Request By:
Mr. John C. Roberts, Secretary
Cabinet for Public Protection
and Regulation
Capital Plaza
Frankfort, Kentucky 40601
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Victor Fox, Assistant Attorney General
Former Secretary James Gray requested from this office an opinion on the following question:
"Is a Kentucky uninsured motorist subject to the same $1,000 threshold limitation on his tort rights as an insured motorist when the uninsured motorist has not filed a no-fault rejection form with the Department of Insurance?"
Several sections of the Motor Vehicle Reparations Act must be read before an answer to the question can be formulated.
"KRS 304.39-060.
(1) Any person who registers, operates, maintains or uses a motor vehicle on the public roadways of this Commonwealth shall, as a condition of such registration, operation, maintenance or use of such motor vehicle and use of the public roadways, be deemed to have accepted the provisions of this subtitle, and in particular those provisions which are contained in this section.
(2) (a) Tort liability with respect to accidents occurring in this Commonwealth and arising from the ownership, maintenance, or use of a motor vehicle is 'abolished' for damages because of bodily injury, sickness or disease to the extent the basic reparation benefits provided in this subtitle are payable therefor, or that would be payable but for any deductible authorized by this subtitle, under any insurance policy or other method of security complying with the requirements of this subtitle, except to the extent noneconomic detriment qualifies under subsection (2)(b) hereof." (Emphasis added)
KRS 304.39-060(1) sets forth, as indicated by the emphasized portion above, that any person who registers or operates a motor vehicle in Kentucky is deemed to have accepted all the provisions of the Motor Vehicle Reparations Act [MVRA] and particularly those provisions found in the subsections of KRS 304.39-060.
In subsection (2)(a) of KRS 304.39-060, tort liability with respect to motor vehicle accidents is "abolished" to the extent that the BRB would be payable but for any other method of security complying with the requirements of the MVRA. However, subsection (4) of KRS 304.39-060 permits a person to reject the limitation of his tort rights by filing such rejection with the Department of Insurance.
Reading these sections of the MVRA indicates that regardless of whether or not a person is or is not insured, he has accepted all the provisions of the Act including tort limitation and the $1,000 threshold unless he has by affirmative action rejected the limitation.
The Court in Fann v. McGuffey, Ky., 534 S.W.2d 770 (1976), while not considering this specific question, did approach the issue. In note 19 at p. 774 the Court stated:
". . . except to say that a person who has not operated or used an automobile after July 1, 1975, the effective date of the act, could not constitutionally be deemed to have accepted such limitations."
From this it would appear the opposite of the statement would be true. That is, a person who has operated or used a motor vehicle after July 1, 1975 is constitutionally deemed to have accepted such limitations.
One other section should also be read.
"KRS 304.39-310.
(2) An owner or registrant of a motor vehicle with respect to which security is required under KRS 304.39-110, who fails to have such security when the motor vehicle is involved in an accident shall have all the rights and obligations of a reparation obligor, and any other reparation obligor which has paid or may become obligated to pay basic or added reparation benefits to an injured person under a basic or added reparation contract or under the terms of the assigned claims plan shall be subrogated to the rights of the injured person against such owner or registrant. " (Emphasis added)
Under this section an uninsured person becomes a reparations obligor, which for all practical purposes means an unqualified self-insurer. Such a person who has not filed a rejection of tort limitation with the Department is a self-insurer in the same position as any other BRB provider. This also comports with the language found in KRS 304.39-060(2)(a) which reads:
". . . to the extent the basic reparation benefits provided in this subtitle are payable therefor, or that would be payable but for any deductible authorized by this subtitle, under any insurance policy or other method of security complying with the requirements of this subtitle, . . . ."
For the reasons in the foregoing analysis, it is the opinion of this office that a Kentucky owner or operator who is uninsured and has not filed a rejection of the limitation of his tort right has accepted all the provisions of the MVRA including the $1,000 threshold requirement and further that he is classified a selfinsured with all the obligations and rights thereof.