William C. Eriksen, P.S.C. v. Kentucky Farm Bureau Mutual Insurance Co.

HARRIS, Senior Judge,

concurring in part and dissenting in part:

I concur in the order dismissing KFB’s cross-appeal as being taken from an interlocutory order, but I respectfully dissent from the opinion affirming Hardin Circuit Court’s dismissal of Eriksen’s counterclaim seeking recovery of unpaid interest. I do so because I am persuaded that the trial court and the majority of this Court have misapplied Neurodiagnostics, Inc. v. Kentucky Farm Bureau Mut. Ins. Co., 250 S.W.3d 321 (Ky.2008).

The Neurodiagnostics case involved a factual situation distinguishable from the one involved in this case. The Neurodiag-nostics case did not involve the payment of interest under KRS 304.39-210(2). Moreover, the Court relied on the fact that the medical provider in the Neurodiagnostics case was an “incidental beneficiary,” stating that “[rjeading KRS 304.39-241 in light of the MVRA as a whole, we conclude that a medical provider ... is an optional payee or incidental beneficiary of the no-fault policies. And, as an incidental beneficiary, [the medical provider] has no direct right of action against the reparation obligor.” Id. at 329. But in the present case the insureds have already directed that their PIP payments should go to Eriksen to pay for medical treatment. Therefore, Eriksen is not an “optional payee” or “incidental beneficiary,” and has standing to pursue his claim for interest.

Moreover, statutes are to be “liberally construed with a view to promote their objects and carry out the intent of the legislature ...[.]” KRS 446.080(1). Statutes which are remedial in nature should be liberally construed in favor of their remedial purpose. Kentucky Ins. Guar. Ass’n v. Jeffers ex rel. Jeffers, 13 S.W.3d 606, 611 (Ky.2000). Additionally, we must presume that the legislature did not intend an absurd result. Workforce Development Cabinet v. Gaines, 276 S.W.3d 789, 793 (Ky.2008).

In this case, the MVRA’s interest penalty provision is the sole remedy for delayed *914payment of reparations benefits. Foster v. Kentucky Farm Bureau Mut. Ins. Co., 189 S.W.3d 553, 557 (Ky.2006). The MVRA is therefore the only source through which Eriksen may recover interest on any delayed payments. While KRS 304.39-210(2) does not say to whom the interest is payable, it would be illogical for the interest to go to the patient, who has already received treatment and directed that payment for the treatment be paid directly to the provider. Likewise, the interest should not remain with KFB, as there would be no incentive to pay in a timely fashion. In circumstances such as these, where an insured has directed that payment be made directly to the medical provider for medical expenses, then the interest must also go to the medical provider. Consequently, I would reverse the trial court and allow Eriksen to pursue his interest claim against KFB.