Perryman purchased truck from dealer, showed proof of insurance, signed documents, and drove truck off the lot.  38 days after driving truck off the lot, Perryman has accident injuring his passenger and another (which is the subject of a separate appeal and decision rendered this same date - Tingle - scroll down). Title was transferred by the dealer the next (39th day after the purchase).  The trial court found Perryman to be the owner of the vehicle for insurance purposes. CA held the dealer the owner for insurance purposes since too much time had elapsed even though titling statutes permit a dealer to obtain proof of insurance from the purchaser then deliver the titling documents to the clerk. Discretionary review to the SC, and remanded back to CA for further consideration in light of Auto Acceptance Corporation v. T.I.G. Insurance Company, Ky., 89 S.W.3d 398 (2002)(with the 1994 revision to KRS2 186A.220, Auto Acceptance was not the legal owner of the vehicle merely because title had not been transferred; if the dealer verifies that the buyer is insured, the dealer may agree to title the vehicle after relinquishing control to the purchaser.).

CA stated its earlier opinion was consistent with the underlying rationale of Auto Acceptance by holding the dealer to be the owner, not because of its possession of the title documents, but because it did not promptly and with due diligence deliver the necessary documents to the county clerk. 

Plaintiff and others were injured when Cox was driving friend's uninsured vehicle.  No question of injuries, but Allstate investigated whether the vehicle was in fact uninsured, and after determining it was uninsured, then investigated to see if the four plaintiffs/passengers resided in the policyholder's household to be entitled to coverage.   Upon completion of investigation and depositions, Allstate determined all were residents and a check was issued to their attorney to cover the medicals under PIP.

CA concluded that "once the reparation obligor receives reasonable notice of the loss and the amount of the loss, which Deerbrook [Allstate] undisputedly did in this case, the time for payment of PIP benefits begins to run."  If the investigation results in no liability, no interest; but if PIP is paid later, then interest is owed;  12% interest even if insurer had reasonable grounds for not paying PIP initially.  Trial court was correct in concluding, however, that the insurer had reasonable grounds for delaying payment of PIP and properly denied 18% interest and attorneys fees.

NOT TO BE PUBLISHED

Judge Baker dissented finding the medical findings were disputed and agreed that the medical expenses may be presumed reasonable they must also be reasonably necessary.  Here there was a subsequent accident and pre-existing arthritis such that the jury could conclude whether or not the subjective complaints of pain necessitate the medical treatment received.

Note:  Not too many of these threshold verdicts are reversed since they usually have a basis or argument for the jury to blame something else for the cause of the injuries or the impact was not significant enough to cause the injuries.  The typical defensive trifecta to soft tissue injuries is no impact, no injury, or not our injury.  Here, the CA took an interesting tack and side-stepped the deference to the jury's findings by addressing the denial of the Plaintiff's motion for a directed verdict on the $1,000 threshold issue.  Admittedly, the appellate decisions are sparse and there may be more out there in this decision than meets the eye, but the CA indicated there was nothing to refute the evidence presented.  Apparently, no IME, no other accident during the period in question (apparently there may have been a second accident but the treatment did not go that far), and no question of the significance of the impact (in fact fault was admitted), and nothing to contradict the medical opinions other than the medical admissions that the plaintiff did have pre-existing arthritis. 

Tactic for Plaintiffs Lawyers - Don't put all your eggs in one basket on these MIST (minor impact, soft tissue cases) on whether or not the judge should or should not have given a jury instruction on the no-fault thresholds but rather move for a directed verdict on the issue as well which raises a different standard for appellate review.  Although the Green court did not address the standard for a directed verdict specifically, it looks as if it was in the back of their minds in reaching the decision.  In any event, articulate facts and reasons for your directed verdict and why you object to the instructions.  Silence is not golden.

Where there is proof that the expenses were not necessary, a proper jury instruction should be submitted. Thompson v. Piasta, Ky.App., 662 S.W.2d 223 (1983).  See, Bolin v. Grider, Ky., 580 S.W.2d 490 (1988).  'Threshold' instructions whereby the jury is asked the interrogatory whether or not the plaintiff has met threshold are proper per Drury v. Spalding, Ky., 812 S.W.2d 713 (1991) and are usually presented when the defense thinks the evidence supports that possibility. 

The twist in the decision of Green v. Jackson is that sending the case to the jury is usually the safe method.  However, in light of the Miller v. Swift (zero pain and suffering) issue and now the threshold verdict issues, why not just drop the threshold instruction altogether and send the matter to the jury.  If the jury awards nothing for the medicals under the normal specials instruction, then that should resolve the issue without poisoning the well by giving the jury the opportunity to avoid the issue at the very first instruction and avoid all the tough questions.

A prior nonpublished decision and commentary:

Copeland v. Mason 2002-CA-000981.pdf
No Fault, Threshold Instructions
CA affirmed jury verdict and instructions.  Jury did not have answer instruction apportionment since it had already concluded that the plaintiff had not met the no-fault threshold of permanent injury or $1,000 in medicals (instruction was an interrogatory and if answered no, the jury was to return to the court room).  Even though the parties had stipulated medical expenses paid were over $9,000, this did not mean that causation was stipulated and jury could conclude no threshold.  

The objections to the threshold instruction and medical expenses were not preserved, because plaintiff did not object but only asked the court to require a finding on both parts of the Instruction.

Commentary.  Although the CA cited nothing more than KRS 304.39-060(2), those with a questioning mind might take a look at Drury v. Spalding, 812 S.W.2d 713 (Ky., 1991) (no fault instructions and  the aggravation of pre-existing injuries ); and  Thompson v. Piasta, Ky.App., 662 S.W.2d 223 (1983).  Even though nonpublished opinions are not to be cited, they do provide outstanding guidance on preserving the appeal and objecting to the instructions with reasons.

PREVIOUSLY NONPUBLISHED ON 10/3/2003 but ORDERED
PUBLISHED
on 11/17/2003

"It is well settled that "[w]here the statute both declares the unlawful act and specifies the civil remedy available to the aggrieved party, the aggrieved party is limited to the remedy provided by the statute ." Grzyb v. Evans, Ky., 700 S.W.2d 399, 401 (1985)."

COMMENT:  This was a nonpublished decision dated 10/3/2003 which was ORDERED PUBLISHED on Nov. 17, 2003.

Comment:  CA re-examined precedent in light of Motor Vehicle Reparations Act, household exclusion case, wrongful death claims, and cases requiring benefits of minimum insurance coverage to reach its conclusion that parent is not prohibited from suing child for minimum benefits coverage under automobile insurance policy.  The opinion of this Court was written Judge Paisley with concurrence of Judges Tackett and Huddleston.  The analysis was reasoned and orderly as a 1954 decision was distinguished at best, reversed at worse.  Remember, these are not final as of the date they are published at the AOC Site!