*1 LAWRENCE, by Patrick Michael friend, Hoyt
next Kenneth
Lawrence, Jr., Appellant, RISEN, Appellee.
Charles Kentucky. 18,
April 1980. Kunk, Cantor, A. Joe
David M. Carol Louisville, Golden, appellant. Crutchfield, Louisville, John G. lee. WHITE, VANCE WINTER-
Before SHEIMER, JJ.
WHITE, Judge. appeal
This is taken from a judgment by which the Jefferson Circuit appellant’s claim Court determined that by Kentucky’s Motor Vehicle was barred Fault”), (“No Subtitle 39.
In June 1977Lawrence struck Risen, subse- automobile driven to render At quently aid. years Lawrence fifteen old time *2 passenger bicycle. Although on rejection another’s It was denied that a not young had not been on behalf of Law injuries expenses and filed associated were rence; therefore, under the terms of KRS require- insufficient to fulfill threshold 304.39-060(4)he considered to have made is application ments and thus to preclude program. acceptance affirmative alleges No Fault coverage, Lawrence that present under the set of facts is “user” was definition of amended in him, inapplicable alternative, 1978to include “person resides it is disagree that unconstitutional. We any person household in owns or and in so affirm Jefferson Circuit pri- maintains a motor vehicle.” Under the or law which effect at the time of was in accident, the 1977 a “user” was considered Summary judgments are issued to reparation be one who either was a basic apparent when it is that there are no mate been but for insured or would have the fact fact, thereby rial issues of entitling one coverage. that he No Fault rejected party matter of In Under this definition uninsured motorists seeking such the shifts the burden users, thereby exempt would be non from the opposing party to submit supportive the Motor Vehicles Act. See Cowles, information that Dixon indicating there are S.W.2d639 mate issues; factual required rial more than examining In the fact situation at merely relying upon the assertions included hand, rejected it is clear No in the pleadings. Fault, young aegis Lawrence falls within its In Lawrence’s response motion for unless it can be shown that he was not a summary judgment, attempted he to estab- user pre-1978 under the definition. The lish that No inapplicable Fault was in that issue of whether his were uninsured he had neither accepted nor its in appellee’s motorists was raised memo in Further, limitations. it was support observed summary judg of the motion for time of Appellant’s he was ment. bicycling respond accident failure have required rather than ed to this the Jefferson using, maintaining, or riding in automobile; Court to make its determination based consequently, it was argued presented. Having rejected the facts he could not be considered to have opportunity clearly to establish that he was been a “user” required for the statutory parents’ of his by being nonuser virtue inclusion. motorists, appellant uninsured is not now to We feel that arguments neither these be heard to suggest that material issue of has merit. No was Fault enacted concerning fact existed Assembly expedite General in 1975to recov- “user.” ery for those involved automobile acci- argues that a further material regard dents without to negligence. Its concerning issue of fact exists registrants, extend to all opera- leaving the scene of the accident. It tors, maintainers, users of motor vehi- suggested a cause that this is cles on the roadways Kentucky; how- any No Fault would claim which arise from ever, given each affected person under impact circumstances of the itself and option rejecting KRS 304.39-020 the should therefore of through restrictions his traditional tort liability the summary judgment. recovery. rejection With on file Department Insurance, with the accept- it is response, first to be noted automatically ance is applicable. deemed $50,000 although sought a claim one disability rejection For under a legal relating for failure to be filed legal his natural assistance, nothing render guardian within six months of the date the indicate that there was the basis for a com statute becomes to him. pensatory action on issue. It was not moving par- only what or to what extent forward” arises when shown in manner case ty has made a injuries were enhanced Ris Lawrence’s exists affidavit other factual allega a factual departure. Without en’s motion evidence. The compensatory damages, puni of actual not, itself, require ment does recoveries cannot be sustained. It has tive anything. the motion do been held that correct rule . long *3 “[t]he is, right if a of action if is that exists—that is admitted that the father In this case it plaintiff injury has suffered an the no- injured of the infant had damages might be compensatory which provisions. The issue is fault insurance awarded, although nominal in amount—he of on behalf the this bars an action whether proper case recover dam injuries. The ma- for his infant to recover Ritchel, ages.” Louisville N. R. Co. 148 & rejec- because jority opinion holds that 701, 147 (1912). (Empha 414 Ky. S.W. behalf of the was made on tion of no-fault added.) Appellant to sis assert as a matter of infant the action barred on which actual could be claim if correct position would be KRS That precluded seeking and is applicable awarded thus this infant. 304.39-060(2)(a)is to ones issue. exemplary liability on this to the That abolishes tort section payable, but reparations are extent basic Secondly, importantly, and more the 304.39-060(2)(a)preserves right the to failure to argument is not an action one who maintain an is a claim for render assistance user of owner, a operator, maintainer was not to the court below relief motor vehicle. appears rather for the first time at the but issue majority holds the The appellate level. Court The infant were whether the to be approached one of review and is not in a memo- was raised uninsured motorists a opportunity as a second heard as support of the randum in timely' An be trial court. issue not raised respond failure to appellant’s ment and the circuit cannot be considered fore court the infant establishing the this argument a new before sustain is sufficient to the a nonuser has the attacked constitutional- opinion ap- the judgment. my of the Act but we feel that ity duty that the pellants to establish McGuffey, 534 reference Fann v. present- appellee nonuser until infant was a S.W.2d ques- that no prima ed at a facie case least from the complete The record Jefferson he was a user. fact existed but that reviewed, we af- been raising point in a memorandum Simply judgment granting court in firm the of that prima facie dignity does rise to the summary judgment motion for the showing. lee’s favor. the If infant was a user then the The is affirmed. when he became a user because arises as to 304.39-060(4) parent had under KRS J.,
WINTERSHEIMER, concurs. any time reject right no-fault that the act months of the date within six J., VANCE, dissents. infant; to-wit, became VANCE, dissenting. Judge, a user. when he became issues of fact which to the consti- I believe there are issue is raised as Finally an to this entry summary judgment. applies the act as it preclude tutionality of a seeking 534 S.W.2d opinion McGuffey, Ky., states Fann v. majority The infant. constitutionality of (1975), sustained the summary judgment the shifts right of a as it related to to submit the act insofar burden to an infant to the parent subject factu- that material supportive information no-fault, reject a failure to “go of the act duty al issues exist. I believe tion, so it clearly upon operation, based its decision maintenance or use of a the fact that it was the infant’s use of the highways. “motor vehicle” I do parent, not the waiver highway, appellee prima not find that made a brought provi- the child within the case that the infant had ever used a “motor stated: sions of act. The Court state, highways of this vehicle” argument that a waives his registered, or maintained one. operated right by failing child’s to sue to exercise facie, I Until that fact is established rejection for him right misses the how could be entitled to appellee do not see point that is the child’s act in using it an summary judgment.
automobile, parent’s or the act in causing so, him to do permitting subjects imposed by
him to the limitations
no-fault law. . . . Fann v. McGuf
fey, supra, at 778. *4 of the act are deemed to accepted
have been high- use of the
ways pedestrian, registra-