Lawrence Ex Rel. Lawrence v. Risen

598 S.W.2d 474, 1980 Ky. App. LEXIS 314

• Court: Court of Appeals of Kentucky
• Decided: April 18, 1980
• Status: Published

Opinions

WHITE, Judge.

This appeal is taken from a summary judgment by which the Jefferson Circuit Court determined that appellant’s claim was barred by Kentucky’s Motor Vehicle Reparations Act (“No Fault”), KRS 304, Subtitle 39.

In June 1977 Lawrence was struck by an automobile driven by Risen, who subsequently failed to stop to render aid. At the time Lawrence was fifteen years old and a passenger on another’s bicycle. Although his injuries and associated expenses were insufficient to fulfill threshold requirements and thus to preclude application of No Fault coverage, Lawrence alleges that the Act under the present set of facts is inapplicable to him, or in the alternative, that it is unconstitutional. We disagree and in doing so affirm the Jefferson Circuit Court.

Summary judgments are issued when it is apparent that there are no material issues of fact, thereby entitling one party to judgment as a matter of law. In seeking such the movant shifts the burden to the opposing party to submit supportive information indicating that there are material factual issues; more is required than merely relying upon the assertions included in the pleadings.

In Lawrence’s response to the motion for summary judgment, he attempted to establish that No Fault was inapplicable in that he had neither accepted nor rejected its limitations. Further, it was observed that at the time of the accident he was bicycling rather than using, maintaining, or riding in an automobile; consequently, it was argued that he could not be considered to have been a “user” as required for the statutory inclusion.

We feel that neither of these arguments has merit. No Fault was enacted by the General Assembly in 1975 to expedite recovery for those involved in automobile accidents without regard to negligence. Its provisions extend to all registrants, operators, maintainers, and users of motor vehicles on the roadways of Kentucky; however, each affected person is given under KRS 304.39-020 the option of rejecting the restrictions upon his traditional tort liability and recovery. With no rejection on file with the Department of Insurance, acceptance is deemed automatically applicable. For one under a legal disability rejection may be filed by his natural parent or legal guardian within six months of the date the statute becomes applicable to him.

It was not denied that a rejection had not been filed on behalf of young Lawrence; therefore, under the terms of KRS 304.39-060(4) he is considered to have made affirmative acceptance of the program.

The definition of “user” was amended in 1978 to include any “person who resides in a household in which any person owns or maintains a motor vehicle.” Under the pri- or law which was in effect at the time of the 1977 accident, a “user” was considered to be one who either was a basic reparation insured or would have been but for the fact that he had rejected No Fault coverage. Under this definition uninsured motorists would be non users, thereby exempt from the Motor Vehicles Reparations Act. See Dixon v. Cowles, Ky., 562 S.W.2d 639 (1978).

In examining the fact situation at hand, it is clear that having not rejected No Fault, young Lawrence falls within its aegis unless it can be shown that he was not a user under the pre-1978 definition. The issue of whether his parents were uninsured motorists was raised in appellee’s memo in support of the motion for summary judgment. Appellant’s failure to have responded to this required the Jefferson Circuit Court to make its determination based upon the facts presented. Having rejected the opportunity clearly to establish that he was a nonuser by virtue of his parents’ being uninsured motorists, appellant is not now to be heard to suggest that a material issue of fact existed concerning the question of “user.”

Appellant further argues that a material issue of fact exists concerning appellee’s leaving the scene of the accident. It is suggested that this is a cause separate from any No Fault claim which would arise from the circumstances of the impact itself and should therefore not be disposed of through the summary judgment.

In response, it is first to be noted that although a claim of $50,000 was sought relating to punitive damages for failure to render assistance, nothing was presented to indicate that there was the basis for a compensatory action on this issue. It was not shown in what manner or to what extent Lawrence’s injuries were enhanced by Risen’s departure. Without a factual allegation of actual compensatory damages, punitive recoveries cannot be sustained. It has long been held that “[t]he correct rule . is that if a right of action exists — that is, if the plaintiff has suffered an injury for which compensatory damages might be awarded, although nominal in amount — he may in a proper case recover punitive damages.” Louisville & N. R. Co. v. Ritchel, 148 Ky. 701, 147 S.W. 411, 414 (1912). (Emphasis added.) Appellant failed to assert any claim on which actual damages could be awarded and is thus precluded from seeking exemplary ones on this issue.

Secondly, and more importantly, the argument that appellee’s failure to stop to render assistance is a separate claim for relief was not presented to the court below but rather appears for the first time at the appellate level. The Court of Appeals is one of review and is not to be approached as a second opportunity to be heard as a trial court. An issue not timely' raised before the circuit court cannot be considered as a new argument before this Court.

Appellant has attacked the constitutionality of the Act but we feel that is disposed of by reference to Fann v. McGuffey, Ky., 534 S.W.2d 770 (1975).

The complete record from the Jefferson Circuit Court having been reviewed, we affirm the judgment of that court in granting the motion for summary judgment in appel-lee’s favor.

The judgment is affirmed.

WINTERSHEIMER, J., concurs.

VANCE, J., dissents.