Pedestrian Not Entitled to Basic Reparation Benefits

Statute Requires Actual Contact with Vehicle to Collect Basic Reparation Benefits  in Kentucky

The state of Kentucky has, by statute, created a Basic Reparation Benefits provision that allows up to $10,000 in payments if a person is injured in an automobile accident. To collect the accident must be due to the use or operation of an autombilie.

In Mark Micatrotto v. Grange Mutual Casualty Company, NO. 2017-CA-000320-MR, Commonwealth of Kentucky Court of Appeals (July 20, 2018) Mark Micatrotto appealed an order of the Fayette Circuit Court granting summary judgment in favor of Grange Mutual Casualty Company and dismissing Micatrotto’s complaint.

FACTS

Micatrotto was employed by Motorvation Motor Cars as a vehicle salesman on its car lot in Lexington, Kentucky. On or about August 1, 2014, while at work on the car lot, Micatrotto alleges he had to jump out of the path of an automobile that was backing up on the lot. As a result, he tripped on the curb and suffered a physical injury. The automobile was apparently being driven by an unknown customer with an unidentified salesperson riding as a passenger. Micatrotto conceded that the automobile made no physical contact with him. Micatrotto sought payment of Basic Reparation Benefits (BRB) from Grange Mutual who refused to pay BRB benefits.

Micatrotto sued Grange Mutual. He alleged that Grange Mutual improperly denied payment of BRB and sought to recover $10,000, representing the limit of BRB coverage provided under Motorvation insurance policy.

Grange Mutual answered and subsequently filed a motion for summary judgment. In the motion, Grange Mutual argued that Micatrotto was not entitled to BRB. Grange Mutual maintained that as a pedestrian Micatrotto was only entitled to BRB if he was physically struck by a motor vehicle per Kentucky Revised Statutes (KRS) 304.39-050(1). As it was uncontroverted that Micatrotto was not physically struck by the automobile, Grange Mutual asserted that Micatrotto was plainly not entitled to BRB.

The circuit court granted Grange Mutual’s motion for summary judgment and dismissed Micatrotto’s complaint.

ANALYSIS

Micatrotto contends that the circuit court erroneously rendered summary judgment. Specifically, Micatrotto argues that he was entitled to BRB because his injury was caused by the use of an automobile. And, he asserts that there is no statutory requirement of physical contact with an automobile to be entitled to BRB as a pedestrian.

When interpreting a statute, courts are bound to give terms their usual and customary meaning. If a term has been expressly defined by legislative enactment, such definition must be utilized by the court.

The statute broadly declares that any person who suffered an injury “arising out of maintenance or use of a motor vehicle” is entitled to BRB if the accident occurred in Kentucky. The phrase “use of a motor vehicle” is defined as any “utilization” of a motor vehicle “including occupying, entering into, and alighting from it.” KRS 304.39-050(1) specifies that “if the injured person is a pedestrian, the security covering the vehicle which struck such pedestrian” is responsible for BRB.

At the time of Micatrotto’s injury, it is clear Micatrotto was not occupying, entering, riding, driving, or alighting from a motor vehicle. Rather, under the uncontroverted facts, Micatrotto was a pedestrian. As a pedestrian, Micatrotto is entitled to BRB from the insurance carrier of the motor vehicle that “struck” him. However, Micatrotto was not struck by the automobile; rather, his injuries were due solely to his efforts to escape from the path of the automobile. The automobile never made physical contact with Micatrotto.

A pedestrian must be struck by a motor vehicle in order to be entitled to BRB. As Micatrotto was not struck by the automobile, he is not entitled to BRB as a pedestrian.

ZALMA OPINION

Insurance is a contract. The contract, as the court noted, allowed the insured to receive benefits if struck by an automobile. Since Micatortto was never contacted by an automobile he was not entitled the to Basic Reparation Benefits. Since he was employed at the time of the injury he was – although the court did not discuss it – to workers’ compensation benefits.  I can only wonder why this $10,000 claim went to a trial and appellate court.


© 2018 – Barry Zalma

This article, and all of the blog posts on this site, digest and summarize cases published by courts of the various states and the United States.  The court decisions have been modified from the actual language of the court decisions, were condensed for ease of reading, and convey the opinions of the author regarding each case.

Barry Zalma, Esq., CFE, now limits his practice to service as an insurance consultant  specializing in insurance coverage, insurance claims handling, insurance bad faith and insurance fraud almost equally for insurers and policyholders. He also serves as an arbitrator or mediator for insurance related disputes. He practiced law in California for more than 44 years as an insurance coverage and claims handling lawyer and more than 50 years in the insurance business. He is available at http://www.zalma.com and zalma@zalma.com.

Mr. Zalma is the first recipient of the first annual Claims Magazine/ACE Legend Award.

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About Barry Zalma

An insurance coverage and claims handling author, consultant and expert witness with more than 48 years of practical and court room experience.
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