dissenting.
Respectfully, I must dissent.
I join the majority in their holding that the life insurance in this case should not be offset from Appellant’s recovery. I would go further, however, and also prevent the Cabinet from offsetting the medical expenses and the basic reparation benefits.
MEDICAL EXPENSES
As personal representative of Danny’s estate, Lora had a choice to bring either a wrongful death action, against the Cabinet, a personal injury action against the Cabinet, or both. She brought only a wrongful death action. In a wrongful death action, the damages recoverable are funeral expenses and damages that will fairly and reasonably compensate the decedent’s estate for the destruction of his power to earn money. Medical expenses are usually not a recoverable damage in such an action for obvious reasons. This case was unusual because Danny lived nine days before he died of the injuries sustained in the accident.
If Lora had chosen to bring a personal injury action against the Cabinet, the damages recoverable would be lost earnings, pain and suffering, and medical expenses, and the medical expenses recovered from her insurance would arguably be setoff from her recovery from the Cabinet. However, that is not the case here. Lora chose to bring only a wrongful death action. As stated above, medical expenses are not a recoverable damage in a wrongful death action. I believe this precludes the Cabinet from deducting these expenses from Lora’s recovery.
BASIC REPARATION BENEFITS
As stated in the majority opinion, I believe Commonwealth v. Roof, Ky., 913 S.W.2d 322 (1996) prevents us from holding that the basic reparation benefits should not be offset from the Appellant’s recovery. As such, I would revisit and overrule Roof. At issue in Roof was whether collateral source payments are to be deducted from the $100,000.00 cap or the total damages sustained. The majority held that they are to be deducted from the $100,000.00 cap. Therefore, even if a claimant has $3,000,000.00 worth of damages, but receives $100,000.00 of collateral source payments, she is precluded from any recovery from the Cabinet, even if the $100,000.00 collateral source payment is the only recovery she will receive. The majority agreed that this result seemed unfair and the argument that the collateral source payments should be deducted from the total damages appealed to their “sense of equity.” However, they believed that *764the intent of the General Assembly was clear, and we were bound by their words.
I agree that the General Assembly’s intent is clear, and it is clearly not how the majority interpreted it. I agree with Justice King’s interpretation in the Roof opinion, articulated in his- dissent in which I joined:
The clear intent of KRS 44.070(1) is to preclude an injured party from receiving a double recovery thereby being unjustly enriched. Thus, the statute requires “a reduction in the amount of the award only when certain itemized collateral sources duplicate payment for the damages awarded.” Interpreting KRS 44.070(1) to require a reduction in an award when there is no double recovery, leads to an unjust and unduly harsh result.
Id. at 326.
Appellant concedes that the reimbursement for funeral expenses she received should be offset, but I believe the $9,000.00 received as survivor’s replacement services loss benefits (BRB) should not be setoff, as it did not compensate her for the same damages that are sought in a wrongful death action. We enunciated this principle in the case of Luttrell v. Wood, Ky., 902 S.W.2d 817 (1995), and I stand by its holding. The majority claims that Luttrell is distinguishable because that case was based on an interpretation of the wrongful death statute. However, if we look to the intent of the statute at issue here, which is to prevent double recovery, the same result should follow. As we said in Luttrell, wrongful death damages are those meant to replace the power of the decedent to earn money. The BRB damages here are the same as they were in Luttrell, meant to compensate for the ordinary and necessary services that come with day-to-day family life. As these damages are not the same as wrongful death damages, they should not qualify as a damage award under KRS 44.070(1).
Accordingly, I would reverse the Court of Appeals opinion in its entirety, and disallow the offset of the medical expenses and the BRB payments made to Lora Boarman.