Floyd v. Gray

STEPHENS, Chief Justice.

The major issue we decide on this appeal is whether the statutory tort of loss of consortium is within the purview of the Motor Vehicle Reparations Act thus making the two year statute of limitations therein applicable. The Court of Appeals answered the question in the affirmative. We disagree, and reverse that part of the opinion. In all other respects, we affirm.

This appeal arises from a judgment of the Union Circuit Court in which a jury returned a verdict for the respondent Thomas Gray, against the movants Lewis Floyd and Hartford Bakery, Inc., in the amount of $31,308.22, and a verdict for respondent Ruby A. Gray, in the amount of $50,000. On appeal, the Court of Appeals affirmed the judgment. We granted discretionary review.

This case arose from a collision which occurred on a snow covered road in Union County on February 19, 1979. Movant Floyd, an employee of Hartford Bakery, Inc., was making a regular bread delivery in a company owned truck. Floyd was proceeding eastward on a two-lane road, toward a grocery store. The road is relatively straight, and descends into a slough, and then ascends to the grocery. Floyd was traveling between 35 and 40 miles per hour, when he noticed a bank of fog covering the road at the slough. He could see the roadway beyond the fog on the other side of the slough, and no vehicles were visible. Upon entering the fog, Floyd saw Thomas Gray’s car, also headed eastward stopped in his *938traffic lane. He attempted to stop the truck, but was unable to do so and crashed into the back of Gray’s vehicle. On April 17, 1979, Gray, who was in his car at the time of the accident instituted this action against movants, for personal injuries. Floyd subsequently counterclaimed for his injuries and damages. On May 2, 1980, nearly fifteen (15) months after the accident, the trial court permitted an amendment to the complaint so that Gray’s wife, Ruby, could intervene and assert a claim for loss of consortium. The trial court denied movant’s claim that the one year statute of limitations barred the wife’s claim.

Movants urge six alleged errors: (1) that the claim of the intervening movant, Ruby Gray, for loss of consortium is barred by the one year statute of limitations; (2) that the trial court erred in permitting the filing of the amended complaint in violation of CR 24; (3) that the damages rendered for loss of consortium were excessive; (4) that the respondent, Thomas A. Gray, was contribu-torily negligent as a matter of law; (5) that there was no causative negligence on the part of movant, Lewis Floyd; (6) that the trial court erred in giving the jury unnecessary and prejudicial instructions.

Movant’s first contention is that the claim of the intervening movant, Ruby Gray, for loss of consortium is barred by the one year statute of limitations. We agree and reverse the Court of Appeals.

The Court of Appeals affirmed the trial court’s decision that the wife’s claim for a loss of consortium was subject to the two year statute of limitations set out in the MYRA rather than the one year statute of limitations set out in KRS 413.140.

Relying on the case of Tucker v. Johnson, Ky.App., 619 S.W.2d 496, 497 (1981), the Court of Appeals reasoned that the two year statute of limitations in the MVRA was enacted to provide a limitation for those actions involving motor vehicle accidents which would fall within the parameters of No Fault benefit except for the fact that the statutory thresholds have been exceeded, thereby making tort recovery possible. The Court felt that a claim for loss of consortium is “akin” to a claim for replacement services under the No Fault statute, and therefore the tort was within the aegis of the MVRA. Since Mrs. Gray’s damages exceeded the statutory thresholds, the court held that the two year statute of limitations was applicable.

We agree with the Court of Appeals that KRS 304.39-230(6) provides a statute of limitations for those actions involving motor vehicle collisions which fall within the purview of No-Fault benefit recovery which have met or exceeded the statutory thresholds of KRS 304.39-060(2). However, we disagree that an action for loss of consortium falls within the perimeters of MVRA benefit recovery or that a claim for loss of consortium is “akin” to a claim for replacement services loss under the MVRA.

Loss of consortium is an independent cause of action authorized by KRS 411.145(2). A wife or husband may recover from a third party whose negligence or wrongful act resulted in the loss of “services, assistance, aid, society, companionship, and conjugal relationship between husband and wife, or wife and husband.” KRS 411.-145. An action for loss of consortium is required to be brought within one year after the injury. KRS 413.140(a).

The claim of the intervening plaintiff, Ruby A. Gray, for loss of consortium is barred by the one year statute of limitations because the claim was brought nearly fifteen (15) months after the injury. Therefore the trial court erred when it permitted the intervening complaint for loss of consortium.

Loss of consortium is not a recoverable injury within the purview of the MVRA. Under the MVRA, the injured party’s right of recovery is his entitlement to basic reparation benefits without proof of fault. Fann v. McGuffey, Ky., 534 S.W.2d 770, 773 (1975). Personal injury in the na*939ture of “pain, suffering, mental anguish, inconvenience because of bodily injury, sickness or disease arising out of ownership, maintenance, operation or use of a motor vehicle” may be recovered provided the statutory thresholds are met or exceeded. KRS 304.39-060(2)(b). Those thresholds require that the injury must result in medical expenses in excess of $1,000.00 or a permanent disfigurement, fracture of a weight bearing bone or permanent injury or death. Id. An action for such tort liability must be instituted within the two year period after the injury, or death or the last payment of a reparation whichever occurs later. KRS 304.39-230(6).

The two year statute of limitations set forth in the MVRA applies only to those actions within the purview of the statute. Not all actions arising out of motor vehicle collisions are covered by the MVRA and its two year statute of limitations. See, Gray v. State Farm Mutual Automobile Insurance Company, Ky.App., 605 S.W.2d 775 (1980). Rather, the two year statute of limitations applies only to the institution of a suit by an injured person or in the event of injury resulting in death, by those entitled to survivor’s benefits. Id. at 776.

While Mrs. Gray may have suffered a loss by reason of her husband’s injuries, any such injuries are not injuries covered by the MVRA and consequently, not within the two year statute of limitations contained therein.

Thus the proper inquiry is whether Ruby A. Gray’s claim for loss of consortium was timely. Her claim for such loss, brought nearly fifteen months after the injury, is barred by the applicable one year statute of limitations: KRS 413.140(a).

Our disposition of Movant’s first issue renders discussion of issues two and three irrelevant.

Movants fourth contention is that the trial court erred by failing to direct a verdict in favor of them. They argue that Thomas Gray was contributorily negligent as a matter of law when he voluntarily stopped on the main traveled portion of the highway thereby violating KRS 189.450(1). We see no merit in this argument. A review of the record reveals that there was evidence presented that Gray did not violate KRS 189.450(1). A motorist is absolved from his duty not to voluntarily stop on the main traveled portion of the road if his ear becomes disabled and it becomes impossible or impracticable not to occupy that portion of the highway. KRS 189.450(l)(a).

Evidence was presented that Gray’s car had become disabled within two or three minutes of the collision and that he had attempted to start the car. Additional testimony revealed that Gray’s car had stalled on at least two prior occasions. No evidence was presented that once the car became disabled it was possible for respondent to remove the ear from the main traveled portion of the road. We hold that the trial court properly submitted the issue of respondent’s contributory negligence to the jury.

The third argument urged by mov-ants is that respondent’s failure to warn other motorists of his stopped car was the proximate cause of the collision and as such constituted contributory negligence as a matter of law. Movants cite Armes v. Armes, 424 S.W.2d 137 (1968) in support of their argument. Armes, however, is distinguishable because the driver of a stopped vehicle in that case was under a statutory duty to warn oncoming traffic with flares or lanterns because the incident occurred at night. KRS 189.070. The collision in this case occurred early in the morning and there was evidence that the accident occurred within a few minutes after Mr. Gray’s car had become disabled. Furthermore, the jury was properly instructed on Gray’s duty to warn approaching vehicles. We find that the issue was properly submitted to the jury.

Movant’s contention that no causative negligence on their part was shown and *940therefore the trial court erred by failing to direct a verdict in favor of them is without merit. The speed limit on the snow-packed road on which the accident occurred is 35 miles per hour. Movant testified that he was traveling between 35 and 40 miles per hour when he entered a dense bank of fog. This is sufficient evidence to create a sub-missible jury issue as to whether movant was negligent in entering a fog bank at such a speed on a snow-packed highway.

Movants next contend'that the trial court erred by giving unnecessary and prejudicial instructions on agency because it had been stipulated that an agency relationship existed between movants. While unnecessary, the giving of such jury instructions was not so prejudicial as to require a new trial.

We direct the Union Circuit Court to enter a judgment consistent with this opinion.

STEPHENS, C.J., AKER, WINTER-SHEIMER, and STEPHENSON, JJ., concur. VANCE, J., not sitting. LEIBSON, J., dissents in an attached opinion. GANT, J., joins in this dissent.