dissenting.
Respectfully, I dissent from that portion of the majority opinion which holds that Roofs Board of Claims award of $100,000.00 must be reduced by the amount of basic reparation benefits received by Roof from her insurer. These collateral source benefits should be applied against the total damages sustained and not against the statutory limitation of liability.
KRS 44.070(1) provides in pertinent part:
A Board of Claims ... is created and vested with full power ... to compensate persons for damages sustained to either person or property ... [A]ny damage claim awarded shall be reduced by the amount of payments received ... from [a] private program designed to supplement income or pay claimant’s expenses or damages incurred.
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.
Cooke v. Board of Claims, Ky.App., 743 S.W.2d 32 (1987), is not applicable to the situation presented here. In Cooke, the claimant sustained total damages of $19,-255.10. Because KRS 304.39-060(2)(a) abolishes tort liability for damages to the extent basic reparation benefits are payable, the Court of Appeals reduced the award by $10,-000.00 which represented the no-fault insurance benefits the claimant received. By this ruling the Court prevented double recovery and unjust enrichment. In the present case, the Board of Claims determined Ms. Roofs damages were in excess of $314,000.00. Here there is no possibility of double recovery for any item of damage.
In Truman v. Kentucky Board of Claims, Ky.App., 726 S.W.2d 312 (1987), the plaintiffs decedent and a state employee were *327each held to be fifty percent at fault for the decedent’s death. Damages were stipulated as being $100,000.00. At the time, the statutory limit on liability was $50,000.00. The issue before the Court of Appeals was whether the Commonwealth was required to pay $25,000.00, representing fifty percent of the statutory limit, or $50,000.00, representing fifty percent of the stipulated damages. The Court of Appeals held that the comparative negligence doctrine applied to the damages sustained rather than to the statutory limitation on recovery. As a result, the Commonwealth was liable for the full statutory limit of $50,000.00 even though it was only fifty percent at fault for causing the injuries.
A statute should not be construed to work inequality and hardship when such a construction is not mandatorily required by the language employed. Martin v. Gage, 281 Ky. 95, 184 S.W.2d 966 (1939); City of Covington v. Sohio Petroleum Co., Ky., 279 S.W.2d 746 (1955). The inequities of the procedure required by the majority’s opinion are apparent when viewed in the context of common experience. Consider the claims of those who sustain damages in the form of medical expenses, lost wages and future impairment of income in the collective sum of $200,000.00. If fault is equally allocated against the Commonwealth and a second defendant, the Commonwealth must pay $100,-000.00 even though only fifty percent at fault. Where the claimant and Commonwealth are both fifty percent at fault, again the Commonwealth must pay $100,000.00. But when a citizen has the foresight to purchase health care and wage continuation benefits paying her $100,000.00, even though the Commonwealth is exclusively at fault for the claimant’s injuries, under today’s decision, the Commonwealth escapes liability.
In a fair and just society fault should be followed by liability. When responsible citizens purchase protection against anticipated losses they do so for their protection and not to bestow upon the Commonwealth a windfall.
The language in KRS 44.070(1) requiring reduction for collateral source payments applies to the total damages sustained by the claimant as determined by the Board of Claims and not the $100,000.00 statutory limitation on liability provided in KRS 44.070(5). Roofs total damages, determined by the Board to exceed $314,000.00, should be reduced by her basic reparation payments as set out in KRS 44.070(1), and her award should be the $100,000.00 statutory maximum as set out in KRS 44.070(5).
STUMBO, J., joins.