dissenting.
Respectfully, I dissent from the majority opinion.
The two-year statute of limitations set forth in Subsection 6 of KRS 304.39-230 should apply only to those tort actions within the purview of the Motor Vehicles Reparations Act. It is succinctly reasoned that although there appears in this ease an action brought in contract, we would have no action whatsoever absent the personal injuries arising out of a tortious act and it is clearly logical to apply KRS 304.39-230(6) to an uninsured motorist claim under these circumstances. Said otherwise, if there is no tort liability, there is no responsibility to pay the tort judgment as provided by the contract.
Justice Leibsoris concurring opinion, on this issue, is directly quoted as follows:
I would affirm the Court of Appeals on the issue as to whether the statutes of limitations in KRS 304.230 applies to this case. A reasonable interpretation of KRS 304.39-230 implies that subsection (6), which states “[a]n action for tort liability not abolished by KRS 304.39-060” shall have a two year statute of limitations, covers contract liability when the underlying basis for the contract claim is the tort liability of an uninsured or underinsured motorist:
I agree with the Court of Appeals’ statement:
“Even though we have before us an action brought in contract, we would have no action whatsoever absent the personal injuries arising out of a tortious act, so we do not find it illogical to apply KRS 304.39-230(6) to an uninsured motorist claim under these circumstances.”
The majority’s characterization of the notice issue is faulty. The accident occurred July 26, 1990. Indicative of a failure of promptness or timeliness, the appellee was furnished written notice July 14, 1992. Appellant’s best allegation that the insurance company had actual notice in the spring of 1991 alleged to have arisen from a “by the way, my son got hurt in a motorcycle accident.” Proof thereof is but illusionary. While the manner of notice need not, in all cases, be an exacting one, it should be basically informational.
Appellee and the majority correctly cite Jones v. Bituminous Casualty, Inc., Ky., 821 S.W.2d 798 (1991), for the proposition that the insurer carries the burden of proving prejudice. In contrast to the majority, however, I believe Kentucky Farm Bureau has sufficiently carried this burden. Kentucky Farm Bureau, by affidavit, has shown that notice was not prompt (even if they had actual notice in spring of 1991) and they were prejudiced by such in their inability to locate the driver of the motorcycle, to determine if indeed he was uninsured, to determine from the driver the precise circumstances of the accident, and to adequately investigate the claim due to witnesses’ memory impairment. If such does not satisfy the insurer’s burden of proof, I dare say an insurer would be hard pressed to ever prove prejudice.
“Prejudice will be found where the delay ‘materially’ impairs an insurer’s ability to test its liability to an insured or the liability of an insured to a third party.” West Bay Exploration Co. v. AIG Specialty Agencies, Inc., 915 F.2d 1030, 1036-37 (6th Cir., 1990).
*335For the reasons stated above, I would affirm the opinion of the Court of Appeals.
STEPHENS, C.J., joins this dissent.