concurring in result.
I concur in the result reached in the Majority Opinion, but I respectfully disagree with some of the reasoning.
In my Dissenting Opinion in State Farm Mut. Auto. Ins. Co. v. Rains, Ky., 715 S.W.2d 232 (1986), I stated we have made a “fundamental error” in assigning “meaning to the ‘basic reparations benefits’ coverage provided by the Motor Vehicle Reparations Act (MVRA)” that presupposes “it is like automobile liability insurance, instead of recognizing it for what it is.” Id. at 234.
“The purpose of no-fault insurance, as represented to the General Assembly and the public, is to displace a portion of the liability insurance system with insurance that would provide prompt and efficient payment for medical expenses and loss of income on a first party basis for persons injured while using a motor vehicle.” 715 S.W.2d at 235.
In sum, no-fault insurance is medical payment and disability coverage for persons injured while using an automobile, i.e., positional risk insurance. As I stated in Rains, “it makes no sense to interpret the law” in terms of causal relationship that apply to liability insurance law. Instead, the MVRA should be applied in the same framework as the Workers’ Compensation Law. Coverage should be “provided on the basis of positional risk, meaning that if the [automobile] puts you in the place where you are injured, you’re covered.” Id.
Nevertheless, even using the positional risk theory, Hudson would not be covered in present circumstances because of the exception to coverage in KRS 304.39-020(6). This section excepts from the term “[u]se of a motor vehicle ... conduct in the course of loading and unloading the vehicle unless the conduct occurs while occupying, entering into, or alighting from it.”
Hudson’s use of the vehicle at the time he was injured falls within the exception because he was involved in “unloading the vehicle.” Unlike the fact situation in Goodin v. Overnight Transp. Co., Ky., 701 S.W.2d 131 (1985), the present circumstances do not fall within one of the exceptions to “unloading” which apply while “occupying, entering into, or alighting from it.” KRS 304.39-020(6).
The present fact situation, when contrasted with Goodin, serves to emphasize the validity of the “positional risk” theory as an appropriate approach to applying the MVRA. Unfortunately, it also explains why previous decisions of our Court requiring a causal connection between the mechanism producing the injury and the use of a motor vehicle are erroneous.