Jackson ex rel. Jackson v. State Automobile Mutual Insurance Co.

WINTERSHEIMER, Justice,

dissenting.

I respectfully dissent from the majority opinion because application of the majority opinion would close the door of opportunity created by the stated policy and purpose of K.R.S. 304.39-010, the no-fault act. The protection of the saving statute should apply to Jackson and other persons who are under a legal disability in the same manner that it applies to minors and other persons under disability pursuant to Lemmons v. Ransom, Ky., 670 S.W.2d 478 (1984). Lemmons, supra, provided that K.R.S. 413.170(1), the so-called “saving statute” is available to suspend the limitation periods set forth in the no-fault law. Although it could be argued that this position is not the holding of Lemmons, a more enlightened view would recognize the fundamental right of a person under legal disability and apply such rights equally to a claim of a minor for reparations benefits. It is the protection of the minor which is paramount and not an interpretation of the law which actually reduces the protection afforded minors.

We recognize that the concern in Lem-mons was with the common-law tort claim of the minor but it is clear that an extension of that holding to the no-fault act *500generally for the protection of a minor is a reasonable interpretation of the statute.

I believe a better approach would be to determine that the causes of action available to Jackson are either statutory or contractual and because all such causes of action are noted in K.R.S. 413.090-160, the provisions of K.R.S. 413.170(1) toll the one-year statute of limitation provided in the no-fault act at this time.

COMBS, J., joins in this dissent.