Ellis v. Browning Pontiac-Chevrolet-GMC Truck-Geo, Inc.

KNOPF, Judge,

concurring.

I fully concur in the reasoning and the result of the majority opinion. I write separately to add that much of the confusion arises from the unclear wording of the 1994 amendment to KRS 186A.220(5). Under KRS 186A.215, an automobile owner who transfers his interest in a vehicle must execute to the buyer an assignment and warranty of title on the certificate of title. The seller must also execute an application for transfer of title, and deliver it to the buyer. At that point, the buyer has the duty to submit the application and certificate of title to the county clerk. However, once the seller turns over the executed certificate of title and application, the buyer becomes the owner of the vehicle and is responsible for insurance coverage.

*309As pointed out in Auto Acceptance Corporation v. T.I.G. Insurance Company,3 the 1994 amendment to KRS 186A.220(5) creates an exception to this rule. Under this statute, the buyer may become the owner of the vehicle for insurance purposes even though the dealer has retained the title documents or has not yet received the title document. “But a car dealer can only take advantage of the exception by first verifying that the buyer has a valid and current insurance policy that covers the purchased vehicle.”4 The dealer’s responsibility for insurance coverage on the vehicle terminates at that point, even though the dealer has retained the title documents. The dealer then files the cer-tifícate of title and application with the county clerk on the buyer’s behalf.

The problem arises from the phrasing of the last sentence of KRS 186A.220(5): “Notwithstanding the provisions of KRS 186.020, 186A.065, 186A.095, 186A.215 and 186A.300, if a dealer elects to deliver the title documents to the county clerk and has not received a clear certificate of title from a prior owner, the dealer shall retain the documents in his possession until the certificate of title is obtained.” The use of the word “notwithstanding” could imply, as Browning Pontiac asserts in this case, that the provisions of KRS 186A.220(5) super-cede those set forth in KRS 186A.215, including the promptness requirement of KRS 186A.215(3).

But while this portion of KRS 186A.220(5) is inarticulately phrased, Browning Pontiac focuses too narrowly on the “notwithstanding” language to the exclusion of the rest of the statutory scheme. Auto Acceptance and this Court’s prior opinion each recognized the 1994 revisions to KRS 186A.220(5) and the exception created for commercial dealers to retain title to the vehicle but not possession. KRS 186A.220(5) protects the dealer from being deemed to be the owner of the vehicle during the period between transfer of possession and filing of the certificate of title and application.

The promptness requirement of KRS 186A.215(3) is consistent with the purpose of KRS 186A.220(5). In fact, Browning Pontiac’s interpretation would relieve a dealer of the obligation to promptly file with the county clerk the certificate of title and application. Such a result would be inconsistent with the express purpose of KRS 186A.220(5) to facilitate the transfer of title between automobile dealers and car buyers.

The more logical interpretation of this “notwithstanding” language is that KRS 186A.220(5) only supercedes those portions of KRS 186A.215 which require the seller to deliver the completed certificate of title and application to the buyer upon relinquishing possession of the vehicle and which require the buyer to file these documents with the county clerk. Where the dealer elects to retain possession of those documents and deliver them to the county clerk on the buyer’s behalf, it must deliver the documents to the clerk as promptly as possible under the circumstances. Having failed to proffer any valid reason for its failure to make prompt delivery of the documents, Browning Pontiac is deemed to be the owner of the vehicle on the date of the accident.

. Ky., 89 S.W.3d 398 (2002).

. Id. at 401.