LAMBERT, Justice.
At issue in this case is whether appellant, State Automobile Mutual Insurance Company, may recover basic reparation benefits it paid its insured, Mrs. May, from appellee, Empire Fire & Marine Insurance Company, an insurance carrier which provided excess or “umbrella” liability coverage to the negligent party, Mrs. Goldberg. Said otherwise, is an excess liability insurance carrier required to reimburse a reparation obligor for sums paid in basic reparation benefits? As this question appears to be of first impression, we granted discretionary review.
The facts of this case are uncomplicated. Mrs. Goldberg negligently injured Mrs. May in an automobile accident. Mrs. May made a claim for basic reparation benefits against her reparation obligor, appellant State Auto, and it paid approximately $7,500 in medical expenses and lost wages. In addition, Mrs. May asserted a personal injury claim against Mrs. Goldberg, and on her behalf, Automobile Club Insurance Company paid its policy limits of $25,000. It is undisputed that the payment by Automobile Club of its policy limits was appropriate.
In addition to the primary liability coverage provided by Automobile Club, Mrs. Goldberg had an “umbrella” liability policy with appellee, Empire Fire & Marine Insurance Company. The parties have agreed that Empire is not a basic reparation obligor as defined by KRS 304.39-010, et seq. As the liability limits of Automobile Club, Mrs. Goldberg’s basic reparation obligor, were exhausted by payment of the liability claim, appellant, State Auto, asserted a subrogation claim against Empire.
The trial court held that Empire was liable to State Auto pursuant to the provisions of KRS 304.39-070(2). On appeal to the Court of Appeals, the judgment was reversed. In an appropriate analysis of the statute, the Court of Appeals reasoned that as to any insurer or party other than a reparation obligor, the right of subrogation is derivative of the right of the injured person; and inasmuch as Mrs. May had no right to recover the items of damage paid by State Auto from Mrs. Goldberg, her excess carrier, Empire, had no duty to reimburse State Auto.
Our analysis of the applicable statutes begins by reviewing KRS 304.39-060(2). [807]*807By this provision, “tort liability ... is ‘abolished’ for damages ... to the extent the basic reparation benefits provided in this subtitle are payable therefor_” In Progressive Casualty Ins. Co. v. Kidd, Ky., 602 S.W.2d 416 (1980), we held:
“[U]nder the Kentucky No-fault Act, an injured party is not entitled to an award of damages from the defendant in the trial on liability for any item of damages which was compensated by BRB.... ”
“It is clear that this section, taken together with KRS 304.39-070, means that the injured party may not assert a claim which includes benefits already paid by the insurer as BRB.” Id. at 417.
See also Hargett v. Dodson, Ky.App., 597 S.W.2d 151 (1979), Gussler v. Damron, Ky.App., 599 S.W.2d 775 (1980), and Ammons v. Winklepleck, Ky.App., 570 S.W.2d 287 (1978). Under the Motor Vehicle Reparations Act and as these authorities demonstrate, by failing to preserve her tort rights by rejecting the provisions of the Act, Mrs. May had no claim against Mrs. Goldberg for those items of damage covered by basic reparation benefits; it had been abolished. Likewise, she had no right to recover such damages from Mrs. Goldberg’s reparation obligor, Automobile Club Insurance Company, or her excess carrier, Empire.
Next we look to KRS 304.39-070(3). This section expressly authorizes a reparation obligor such as State Auto to recover basic reparation benefits from the reparation obligor of the secured person. This right is specially created by statute and allows subrogation between basic reparation obligors provided available coverage is not exhausted and that payments to the injured party are not diminished. See KRS 304.39-070(4) and KRS 304.39-140(3). The provisions of KRS 304.39-070(3) provide for subrogation only between basic reparation obligors.
As the principal authority for his claim, appellant relies upon KRS 304.39-070(2). This statute is as follows:
“A reparation obligor which has paid or may become obligated to pay basic reparation benefits shall be subrogated to the extent of its obligations to all of the rights of the person suffering the injury against any person or organization other than a secured person.” (Emphasis added.)
Appellant construes the language “any person or organization other than a secured person” to be unlimited and allow for sub-rogation against any available entity except the secured person. What appellant overlooks, however, is the language which makes such right derivative. The right of the reparation obligor to subrogation is dependent upon the right of the injured person to recover such damage. Inasmuch as the injured person’s right to recover is abolished by KRS 304.39-060(2)(a), the reparation obligor has no right to recover items of damage not available to the injured person.
Appellant contends that the foregoing construction renders the language of KRS 304.39-070(2) essentially meaningless. A number of our decisions indicate otherwise. In Ohio Casualty Ins. Co. v. Atherton, Ky., 656 S.W.2d 724 (1983), we held that a reparation obligor was entitled to assert its subrogation claim against an uninsured motorist as he was not a “secured person.” Likewise, in Bailey v. Reeves, Ky., 662 S.W.2d 832 (1984), we noted that the abolition of tort liability in KRS 304.39-060(2)(a) was only against
Free access — add to your briefcase to read the full text and ask questions with AI
LAMBERT, Justice.
At issue in this case is whether appellant, State Automobile Mutual Insurance Company, may recover basic reparation benefits it paid its insured, Mrs. May, from appellee, Empire Fire & Marine Insurance Company, an insurance carrier which provided excess or “umbrella” liability coverage to the negligent party, Mrs. Goldberg. Said otherwise, is an excess liability insurance carrier required to reimburse a reparation obligor for sums paid in basic reparation benefits? As this question appears to be of first impression, we granted discretionary review.
The facts of this case are uncomplicated. Mrs. Goldberg negligently injured Mrs. May in an automobile accident. Mrs. May made a claim for basic reparation benefits against her reparation obligor, appellant State Auto, and it paid approximately $7,500 in medical expenses and lost wages. In addition, Mrs. May asserted a personal injury claim against Mrs. Goldberg, and on her behalf, Automobile Club Insurance Company paid its policy limits of $25,000. It is undisputed that the payment by Automobile Club of its policy limits was appropriate.
In addition to the primary liability coverage provided by Automobile Club, Mrs. Goldberg had an “umbrella” liability policy with appellee, Empire Fire & Marine Insurance Company. The parties have agreed that Empire is not a basic reparation obligor as defined by KRS 304.39-010, et seq. As the liability limits of Automobile Club, Mrs. Goldberg’s basic reparation obligor, were exhausted by payment of the liability claim, appellant, State Auto, asserted a subrogation claim against Empire.
The trial court held that Empire was liable to State Auto pursuant to the provisions of KRS 304.39-070(2). On appeal to the Court of Appeals, the judgment was reversed. In an appropriate analysis of the statute, the Court of Appeals reasoned that as to any insurer or party other than a reparation obligor, the right of subrogation is derivative of the right of the injured person; and inasmuch as Mrs. May had no right to recover the items of damage paid by State Auto from Mrs. Goldberg, her excess carrier, Empire, had no duty to reimburse State Auto.
Our analysis of the applicable statutes begins by reviewing KRS 304.39-060(2). [807]*807By this provision, “tort liability ... is ‘abolished’ for damages ... to the extent the basic reparation benefits provided in this subtitle are payable therefor_” In Progressive Casualty Ins. Co. v. Kidd, Ky., 602 S.W.2d 416 (1980), we held:
“[U]nder the Kentucky No-fault Act, an injured party is not entitled to an award of damages from the defendant in the trial on liability for any item of damages which was compensated by BRB.... ”
“It is clear that this section, taken together with KRS 304.39-070, means that the injured party may not assert a claim which includes benefits already paid by the insurer as BRB.” Id. at 417.
See also Hargett v. Dodson, Ky.App., 597 S.W.2d 151 (1979), Gussler v. Damron, Ky.App., 599 S.W.2d 775 (1980), and Ammons v. Winklepleck, Ky.App., 570 S.W.2d 287 (1978). Under the Motor Vehicle Reparations Act and as these authorities demonstrate, by failing to preserve her tort rights by rejecting the provisions of the Act, Mrs. May had no claim against Mrs. Goldberg for those items of damage covered by basic reparation benefits; it had been abolished. Likewise, she had no right to recover such damages from Mrs. Goldberg’s reparation obligor, Automobile Club Insurance Company, or her excess carrier, Empire.
Next we look to KRS 304.39-070(3). This section expressly authorizes a reparation obligor such as State Auto to recover basic reparation benefits from the reparation obligor of the secured person. This right is specially created by statute and allows subrogation between basic reparation obligors provided available coverage is not exhausted and that payments to the injured party are not diminished. See KRS 304.39-070(4) and KRS 304.39-140(3). The provisions of KRS 304.39-070(3) provide for subrogation only between basic reparation obligors.
As the principal authority for his claim, appellant relies upon KRS 304.39-070(2). This statute is as follows:
“A reparation obligor which has paid or may become obligated to pay basic reparation benefits shall be subrogated to the extent of its obligations to all of the rights of the person suffering the injury against any person or organization other than a secured person.” (Emphasis added.)
Appellant construes the language “any person or organization other than a secured person” to be unlimited and allow for sub-rogation against any available entity except the secured person. What appellant overlooks, however, is the language which makes such right derivative. The right of the reparation obligor to subrogation is dependent upon the right of the injured person to recover such damage. Inasmuch as the injured person’s right to recover is abolished by KRS 304.39-060(2)(a), the reparation obligor has no right to recover items of damage not available to the injured person.
Appellant contends that the foregoing construction renders the language of KRS 304.39-070(2) essentially meaningless. A number of our decisions indicate otherwise. In Ohio Casualty Ins. Co. v. Atherton, Ky., 656 S.W.2d 724 (1983), we held that a reparation obligor was entitled to assert its subrogation claim against an uninsured motorist as he was not a “secured person.” Likewise, in Bailey v. Reeves, Ky., 662 S.W.2d 832 (1984), we noted that the abolition of tort liability in KRS 304.39-060(2)(a) was only against
“ ‘the owner, registrant, operator or occupant of a motor vehicle with respect to which security has been provided as required’ by the Act. Against all other persons, motorists and nonmotorists, the ‘action for tort liability’is not abolished.” (Emphasis added.) Id. at 835.
A virtually endless catalog of circumstances could be compiled in which a person covered by the Act would be injured by the conduct of a person or entity which was not a “secured person.” In such a circumstance, the reparation obligor of the injured person would be entitled to subrogation against the party at fault or, derivative thereof, its insurer.
In its opinion, the Court of Appeals noted, and it is worthy of repetition here, that Kentucky is not a direct action jurisdiction. [808]*808Cuppy v. General Accident Fire & Life Insurance Corp., Ky., 378 S.W.2d 629 (1964). In ordinary circumstances, an injured party must first obtain judgment against the opposing party defendant and then seek enforcement of the judgment rendered in an action against the defendant’s indemnitor. Applying this rule here, for appellant to prevail, it would be necessary to first obtain judgment against Mrs. Goldberg before proceeding against appel-lee. As Mrs. Goldberg is fully protected by the provisions of the Act, such is impossible.
For the foregoing reasons, the judgment of the Court of Appeals is affirmed.
STEPHENS, C.J., and REYNOLDS, SPAIN and WINTERSHEIMER, JJ., concur.
LEIBSON, J., dissents by separate opinion in which COMBS, J., joins.