my
view the
use or
mere
utilization of
soning expressed in Commercial Union
vehicle,
occupy-
a motor
or in this case the
was
well-founded
sound and can be
ing
vehicle,
bring
is not sufficient tо
applied to other situations such as the one
the conduct
no-fault
within the
law. Goo-
presented here.
din must use or
utilize
vehicle as a
The Kentucky
Appeals
vehicle. The
in a sim
expressly
excludes
case,
act,
ilar
types
unloading
Ky.
from the
Clark v. Young,
one of
App.,
(1985),
unloading.
which is
happenstance that occurred standing on
while the workman was explained
trailer. There the Court that
standing on trailer did amount to entering
a motor vehicle within the no-fault statute. certify question
Therefore I would vehicle,” term “use of motor a 304.39-020(6),
defined in does in- trailer
clude the occurs inside the trailer to
an individual who it. J.,
STEPHENSON, joins in this dissent. *5 Howell, Ashland,
George C. for movant. Picklesimer, Ashland, Wil- D. Phil Max GUNDERSON, Movant, Kevin liams, Louisville, City respondent, for Ashland. Director, Shively, Acting Work- Suzanne CITY OF ASHLAND Workers’ Bd., Labor, Compensation Dept, of Board, ers’ Compensation Respondents. Frankfort, respondent, Worker’s Com- Supreme Court of pensation Bd. Dec.
WINTERSHEIMER, Justice. of the appeal is from a decision This Appeals which reversed with di- Court of court judgment of the circuit rections an award of the which had confirmed Board Compensation Board. The Workers’ totally perma- had found Gunderson disabled, occupationally nently reversed that decision. Appeals Court of Appeals this case remanded The Court it make an and ordered to the Board permanent par- a percentage award for principles of disability tial based on Johnson, Ky., 432 S.W.2d Osborne However, (1968). the Board reached percent Gunderson was conclusion that using principles also Os- disabled borne, supra. question is principal re- Appeals reached an erroneous