author: GARDNER, Judge:

text:
    THE HARTFORD INSURANCE COMPANIES OF AMERICA, Appellant, v. KENTUCKY SCHOOL BOARDS; Insurance Trust, Appellee.
    No. 1998-CA-001771-MR.
    Court of Appeals of Kentucky.
    Oct. 1, 1999.
    Discretionary Review Denied by Supreme Court June 7, 2000.

      Debra S. Pleatman, Joseph L. Baker, Covington, Kentucky, for appellant.
    The law firm of Middleton Reutlinger by David J. Kellerman, Mark S. Fenzel, Louisville, Kentucky, for appellee.
    Before: GARDNER, MILLER and SCHRODER, Judges.
   OPINION

GARDNER, Judge:

The Hartford' Insurance Companies of America (Hartford) appeals from an order of the Franklin Circuit Court granting summary judgment for the Kentucky School Boards Insurance Trust (KSBIT). This case stems from an accident during which a Knox County student was struck by a truck while crossing the street after exiting a school bus. Thé primary issue is whether the Knox County school system’s motor vehicle insurance policy through Hartford or the school system’s general liability insurance policy through KSBIT covers the injuries received from the accident. After carefully reviewing the record and the applicable law, this Court affirms.

On November 14, 1995, Vickie Baker (Baker), a second grader in the Knox County school system was a passenger on a school bus driven by Jerry Corey, an employee of the Knox County Board of Education. Corey slowed and stopped the bus at a bus stop near Vickie’s home. The bus stop was located across Kentucky Highway 1304 from Vickie’s house. Vickie exited the bus, and while she stepped out from the front of the bus and crossed the street, a coal truck passed the bus on its left side and struck Vickie. Vickie died several hours later.

Vickie’s parents settled legal claims against the driver and owner of the coal truck. In November 1996, they filed a tort action in Knox Circuit Court against the Knox County School Board (the board), its superintendent, the director of transportation and Corey, the school bus driver. On the date of the accident, the board had a motor vehicle insurance policy with Hartford and a general liability insurance policy with KSBIT. Hartford and KSBIT both defended the board and its employees in Knox Circuit Court. The parties settled the action for $400,000, with Hartford and KSBIT each contributing $200,000 toward the settlement. Hartford and KSBIT both retained the right of indemnity against the other pending a final decision in the action.

Hartford brought a declaratory judgment action in Franklin Circuit Court. Hartford and KSBIT agreed that no issues of material fact existed, and both parties moved for summary judgment. In May 1996, the circuit court granted a summary judgment for KSBIT. The court had to determine whether Vickie’s fatal injuries arose from the “use” of the school bus. It concluded that Vickie’s injuries and subsequent death resulted from the use of the school bus, and since Hartford’s and KSBIT’s policies were mutually exclusive, Hartford must provide coverage under its motor vehicle insurance liability policy. The court considered Kentucky statutes and case law regarding what constitutes use of a motor vehicle. The court noted that no Kentucky case had considered what constitutes use of a vehicle in regards to a school bus. The court considered case law from other jurisdictions and specifically, it heavily relied upon State Farm Mut. Auto. Ins. Co. v. Kentucky School Boards Ins. Trust, 851 F.Supp. 885 (E.D.Ky.1994), in concluding that Vickie was still “using” the school bus at the time she was struck by the coal truck. The circuit court held that a child continues to use a school bus until such time as the child has safely reached the other side of the road under the protection of a bus’s stop arm and flashing lights. Hartford has appealed from the circuit court’s order granting summary judgment for KSBIT.

Hartford argues on appeal that this Court should reverse the circuit court’s granting of summary judgment for KSBIT, because the circuit court adopted a construction of policy language previously explicitly rejected by this state’s highest court in West American Ins. Co. v. Dickerson, Ky., 865 S.W.2d 320 (1993). As part of its argument, Hartford maintains that the court used bad policy, because the liability should rest against the school board’s general liability insurer, not the motor vehicle liability insurer. We have concluded that the circuit court ruled correctly and decline to reverse its ruling.

Kentucky Revised Statute (KRS) 304.39-020(6) provides, “ ‘[u]se of a motor vehicle’ means any utilization of the motor vehicle as a vehicle including occupying, entering into and alighting from it.” In general, a court must determine whether an injury arose out of the use of a motor vehicle under Kentucky’s no-fault insurance law. Kentucky Farm Bureau Mut. Ins. Co. v. Hall, Ky.App., 807 S.W.2d 954, 955 (1991). A party must show that the injury was sufficiently use connected to be considered reasonably within the contemplation of the parties to the automobile insurance contracts involved. United States Fidelity & Guaranty Co. v. Western Fire Ins. Co., Ky., 450 S.W.2d 491 (1970). A party satisfies this requirement by showing that the injury is reasonably identifiable with the normal use or maintenance of a vehicle and is reasonably foreseeable. Kentucky Farm Bureau Mut. Ins. Co. v. Hall, 807 S.W.2d at 955.

In West American Ins. Co. v. Dickerson, supra, the Kentucky Supreme Court had to decide in a personal automobile case, whether a claimant’s injuries arose out of the use of the automobile. Specifically, the court was asked to determine what constitutes “alighting from” a personal vehicle. The court adopted a middle ground approach and held that an individual has not finished alighting from a vehicle at least until both feet are planted firmly on the ground. West American Ins. Co. v. Dickerson, 865 S.W.2d at 322. Hartford-maintains that this Court must follow this rule in the instant case. We have concluded that the facts in the case at bar are fundamentally distinguishable from West American Ins. Co. v. Dickerson, supra.

This Court has uncovered no Kentucky case which has addressed a situation where a student has been struck while crossing the street after exiting a school bus. The Kentucky General Assembly has recognized the dangers involved with children exiting school buses and has provided in KRS 189.370(1),

If any school or church bus used in the transportation of children is stopped upon a highway for the purpose of receiving or discharging passengers, with the stop arm and signal lights activated, the operator of a vehicle approaching from any direction shall bring his'vehicle to a stop and shall not proceed until the bus has completed receiving or discharging passengers and has been put into motion.

See also KRS 389.375. “No driver shall stop a school or church bus for receiving or discharging passengers in a no passing zone which does not afford reasonable visibility to approaching motor vehicles from both directions.” KRS 189.375.

In the instant case, the circuit court relied heavily upon State Farm Mut. Auto. Ins. Co. v. KSBIT, supra. In that case, a student was struck by a car and killed after he exited a school bus, and the court held that the school board’s motor vehicle insurance policy covered the injuries received from the accident. The court examined decisions from other jurisdictions and ruled that since the bus was waiting with flashing lights and an extended stop sign for the child to reach the other side of the road safely, the bus was still in use under the terms of the motor vehicle insurance policy. The court reasoned that until thé child had reached the other side of the street safely and while under the bus’s protection of flashing lights, the school bus had not stopped operating as a school bus in relation to the child. State Farm Mut. Auto. Ins. Co. v. KSBIT, 851 F.Supp. at 838.

Courts from other jurisdictions have ruled on this issue and held that the school board’s motor vehicle insurance policy applies in scenarios very similar to the case at bar. In Lebanon Coach Co. v. Carolina Cas. Ins. Co., 450 Pa.Super. 1, 675 A.2d 279 (1996), the court ruled that the use of the bus continues until each child has crossed any immediate road and is in a place of safety towards that destination. The court held that in such cases, the motor vehicle insurer has a duty to defend as well as to provide coverage should a jury find negligence. Id. at 292. Similarly, in Kantola v. State Farm Ins., 62 Ohio Mise. 11, 405 N.E.2d 744 (1979), the court noted that coverage should not depend on whether the school bus rider lives on the right or left side of the street, and the court held that alighting from a school bus means reaching a place of safety. The court in Georgia Farm Bureau Mut. Ins. Co. v. Greene, 174 Ga.App. 120, 329 S.E.2d 204 (1985), held that the use of a school bus includes transporting children to and from school and unloading the school bus, and such unloading encompasses not only depositing students outside the bus but also assuring that they reach a place of safety, which may include crossing a street. See also Faber v. Roelofs, 311 Minn. 428, 250 N.W.2d 817 (1977); Beatty By and Through Beatty v. Charlotte—Mecklenburg Board of Education, 99 N.C.App. 753, 394 S.E.2d 242 (1990).

The policies of KSBIT and Hartford in the instant case contained mutually exclusive clauses. The Hartford policy stated,

We will pay all sums an “insured” legally must pay as damages because of “bodily injury” or “property damage” to which this insurance applies caused by an “accident” and resulting from the ownership, maintenance or use of a covered “auto.”

The Hartford policy also contained the Kentucky Standard School Bus Endorsement which provides in relevant part,

“School Bus” use is defined as: (a) The transportation of school children, students and teachers to and from school, school games and school outings: (b) the incidental transportation of guests or guardians of school children in connection with any school activity: and (c) operation necessary and incidental to such transportation shall include but not be limited to supervision and discipline of students as required of drivers and driver assistants as set forth and required in State Regulations. ...

The KSBIT general liability policy stated, This insurance does not apply to: (g)

“Bodily injury” or “property damage” arising out of the ownership, maintenance, use, or entrustment to others of any aircraft, “auto” or watercraft owned or operated by or rented or loaned to any insured. Use includes operation and “loading and unloading.”

In the instant case, summary judgment was clearly appropriate, because the parties had stipulated to the applicable facts, and the court was asked to construe terms of insurance contracts, which is a matter of law. See Mutual Life Ins. Co. of New York v. Smith, 257 Ky. 709, 79 S.W.2d 28 (1935); Perry’s Adm’x. v. Inter-Southern Life Ins. Co., 254 Ky. 196, 71 S.W.2d 431 (1934); Walker v. Economy Preferred Ins. Co., Ky.App., 909 S.W.2d 343 (1995); Hendrix v. Fireman’s Fund Ins. Co., Ky.App., 823 S.W.2d 937 (1991). Hartford maintains that the school board’s liability in this case arose as a result of the board’s negligent decision to place a bus stop at a dangerous blind curve on a two lane highway. It contends that the board’s general liability insurance policy applies, because Vickie’s fatal injuries did not arise out of the use of the school bus. This Court believes that the circuit court correctly ruled that school bus cases are distinguishable from the facts in West American Ins. Co. v. Dickerson, supra. The circuit court correctly applied the holding in State Farm Mut. Auto. Ins. Co. v. KSBIT, supra, and cases from other jurisdictions which applied similar rules. The holding in these cases pursuant to the applicable motor vehicle insurance polices that a child is still “using” a school bus after disembarking as long as he or she is crossing the street under the protection of the bus’s warning lights and stop arm, and until he or she has reached a place of safety such as on the opposite curb, are sound legally and as a matter of public policy. The soundness of this rule is evidenced by the actions of the Kentucky legislature which has áddressed the inherent dangers involved with children entering and exiting school buses. Thus, the General Assembly has required school buses to have warning lights and stop signs and has required drivers on both sides of two lane: roads to stop while children are entering and exiting a school bus. It has enacted penalties for drivers who do not comply. The circuit court’s ruling in this case does not circumvent the holding in Dickerson as that case involved a private automobile, not a school bus.- Under the terms of the board’s policy with Hartford, Vickie was still “using” the bus at the time that she was struck by the coal truck. We decline to disturb the circuit court’s ruling on this matter.

Hartford also maintains that the circuit court failed to give due consideration to the fact that the negligence causally connected to Vickie’s death arose from the administrative negligence of the school board and the placement of the bus stop, not in the operation of the bus itself. KSBIT counters that coverage is determined by the language of the applicable insurance policies, not the allegations of the complaint in the tort action. As discussed earlier, based upon the insurance policies at issue and the applicable facts of this case, the circuit court correctly held that Hartford’s policy applies, as Vickie’s death arose out of the “use” of the school bus. Thus, Hartford had a duty to defend in this case. See Thompson v. West American Ins. Co., Ky.App., 839 S.W.2d 579 (1992); see also Kentucky Farm Bureau Mut. Ins. Co. v. Hall, 807 S.W.2d at 955-56. The KSBIT policy contained language that excluded coverage if the injuries arose out of the use of an auto. The trial court correctly applied the principles in Steelvest, Inc. v. Scansteel Service Center, Inc., Ky., 807 S.W.2d 476 (1991), and its progeny in granting summary judgment for KSBIT.

For the foregoing reasons, .this Court affirms the judgment of the Franklin Circuit Court.

SCHRODER, Judge, concurs.

MILLER, Judge, concurs in result only.

      . The coal truck driver stated that his brakes failed, and he passed the bus on the left to avoid ramming it from behind.

      . Hartford maintains that this case is not valid, because the Sixth Circuit Court of Appeals in an unpublished opinion ruled oppositely. We must note that the Sixth Circuit opinion was not published so it is not citable, and further, it did not address State Farm Mut. Auto. Ins. Co. v. KSBIT, supra.


source: Caselaw Access Project

author: JOHNSON, Judge:

license: Public Domain

text:
    Robert SCHNEIDER, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    No. 1997-CA-002687-MR.
    Court of Appeals of Kentucky.
    Dec. 23, 1999.
    Discretionary Review Denied by Supreme Court June 7, 2000.

      Elizabeth Shaw, Richmond, KY, for appellant.
    Albert B. Chandler, III, Attorney General, Brian Judy, Assistant Attorney General, Frankfort, KY, for appellee.
    Before COMBS, GARDNER, and JOHNSON, Judges.
   OPINION

JOHNSON, Judge:

Robert Schneider has appealed his conviction for escape in the second degree (Kentucky Revised Statutes 520.020) and for being a persistent felony offender in the first degree (KRS 532.080). Following a jury trial, Schneider was sentenced to prison for a term of ten years. In this appeal, Schneider argues that his prosecution should have been dismissed due to the Commonwealth’s failure to try him within the 180-day time limit set forth in the Interstate Agreement on Detainers Act (IAD) (KRS 440.450) We disagree and affirm Schneider’s conviction.

On November 14, 1996, Schneider escaped from a holding cell in the Kenton County Building where he was being held in anticipation of a parole revocation hearing. A warrant for his arrest was issued the next day. Schneider fled to the state of Ohio where he was arrested a few days later on charges arising from events unrelated to his escape from custody in Kentucky. On March 11, 1997, Schneider wrote to Donald Buring, the Kenton County Commonwealth’s Attorney, and the Clerk of the Kenton Circuit Court, and requested “a fast & speedy trial,” on the escape charge. He specifically referenced the IAD in his letters. Schneider received no response from either Kentucky official.

On July 1, 1997, the warden of the institution where Schneider was then incarcerated, forwarded to the appropriate officials, the IAD forms which contained Schneider’s request for a final disposition of the Kentucky escape charge, as well as information with respect to Schneider’s status as an inmate in the Ohio prison system. The forms contained Schneider’s notation that “[a] written request of all above was sent to the prosecutor’s office and clerk of court on 3-11-97.”

On August 25, 1997, Schneider was arraigned in the Kenton Circuit Court. A trial date of September 23, 1997 was set without objection. On September 10, 1997, Schneider moved to dismiss the indictment and argued that more than 180 days had elapsed since he had initially mailed his request to the appropriate Kentucky officials for a speedy trial under the IAD. The Commonwealth insisted that the time limits contained in the IAD were not triggered by Schneider’s March mailings. It argued that an inmate’s direct communication affects the statute’s speedy trial provision only under exceptional circumstances not alleged to have occurred in Schneider’s motion, and that the 180-day period for trying Schneider did not begin to run until July 1997, when the warden gave notice of Schneider’s desire to make an IAD request.

An evidentiary hearing on the motion to dismiss was conducted by the trial court on September 19, 1997. Schneider testified that he had notified prison officials in January 1997, of his desire to demand a speedy trial under the IAD. He stated that he was informed by his “case worker” that until a detainer was lodged against him, an IAD request could not be initiated on his behalf. Thus, Schneider testified that because his custodian was unable to make the request for him, he wrote directly to the Commonwealth’s Attorney and the Clerk of the Circuit Court in an effort to obtain a speedy resolution of the charges he knew were pending in Kentucky.

In its order denying Schneider’s motion to dismiss, the trial court concluded that Schneider had not commenced the 180-day period by his March 11, 1997 letter writing campaign because

[u]nder Article III [of the IAD], a prisoner cannot directly notify the jurisdiction where charges are pending against him in order to have those charges disposed of. Rather, he must make this request through the warden of the institution where he is incarcerated. See, Ellis v. Commonwealth, 828 S.W.2d 360 (Ky.1992); K.R.S. 440,450, Article III(l) and (2).
Further, [Schneider] has failed to demonstrate that his attempt to invoke the time limitation was thwarted by public officials. See, Rhodes v. Commonwealth, Ky.App., 622 S.W.2d 677 (1981).

After this ruling, Schneider was tried under the indictment and convicted. A final judgment sentencing Schneider to prison was entered on October 10, 1997.. This appeal followed.

We must determine whether the trial court correctly interpreted and applied Article III of the IAD in concluding that Schneider’s direct communications to the appropriate Kentucky officials were insufficient to commence the running of the 180-day period within which he could be tried. The speedy trial provisions contained in Article III of the IAD are activated by a defendant as follows:

(1) Whenever a person has entered upon a term of imprisonment in a penal or correctional institution of a ■ party state, and whenever during the continuance of the term of imprisonment there is pending in any other party state any untried indictment, information or complaint on the basis of which a detainer has been lodged against the prisoner, he shall be brought to trial within one hundred eighty (180) days after he shall have caused to be delivered to the prosecuting officer and the appropriate court of the prosecuting officer’s jurisdiction written notice of the place of his imprisonment and his request' for a final disposition to be made of the indictment, information or complaint: provided that for good cause shown in open court, the prisoner or his counsel being present, the court having jurisdiction of the matter may grant any necessary or reasonable continuance. The request of the prisoner shall be accompanied by a certificate of the appropriate official having custody of the prisoner, stating the term of commitment under which the prisoner is being held, the time already served, the time remaining to be served on the sentence, the amount of good time earned, the time of parole eligibility of the prisoner, and any decisions of the state parole- agency relating to the prisoner.
(2) The written notice and request for final disposition referred to in paragraph (1) hereof shall be given or sent by the prisoner to the warden, secretary of corrections or other official having custody of him, who shall promptly forward it together with the certificate to the appropriate prosecuting official and court by certified mail, return receipt requested.

The legal effect of a prisoner’s failure to follow the statutory procedure and attempt to communicate directly with the receiving state has already been addressed by our appellate courts. In 1981, this Court determined that a motion to dismiss an indictment “was properly overruled,” where the prisoner sent a request for a speedy trial directly to state officials, and where there was no corroborating evidence that the inmate made an oral request of his custodian to send the appropriate forms, or that the custodian refused to process his request. More recently, our Supreme Court held that a direct request, not accompanied “by a certificate from the appropriate official having custody of the prisoner detailing specific information about the prison term in the sending state” was not “adequate to engage the time limitations of K.R.S. 440.450.”

Schneider correctly states that both the Rhodes and Ellis cases hold that under certain circumstances a direct request will suffice to activate a prisoner’s rights under the IAD. Indeed, Rhodes states

that strict compliance with the UAD [IAD] may not be required in a proper factual setting if it appears that a prisoner has taken diligent and reasonable efforts to invoke the time requirements, but is prevented from full compliance because of the failure of public officials .... It is one thing for an official having custody to refuse to process a request and thus leave the prisoner to communicate as best he can with the State which has lodged a detainer for him.... It is quite a different matter, however, when a prisoner simply ignores the official having custody of him and attempts to communicate directly with the requesting State.

Likewise, in Ellis, the Court recognized that “strict compliance with the I.A.D. may not always be required where a prisoner has diligently attempted to invoke the time limitation but is thwarted by public officials.”

Accordingly, Schneider insists that the trial court erred in failing to conclude that his March 1997 communications were the result of his “thwarted” attempt to follow the statutory procedure. Specifically, he contends that his direct request should be sufficient to trigger the 180-day time limit because “officials in Ohio, through no fault of their own, prevented [him] from complying with the Interstate Detainers Agreement, because of the failure of [the] Commonwealth to properly place a detainer on him.” Schneider complains that the Commonwealth “failed to observe the rules” by “failing to issue a detainer.”

Schneider’s arguments in this regard evince a misunderstanding of the purposes of the IAD and the remedies it affords. The IAD was enacted “to remedy the disadvantages and hardships imposed upon prison[er]s attendant with the use of detainers and to eliminate potential abuses of the detainer system.” However, the method of clearing detainers provided by the IAD is not applicable until a state “first lodges a detainer with the participating jurisdiction where the prisoner is incarcerated.” The IAD does not, as Schneider would have this Court hold, require Kentucky’s prosecuting authorities to file a detainer against a prisoner in the first instance:

The purpose of the statute is not to ensure the speedy disposition of every charge, or even of those charges which potentially could form the basis for a detainer being lodged. Its purpose is to provide for the speedy disposition only of such charges as have actually resulted in a detainer being lodged (emphasis original).

Thus, as there is no dispute that Kentucky officials had not yet lodged a detainer against Schneider with Ohio authorities when he directly communicated his demand for a speedy trial, we hold that the trial court did not err in concluding that Schneider did not activate the 180-day limit in the IAD in March 1997. Simply, since Schneider had not acquired any right to proceed under the IAD at the time he made the demand, he obviously could not have been “thwarted” by any public officials in the pursuit of that right.

Accordingly, the judgment of the Kenton Circuit Court is affirmed.

All concur.

      . "Receiving state” is defined in Article II of the IAD as "the state in which trial is to be had on an indictment, information or complaint pursuant to Article III or Article IV hereof.”

      . Rhodes v. Commonwealth, supra, 622 S.W.2d at 678.

      . "Sending state” is the "state in which a prisoner is incarcerated at the time that he initiates a request for final disposition” under the IAD.

      . Ellis v. Commonwealth, supra, 828 S.W.2d at 360, 361.

      . Rhodes, supra, 622 S.W.2d at 678 (citing Pittman v. State, Del.Supr., 301 A.2d 509 (1973)).

      . Ellis, supra, 828 S.W.2d at 361.

      . Yost v. Smith, Ky., 862 S.W.2d 852, 853 (1993).

      . Id. See also Rushin v. Commonwealth, Ky.App., 931 S.W.2d 456, 459 (1996).

      . Rushin, supra, (citing Huddleston v. Jennings, Ky.App., 723 S.W.2d 381 (1986)). Although Huddleston concerned KRS 500.110, the Court in Rushin held that "[g]iven the similarity of KRS 440.450 and KRS 500.110, the Huddleston reasoning would apply equally to KRS 440.450."

      .While the record does not reveal exactly when the detainer was actually lodged against Schneider, it is apparent that that event took place sometime after his March, 1997 letter to the Kenton County Commonwealth's Attorney, and before the warden’s official request of July 1,'1997.


author: McANULTY, Judge:

text:
    Brenda Marie AVILES, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    No. 1998-CA-003131-MR.
    Court of Appeals of Kentucky.
    April 14, 2000.

      Lisa A. DeRenard, Paducah, for Appellant.
    Albert B. Chandler, III, Attorney General, Matthew Nelson, Assistant Attorney General, Frankfort, for Appellee.
    Before: DYCHE, McANULTY and SCHRODER, Judges.
   OPINION

McANULTY, Judge:

In this criminal appeal, Brenda Marie Aviles (hereinafter appellant) alleges that the trial court erred in failing to grant her probation, probation with an alternative sentencing plan, home incarceration or pre-trial diversion. Appellant pled guilty to one count of Trafficking in a Controlled Substance in the Second Degree, one count of Trafficking in a Controlled Substance in the Third Degree, and one count of Theft by Unlawful Taking over $300. Appellant asserts that changes to Chapters 532 and 533 of the penal code in the Omnibus Crime Bill, passed during the 1998 regular session of the Kentucky General Assembly, made imposition of alternatives to incarceration mandatory for certain classes of offenders. We disagree. The statutes as amended still give discretionary authority to the trial court to determine on á case-by-case basis the appropriateness of probation or probation with alternative sentencing. Furthermore, we conclude that appellant is ineligible for the other sentencing alternatives she seeks. As we find no error, we affirm the trial court’s sentence of incarceration.

Appellant’s first argument is that the amendments to KRS 533.010 entitled her to probation or probation with alternative sentencing. Rather than enumerate all of the amendments, we will note the changes that appellant relies upon for her argument. KRS 533.010(2) was amended by the Omnibus Crime bill to state that probation “shall” be granted (replacing “should”), and to include language prohibiting probation when “the defendant is a violent felon as defined in KRS 439.3401 or a statute prohibits probation, shock probation, or conditional discharge.” In most other respects the statute remains the same. KRS 533.010(3) was added to provide for a secondary consideration of probation with an alternative sentencing plan “[i]n the event the court determines that probation is not appropriate.” It contains the language that the court “shall” grant probation with an alternative sentence if the statutory conditions are met. In each instance, the subsection states that the court shall grant the sentencing alternative unless it “is of the opinion that imprisonment is necessary for the protection of the public” because the court has found one or more of three factors to exist. The first of these deals with the potential for recidivism. In subsection (3)(a), this provision involves an analysis, somewhat different from the former standard, in which the court must find:

There is a likelihood that during a period of probation with an alternative sentencing plan or conditional discharge the defendant will commit a Class D or Class C felony or a substantial risk that the defendant will commit a Class B or Class A felony[.]

The remaining factors in subsections (2) and (3) are the same as in the former statute. Additionally, KRS 533.010(4) lists factual circumstances which do not form a basis for the trial court to determine that there is a likelihood that an offender will commit a Class C or Class D felony offense ■ (ostensibly for KRS 533.010(3)(a) purposes). One of these circumstances is the fact that the defendant had not previously been convicted of a felony.

Appellant states that she is a nonviolent offender with no prior felony conviction. As a result, she concludes that the foregoing changes to KRS 533.010 entitle her “as a matter of law” to probation or probation with an alternative sentence, in particular because of the addition of the term “shall.” However, we disagree that the amendments to the statute eliminate the trial court’s discretion. The General Assembly retained that portion of the statute which authorizes denial of probation “for protection of the public” if the trial court finds any of the factors listed in subsections (a) through (c) of KRS 533.010(2) and (3). This language refutes appellant’s assertion that the statute mandates probation for a nonviolent offender with a single felony conviction.

Furthermore, we agree with the Commonwealth that the standard of review in Turner v. Commonwealth, Ky., 914 S.W.2d 343 (1996), which held that the determination of whether to grant probation, is within the discretion of the trial court, still governs. Turner relied in part upon the commentary to the statute which said “the trial court must be granted substantial discretion in deciding upon , the disposition of convicted offenders.” Id. at 348. We find no basis for concluding that the amendments to the statute have denied discretion to the trial courts.

In the case at bar, the trial court recited in its sentencing order that imprisonment was necessary because it found the existence of the three statutory factors in subsections (a) through (c) of KRS 533.010(2) — the likelihood that appellant would commit another offense during the period, the need of correctional treatment, and that an alternative disposition would unduly depreciate the seriousness of the crime. Appellant filed a motion to reconsider, in which she argued that the amendments entitled her to probation and inquired as to the basis for imposing a prison sentence. In its order denying the motion for reconsideration, the trial court stated that it considered probation, probation with an alternative sentencing plan and conditional discharge, but determined that implementation of any of those options in appellant’s circumstances “would ‘unduly depreciate the seriousness of the offense.’ ”

Appellant considers this an abuse of discretion. She concludes from the changes to the statute that if the crime is nonviolent, it cannot be the basis for determining that probation would unduly depreciate the seriousness of the offense. We do not find this criterion in the statute. The clause excluding violent felons from' consideration for probation in KRS 533.010(2) does not also refer to the grant of discretion to the trial court to deny probation. Appellant may not add language to a statute where it does not exist. Bailey v. Reeves, Ky., 662 S.W.2d 832, 834 (1984). Had the legislature intended to so change when a court could impose imprisonment to nonviolent offenders, it was required to “use ‘plain and unmistakable language’ which leaves no doubt that a departure from the prior interpretation is intended.” Butler v. Groce, Ky., 880 S.W.2d 547, 549 (1994). The language of the statute as a whole does not support appellant’s interpretation of the trial court’s discretion.

Our review reveals no abuse of discretion. The trial court considered the “nature and circumstances” of appellant’s particular offense rather than just the type of offense involved. This is demonstrated by the response in its order denying the motion for reconsideration that “[t]he amount of trafficking involved in this offense ... indicated a large scale operation which dictates a more severe assessment of punishment.” Furthermore, from the aforementioned orders we find no basis for appellant’s contention that the trial court did not sufficiently articulate its specific reason for denying probation. We conclude that the trial court followed the statute, including the recent amendments.

Appellant’s second claim for an alternative to incarceration is that the trial court should have considered home incarceration pursuant to KRS 532.210 (also amended in the Omnibus Crime Bill of 1998). Appellant did not request home incarceration at the séntencing hearing, but did raise the question in her motion for reconsideration. Since the trial court was given a chance to consider it, we will review this argument. We agree with the Commonwealth that appellant has not demonstrated that she is eligible for home incarceration. The threshold requirement under KRS 532.210 is as follows:

Any misdemeanant or a felon who has not been convicted of, pled guilty to, or entered an Alford plea to a violent felony offense may petition the sentencing court for an order directing that all or a portion of a sentence of imprisonment in the county jail be served under conditions of home incarceration.

The trial court imposed a sentence of imprisonment in the state penitentiary. As such, appellant is not included in the class of prisoners who may petition for home incarceration. Her attempt to use this provision is unavailing.

Finally, appellant has added a request on appeal for pre-trial diversion. This was not sought before the trial court and the Commonwealth Attorney as required by KRS 533.250. Appellant’s argument is unpreserved. An appellate court cannot consider such issues de novo. Todd v. Commonwealth, Ky., 716 S.W.2d 242 (1986).

For all the foregoing reasons, we find that the trial court acted properly within its discretion in denying probation and probation with alternative sentencing. Appellant’s sentence of incarceration in the penitentiary is affirmed.

ALL CONCUR.


author: BUCKINGHAM, Judge.

text:
    Melvin DUPIN and Lorah Dupin, Appellants, v. Roger ADKINS, Charlene Adkins, and American States Insurance Company, Appellees.
    No. 1999-CA-000599-MR.
    Court of Appeals of Kentucky.
    April 14, 2000.

      Dwight Preston, Elizabethtown, for Appellants.
    Kevin Mathews, Louisville, for Appel-lees.
    Before: GUDGEL, Chief Judge; BARBER and BUCKINGHAM, Judges.
   OPINION

BUCKINGHAM, Judge.

Melvin and Lorah Dupin appeal from an order of the Hardin Circuit Court granting summary judgment in favor of American States Insurance Company (“ASI”). The issue is whether a farm tractor that was driven by Melvin when it was struck by another vehicle is considered to be a motor vehicle under the Dupins’ underinsured motorist (“UIM”) provisions in their ASI automobile insurance policy. If it is, then the Dupins have no UIM coverage in connection with the accident. We hold that it is not and, therefore, reverse the trial court’s order.

This case centers around a farm tractor owned by the Dupins. The Dupins never listed this tractor as a covered vehicle on their ASI automobile insurance policy. Although the Dupins routinely paid UIM premiums for their three automobiles, they did not pay any premiums to ASI for coverage on them tractor.

On April 29, 1995, Melvin Dupin was driving his farm tractor on a public highway in Hardin County. An automobile driven by Roger Adkins struck the tractor, resulting in injuries to Melvin. The Du-pins filed suit against Adkins and his wife, Charlene, to recover damages for Melvin’s injuries and Lorah’s resulting claims for loss of consortium. Because the amount of liability insurance carried by the Adkinses was insufficient to fully compensate the Dupins for the amount of damages sought, the Dupins asserted an underinsured motorist claim against ASI, their own insurance company.

Both the Dupins and ASI moved the trial court for summary judgment regarding whether UIM coverage was available to the Dupins under the facts of this case. In its order .granting ASI’s summary judgment motion, the trial court stated that “[t]he farm tractor which Plaintiff Dupin was operating was not a vehicle covered under the terms of the policy. Accordingly, no underinsured motorists coverage was provided for injuries sustained by Plaintiff Dupin while operating said farm tractor.” Upon motion by the Dupins and agreement by ASI, the trial court made its order final and appealable. This appeal followed.

The trial court focused exclusively in its order upon whether the tractor was listed on the Dupins’ insurance policy and whether premiums had been paid for such coverage. In doing so, the trial court neglected to first consider whether the farm tractor was a motor vehicle which was covered by ASI’s policy exclusion.

The insurance policy in question reads as follows:

We [ASI] will pay damages which an “insured” is legally entitled to recover from the owner or operator of an “uninsured” or “underinsured motor vehicle” because of “bodily injury” sustained by an “insured” and caused by an accident. The owner’s or operator’s liability for these damages must arise out of the ownership, maintenance, or use of the “uninsured” or “underinsured motor vehicle.”
... [W]e will pay only after the limits of liability under any applicable bodily injury liability bonds or policies have been exhausted by payment of judgment or settlements.
“Insured,” as used in this Part, means:
1. You or any “family member.”
2. Any other person “occupying” “your covered auto.”
3. Any person for damages that person is entitled to recover because of “bodily injury,” to which this coverage applies. Sustained by a person described in 1. or 2. above.
Exclusions
A. We do not provide Coverage for “bodily injury” sustained by any person:
1. While “occupying,” or when struck by, any motor vehicle owned by you or any “family member” which is not insured for this coverage under this policy. This includes a trailer of any type used with that vehicle.

There is no question that the Dupins meet the requirements for UIM coverage under this policy. First, Melvin is obviously an “insured” under his own policy. Second, the damages are a result of bodily injuries sustained in an accident. Third, Adkins’ underinsured status necessitated the Dupins’ claim for UIM benefits. The question then becomes whether the facts of this incident fall within ASI’s UIM exclusion.

According to ASI’s policy, a UIM claim is prohibited if all of the following elements are present. First, claimant must be “occupying” or struck by a motor vehicle. Second, the motor vehicle must be owned by the policyholder or a family member. Third, the motor vehicle must not be insured for coverage under the ASI policy. Although the trial court found, and we concede, that the tractor was not insured under ASI’s policy, we nevertheless find that the Dupins’ farm tractor does not fit into this exclusion. The trial court apparently assumed the farm tractor was a motor vehicle for the purposes of this exclusion. Because case law and statutory definitions indicate otherwise, we disagree.

A case closely on point is Kentucky Farm, Bureau Mutual Insurance Co. v. Vanover, Ky., 506 S.W.2d 517 (1974), in which two young girls were riding on the back of a tobacco setter attached to the back of a tractor that was hit by a car. The accident resulted in injuries to one girl and death to the other girl, the driver of the tractor, and the passenger and driver of the automobile. Id. at 518. Damages were sought against liability and uninsured motorist (“UM”) endorsements. Id. The insurance company in Vanover argued that the parties’ claims for UM benefits were precluded because the tractor was an uninsured automobile owned by the insured for which no premium was paid. Id. at 518-19.

In determining the tractor was not an automobile, the Vanover court reasoned as follows:

Various statutes ... have distinguished farm tractors from automobiles or motor vehicles. KRS 187.290(4), included in the chapter dealing with the financial responsibility law, specifically excepts farm tractors from the definition of “motor vehicle.” Likewise, farm tractors are excepted from the definition “vehicle” for licensing purposes in KRS 186.010(7), (8). Cf. KRS 433.640.

Id. at 519. Therefore, it has been accepted by our high court that for the purposes of UM coverage, farm tractors are not regarded as automobiles or motor vehicles.

Any attempt to distinguish Vanover from this case because Vanover analyzed UM coverage instead of UIM coverage is erroneous. The Kentucky Supreme Court has applied law and policy regarding UM coverage to cases involving UIM coverage, stating the following:

It is sufficient to say that these decisions [regarding uninsured motorists coverage] are recent, fully considered and appear to be controlling of the comprehensive question presented here [regarding underinsured motorists coverage].
In substance, we believe the distinction between the uninsured and underin-sured statutes is more illusory than real.... As such, the public policy with respect to statutory coverage described in Hamilton is as applicable here as there.

Allstate Ins. Co. v. Dicke, Ky., 862 S.W.2d 327, 328-29 (1993). In Coots v. Allstate Insurance Co., Ky., 853 S.W.2d 895 (1993), the Kentucky Supreme Court specifically noted as follows:

UIM coverage serves the same purpose and follows the same pattern as UM coverage. While the wording of the UIM statute is different from that of the UM statute, we can discern no fundamentally different insurance arrangement from that provided for under the UM statute.
Indeed, UM coverage and UIM coverage are treated coextensively in many standard insurance policies, and in some cases are offered as a combined coverage.

Id. at 898-99. Furthermore, “[ujnderin-sured and uninsured carriers should be treated similarly, as their purpose and the intent of their coverage is similar.” Id. at 903. Therefore, the Vanover case may not be distinguished from this case on the basis that Vanover involved UM coverage whereas this case involves UIM coverage.

ASI argues that Vanover is distinguishable from the present case because Van-over analyzed the term “automobile,” whereas the phrase presently in question is “motor vehicle.” In light of the overwhelming statutory support that a farm tractor is neither an automobile nor a motor vehicle, this argument is unpersuasive. See KRS 187.290(4) (exempting farm tractors from the definition of motor vehicle for the purposes of the financial responsibility statutes); KRS 190.010(12) (stating that a motor vehicle “shall not include farm tractors” for the motor vehicle sales statutes); KRS 190.090(4) (stating that a

motor vehicle “does not include ... tractors” for the motor vehicle installment sales contract statutes); KRS 189.010(19)(b) (exempting farm tractors from the definition of motor vehicle for the motor vehicle traffic regulation and equipment and storage statutes). Moreover, Vanover discussed both terms and specifically recognized that a farm tractor is neither an automobile nor a motor vehicle. Vanover, 506 S.W.2d at 519.

ASI further argues that, unlike the Van-over policy, “the exclusion for ‘owned motor vehicles’ in [ASI’s] policy, by definition, includes farm tractors.” We disagree. ASI’s policy lists no definition for the term “motor vehicle” which is specifically applicable to its general or UIM provisions. The only definition of motor vehicle to which the policy makes reference is that found in the Personal Injury Protection Coverage Part. This section states that

[w]hen used in reference to this coverage:
“motor vehicle” means a vehicle as defined in Kentucky Revised Statutes Chapter 304, Sub Title 39....

Kentucky Revised Statute (“KRS”) 304.39-020 reads in part as follows:

“Motor vehicle” means any vehicle which transports persons or property upon the public highways of the Commonwealth, propelled by other than muscular power except ... farm tractors....

KRS 304.39-020(7). Thus, ASI’s argument that its policy defines “owned motor vehicles” to include farm tractors is erroneous.

It is true that, according to ASI’s policy, if Melvin had been driving his own motor vehicle which was not insured for UIM coverage, he would not have had UIM coverage in this case. That,-however, is not the case. Melvin was driving a farm tractor, not a motor vehicle as that term must be defined for purposes of his policy. Therefore, under the terms of the policy, ASI cannot deny the Dupins UIM coverage.

Moreover, the Kentucky Supreme Court recognized in Vanover that

[i]f there was a reasonable doubt as to whether the tractor was an automobile [or, in the present case, a motor vehicle] within the meaning of the policy endorsements, the almost universal rule that the doubt should be resolved in favor of the insured would suggest a determination that the tractor was not an automobile [or motor vehicle] as used in the policy.

Vanover, 506 S.W.2d at 519; see also Transport Ins. Co. v. Ford, Ky.App., 886 S.W.2d 901, 903-04 (1994) (stating that insurance contracts should be liberally construed and all doubts resolved in favor of insureds). Further, “we find that two cardinal principles apply: ‘(1) the contract should be liberally construed and all doubts resolved in favor of the insureds; and, (2) exceptions and exclusions should be strictly construed to make insurance effective.’ ” Kentucky Farm Bureau Mut Ins. Co. v. McKinney, Ky., 831 S.W.2d 164, 166 (1992). Following these precepts and construing ASI’s UIM exclusion strictly, we conclude that there was no exclusion because Melvin was not driving a “motor vehicle” that was not insured for UIM coverage.

Additionally, ASI argues that to recover UIM benefits, the insured must be injured while in a motor vehicle insured for UIM under his policy. This flawed argument is based upon ASI’s misinterpretation of KRS 304.39-320 which ASI reads to require “some nexus between the accident and an insured vehicle under the policy” before UIM coverage is available. The statute reads as follows:

(2) Every insurer shall make available upon request to its insureds underin-sured motorist coverage, whereby subject to the terms and conditions of such coverage not inconsistent with this section the insurance company agrees to pay its own insured for such uncompensated damages as he may recover on account of injury due to a motor vehicle accident because the judgment recovered against the owner of the other vehicle exceeds the liability policy limits thereon, to the extent of the underinsurance policy limits on the vehicle of the party recovering.

KRS 304.39-320(2). ASI interprets the phrase “to the extent of the underinsurance policy limits on the vehicle of the party recovering” as requiring the insured to be occupying a vehicle insured for UIM coverage at the time of the accident in order to recover UIM benefits. This interpretation is inaccurate because “[u]n-derinsured motorist coverage comes in to play whenever the insured has uncompensated damages that he or she is entitled to recover under a judgment in excess of the policy limits of the owner of the other vehicle.” Saxe v. State Farm Mut. Auto Ins. Co., Ky.App., 955 S.W.2d 188, 192 (1997) (emphasis added). To interpret the UIM statute as ASI suggests would eliminate coverage in situations where insureds are passengers in other persons’ vehicles or are pedestrians.

By extension and application of case law pertaining to UM coverage, UIM coverage must apply to pedestrians. See Kentucky Farm Bureau Mut. Ins. Co. v. Troxell, Ky., 959 S.W.2d 82 (1997); Meridian Mut. Ins. Co. v. Siddons, Ky., 451 S.W.2d 831 n. 1 (1970); First Nat’l Ins. Co. Of Am. v. Harris, Ky., 455 S.W.2d 542, 544 (1970). Specifically, in Estate of Swartz v. Metropolitan Property & Casualty Co., Ky.App., 949 S.W.2d 72 (1997), we stated that

[d]ecisional law declares such coverage to be applicable whether the insured who is injured by an uninsured motorist is driving an insured vehicle, riding as a passenger in another vehicle, or travel-mg as a pedestrian. In short, uninsured motorist coverage applies whenever an insured person would be entitled to recover damages but for the uninsured status of the negligent motorist.

Id. at 74 (citation omitted). By analogy, UIM coverage must apply to persons injured while not in motor vehicles, including pedestrians and others utilizing non-motor vehicles. This is consistent with the UM and UIM case law of several other states. Bass v. State Farm Mut. Auto. Ins. Co., 128 Ga.App. 285, 196 S.E.2d 485, 489 (1973) (stating that in UM coverage, “the named insured is covered wherever he is, whether in that car, another car, or no car”) ajfd in part, rev’d in part on other grounds, 231 Ga. 269, 201 S.E.2d 444 (1973); Squire v. Economy Fire & Cas. Co., 69 Ill.2d 167, 13 Ill.Dec. 17, 370 N.E.2d 1044 (1977) (stating that to the extent the exclusion makes UM coverage dependent upon the insured being in a vehicle listed in the policy, it is void); Farmers Ins. Co. v. Gilbert, 14 Kan.App.2d 395, 791 P.2d 742 (1990) (stating that UM coverage protects a named insured no matter where the named insured may be at the time of the injury) aff'd, 247 Kan. 589, 802 P.2d 556 (1990); Monteith v. Jefferson Ins. Co. of N.Y., 159 Vt. 378, 618 A.2d 488 (1992) (stating that UM/UIM coverage is portable and coverage is not conditioned on the location of the insured or the insured’s status as a motorist, a passenger in a private or public vehicle, or a pedestrian).

Our view is further supported by Kentucky’s recognition that UIM coverage is personal to the insured and not connected to a particular vehicle. Snodgrass v. State Farm Mut. Auto. Ins. Co., Ky.App., 992 S.W.2d 855, 857 (1998) (stating that “underinsured motorists coverage is personal to the insured”), citing Bonnlander v. Leader Nat’l Ins. Co., Ky.App., 949 S.W.2d 618, 621 (1996); Estate of Swartz, 949 S.W.2d at 75. In State Farm Mut. Auto. Ins. Co. v. Mattox, Ky., 862 S.W.2d 325 (1993), the supreme court stated the following:

In Chaffin, we explained that with insurance which is personal to the insured for which a separate premium is paid, there arises a reasonable expectation of coverage, the exclusion of which is prohibited by public policy. We are unable to rationally distinguish between the statutory and contractual structure of added reparation benefits and underinsured motorist coverage as in Dicke and uninsured motorist coverage as in Hamilton and Chaffin. In each instance, the coverage is indeed personal to the insured in that it applies to any motor vehicle injury.

Id. at 326 (emphasis added). Therefore, despite ASI’s arguments to the contrary, UIM is personal insurance which must follow the insured regardless of whether' the insured is injured as a motorist, a passenger in a private or public vehicle, or a pedestrian, and is only limited by the actual, valid exclusions of each insurance policy.

ASI is correct in arguing that, in some instances, Kentucky law recognizes the need for a nexus between the motor vehicle insured for UIM coverage and the person making the claim. This distinction has been made when someone other than an insured is making a claim against the insured’s UIM coverage. See McKinney, supra; Ford, supra. In such cases, because the claimants are not the insureds in the insurance policies, they must show some relationship between the claim and the motor vehicle against which they are claiming UIM benefits. That situation is distinct from the present situation. In the present case, the Dupins are the insureds who are claiming benefits under their own policy. The insured’s status as an insured is alone a sufficient nexus for a claim of UIM benefits without the insured’s actually being in a motor vehicle covered for UIM under the policy.

We therefore conclude that the farm tractor should not be considered a motor vehicle under the Dupins’ insurance policy with ASI. Consequently, ASPs exclusion clause regarding UIM coverage is inapplicable, and the trial court erred by granting summary judgment based upon this clause.

The order of the Hardin Circuit Court is reversed, and this case is remanded to the trial court for further proceedings.

ALL CONCUR.

      . In ASI’s insurance policy, UM and UIM coverage is provided coextensively in the same clause with the same conditions, terms, and exclusions applicable to each.

      . This definition alone is persuasive because the UIM statute is part of the Motor Vehicle Reparations Act for which these definitions were promulgated.