text:
    DRAVO LIME COMPANY, INC., Appellant, v. Glenn EAKINS; Hon. Sheila C. Lowther, Chief Administrative Law Judge; and Workers’ Compensation Board, Appellees, Glenn Eakins, Cross-Appellant, Dravo Lime Company, Inc; Hon. Sheila C. Lowther, Administrative Law Judge; and Workers’ Compensation Board, Cross-Appellees.
    Nos. 2003-SC-1027-WC, 2003-SC-1042-WC.
    Supreme Court of Kentucky.
    Feb. 17, 2005.

      W. Barry Lewis, Francesca L. Maggard, Lewis and Lewis Law Offices, Hazard, Counsel for Appellant/Cross Appellee.
    Bernard J. Blau, Jolly, Blau, Kriege & Turner, Cold Spring, Counsel for Appel-lee/Cross-Appellant.
   OPINION OF THE COURT

Relying on testimony from a witness who was not a practicing physician regarding the chemical properties of calcium oxide and its effects on the human body, an Administrative Law Judge (ALJ) determined that the claimant’s exposure to the substance caused his pulmonary fibrosis and impairment. Furthermore, the ALJ refused to credit employer-funded disability benefits against the claimant’s award. The Workers’ Compensation Board (Board) affirmed on both issues. The Court of Appeals affirmed the finding of causation but reversed and remanded on the question of a credit, directing the ALJ to determine whether the disability policy provided an offset for workers’ compensation benefits and to reconsider the matter of a credit in that light. KRS 342.730(6). The employer appeals the finding of causation, and the claimant cross-appeals regarding the credit.

I. Causation

Dravo Lime Company operated a limestone mine and also processed limestone rock into lime and hydrated lime. The claimant worked at the facility for 33 years, performing a number of different jobs. He had worked as a crusher operator, conveyor man, and mechanic in the mine; screening plant operator; heavy equipment operator; and foreman. He had also worked at the lime plant and been a bagger at the hydrate plant for a number of years. His latest assignment was to drive a truck that sprayed water to control dust throughout the facility, but he stated that he also did whatever else was needed.

The claimant testified at length regarding his exposure to limestone dust and also to dust from processed lime, indicating that he was exposed to the latter for about 30 years. He testified that because calcium oxide was highly caustic and was pulverized during processing, workers were provided with a barrier cream to help prevent the substance from coming in contact with their skin. Large quantities of vinegar were also kept on hand to neutralize it.

On March 10, 1998, the claimant worked at the lime plant, operating a backhoe under the kilns in which the rock was processed, filling trucks with lime. While doing so, he began to experience a burning-sensation in his mouth, nose, and chest. He reported the symptoms to his foreman and was ordered to ride in the foreman’s truck for the rest of the day. He awoke during that night, sweating and unable to breathe.

Dr. Schworer, the claimant’s family physician, referred him to Dr. Griffin, a pulmonary specialist. Dr. Griffin noted the claimant’s long exposure to “silica” at a limestone quarry and ordered pulmonary testing, which revealed a fairly severe restrictive lung disease that did not change after the administration of a bronchodilator. Dr. Griffin diagnosed restrictive lung disease of unknown etiology. In early May, 1998, he hospitalized the claimant for several days and performed a bronchosco-py, thorcotomy, and lung biopsy. An examination of the tissue revealed focal alveolar thickening and focal fibrosis as well as dense fibrous pleuritis with pleural adhesions. The pathologist’s report also noted that chronic bronchitis, lung fibrosis, and pleural thickening were among the findings reported in patients exposed to wollastonite-limestone dusts and included a citation to an article in an environmental research journal. After reviewing the report, Dr. Griffin changed his diagnosis to chronic bronchitis, lung fibrosis, and pleural thickening due to wollastonite-limestone dust exposure. Although Dr. Griffin reported the pathologist’s notation in a follow-up letter to Dr. Schworer, the letter also expressed uncertainty that exposure to limestone dust contributed to the claimant’s lung disease and deferred judgment in that regard.

Following the claimant’s release from the hospital, he developed a blood clot and was hospitalized again. Immediately after that hospitalization, he informed his employer of the injury and began to receive short-term disability benefits. As filed on May 3, 1999, the claimant’s application for benefits alleged “White Lung” due to limestone exposure. As the evidence developed, however, he came to allege that his pulmonary impairment was due to burning and scarring of his lungs from his years of exposure to calcium oxide.

Dr. Grainger evaluated the claimant on March 17, 1999. Based upon pulmonary function studies that revealed an FVC of 43% of the predicted normal and an FEV1 of 72% of the predicted normal, he diagnosed severe restrictive pulmonary disease that accounted for a 70% AMA impairment. Having noted that the claimant “worked in the mines for 25 years,” his opinion was that the condition was due to the claimant’s many years of working in “mine dust.” It caused him to be “100% disabled.”

Dr. Powell evaluated the claimant on July 2, 1999. He noted a history of 33 years in mining at a limestone quarry, 20 years of which were spent underground and 13 years of which were spent outside at the hydrating plant. Dr. Powell reported an FVC value of 51% of the predicted normal value and an FEV1 value of 54%, diagnosing a moderate obstructive ventila-tory defect. He classified the claimant’s x-rays as being category 1/1/Q/Q, consistent with occupational pneumoconiosis. He indicated, however, that results from the lung biopsy should be used to determine whether the apparent nodularity was due to silicosis, noting that the claimant’s primary exposure had been to calcium carbonate, which was not known to cause nodular lung disease.

In May, 2000, Dr. Powell was asked to review a CT scan taken in April, 1998, to determine whether it evidenced pneumoco-niosis “secondary to [the claimant’s] exposure to limestone.” Having done so, he reported finding no changes that would lead him to diagnose pneumoconiosis. When deposed on June 16, 2000, he reviewed the biopsy records. Although he agreed that the findings were abnormal and that there was some focal fibrosis, he noted that no silica was found in the tissue, making it unlikely that the changes were due to silicosis. He concluded, therefore, that the lung disease and x-ray changes were unrelated to the claimant’s work.

Dr. Jarboe evaluated the claimant on July 14, 1999, and interpreted x-rays as revealing no evidence of pneumoconiosis. He obtained an FVC value of 50% and an FEV1 of 51% but reported that they were invalid due to lack of effort. When deposed on June 20, 2000, Dr. Jarboe acknowledged that the CT scan and biopsy revealed abnormalities, that there was evidence of “some nonspecific type of fibrosis,” and that the claimant was suffering from restrictive lung disease. He noted, however, that the biopsy revealed no evidence of silica or the nodulation one would expect with pneumoconiosis or, more specifically, with silicosis.

The university evaluation was performed by Drs. Goldwin and Collins. Dr. Goldwin interpreted an x-ray as revealing category 1/0 scar-like opacities or atelectasis but no abnormalities that were consistent with pneumoconiosis. Dr. Collins conducted a pulmonary examination on August 11, 1999. She recorded a history of the March, 1998, incident and noted that the claimant had worked from 1960 until March 10,1998, as a limestone miner. She obtained an FVC value of 57.3% and an FEV1 value of 58.7%, pre-bronchodilator, and an FVC value of 57.3% and an FEV1 value of 60.2%, post-bronchodilator. Based on the foregoing, she concluded that the claimant suffered from silicosis secondary to the mining and handling of limestone.

When deposed by the employer on June 30, 2000, Dr. Collins was asked to review the biopsy report. After doing so, she changed her opinion and testified that the biopsy ruled out silica dust inhalation as the cause of the fibrosis in the claimant’s lungs. On cross-examination, she acknowledged that there was moisture in the lungs. She also acknowledged that the claimant had demonstrated to her what happens when lime is exposed to moisture by mixing some of it with water, probably in a specimen cup. Asked what happened, she responded that “it filmed and spewed and gassed and got hot, and almost melted the cup.” The following colloquy then ensued:

Q. And that’s, I think, when you discovered that there’s a significant difference between lime, lime rock, and lime rock dust; did you not?
A. Yes.
Q. Does that make a difference in terms of your trying to diagnose Mr. Eakins’ condition?
A. No, sir.
Q. The fact that he was inhaling lime, as opposed to rock dust, does not make a difference?
A. I’m not aware that it does, sir.
Q. The findings on the biopsy, the x-ray, and the CT scan all show fibrosis, correct?
A. Yes, sir. They did.
Q. What is fibrosis?
A. That is the deposits of fibrous tissue in response to inflammation.
Q. And Mr. Eakins described to you his inhalation of lime; correct?
A. Yes, sir.
Q. And lime, as you saw demonstrated for you by Mr. Eaklins, causes fire, or whatever you want to call it, gases, etc.; correct?
A. Well, it certainly created an exothermic reaction; I’ll guarantee that.
Q. And to that extent, with your knowledge that there is liquid within the lung, and if Mr. Eakins had been inhaling this stuff, would this not then cause, as was described in your report, a blistering of his lung?
A. I honestly have no idea about the inhalation of small enough particles of that material when it interacted with the liquid lining the insides of the airways and the lungs.
Q Would that not be consistent with a finding of fibrosis, or scar tissue, of the lungs?
A. I certainly couldn’t say it would not. Yeah.
Q. Would you agree with me that, more likely than not, that was what, in fact, is the cause of Mr. Eakins’ problems?
A. I honestly don’t know, sir. I certainly think it is a possible cause, sir. Q. Would that not explain then why there’s not a polarization that you keep talking about on the CT scan and on — is it more particular on the biopsy?
A. Yes, sir. If you were explaining— or if we were describing the results of injury due to this reaction in his lungs, then there very well might not be the presence of the silicates that would lead to the pneumoconiosis I originally described, and could lead to fibrosis as a consequence.

On re-direct examination, Dr. Collins responded affirmatively when asked if the scientific name for lime was calcium carbonate and indicated that she was unaware of any published papers linking the inhalation of calcium carbonate to occupational pulmonary disease. She testified that the pieces of lime the claimant showed her were approximately one centimeter in diameter, too large to be inhaled. Although she acknowledged concern that microscopic particles might produce a similar reaction inside the lungs, she stated, “I simply don’t know the answer to that question.” She was unfamiliar with any published research on that topic and acknowledged that the cause of pulmonary fibrosis cannot always be determined.

Testifying on the claimant’s behalf, Dr. Keith Nelson stated that he obtained an undergraduate degree in chemistry and characterized his educational background in chemistry as being “fairly extensive.” His curriculum vitae indicated that after premedical studies at Northern Illinois University, he had completed medical school in Zimbabwe. Dr. Nelson testified that he did not practice medicine. Instead, he had completed three years of PhD work in cellular electrobiology at the University of New Mexico and then began working in the area of public health. His present position was as a senior scientist and human health risk manager at a nuclear site in Ohio. He testified that he also worked with the Center for Disease Control, serving on the federal advisory committee regarding nuclear sites. Dr. Nelson stated that his work involved chemistry, toxicology, epidemiology, and the impacts of chemicals on human health. As reflected in his curriculum vitae, he had completed numerous courses regarding hazardous materials.

Dr. Nelson stated that he had discussed with the claimant the nature of his work and exposure. He had reviewed Mr. Feagan’s deposition as well as all of the medical reports and depositions. He stated that he did not examine the claimant, himself, because he did not practice medicine. Instead, he had relied on the findings of the physicians who did examine the claimant and on the test results. Having reviewed that information, his opinion was that the physicians misunderstood the nature of the substance to which the claimant was exposed. Dr. Nelson explained that the claimant was exposed not only to limestone rock and rock dust but also to processed limestone, which is calcium oxide. Focusing on the history of exposure to limestone dust or silica, the physicians had determined that the claimant did not suffer from pneumoconiosis. They failed to consider the impact of his calcium oxide exposure.

Referring to Mr. Feagan’s testimony, Dr. Nelson explained that limestone or calcium carbonate is a naturally occurring, benign material. Like any dust, the dust from limestone rock is an irritant. When limestone is processed, it is subjected to intense heat, causing it to release carbon dioxide and produce calcium oxide or “lime,” a material that is very hygroscopic and caustic. When exposed to moisture, calcium oxide creates a great deal of heat and produces calcium hydroxide, a neutral and soluble substance. Therefore, if calcium oxide comes in contact with moisture in skin or in the lining of the lungs, the heat produced by the reaction can cause tissue damage. However, the calcium hydroxide that results eventually dissolves in the body fluids, leaving no long-lasting residue that can later be detected. Calcium oxide is unstable and is considered to be a hazardous substance. Hence, the difference between an exposure to dust from lime rock and lime is significant.

Dr. Nelson testified that exposure to lime can cause first and second degree burns to the skin. When respirable particles of lime are inhaled and react with moisture, they cause irritation in the epithelial lining in the trachea and bronchi. The damage is localized, but over a period of time it becomes cumulative. In Dr. Nelson’s opinion, the claimant’s exposure to calcium oxide while working caused chemical bums in his lungs that accounted for the fibrosis.

The employer objected to various portions of Dr. Nelson’s testimony on the ground that he was not a licensed physician. In response, Dr. Nelson emphasized that he was not testifying as a physician but as a toxicologist. He explained that his area of expertise concerned chemicals and their effects on the human body and human health. Dr. Nelson supported his testimony by introducing documents that concerned the chemical properties of limestone, calcium oxide, and calcium hydroxide; their effects on the human body; and relevant safety precautions. Among them were a Hazardous Substance Fact Sheet for calcium oxide from the New Jersey Department of Health, Material Safety Data Sheets for calcium oxide and calcium hydroxide, and the International Chemical Safety Card for calcium hydroxide from the National Institute for Occupational Safety and Health.

The burden was on the claimant to prove every element of his claim, including causation. Contrary to the employer’s-argument, we are convinced that substantial evidence supported the finding in the claimant’s favor. Hence, it was properly affirmed on appeal. See Special Fund v. Francis, 708 S.W.2d 641 (Ky.1986).

As the ALJ noted when summarizing the evidence, a central issue in the claim concerned the accuracy of the exposure history that the physicians recorded and their understanding of its significance. The claimant did not allege that his impairment was due to inhaling the dust from mining limestone. He asserted that it was due to inhaling lime, or calcium oxide, the product into which limestone was processed. Nonetheless, the physicians who evaluated him attempted to determine if he suffered from silicosis or another form of pneumoconiosis due to inhaling limestone dust. They failed to consider the implications of his exposure to lime.

The ALJ observed, correctly, that there was no conflict between medical evidence that the fibrosis and resulting impairment were not caused by inhaling limestone dust and the claimant’s assertion that they were caused by inhaling calcium oxide. Although Dr. Collins testified as a university evaluator, her misunderstanding of the claimant’s exposure history led her to conclude that he was exposed to silica or calcium carbonate. Thus, she failed to consider the implications of his exposure to calcium oxide until she was deposed. Nonetheless, when questioned about the chemical reaction that occurred when calcium oxide came in contact with water, she agreed with the claimant’s assertion that it produced heat. Furthermore, she stated that a similar reaction in the lungs could cause fibrosis. She stated, however, that she did not know if particles small enough to be inhaled would produce such a reaction.

It is undisputed that the Kentucky Rules of Evidence apply to the resolution of workers’ compensation claims. The employer has cited no controlling statute or case that requires a finding of causation to be based solely on a physician’s opinion or that deprives an ALJ of the authority to infer causation from properly admitted evidence. Hence, we are not convinced by the argument that the statutory definition of the term “physician” necessarily precludes an ALJ from considering other types of expert testimony if it is relevant to resolving the question of causation. See KRE 401 and 402. It is apparent that the facts of this claim were more complicated than those in a typical claim for occupational disease and that even the university evaluator’s testimony revealed a lack of expertise regarding the nature of the risks posed by dust from the chemical to which the claimant was exposed. Under the circumstances, it was clearly within the ALJ’s discretion to consider evidence from a witness who had such expertise. It was also within the ALJ’s discretion to decide if Dr. Nelson was competent to testify as an expert. Lee v. Butler, 605 S.W.2d 20 (Ky.App.1979).

Dr. Nelson’s testimony and his curriculum vitae clearly indicated that he had the education and experience to be competent to testify concerning the properties of chemicals and their effects on the human body. See Kentucky Power Co. v. Kilbourn, 307 S.W.2d 9, 12 (Ky.1957). No evidence in the record refuted his competence. Furthermore, the substance of Dr. Nelson’s testimony regarding the effects of inhaling calcium oxide was supported by documents from government agencies whose very function is to address the risks of various materials to human health. Under the circumstances, it was not an abuse of discretion for the ALJ to consider the testimony to be competent evidence of the effects of inhaling calcium oxide.

Testimony by the claimant and Mr. Feagan provided substantial evidence to support the finding that the claimant inhaled calcium oxide over the course of his work. Dr. Collins’ university evaluation established the presence of pulmonary fibrosis and a resulting impairment, but the ALJ properly rejected the opinion that the claimant did not have an occupational disease because it was based on a flawed exposure history. Dr. Collins stated that an exothermic reaction in the lungs could cause fibrosis but did not know whether inhaling microscopic particles of lime would produce such a reaction. Dr. Nelson testified that the inhalation of calcium oxide over the course of the claimant’s work caused the conditions. His opinion was based on the evidence regarding the nature of the claimant’s exposure to calcium oxide, the medical evidence regarding the claimant’s pulmonary fibrosis and resulting impairment, and his own expertise in toxicology. Nonetheless, he testified as a toxicologist, not as a medical expert, and the ALJ did not rely on his opinion of causation. The ALJ was explicit in basing the finding of causation on Dr. Nelson’s uncontradicted testimony concerning the known effects of inhaling calcium oxide and the fact that the findings of the treating and evaluating physicians were consistent with those known effects. Under the circumstances, the finding in the claimant’s favor was reasonable and was properly affirmed on appeal. See Special Fund v. Francis, supra.

II. Credit for Short-Term Disability

The employer asserted that KRS 342.730(6) permitted it to credit the short-term disability benefits the claimant received against its liability for his workers’ compensation award. Hence, it was the employer’s burden to establish its entitlement. Although the Board disagreed with the ALJ’s reasoning, it affirmed the decision to refuse the credit. The Court of Appeals reversed, however, and remanded the claim for a finding of whether the short-term disability plan contained an offset for workers’ compensation and for a reconsideration of the employer’s right to a credit. Convinced that the Court of Appeals misinterpreted KRS 342.730(6) and that the evidence would not support a reasonable finding in the employer’s favor, we reverse.

Employers commonly provide a package of private benefits in addition to statutorily-required workers’ compensation benefits. Many private plans cover disability without regard to its cause, and many do not contain an offset if plan benefits duplicate workers’ compensation benefits. Until December 12, 1996, no statute permitted the offset of workers’ compensation benefits for private benefits that duplicated them. As a result, the courts were often asked to consider whether the payment of private benefits could be used to offset the employer’s workers’ compensation liability. See, for example, GAF Corporation v. Barnes, 906 S.W.2d 353 (Ky.1995); Gatliff Coal Co. v. Evans, 896 S.W.2d 608 (Ky.1995); American Standard v. Boyd, 873 S.W.2d 822 (Ky.1994); Conkwright v. Rockwell International, 920 S.W.2d 90 (Ky.App.1996) (overruled in Williams v. Eastern Coal Corp., 952 S.W.2d 696 (Ky.1997); Eastern Coal Corp. v. Mullins, 845 S.W.2d 27 (Ky.App.1993); Beth-Elkhorn Corp. v. Lucas, 670 S.W.2d 480 (Ky.App.1983) (overruled in Williams v. Eastern Coal Corp., supra); and South Central Bell Telephone Co. v. George, 619 S.W.2d 723 (Ky.App.1981)).

Effective December 12, 1996, the legislature enacted KRS 342.730(6) to prevent workers from receiving duplicate private disability and workers’ compensation benefits. It provides as follows:

All income benefits otherwise payable pursuant to this chapter shall be offset by payments made under an exclusively employer-funded disability or sickness and accident plan which extends income benefits for the same disability covered by this chapter, except where the employer-funded plan contains an internal offset provision for workers’ compensation benefits which is inconsistent with this provision, (emphasis added).

It was enacted to address situations where an employer-funded plan permits benefits without regard to the cause of the recipient’s disability and fails to contain an offset for workers’ compensation benefits. Shortly after KRS 342.730(6) was enacted, the court determined in Williams v. Eastern Coal Corp., supra, that private benefits for a pre-December 12, 1996, injury could not be applied to reduce an employer’s workers’ compensation liability absent statutory authorization.

The short-term disability plan that is at issue was part of a package of benefits the employer provided through an insurance contract. It is undisputed that the weekly indemnity benefit (short-term disability) was employer-funded. The schedule of benefits and plan documents that were introduced during Mr. Feagan’s deposition indicate, among other things, that disability benefits are payable for up to 26 weeks and that the carrier has the right to recover any excess payment. They do not state that plan benefits are offset by workers’ compensation benefits; however, they state, explicitly, that the plan does not cover disability “for an injury or sickness due to employment with any employer.” It is apparent, therefore, that because the plan does not extend income benefits for a disability that is covered by Chapter 342, it is not the type of plan for which KRS 342.730(6) provides an offset. Therefore, no offset is permitted on these facts.

This is not the type of case in which the claimant’s ultimate recovery will necessarily be greater than Chapter 342 requires. He received the private benefits under a plan that did not cover work-related disability. It was later determined that his disability was work-related. Therefore, both the explicit terms of the insurance contract and the law of Kentucky entitle the carrier to recover the private benefits that it paid under a mistaken belief that the claimant’s injury was not work-related. See Riverside Insurance Company v. McDowell, 576 S.W.2d 268 (Ky.App.1979). Assuming that happens, there will be no double recovery.

The decision of the Court of Appeals is affirmed in part and reversed in part, and the award is reinstated as it was rendered.

All concur.


source: Caselaw Access Project

author: Justice GRAVES. LAMBERT, Chief Justice,

license: Public Domain

text:
    Adrian S. YORK, Appellant, v. KENTUCKY FARM BUREAU MUTUAL INSURANCE COMPANY, Appellee. Angela Prewitt, Appellant, v. Kentucky Farm Bureau Mutual Insurance Company, Appellee.
    No. 2003-SC-334-DG, 2003-SC-0338-DG.
    Supreme Court of Kentucky.
    Feb. 17, 2005.

      John P. Chappell, Gary N. Hudson, Bruce R. Bentley, Zoellers, Hudson, and Bentley, London, Counsel for Appellants.
    R. William Tooms, Taylor, Keller, Duna-way and Tooms, Russell W. Burgin, House & Burgin, London, Counsel for Appellee.
    Michael A. Breen, Bowling Green, for Kentucky Academy of Trial Lawyers, Ami-cus Curiae.
   Opinion of the Court by

Justice GRAVES.

This dispute involves Appellee Kentucky Farm Bureau’s denial of motor vehicle liability coverage through its application of a “non-permissive user exclusion” in its insurance policy with Appellant Adrian York. Jackson Circuit Judge Maride granted summary judgment against Kentucky Farm Bureau, finding that this exclusion in Adrian York’s insurance policy did not apply. A unanimous Court of Appeals reversed, holding that the unambiguous exclusion applied in these undisputed circumstances. Non-permissive driver Adrian York and injured passenger Angela Prewitt separately seek further review.

In the early hours of October 13, 1998, James Neeley was driving in Jackson County with Ms. Prewitt in his 1994 Chevrolet Camaro Z-28. Stopping to socialize with some friends in the parking lot of a restaurant known as the “Chat and Chew,” both Neeley and Ms. Prewitt exited the automobile. Ms. Prewitt reentered the car when she got cold. York, who had been part of the parking lot gathering, peered into the Camaro’s interior and entered the driver’s seat, expressing his desire to drive the vehicle, but Neeley absolutely and repeatedly refused. In complete defiance of Neeley’s wishes, York drove away with Prewitt in the passenger’s seat. After driving several miles and turning around towards the “Chat and Chew,” York wrecked the vehicle. Ms. Prewitt sustained injuries as a result. York later pled guilty to reckless driving and unlawful operation of a vehicle.

At the time of the single-car accident, Kentucky Farm Bureau provided coverage to both James Neeley and Adrian York. Adrian York was insured via his father Jerry York’s policy, in which Jerry York was the named insured and Adrian York was a listed driver. Both policies contained the following identical non-permissive user exclusion:

B. We do not provide Liability Coverage for any person:
4. Using a vehicle without a reasonable belief that a person is entitled to do so.

Kentucky Farm Bureau filed a declaratory judgment action seeking to absolve itself of liability coverage under this exclusion. Granting summary judgment against Kentucky Farm Bureau, the Jackson Circuit Court concluded that the exclusionary language applied to the Neeley policy, but that it did not apply to the York policy. The circuit court found that York was an insured under the policy and the exclusion naming “any person” did not specifically reference insureds, and held that Kentucky public policy required liberal construction of insurance contracts in favor of finding coverage for the innocent injured third party Ms. Prewitt. A unanimous Court of Appeals panel reversed, holding that there was no ambiguity in the exclusion, and that York was “any person” driving the Neeley vehicle “without a reasonable belief’ that he was “entitled to do so.” The Court of Appeals found that there was simply no evidence to support that “any person” had a special meaning that did not include insureds. Appellants also argued that the public policy behind the Motor Vehicles Reparations Act (MRVA), KRS 304.39-010, required a finding in favor of insurance coverage for innocent third parties. In response, the Court of Appeals held that KRS 304.39.080(5) only permitted but did not require liability insurance for non-owned vehicles. We granted review.

The facts in this case are undisputed. All parties acknowledge that York did not have permission to drive the automobile. Appellants argue that the non-permissive user exclusion does not apply to York because he was an insured under the policy. The insurance policy provides insurance coverage to “you or any family member for the ownership, maintenance or use of any auto or trailer.” Appellants claim that, because the policy covers York during his use of “any auto,” the non-permissive user exclusion does not apply to York because it does not specifically refer to insureds, and, at best, creates an ambiguity in its exclusion of “any person.”

We find no ambiguity in the non-permissive user exclusion. The clear and unambiguous words of an insurance contract should be given their plain and ordinary meaning. Nationwide Mutual Insurance Co. v. Nolan, 10 S.W.3d 129, 131 (Ky.1999). By a plain and ordinary reading of the non-permissive user exclusion, all persons, including insureds like York, fall within the meaning of “any person.” Although the insurance policy in question covers insureds during their use of “any auto,” in the absence of evidence to the contrary, a plain reading of the exclusion reveals that it is an overarching exception to the policy coverage as a whole.

Appellants contend that ambiguities in insurance contracts should be liberally construed in favor of the insured, and rely on State Automobile Mutual Insurance Company v. Ellis, 700 S.W.2d 801 (Ky.App.1985). Because there is no ambiguity in the non-permissive user exclusion as applied to the facts of the instant case, this doctrine is inapplicable.

Lastly, Appellants argue that public policy mandates a finding of insurance coverage in such cases involving innocent third parties. Appellants cite the MVRA as the source of the public policy goal of providing liability coverage for the benefit of the victims of motor vehicle accidents.

To support their public policy argument, Appellants rely on Bishop v. Allstate Insurance Company, 623 S.W.2d 865 (Ky.1981), and Progressive Northern Insurance Co. v. Corder, 15 S.W.3d 381 (Ky.2000). Bishop involved a household exclusion provision in an automobile insurance contract that denied liability coverage for injuries sustained by the “household” members of the insured. In Progressive Northern, an insurance company rescinded a motorcycle insurance policy after an accident on the ground that the policy was fraudulently obtained. In both of these cases involving injuries sustained by innocent third parties, we held that the insurance companies’ denial of liability coverage defeated minimum liability coverage in contravention of the MVRA. Bishop, supra, at 866; Progressive Northern, supra, at 384.

The facts of Bishop and Progressive Northern, however, can be distinguished from the instant case. Bishop and Progressive Northern involved the insurance policies of the individuals who owned the motor vehicle involved in the accident. The MVRA mandates owners of motor vehicles to provide liability insurance with respect to that vehicle. KRS 304.39-080(5).' In the instant case, Adrian York was not the owner of the vehicle involved in the accident, and did not even have permission to operate the vehicle. As such, we agree with the Court of Appeals in its holding that the language of KRS 304.39-080(5) regarding liability insurance on non-owned vehicles is merely permissive, as it reads “any other person may provide” liability insurance. Therefore, we agree with the Court of Appeals in our refusal to adopt a higher liability insurance standard than that which is required by KRS 304.39-080(5). See Consolidated American Insurance Co. v. Anderson, 964 S.W.2d 811, 814 (Ky.App.1997).

“The terms of an insurance contract must control unless [they] contra-vente] public policy or a statute.” Meyers v. Kentucky Medical Insurance Co., 982 S.W.2d 203, 209 (Ky.App.1997). The non-permissive user exclusion in the York insurance policy unambiguously excludes Kentucky Farm Bureau from insurance liability. Our decision is consistent with Bishop and Progressive Northern because the public policy goal of the MVRA does not require a finding of insurance liability for vehicles that are not owned by the insured driver.

The decision of the Court of Appeals is affirmed.

COOPER, GRAVES, JOHNSTONE, and KELLER, J.J. concur.

LAMBERT, C.J., dissents by separate opinion in which SCOTT, and WINTERSHEIMER, J.J., join.

LAMBERT, Chief Justice,

dissenting.

A fundamental purpose of the Motor Vehicle Reparations Act (MVRA) is to “provide prompt payment to victims of motor vehicle accidents without regard to whose negligence caused the accident in order to eliminate the inequities which fault-determination has created.” Allowing exclusions from minimum coverage contravenes the purpose of the MVRA. The MVRA requires procurement of insurance covering basic reparations and legal liability for the ownership, operation or use of motor vehicles. Kentucky law and public policy considerations mandate that we find coverage in cases involving the injury of an innocent third party.

The MVRA “require[s] owners, registrants and operators of motor vehicles in the Commonwealth to procure insurance covering basic reparation benefits and legal liability arising out of ownership, operation or use of such motor vehicles.” Consistent with this requirement of the MVRA, this Court has denied any exclusion that would “dilute or eliminate the minimum security required by the Act.” In Progressive Northern Ins. Co. v. Corner, we held that “[t]he public policy expressed in the Act [MVRA] is that every victim of a motor vehicle accident will be able to recover the statutory minimum towards satisfaction of any judgment obtained.” Applying this rule, the insurance contract must be construed in favor of coverage.

The language of Appellant York’s policy clearly states that Appellee, Kentucky Farm Bureau Mutual Insurance Company, would “pay damages for bodily injury or property damage for which any insured becomes legally responsible because of an auto accident.” The policy defines an insured as “you or any family member for the ownership, maintenance or use of any auto or trailer.” (Emphasis Added). As this policy was maintained by Appellant York’s father, Appellant York qualifies as an insured during his use of any automobile.

The Court of Appeals held in State Automobile Mutual Insurance Co. v. Ellis that an unlicensed fourteen year old child of an insured was covered by her father’s policy even though the truck was taken without his permission. The facts of Ellis were clear that the fourteen year old child took her father’s truck “without a reasonable belief’ that she was permitted to do so. In Ellis, the same non-permissive user exclusion was present, but the Court of Appeals held that an ambiguity arose when that exclusion was applied to a family member. As an ambiguity was present, the insurance contract was “liberally construed in favor of the insured and the exclusion was strictly construed to make insurance effective.”

In this case two polices were paid for and an innocent party was injured, but coverage is being denied. Such a result subverts compulsory liability insurance.

The trial judge, Judge Maride, was correct when he stated that the exclusionary language did not apply to the York policy because “the public policy of Kentucky requires liberal construction in favor of coverage for injury to a third party” and “[t]he aforesaid exclusion did not specifically reference insureds.” Moreover, the majority disregards the holding in Ellis in contravention to our long established policy of interpreting insurance contracts so that injured victims have a remedy.

I respectfully dissent and would reverse the Court of Appeals. I disagree with the majority’s conclusion that Kentucky Farm Bureau’s contract was not ambiguous, and that it should be construed to deny minimum statutory insurance coverage to an innocent victim.

SCOTT and WINTERSHEIMER, JJ., join this dissenting opinion.

      . KRS 304.39-010.

      . KRS 304.39-010(2).

      . Bishop v. Allstate Ins. Co., 623 S.W.2d 865, 866 (Ky.1981) (holding that “[a]n exclusionary clause in an insurance contract which reduces below minimum or eliminates either of these coverages effectively renders a driver uninsured to the extent of the reduction or elimination. Because the stated purpose of the MVRA is to assure that a driver be insured to a minimum level, such an exclusion provision contravenes the purpose and policy of the compulsory insurance act.”).

      . KRS 304.39-010. See also McGrew v. Stone, 998 S.W.2d 5, 6 (Ky.1999).

      . McGrew, 998 S.W.2d at 6 citing Beacon Ins. Co. of America v. State Farm Mut. Ins. Co., 795 S.W.2d 62, 63 (Ky.1990).

      . 15 S.W.3d 381, 384 (Ky.2000).

      . James Graham Brown Foundation, Inc. v. St. Paul Fire & Marine Ins. Co., 814 S.W.2d 273 (Ky.1991).

      . 700 S.W.2d 801 (Ky.App.1985).

      . Id. at 802.


author: Justice JOHNSTONE. Justice KELLER.

text:
    COMMONWEALTH of Kentucky, Appellant, v. C.J., A Child, Appellee.
    No. 2002-SC-1009-DG.
    Supreme Court of Kentucky.
    Feb. 17, 2005.
    Gregory D. Stumbo, Attorney General of Kentucky, Teresa Young, Jeanne Anderson, Special Assistant Attorneys General, Louisville, Counsel for Appellant.
    Daniel T. Goyette, Frank William Heft, Jr., Office of the Louisville Metro Public Defender, Louisville, Counsel for Appellee.
   Opinion of the Court by

Justice JOHNSTONE.

In January 2001, C.J., a student at Shawnee High School in Louisville, pulled a “butterfly knife” on another student during a verbal altercation. After being Mir-andized, C.J. gave a statement admitting to having the knife on school property. When C.J. voiced an intention to kill himself, he was admitted to Norton-Kosair Hospital where he remained for eight days. C.J. thereafter resumed attendance at Shawnee High School.

C.J. was subsequently charged with unlawful possession of a weapon on school property and second-degree wanton endangerment. At his arraignment in the juvenile session of the Jefferson District Court, the court denied the Commonwealth’s motion to detain C.J., and instead ruled that the case be resolved by informal adjustment pursuant to KRS 610.100(3). The Commonwealth objected on the grounds that the victim, Shawnee High School, had not been notified or consulted as required by statute. Nonetheless, the juvenile court requested that a public defender step in and explain to C.J. the process of an informal adjustment. C.J. thereafter agreed to surrender his knife, to continue the counseling he had begun after the incident, and to perform ten hours of community service within thirty days.

The Commonwealth then attempted to appeal the juvenile court’s decision. However, both the Jefferson Circuit Court and the Court of Appeals held that no appeal may be taken from an informal adjustment. This Court thereafter granted discretionary review.

The sole issue before us is whether the Unified Juvenile Code allows for an appeal from an informal adjustment by the juvenile court. The question is one of statutory interpretation, specifically whether an informal adjustment constitutes a final action by the juvenile court. We conclude that it does not.

KRS 23A.080(1) provides that “[a] direct appeal may be taken from District Court to Circuit Court from any final action of the District Court.” With regard to the Juvenile Code, the legislature has specifically designated what types of proceedings are subject to appeal. KRS 620.155 (appeal by any interested party aggrieved by a proceeding under KRS 610.010(l)(e), involving a dependent, neglected, or abused child); KRS 625.110 (an order or judgment involuntarily terminating parental rights); KRS 610.130 (dispositional orders, as defined in KRS 610.110, pertaining to status and public offenders). The Commonwealth focuses on the language of KRS 610.130, which provides:

Unless otherwise exempted, an appeal to the circuit court may be taken as a matter of right from the juvenile session of the district court from dispositional orders under KRS 610.110. The appeal shall be taken in the manner provided in the Rules of Criminal Procedure, and the circuit court shall, in the best interest of the child, hear such cases expeditiously.

The Commonwealth posits that the language of KRS 610.130 is permissive rather than restrictive, and therefore an informal adjustment is a final disposition although not included within the dispositional orders under KRS 610.110.

Because C.J. was brought before the juvenile court as a public offender, we agree that he would have fallen within the scope of KRS 610.130 had the charges against him been adjudicated and subject to a dispositional order. However, by its definition, an informal adjustment is neither an adjudication nor disposition. Rather, KRS 600.020(28) defines an “informal adjustment” as:

[A]n agreement reached among the parties, with consultation, but not the consent, of the victim of the crime or other persons specified in KRS 610.070 if the victim chooses not to or is unable to participate, after a petition has been filed, which is approved by the court, that the best interest of the child would be served without formal adjudication and disposition [.]

(Emphasis added). Clearly, by its plain language, an informal adjustment is not “a final or appealable ... order adjudicating all the rights of all the parties in an action or proceeding ....” CR 54.01.

Looking beyond the technical language of the statute, we consider also the practical ramifications of our conclusion. As stated by the Court of Appeals in this case:

An informal adjustment is ... a conditional agreement to abate the petition against the juvenile defendant. While the conditions are pending, the matter is simply in abeyance. If the juvenile satisfies the conditions, agreed to by the parties and approved by the court, then no further action is taken on the petition. At no point is there a final action by the district court; there is rather a decision not to act. And there is no disposition (for which both adjudication and dispositional hearings are required), as is indicated by the fact that KRS 610.110 (on juvenile dispositions) includes no reference to informal adjustments.

See also Commonwealth v. S.M., 769 A.2d 542, 544 (Pa.2001) (“[i]f a trial court wishes to supervise a juvenile for a period of time prior to entering a final order, the Juvenile Act provides several alternatives by which to do so, including informal adjustment....”).

There is simply no language in Kentucky’s Juvenile Code authorizing an appeal of an informal adjustment. Had the legislature intended to include such language, it certainly could have done so. By omitting informal adjustments from those matters that are appealable, the inference is that the legislature intended no appeal be allowed from an informal adjustment by the juvenile court. Bailey v. Reeves, 662 S.W.2d 832 (Ky.1984); Smith v. Wedding, 803 S.W.2d 322 (Ky.1957).

Because no appeal from an informal adjustment is available, the Commonwealth, if it desires review of such action, is required to bring an original proceeding in the circuit court in the nature of a writ of mandamus or prohibition. Commonwealth v. Williams, 995 S.W.2d 400 (Ky.App.1999); SCR 1.040(6); CR 81.

For the foregoing reasons, the decision of the Court of Appeals is affirmed.

LAMBERT, C.J.; COOPER, GRAVES, SCOTT, and WINTERSHEIMER, JJ., concur.

KELLER, J., dissents by separate opinion.

Dissenting opinion by

Justice KELLER.

Although I agree with the majority’s analysis on the ability to appeal from an informal adjustment, I dissent because the juvenile court did not make an informal adjustment of C.J.’s case, a dispositive issue that the majority avoids. An “informal adjustment”

means an agreement reached among the parties, with consultation, but not the consent, of the victim of the crime or other persons specified in KRS 610.070 if the victim chooses not to or is unable to participate, after a petition has been filed, which is approved by the court, that the best interest of the child would be served without formal adjudication or disposition.

The Commonwealth, undisputedly a party, did not agree to an informal adjustment; therefore, it was not possible for the juvenile court to informally adjust C.J.’s case. Accordingly, by “adjusting” the case over the Commonwealth’s objection, the juvenile court in effect entered a formal adjudication and disposition, and thus the Commonwealth had the right to appeal from the juvenile court’s disposition of C.J.’s case.

      . KRS 610.100(3) provides: "Upon the court’s motion or the motion of any party, an informal adjustment may be made at any time during the proceedings and with the victim and with those persons specified in KRS 610.070 having prior notification of the motion.”

      . The Commonwealth raises a second argument concerning the merits of the informal adjustment, and specifically, whether the juvenile court followed the statutory requirements. However, the issue was not properly preserved in the lower courts and will not be addressed herein.

      . KRS 600.020(31) (emphasis added).

      . KRS 23A.080(1).


author: BUCKINGHAM, Judge.

text:
    Ashley BARTLETT v. PRIME INSURANCE SYNDICATE, INC.
    No. 2003-CA-000849-MR.
    Court of Appeals of Kentucky.
    April 30, 2004.
    Discretionary Review Denied by Supreme Court March 9, 2005.
    Freeda M. Clark, Louisville, for appellant.
    Russell H. Saunders, R. Hite Nally, Louisville, for appellee.
    Before EMBERTON, Chief Judge; BUCKINGHAM and VANMETER, Judges.
   OPINION

BUCKINGHAM, Judge.

Ashley Bartlett appeals from a summary judgment granted in favor of Prime Insurance Syndicate, Inc., by the Jefferson Circuit Court. We affirm.

Bartlett was driving his car on Shelby-ville Road in Jefferson County, Kentucky, when it collided with a truck driven by Dale Manley and owned by his employer. Bartlett did not have any insurance on his car, and Prime Insurance Syndicate provided the insurance on the truck driven by Manley. Bartlett filed a civil complaint in the Jefferson Circuit Court against Manley and his employer, and he filed an amended complaint naming Prime Insurance Syndicate as a defendant for the purpose of recovering his basic reparation benefits losses. Prime Insurance Syndicate moved the circuit court to award it’ summary judgment, and the court granted the motion and entered summary judgment in its favor. This appeal by Bartlett followed.

The Kentucky Motor Vehicle Reparations Act, subtitle 39 of KRS Chapter 304, governs insurance claims arising from the operation of motor vehicles in the Commonwealth. One of the legislature’s stated purposes in adopting the no-fault insurance scheme was “[t]o require owners, registrants and operators of motor vehicles in the Commonwealth to procure insurance covering basic reparation benefits and legal liability arising out of ownership, operation or use of such motor vehicles[.]” KRS 304.39-010(1). In keeping with that purpose, the legislature set out the minimum tort liability insurance required in KRS 304.39-110.

The Act further states that any person who registers, operates, maintains, or uses a motor vehicle on Kentucky public roadways shall be deemed to have accepted the provisions of the Act. KRS 34.39-060(1). While the Act does contain a provision within KRS 304.39-060(4) which allows a person to reject in writing the limitations on his tort rights, that provision is not applicable in this case since Bartlett did not reject the limitations. Therefore, Bartlett was governed by the applicable provisions of the Act. The issue in this case is whether Bartlett may recover damages which fall within the definition of “basic reparation benefits” under the Act even though he did not have insurance on his car.

The Act provides that “[i]f the accident causing injury occurs in this Commonwealth every person suffering loss from injury arising out of maintenance or use of a motor vehicle has a right to basic reparation benefits, unless he has rejected the limitation upon his tort rights as provided in KRS 304.39-060(4).” KRS 304.39-030(1). “Basic reparation benefits” are “benefits providing reimbursement for net loss suffered through injury arising out of the operation, maintenance, or use of a motor vehicle, subject, where applicable, to the limits, deductibles, exclusions, disqualifications, and other conditions provided in this subtitle.” KRS 304.39-020(2). “Loss” is defined by the statute as “accrued economic loss consisting only of medical expense, work loss, replacement services loss, and, if injury causes death, survivor’s economic loss and survivor’s replacement services loss. Noneconomic detriment is not loss.” KRS 304.39-020(5). The maximum amount of basic reparation benefits available in one accident to a person under the Act is $10,000. KRS 304.39-020(2).

Under the Motor Vehicle Reparations Act, “[bjasic reparation obligors and the assigned claims plan shall pay basic reparation benefits, under the terms and conditions stated in this subtitle[.]” KRS 304.39-040(2). A “reparation obligor” is defined as “an insurer, selfTinsurer, or obligated government providing basic or added reparation benefits under this subtitle.” KRS 304.39-020(13). Generally, the basic reparation insurance applicable “is the security covering the vehicle occupied by the injured person at the time of the acci-dente.]” KRS 804.39-050(1). If there is no security covering the vehicle, the Act allows for recovery from any contract of basic reparation insurance under which the injured party falls within the definition of a basic reparation insured. KRS 304.39-050(2). In either case, the recovery of basic reparation benefits from a reparation obligor is limited to $10,000. KRS 304.39-050(3). These provisions are significant to Bartlett’s ability to recover because tort liability is abolished to the extent that basic reparation benefits are payable. See KRS 304.39-060(2).

Bartlett did not have insurance on the vehicle he was operating, and there is no indication he qualified as a basic reparation insured under any other policy. Thus, he did not have his own reparation obligor from which to receive benefits. In addition, Bartlett is precluded from bringing a direct tort claim for damages that fit within the definition of “basic reparation benefits.” KRS 304.39-060(2)(a). See also Stone v. Montgomery, Ky.App., 618 S.W.2d 595, 597 (1981), wherein this court held that tort liability for such damages is abolished to the extent they do not exceed $10,000, regardless of whether the injured motorist is insured or uninsured.

Instead, Bartlett argues that he is entitled to recover his basic reparation benefits losses based on two statutes, KRS 304.39-310(2) and KRS 304.39-070(3). KRS 304.39-310(2) provides in relevant part that “[a]n 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[.]” KRS 304.39-070(3) provides in relevant part that “[a] reparation obligor shall have the right to recover basic reparation benefits paid to or for the benefit of a person suffering the injury from the reparation obligor of a secured person as provided in this subsection, except as provided in KRS 304.39-140(3).”

Bartlett argues that, had he had insurance on his vehicle, his insurer (his basic reparation obligor) would have paid his medical bills and wage loss and would have then sought recovery against Prime Insurance Syndicate. Therefore, he reasons that, because he was uninsured, he is his own basic reparations obligor and that KRS 304.39-310(2) permits him the right to seek subrogation for medical expenses and lost wages against Prime Insurance Syndicate, the basic reparations obligor of Manley and his employer. In support of his argument, Bartlett cites the Stone case. See 618 S.W.2d at 595.

In that case, as in this case, the plaintiff was an uninsured motorist and the defendant was an insured motorist. Pursuant to a jury verdict, the plaintiff was awarded $10,000 for pain and suffering and $1,509.82 for medical expenses. The $10,000 portion of the judgment was satisfied by the defendant’s insurer, but payment of the $1,509.82 portion of the verdict was not paid because the defendant claimed it was not recoverable under the Motor Vehicle Reparations Act.

A panel of this court agreed with the defendant and held that no part of the basic reparation benefits may be recovered from a secured person except to the extent they exceed $10,000. Id. at 597. In that case the plaintiff also argued that the language of KRS 304.39-310(2) gave him “all the rights and obligations of a reparation obligor” and therefore allowed recovery of medical expenses pursuant to KRS 304.39-070(3). However, this court refused to address that issue because the defendant’s reparation obligor had not been named as a party in the case. Id. at 598. In short, the Stone case does not lend support to Bartlett’s argument.

In granting summary judgment in favor of Prime Insurance Syndicate in this case, the circuit court relied on Thomas v. Ferguson, Ky.App., 560 S.W.2d 835 (1978). As in the Stone case and in the case sub judice, in Thomas the plaintiff was an uninsured motorist and the defendant was an insured motorist. The plaintiff filed a civil complaint against the defendant arising out of an automobile accident. In holding that the plaintiff was not allowed to recover basic reparation benefits from the defendant, the court stated that “KRS 304.39-310(2), in our minds, contemplates the injured person not being the uninsured motorist.” Id. at 836. We agree with that language in the Thomas case and agree with the trial court’s reliance on it.

We find further support for the conclusion we reached in the Thomas case in Shelter Ins. Co. v. Humana Health Plans, Inc., Ky.App., 882 S.W.2d 127 (1994). The Shelter Ins. case provides yet another example of an uninsured motorist being involved in an automobile accident with an insured motorist. The appellant in that case sought recovery utilizing the same reasoning on which Bartlett relies. In the Shelter Ins. case, the uninsured motorist recovered her medical expenses from her health insurance provider, Humana. She then filed a tort action against the insured motorist.

Humana intervened in the action seeking to recover the medical benefits it had paid as a result of the accident. Humana argued, as does Bartlett, that under KRS 304.39-310(2) an uninsured motorist “acquires all the ‘rights and obligations’ of a reparations obligor[.]” Humana reasoned that, as the subrogee of the uninsured motorist, it succeeded to the uninsured motorist’s rights as a reparation obligor. Humana then reasoned that, pursuant to KRS 304.39-070, it could assert a statutory subrogation claim against the insured motorist’s reparation obligor, Shelter Insurance Company.

In rejecting Humana’s claim, this court stated that:

[AJlthough Holt may have acquired the “rights” of a reparations obligor by virtue of the provisions of KRS 304.39-310(2), she clearly did not acquire the statutory subrogation right conferred on reparations obligors by KRS 304.39-070. On the contrary, a reparations obligor who has paid BRB is subrogated only to the extent of the injured party’s rights against the tortfeasor. See KRS 304.39-070(2). Because in her capacity as an injured party Holt acquired no right to recover BRB, and because subsection (2) of the statute limits a reparations obli-gor’s right of recovery to that which is possessed by the injured party, Holt did not succeed to any right of recovery against Shelter in her capacity as a reparations obligor pursuant to KRS 304.39-070. It follows, therefore, that Humana likewise was not entitled to assert a statutory subrogation claim against Shelter.

Id. at 128-29.

To understand how the conclusion in the Shelter Ins. case relates to our conclusion in the Thomas case, we note that the issue is the right to recover basic reparation benefits. In the Shelter Ins. case Holt, who had no reparations obligor from which to recover basic reparation benefits, and who was precluded from bringing a tort claim for the recovery of basic reparation benefits, simply had no right to claim them. As a result, since Humana was subrogated only to Holt’s rights under KRS 304.89-070(2), which rights did not include the right to recover basic reparation benefits, it could not recover those benefits from the tortfeasor’s reparation obligor.

A contrary result occurs when the injured party is an insured motorist. Under those circumstances, the injured motorist has a right to recover basic reparation benefits. Therefore, that right is among those rights passed to the reparations obli-gor in accordance with KRS 304.39-070(2). This reasoning supports the conclusion reached in the Thomas case, that “KRS 304.39-310(2), in our minds, contemplates the injured person not being the uninsured motorist.” 560 S.W.2d at 836.

Bartlett cannot seek recovery in reliance on KRS 304.39-070(3) without first considering the limitation contained in KRS 304.39-070(2). Further, an established rule of statutory construction mandates that statutes, if possible, be construed so that no part of their provisions are rendered meaningless. See Bob Hook Chevrolet Isuzu, Inc. v. Commonwealth, Ky., 983 S.W.2d 488, 492 (1998). By interpreting the subsections of KRS 304.39-070, as well as KRS 304.39-310, in this fashion, each provision is given effect. In addition, this interpretation is consistent with the plain meaning and unambiguous intent expressed by the legislature in the Act itself. See KRS 304.39-010.

The judgment of the Jefferson Circuit Court is affirmed.

ALL CONCUR.

      . Kentucky Revised Statutes.

      . There is no suggestion that Bartlett’s claim exceeds the $10,000 limit.

      . The inability of an uninsured motorist to recover basic reparation benefits is one of the penalties recognized by this court as being imposed within the no-fault framework of the Motor Vehicle Reparations Act. See Gussler v. Damron, Ky.App., 599 S.W.2d 775, 778 (1980).


author: VANMETER, Judge.

text:
    G. Joseph PAPPAS, Appellant, v. KENTUCKY PAROLE BOARD and Commonwealth of Kentucky, Appellees.
    No. 2003-CA-000991-MR.
    Court of Appeals of Kentucky.
    July 2, 2004.
    Discretionary Review Denied by Supreme Court March 9, 2005.

      John Palombi, Assistant Public Advocate, Department of Public Advocacy, Frankfort, KY, for Appellant.
    Gregory D. Stumbo, Attorney General of Kentucky, Karen Quinn, Deputy General Counsel, Justice Cabinet, Frankfort, KY, for Appellees.
    Before COMBS, Chief Judge; VANMETER, Judge; and MILLER, Senior Judge.

      . Senior Judge John D. Miller sitting as Special Judge by assignment of the Chief Justice pursuant to Section 110.(5)(b) of the Kentucky Constitution and KRS 21.580.

   OPINION

VANMETER, Judge.

G. Joseph Pappas appeals from an order of the Franklin Circuit Court dismissing his petition for declaration of rights challenging the denial of parole to him by the Kentucky Parole Board. Finding no error, we affirm.

Appellant is currently serving a fifteen-year sentence imposed by the Jefferson Circuit Court for several counts of wanton endangerment first degree, one count of perjury first degree, and tampering with physical evidence. In August 2002, he had a hearing before the Parole Board. Apparently, the hearing was conducted with two of the three Parole Board members participating by a video link-up, in which they could see and hear the local participants, ie., appellant and the other Parole Board member, and the local participants could see and hear them. As a result of this hearing, the Parole Board deferred a decision on appellant’s parole for sixty months. The basis for the decision was that “[t]he Parole Board concludes that the inmate is a parole risk at this time. The inmate received the action recorded for the following reasons: seriousness of the crime, prior felony conviction(s), and misdemeanor conviction(s).” Appellant’s request for reconsideration of the decision was denied.

On November 15, 2002, appellant filed a Petition for Declaration of Rights and Permanent Injunctive Relief in the Franklin Circuit Court against the Parole Board and its chairman, John Coy, in his official capacity. The Franklin Circuit Court granted the Parole Board’s motion for summary judgment. This appeal followed.

On appeal, appellant argues that the parole hearing procedure, during which two Parole Board members were present by video link rather than in person, violated his rights to procedural due process as secured by the United States Constitution, the Fourteenth Amendment, and the Kentucky Constitution, Sections 2 and 11. His argument is that the video connection effectively prohibited him from presenting evidence, and that the off-site members could not see the documents he wished to present. Appellant does not identify the evidence or documents he wished to present.

In Belcher v. Kentucky Parole Board, Ky.App., 917 S.W.2d 584 (1996), this court analyzed in great detail the respective due process interests created by Kentucky’s parole statute. We noted that “ ‘[t]here is no constitutional or inherent right of a convicted person to be conditionally released before the expiration of a valid sentence .... [T]he conviction, with all its procedural safeguards, has extinguished that liberty right.’ ” Id. at 586 (quoting Greenholtz v. Inmates of Nebraska Penal and Correctional Complex, 442 U.S. 1, 7, 99 S.Ct. 2100, 2104, 60 L.Ed.2d 668 (1979)). We also noted that state laws or regulations could create liberty interests when they placed “ ‘substantive limitations on official discretion.’ ” Belcher, 917 S.W.2d at 586 (quoting Kentucky Department of Corrections v. Thompson, 490 U.S. 454, 462, 109 S.Ct. 1904, 1909, 104 L.Ed.2d 506 (1989)). The court held, however, that “Kentucky’s statute and the regulations ... have not elevated parole to a liberty interest in which inmates have a legitimate claim of entitlement. In Kentucky, parole is a matter of legislative grace.” Id. at 587.

On the other hand, an inmate “has a legitimate interest in a decision rendered in conformity with the established procedures and policies; one which is based upon consideration of relevant criteria.” Belcher, 917 S.W.2d at 587. As to the procedures to follow:

“It is axiomatic that due process ‘is flexible and calls for such procedural protections as the particular situation demands.’ ” Greenholtz, supra, quoting Morrissey v. Brewer, 408 U.S. 471, 481, 92 S.Ct. 2593, 2600, 33 L.Ed.2d 484 (1972). Flexibility is necessary to tailor the process to the particular need; the quantum and quality of the process due in a particular situation depend upon the need to serve the purpose of minimizing the risk of error. Mathews v. Eldridge, 424 U.S. 319, 335, 96 S.Ct. 893, 903, 47 L.Ed.2d 18 (1976).

Belcher, 917 S.W.2d at 587.

While appellant claims that due process requires a parole hearing in which all members are present “in person,” he cites no reported decision that so requires. In Commonwealth v. Ingram, Ky., 46 S.W.3d 569, 571 (2001), the Kentucky Supreme Court held that “[a] properly functioning video arraignment system is the equivalent of in-court arraignment.” The court also noted that “[tjhe trend among state and federal courts is to allow the properly safeguarded use of video proceedings, provided there is no violation of some specific constitutional right.” Id. at 572.

In the instant case, appellant complains that the videoconferencing procedure denied him the ability to present evidence and documents to the off-site board members. As noted above, appellant fails to either identify the evidence and documents that were compromised by the procedure, or show that all the Board members failed to consider the evidence or documents he presented. Appellant also fails to identify in what manner the presentation of his “evidence” would have changed the Parole Board’s decision. In Belcher, we held that an inmate is entitled to an opportunity to be heard, and a decision which states the reason for denial. 917 S.W.2d at 588. These requirements were met.

Based on the holdings of Ingram and Belcher, it is clear that the videoconference procedure followed by the Parole Board did not violate appellant’s due process rights.

The order of the Franklin Circuit Court is affirmed.

ALL CONCUR.

      . The Parole Board communicated the denial by letter dated September 9, 2002. The record does not contain appellant’s request for reconsideration.

      . The circuit court found that appellant “failed to demonstrate the loss of any constitutionally protected liberty interest that would have given rise to due process rights on his behalf. It has been determined that the ... assertions do not rise to the level of a statutory or constitutional violation.” On appellant's motion to reconsider, the circuit court essentially entered the same order.

      .501 KAR 1:030 § 4 (2003) sets out criteria for the Parole Board to apply in recommending or denying parole.

      .A review of casé law from other jurisdictions indicates that the constitutional rights that may be infringed by the use of video proceedings, in general, are the rights to confront witnesses, to counsel, and to be present. See, e.g., R.R. v. Portesy, 629 So.2d 1059 (Fla.App.1994) (juvenile detention hearing); Seymour v. State, 582 So.2d 127 (Fla.App.1991) (guilty plea); People v. Guttendorf, 309 Ill.App.3d 1044, 243 Ill.Dec. 535, 723 N.E.2d 838 (2000) (guilty plea); Fern L. Kletter, Annotation, Constitutional and Statutory Validity of Judicial Videoconferencing, 115 A.L.R.5th 509 (2004). We have found no case, however, which holds that videoconferencing in the context of a parole release hearing violates an inmate’s procedural due process rights.

      . In fact, appellant cannot show that any proffered evidence may have changed the Parole Board’s decision. See Garland v. Commonwealth, Ky.App., 997 S.W.2d 487, 489 (1999) (court holding that ”[f]inding that relevant criteria have been met does not require the parole board to release an inmate prior to the expiration of sentence; nothing in the parole statutes or regulations mandates the granting of parole or diminishes the discretionary nature of the Parole Board’s authority.”)

      . We also stated in Belcher that due process did not require the Parole Board "to provide a detailed summary or specify the particular evidence on which it rests the discretionary [decision]....” 917 S.W.2d at 588.


text:
    CITIZENS FOR A BETTER ENVIRONMENT, INC., Appellant, v. OHIO COUNTY INDUSTRIAL FOUNDATION, INC., Appellee.
    No. 2003-CA-002032-MR.
    Court of Appeals of Kentucky.
    Dec. 17, 2004.
    M. Thurman Senn, Louisville, KY, for appellant.
    John G. Thacker, Owensboro, KY, for appellee.
    Before GUIDUGLI, TACKETT, and VANMETER, Judges.
   OPINION

VANMETER, Judge.

The Ohio County Fiscal Court, in a successful effort to attract Perdue Farms to open a plant in Ohio County, imposed a 1% occupational tax in Ohio County. Money generated from the tax, in the amount of $500,000 annually, was paid to the Ohio County Industrial Foundation, Inc. (Foundation), which in turn was contractually obligated to pay the money to Perdue Farms. The issue we must resolve is whether this arrangement subjects the Foundation to the Open Records Act as a public agency. We hold that it does, and therefore reverse the judgment of the trial court.

The facts presented are not in dispute. The Foundation is a private, nonprofit corporation formed in 1965 for the purpose of promoting economic development in Ohio County. In 1994 the Ohio County Fiscal Court, the cities of Hartford and Beaver Dam, the Ohio County Industrial Development Authority, and the Foundation all entered into an agreement with Perdue Farms, Inc. to provide incentives to Per-due Farms so that it would locate a chicken processing plant in the county. One provision of the agreement concerned the Fiscal Court’s levy of an occupational tax and the resulting payment to the Foundation of $500,000 per year, which the Foundation in turn remitted to Perdue Farms for meeting certain conditions concerning job creation and retention.

In March 2000, Citizens for a Better Environment, Inc. (Citizens) filed an open records request with the Foundation seeking the disclosure of records relating to the solicitation of Perdue Farms. The Foundation denied the request in the belief that it was not a public agency subject to the Open Records Act. Citizens filed this action with the Ohio Circuit Court. Following a hearing, the circuit court entered a judgment ruling that because the Foundation was like an escrow agent in that it had no discretion over the payment, its delivery of the funds was not an expenditure within the meaning of KRS 61.870(l)(h). The court dismissed the action, and this appeal followed.

Under KRS 61.870(l)(h), the definition of a “public agency” includes “[a]ny body which derives at least twenty-five percent (25%) of its funds expended by it in the Commonwealth of Kentucky from state or local authority funds[.]” No question exists but that if the $500,000 receipt/payment qualifies, the Foundation is a public agency.

The common definition of “expend” is “to pay out or spend.” The Foundation argues that the payments are not truly “its funds” because, like a bank or escrow agent, it has no discretion under, the 1994 agreement. Instead, the funds merely pass through it from the Fiscal Court to Perdue Farms. We disagree. The plain language of the statute is directed to 25% of “its funds expended.” Although the Foundation seeks to characterize its involvement in the transaction as passive, the agreement demonstrates that the Foundation has a number of obligations under the agreement, specifically the receipt, and presumably the verification, of the employment certification of Perdue’s performance. Simply put, the Fiscal Court’s payment of more than $2,000,000 to the Foundation over a four-year period, which funds were in turn paid through to Perdue Farms, had the effect of establishing the Foundation as a public agency for purposes of the Open Records Act.

As noted by the circuit court, the reason for involving the Foundation in this payment from the Fiscal Court to Perdue Farms is not clear, but apparently no question of impropriety exists. However, having chosen to operate in this manner, the Foundation has subjected itself to the provisions of the Open Records Act as a public agency.

The judgment of the Ohio Circuit Court is reversed, and this matter is remanded to that court for consideration of damages and attorney’s fees as may be appropriate under KRS 61.882(5).

ALL CONCUR.

      . KRS 61.870, et seq.

      . Merriam-Webster's Collegiate Dictionary (10th ed.2002).