Boarman v. Commonwealth

STUMBO, Justice. Danny Boarman, (hereinafter “Decedent” or “Danny”), was driving over a bridge in Ohio County, Kentucky, on the evening of May 21, 1995, when his vehicle was side-swiped by a trailer being pulled by Patrick H. Ammon (hereinafter “Am-mon”). As a result, Danny lost control of his car and collided with another, vehicle driven by Roger Barnett (hereinafter “Barnett”), who had been following Am-mon. The undisputed facts show that the bridge over which Danny, Ammon, and Barnett were driving was only nineteen feet wide, more narrow than the roadway. There were no reflectors or warning signs alerting drivers to the narrowing of the bridge. Danny died nine days later from injuries sustained in this accident. He was survived by his wife, Lora (hereinafter “Lora” or “Appellant”), and a daughter, McKallen. Shortly after his death, Lora was appointed administratrix of Danny’s estate. In her capacity as administratrix, she filed a wrongful death action in the Board of Claims (hereinafter “the Board”) against the Appellees, Commonwealth of Kentucky, Transportation Cabinet, Depart [761] ment of Highways (hereinafter “the Cabinet”). She asserted that the Cabinet was at fault because the bridge was too narrow and the Cabinet failed to warn drivers of this danger. She asked for $4,262.00 for Danny’s funeral expenses, and $1,000,000.00 for the destruction of Danny’s power to earn money. The Cabinet filed a motion to dismiss her claim on the grounds that Lora received collateral source payments, which offset any recovery in the Board of Claims, in excess of the statutory maximum amount recoverable from the Cabinet. KRS 44.070(5) provides a limited waiver of sovereign immunity for the Cabinet, but caps any recovery at $100,000.00. Further, any collateral source payments are to be deducted from the recovery from the Cabinet pursuant to KRS 44.070(1), which reads in pertinent part: [A]ny damage claim awarded shall be reduced by the amount of payments received or right to receive payment from workers’ compensation insurance, social security programs, unemployment insurance programs, medical, disability or life insurance programs, or other federal or state or private program designed to supplement income or pay claimant’s expenses or damages incurred. The collateral source payments received by Lora, as set out in the Appellant’s brief, are as follows: (1) $25,000 was paid to Lora, as admin-istratrix of Danny’s estate, by OMNI Insurance Company to settle the estate’s claim against Barnett, OMNI’s insured. (2) $25,000.00 was paid to Lora, as ad-ministratrix of Danny’s estate, by Allstate Insurance Company to settle the estate’s claim against Am-mon. (3) Blue Cross Blue Shield of Kentucky paid medical bills resulting from treatment of Danny totaling $61,467.23. (4) Grange Mutual Casualty Company, Danny’s no-fault insurance carrier, paid Lora, as administratrix of Danny’s estate, $10,000.00 in basic reparation benefits. $1,000.00 of this amount was designated for funeral expenses, and the remaining $9,000.00 was compensation for “survivor’s replacement loss” as defined in KRS 304.39-020(5)(e). (5) Lora, individually, received proceeds from a life insurance policy on Danny in the amount of $100,000.00. Lora obtained this policy through her employer, General Electric Company. Without a hearing, the Board summarily dismissed Lora’s claim on the basis that the collateral source payments exceeded the maximum statutory award, but did not enumerate which payments it considered as setoffs. The Ohio Circuit Court affirmed the Board, stating that all collateral source payments could be used as setoffs, except for the settlements from the tortfeasors, Barnett and Ammon.1 The Court of Appeals, in affirming the circuit court, also found that Lora could not recover from the Cabinet because her collateral payments exceeded the maximum amount recoverable. The Court of Appeals, however, based its opinion merely on the life insurance alone, holding that since the life insurance payment in itself was $100,000.00 and the maximum recoverable from the Cabinet was $100,000.00, there was no need to consider the other payments. We granted discretionary review, and now reverse in part and affirm in part. I. LIFE INSURANCE PROCEEDS In an effort to determine whether the life insurance proceeds given to Lora, individually, should offset the amount re [762] covered from the Cabinet, we first need to determine to whom does the word “claimant” refer in KRS 44.070(5). The Appellant argues that “claimant” refers to her as administratrix of her husband’s estate, not herself individually. The life insurance policy at question was bought through her place of employment, and she, personally, was the beneficiary — not her husband’s estate. The Cabinet counters that this is a legal distinction without a difference, and proceeds paid from the policy are the same as those damages which she, as Adminis-tratrix, could recover for herself in the wrongful death action. We believe, however, that this distinction is a large and important one. Appellant maintains that her capacity as admin-istratrix is completely separate from her role as an individual and widow of Danny. She illustrates the difference by analogizing the situation where a bank, friend, or attorney could have been appointed administrator of the estate, or, on the other hand, Danny’s employer or some other interested party could have been the beneficiary of the life insurance policy. If this were the case, there would be no question that the life insurance was not a collateral source payment. It makes no difference that, in this case, Lora Boarman happens to assume both duties. We find that the “claimant,” as it is referred to in the statute, is Lora in her capacity as administra-trix. As a result, we find that where the life insurance beneficiary is not the estate, but the widow individually, it is not proper to offset the recovery from the Cabinet. II. MEDICAL EXPENSES Appellant maintains that because she did not bring a claim for personal injury against the Cabinet, her medical expenses should not be offset from her recovery. She argues that the damages associated with personal injuries, i.e, the medical expenses, are not the “damages incurred” in a wrongful death action. Appellant urges that she has “recovered” once for the medical expenses, and therefore did not choose to bring a claim for them. Since the intent of KRS 44.070(1) is to prevent double recovery, the damages recovered for personal injuries should not be offset from the damages in her wrongful death action. The Cabinet argues that KRS 44.070(1) does not make a distinction with regard to reductions where a claim has, or has not, been made. In fact, the statute reads, “any damage claim awarded shall be reduced by the amount of payments received or right to receive payment... designed to supplement income or pay claimant’s expenses or damages incurred.” (emphasis added). Just because Appellant does not choose to assert her right to recover damages for personal injury in her claim against the Board does not mean that she could not. We believe the intent of the General Assembly was to offset any payments relating to the accident which are received by the claimant, who, in this case, is Lora Boarman, as Administratrix. As Lora received the medical expenses payments, which are intended to compensate the estate for damages incurred, in her capacity as Administratrix, we find that they should be offset from the damages recovered from the Cabinet. III. BASIC REPARATION BENEFITS Appellant received $10,000.00 in no-fault benefits, of which $1,000.00 were for funeral expenses. Appellant concedes that the reimbursement for funeral expenses should be offset, so the remaining $9,000.00 is at issue. Appellant argues that the $9,000.00 received as survivor’s replacement services loss benefits (BRB) did not compensate her for the same damages that are sought in a wrongful death action, and therefore should not be setoff. She argues that this Court specifically enumerated this principle in Luttrell v. Wood, Ky., 902 S.W.2d 817 (1995). We held in Luttrell that survivor’s replacement services loss benefits were not a recoverable element of damages in a [763] wrongful death action. Id. at 818. Our reasoning was based, however, on the wrongful death statute, not the offset provisions of the Kentucky Board of Claims Act. Further, in Commonwealth v. Roof, Ky., 913 S.W.2d 322 (1996), a case subsequent to Luttrell, we were called upon to interpret the same statute at issue here, KRS 44.070(1). In Roof, we held this statute to encompass basic reparation benefits. Roof, 913 S.W.2d at 324. Appellant urges us to revisit and overrule Roof While we still believe that the result seems unfair, we also still conclude that the intent of the General Assembly is clear, and we are bound by their words. As we reiterated in Roof “the Commonwealth is under no obligation to make payment to injured parties because of the protections provided by the doctrine of sovereign immunity. Ky. Const. § 231. It is the province of the General Assembly to waive immunity, if at all, and only to the extent it sees fit.” Id. at 325. For the foregoing reasons, the decision of the Court of Appeals is reversed in part and affirmed in part. We remand for proceedings consistent with this opinion. LAMBERT, C.J.; COOPER, GRAVES, JOHNSTONE, KELLER, and WINTERSHEIMER, JJ., concur. STUMBO, J., concurs as to Part I. only. Footnotes [1] It is well-settled that the Cabinet cannot use voluntary settlements with joint tortfeasors as on offset. Transportation Cabinet v. Thurman, Ky., 897 S.W.2d 597 (1995); Central Kentucky Drying Co. v. Department of Housing, Ky., 858 S.W.2d 165 (1993).