*1 WEMYSS, Joey Allen J. A. Griffin and
State Farm Mutual Automobile Company, Appellants,
Insurance COLEMAN,
Shelby Appellee. Jean
Supreme Kentucky. Court of
April 1987. *2 Rudloff, Green, Bowling
William J. appellants. Franklin, appel- Downey,
J. Richard lee.
LEIBSON, Justice. This case arises out of a motor vehicle Simpson collision on October Kentucky. Shelby County, appellee, The Coleman, passenger in Jean was a a Volks- wagon by operated van owned struck from the rear husband which was by by appellant another vehicle owned Wemyss being by appellant driven Griffin. In the collision Mrs. Coleman’s such violence snapped head was back with factory it struck a installed icebox passenger The located behind the seat. passenger equipped a combi- nation seat belt which Mrs. Coleman was wearing at the time. employed a Before trial the defendants physician performed a medical exami- who their nation of Mrs. Coleman on behalf. deposition physician On testified Mrs. her seat belt had Coleman fastened pitched probably she would not have been was, as far and backward as she forward probably and she would not have sustained injuries necessitating The medical care. in limine trial court sustained a motion barring presenting the defendants from the lack of use of a evidence related to probable consequences. seat belt or its appeal is principal issue on this wheth- ruling er this was erroneous. appellee, jury found for the Mrs. Coleman, and awarded her against Wemyss in the sum of and Griffin $24,050.72. for Mrs. Cole- verdict man was itemized as follows: physical (past and 1) suffering Mental and 1.00 future) $ impairment power Permanent to her 2) money 15,000.00 earn expenses 3) Reasonable medical and related 4,664.72 incurred 4) Future reasonable medical and related expenses 2,500.00 1,885.00 or income lost 5) Wages Plaintiffs medical bills allowed in TOTAL by $24,050.72 verdict and covered 3) BRB 4,548.72 $ Plaintiffs lost as awarded wages Farm Mutual State Automobile Insur- and covered BRB Co. carried ance the automobile insurance (six weeks wages’at lost previously $200/week $530.56 less coverage on Wemyss both the and Coleman 669.44 paid) 4) Mrs. vehicles. Coleman was covered Subtotal 5.218.16 $ TOTAL $19,268.86 benefits in her husband’s *3 policy, Wemyss and Griffin and were cover- The judgment court then entered final by liability coverage provided
ed insurance $19,268.86, “the net sum of to be assessed company. the same against defendants, Farm and State question portion whether that Wemyss Joey Allen J. A. and Griffin in the Mrs. paid Coleman’s claim which was or amounts set forth above.” as payable reparations from basic benefits Appeals has affirmed should have been excluded Court from her claim decision presented against of the trial court to exclude evi- Wemyss as at trial and dence so-called seat was not addressed related belt de- Griffin the court Appeals fense. until after The Court of reversed the verdict. The filed on answer provided judgment so much of as Wemyss behalf of and the final Griffin made claim Wemyss or against and Griffin setoff credit of any judgment credit or setoff $10,000.00, coverage might the maximum for ba- obtained the extent that reparations sic under Coleman’s reparations benefits benefits were available policy, ordering or that the setoff credit judgment Mrs. After Coleman. was en- should be limited to the accrued benefits tered the defendants moved the court to paid or time trial. payable at the This judgment striking alter or amend the effect, mean, $10,000.00 that such amount as plaintiff's recovery as barred against 304.39-060(2)(a), judgment is deducted from the by KRS the section of the Wemyss offset by and Griffin will be an Reparations (MVRA) Motor Vehicle Act equal against ap- State Farm. The providing recovery for limitation on tort pellants asked our Court for discre- specified certain instances. tionary following review to consider Coleman, turn, permit- Mrs. was then issues: naming ted file an amended complaint 1) party demanding judg- Did exclude State Farm as the trial court relevant competent against prove State Farm offered to ment in an amount evidence if her equivalent any against setoff or that Mrs. had fastened seat credit Coleman her been judgment Wemyss injuries allowed to and Grif- belt would have substan- tially of the MVRA. fin because less? Wemyss 2)
The trial court held that Did err it refused the trial court when entitled to a credit Griffin were setoff or to instruct belt de- plaintiff’s judgment against fense? $10,000.00, and reduced that amount 3) court, Did and more so the the trial
judgment accordingly. But trial court refusing to order a Appeals, Court err Mrs. enti- further held that Coleman was $10,000.00 against Mrs. credit or set off against reparations judgment tled to Wemyss judgment Coleman’s Farm, for ex- obligor, such medical State recoupment for ba- Griffin without further wages proved as at penses and loss of were reparations State Farm? sic benefits from benefits, by no-fault trial and covered 4) Ap- Did Court of the trial court and paid. The court yet had not been peals allowing Mrs. to file err in Coleman judgment follows: entered an amended asserting a complaint cause an amended benefits action for basic judgment 1) $24,050.72 Original Setoff Wemyss or credit to years than two Farm more State Griffin 10,000.00 2) payment of benefits? after last Subtotal $14,050.72 Act, 2,12 Comparative BELT DEFENSE Fault U.L.A. Civil I. THE SEAT § Laws, Procedural and Remedial Cum. argu- powerful Both sides have made Supp., reported supplement now the 1987 the use of against requiring for and ments pp. “neg- 38-49. The Act uses the terms public policy as a issue. seat belts ligence” purposes and “fault” for of deter- argue that “scientific equiva- mining comparative equivocation that without studies show terms, interchangeable lent and as ex- safety are effective devices” and seat belts pressed Comparative of the Uniform § severity personal reduce the of ... “would (UCFA). ap- Fault Act “fault” as injuries,” a decision that “states that plied to either claimant or defendant negligent failure of a claimant to fas- defined as follows: seat belt would diminish a ten available “(b) recovery which lack ‘Fault’ includes acts or omissions played part restraint ... will be negligent seat belt that are in measure or policy.” public sound based person property reckless toward others, subject of the actor or or that *4 appellee argues hand the On the other person liability. to strict tort The term equal majority peo- “that the of with force warranty, also includes breach of unrea- belts,” ple simply do not wear seat and that assumption sonable of risk not constitut- legisla- the “failure state consent, ing express an enforceable mis- adopt to such a is evidence of the ture product of the public impose duty upon to this use which defendant lack will liable, people of this state.” the otherwise would be unreason- injury to or to able avoid an failure argument We consider that this about Legal requirements mitigate damages. begs public policy the issue. The issue is apply of causal relation both to fault as not whether our Court that the believes liability contributory the basis for and to require occupants should to law automobile [Emphasis fault.” added.] belts, wear seat or should not. The issue is one, is, evidentiary that did the defend- UCFA, In the official “Comment” to the ants offer evidence Coleman to explaining in fail- the term “unreasonable prove contributory improp- fault which was mitigate injury ure to avoid an or to dam- erly excluded? ages,” following is the is included which Hays, Ky., Hilen v. 673 713 S.W.2d pertinent to our case: adopted principle compa- the “‘Injury to the claimant’s attributable negligence, stating rative that: require- contributory fault’ refers to the “Henceforth, negli- contributory where particu- for the ment of a causal relation gence previously complete has been a Thus, damage. negligent failure to lar defense, supplanted by it is the doctrine a seat belt would diminish recov- fasten comparative negligence. In such damages in the lack of ery only for which contributory negligence cases will played part, and a seat belt restraint recovery bar but shall reduce the total not, example, damage the proportion amount of the the Cum.Supp. p. 41. car.” contributory negli- that claimant’s is uti- Thus failure to wear a seat belt gence negligence that bears the total may example as an of conduct lized damages. of fact caused The trier fault, contributory falling constitute within negligence must consider both and causa- to avoid an the term “unreasonable failure arriving proportion tion that injury,” proof that “the lack of a negligence and causation «/there attributable played part.” seat belt restraint the claimant bears to the total causing
that awas substantial factor in true, argued by appellee, as that It is damages.” 673 S.W.2d at 720. appellee’s negligence part played the motor vehicle collision. determining compara- This formula for blame, found that was to and there negligence, appropriate instruc- Griffin tive tions, finding. ample support evidence to was extracted from the Uniform
178
hand, taking
the other
the evidence
ant
he finds
On
as
him and is entitled to nei-
true,
physician
from the
defendants’
ther credit nor setoff
the amount
there was a causal relation between the
of the claimant’s
because of
claimant’s failure to
a seat belt and
wear
physical
preexisting
conditions which make
degree
subsequent injury.
of her
We
susceptible
injury,
the claimant more
concept
agree
greater injury,
than would have been the
negligence,
of antecedent
covered
case with better health. But this is a dif-
by the term
failure
UCFA
“unreasonable
principle
concept
ferent
from
“un-
injury,”
avoid an
in the same class of
falls
injury
failure
reasonable
to avoid an
or to
conduct as the doctrine of avoidable conse-
damages”
mitigate
utilized in 1 of
§
quences, covered
the UCFA as “unrea-
Comparative
Act,
Uniform
Fault
in the Re-
mitigate damages.”
sonable failure to ...
Torts,
(Second)
statement
or Blair v.
UCFA,
1(b), supra.
Sec.
Eblen, supra.
compara
Even before
the advent
2
already adopted
We have
of the Uni-
§
negligence,
recognized
our
tive
Court
Comparative
form
Fault Act Hilen v.
consequences, apply
doctrine
avoidable
Hays, supra, and it follows that
ing
to a
claimant’s unreasonable failure
adopt
should
case we
the definition of
post
to utilize
accident medi
recommended
Act,
“fault” as utilized in
of that
so
Eblen, Ky.,
cal treatment. Blair v.
whole,
that the fabric of
law shall be
our
recognized
that the
We
conflicting.
than
rather
inconsistent
consequences,
doctrine
avoidable
unlike
recognize
Pump
We
that Reda
Co. v.
contributory negligence
then
Finch,
(1986)
Ky.,
179
out
the Uniform Com-
presented by
principles
is
set
coin
so-called
the same
recognize
Act.
parative
Fault
impact” cases which
“second
manufacturer
liability of an automobile
Coleman, claims that even
appellee,
unreasonably
is
unsafe
when the vehicle
be a
issue
if the seat
defense can
belt
design
or construc-
of a defect
because
present
proper
that
case
in a
tion,
causes or enhances
a defect which
to offer
failed
relevant
resulting
from a collision caused
injury
competent
sufficient to raise
evidence
negligence.
If Mrs. Coleman had
driver
con-
jury issue.
defendants’ evidence
which failed to
wearing a seat belt
been
testimony
examining
sisted
design
her
of defect
restrain
because
employed by the defendants who
physician
construction,
have a cause of
she would
that had Mrs.
testified to the conclusion
against the
manufactur-
action
automobile
probably
she
“worn a seat belt
Coleman
proof that
defect was a sub-
upon
er
such
pitched as far
not
been
would
have
...
contributing
injury.
factor in
stantial
not
had
far to
and would
have
forward
Co., Inc.,
In
v. Union Underwear
Nichols
back,”
probably
and “she
would
come
that,
Ky.,
429
held
injuries necessitating
had
medical
satisfactory proof
clothing
that
upon
was
had she had the seat belt fastened.”
care
high
of a
de-
unreasonably unsafe because
give
competency to
Proof of the doctor’s
gree
flammability,
that
could find
testimony
rested
some brief
such
company engaged
in the manufacture of
leading
familiarity
his
questions about
clothing
such
was
sus-
liable for bums
liter-
and modem medical
“with the current
clothing
negligently
tained
when
ature,”
was,
best,
debatable. How-
person.
set on fire
another
The under-
ever,
the decision as whether a witness
lying
principle
apply
fault
give expert testimony
qualified to
rests
of a
defective manufacture
seat belt and
initially
sound discretion of the trial
negligent
belt is
failure
utilize a seat
Kilboum,
Power
v.
court.
Co.
same,
course,
essentially
except,
(1957);
Ky.,
S.W.2d 9
Alexander
product
the manufacturer of a defective
Swearer,
Ky., 642 S.W.2d
presumed
know
the characteristics
decision not to admit evidence
this case the
product
whereas the consumer’s liabili-
regarding
belt defense was made
the seat
*6
ty
safety
to
for failure
utilize
device
sup-
in
response to motion
limine
in
jury’s
turns on a
decision as to whether the
regardless
compe-
of
press such evidence
negligently
consumer
failed to exercise or-
error,
it will remain
tency. This was
and
presented.
the
dinary care in
circumstances
the
court to decide
threshold
for the trial
Co., supra.
Nichols v.
Underwear
Union
quali-
the
was
question of whether
witness
training, special knowl-
fied
sufficient
it
not
the absence
statute
testify
subject.
edge,
on this
or skill to
re
our function to declare that
the law
replete
require,
Appellants’ Brief is
quires, or
it
not
the
does
studies” re
occupants
to wear seat
citations to so-called “scientific
automobile
of seat belts as
contrary,
only garding
decide
the effectiveness
belts. On the
safety
These
were not
that,
question of contrib
studies
any
as with
other
devices.
and
not
fault,
rel
at the trial level
defendant introduces
introduced
utory
if the
testi
evidence absent
competent
qualify
from which
as admissible
evant and
evidence
(1)
authenticity and
mony as
their scientific
reasonably inferred:
that the
it can be
Certain
reliability from a credible source.
utilize an available
claimant’s failure to
judicial
take
prepared
in
cir
is not
contributory
ly
fault
the
our Court
was
belt
reliability
authenticity
(2)
and
that such notice
the
cumstances of the
Brief.
fault,
publications referred to
the
contributory
any,
if
a substantial
the
instance,
appellants’
the
brief refers
contributing
or enhance
For
to cause
factor
Jour
Street
page
“front
article
the Wall
defendant
entitled
injuries,
claimant’s
inappropriate
the brief
contributory
This was
fault
nal.”
question
disap-
trial.
conformity
improper
be
We
with and would
submitted to
prove
Co.,
those references
Douglas
Ky.,
Brief to
Motor
Assuming appellants statutory duty, the usual that the are able after produce explaining general duty, speci competent relevant will then evidence in fy defense, general duty that such support of “includes” cer the seat belt the next specific tain enumerated duties. question See illus appropriate is what are the in- Palmore, trative instructions structions to submit issues raised by Juries, 2, 16, Chapter Instructions to Vol. jury? such evidence to the Automobiles. submitted an instruction expanding general The reason for designated specifically failure to fas- duty by statutory duties, including if there ten an available seat belt as breach of a any, are lies in the fact that breach of a legal hand, duty. other appellee On the duty imposed by statute or ordinance is statutory claims that duties in KRS negligence per se if the harm occasioned Chapter 189, Regulations, Traffic are the incident to violation statute is that only measure of the standard of conduct type of harm which statute was intend- vehicle, for use of a motor and that there 2d, prevent. ed to Kentucky Digest See should be no where instruction there is no 6, Vol. Negligence, and cases cited statute. proper appropriate therein. The meth- previously discussed, As we have advising od for of statutory duties failure to utilize an available seat belt does judicial is to take notice of the same and qualify statutory of a duty breach incorporate them in the instructions as may though even be a breach of the “specific “gen- included duties” within general duty to exercise reasonable care duty ordinary eral ... to exercise care.” safety. for one’s own to exercise Palmore states: ordinary care commensurate with the cir argument good position “There is for the respon cumstances with it the same carries ‘duty’ instructions automobile sibility sustained as a result accident cases should be confined to the of its regardless breach whether there is care, general duty ordinary ... and imposing statute the standard of conduct such specific pre- additional duties as are or whether determined the statute, leaving scribed it to counsel *7 And, course, duty breach. the of to exer suggest to their summations the sub- cise ordinary safety care for one’s own is component ordinate or duties encom- duty no different from to ordi the exercise event, passed by ordinary care. In nary safety care for of the others. is jurisdiction away the trend this from liability
“The concept
of
for
the
instruction.” Pal-
so-called ‘concrete’
expresses
duty
16.56,
by
more,
a
owed
all to
supra,
universal
Comment.
Co.,
City
all.”
Inc. v.
Gas Service
of
Kasdan, Ky., 612
Rogers
In
v.
S.W.2d
144, 148
London,
(1985).
Ky.,
687
of
we
because
error
reversed
specifically
aspects
enumerated
many
There
of the use of a
instructions which
are
hospital
may represent
upon
based
motor vehicle
breach
duties of the defendant
which
code, holding
ordinary
industry
an
that this method
duty
of the
of
care which are not
statute, as,
instance,
“gives
prominence
of
undue
to
dependent upon
for
instruction
a
and
the instruction should
riding
guest passenger with a motorist
facts
issues ...
as a
rigid
ways
a
not make a
list
known to
intoxicated. MacDaniel v.
be
Dale, Ky.,
meet
718 S.W.2d
act in order to
his Carta
defendant must
However,
objec-
interposing
specific
instead
Thus,
duty.”
the enumeration
instructions,
the
court’s
the
rule,
tion to
trial
exception
the
is the
to
reserved
duties
pur-
to
elected as an alternative
duties,
defendants
“general
the
statutory
and
rule
for
post
a credit or setoff
by
sue
trial motion
is to
content of
instructions”
for the
compound-
then
against
judgment,
the
general
the
same in
terms
couch
by urging
concept
that the
ed the confusion
“provide only the
bones of
duty, to
bare
of a setoff for basic
benefits
determination,
leaving
question for
the
jury’s
include
expanded to
the
should be
by
to ‘be fleshed out
counsel
this ‘skeleton’
reason-
to Mrs. Coleman for “Future
closing argument.’”
Id.
136.
on
expenses,” and
related
able medical and
the
Applying
principles
these
to
seat
power to
impairment to her
“Permanent
statutory
there is no
belt defense where
money.”
appellants persuaded
earn
specifi
will not
duty,
proper
a
instruction
or setoff
court to enter a credit
trial
defense,
cally refer to a seat belt
but will
$10,-
judgment
in the sum
general
ordinary
duty
to exercise
state
000.00,
rep-
potential
the maximum
basic
leaving
to
safety,
care for one’s own
provided in the
coverage
aration benefits
to
from the evidence whether
decide
policy.
Coleman’s
the failure to utilize an available
belt
Appeals
The Court of
corrected this error
a
of that
in the circum
breach
by eliminating the
for future losses
credit
case, and,
so,
if
stances
this
whether
limiting
the credit to accrued medical
factor con
such breach was
substantial
expenses
wages, proper applica-
and lost
tributing
to cause or enhance
claim
up by
set
payment
tion
scenario
KRS
injuries.
ant’s
304.39-210, Obligor’s duty
respond
short,
recognize the potential
we
use
claims,
pertinent part:
provides
evidentiary
of the seat belt defense as an
“(1)
reparation
Basic
added
benefits
depend-
jury’s
matter
consideration
payable monthly as
accrues.
are
loss
particular
ent
the evidence in the
occurs,
injury
not when
but
Loss accrues
express
no
opinion
we
loss,
loss, replacement
work
services
occupant
whether the
of an automobile
expense
incurred.”
or medical
required
should
should
wear
expense
The definitions
“medical
...
seat belt as a matter of law.
“loss of income from work”
incurred” and
304.39-020(5)
limited to
are
KRS
II. LIMITATION
TORT RECOV-
ON
“incurred,”
already
under
amounts
REQUIRED
ERY
BY THE MOTOR
for work loss
304.39-130
amount
KRS
REPARATIONS ACT
VEHICLE
per
limited “not to exceed $200”
further
again
by
Once
are confronted
week.
procedural nightmare
generated
damages
is denied
liability for
Tort
liability provided
limitations on tort
damages
cov-
only
for items
MVRA
304.39-060(2)(a)denies Mrs.
MVRA. KRS
reparations benefits. The
ered
basic
right
pursue
claim for
Coleman the
is ex-
statutory definitions of these items
damages
liability
on
based
tort
not otherwise translate into
plicit, and does
Wemyss and Griffin “to the extent
liability.
for tort
elements of
reparation
provided
benefits
in the statute
There is
foundation
Under this
payable
are
therefor.”
subtitle
tying wage loss under the MVRA
extent that Mrs. Coleman
section
impairment “permanent
jury award for
*8
policy to
was entitled under her husband’s
element
money.”
earn
This
power
covering
reparations benefits
collect basic
loss,
recovery is
tied to work
of tort
neither
expenses paid
wages
or
lost
and medical
for which
duplication of work loss
nor is it
trial,
prop
time of
payable before the
accrue.
reparation benefits
basic
objection
er
the trial court should
Likewise,
“future
appellee’s award for
jury to
permitting the
refused instructions
expenses”
expenses.
medical and related
damages duplicating
reasonable
these
represent duplication
does not
any
supports
item rather than
appellants’
con-
expense
respect.
of medical
tention in this
right
for which the
reparations
basic
benefits had accrued at
appellants’
final contention is
the time of trial.
that
trial court erred in permitting Mrs.
post
Coleman’s
verdict
complaint
amended
The defendants were not entitled to a
against
seeking
Farm
recoupment
State
for
setoff or
judgment
a credit
reparation
basic
benefits which would
jury
damages
award of tort
for future
deducted from the verdict
Wem-
expenses
medical
or impairment
earning
yss and Griffin. Because a deduction was
power,
Appeals
and the Court of
properly
effected,
first
there is no
recovery.
double
corrected the credit or setoff which had
Because
Farm
liability
State
was the
carri
been allowed
the trial court.
Wemyss
er for
and Griffin as well as the
appellants
holding
insist that our
Coleman,
carrier
no-fault
State Farm
Couty Kentucky
Farm Bureau Mutual
participant
was an active
in this case from
Co., Ky.,
(1981) per-
Ins.
I concur the result reached believe, however,
majority. opin- I likely
ion is the bar as be construed Compara-
an endorsement of the Uniform really
tive Fault Act when is not
intention of the court. Uniform enacted the Act,
Comparative Fault and this court Hays, Ky., 673
Hilen v. express point out careful that we
opinion application of other sections act, leaving each issue to be other case-by-case
decided basis. HOWARD, E. Tower
Thomas Oil d/b/a Appellant,
Company,
v. COMPANY, A Ken
KINGMONT OIL
tucky Corporation, Ken and South
tucky Purchasing Company, a Ken Corporation,
tucky Appellees. COMPANY,
KINGMONT OIL
Cross-Appellant, HOWARD, E. Tower
Thomas Oil d/b/a
Company, Cross-Appellee. Appeals Kentucky.
Court
1,May 1987.