author: KEM THOMPSON FROST, Justice.

text:
    Dennis CARLTON, Individually and as Representative of All Persons Similarly Situated, Appellant, v. TRINITY UNIVERSAL INSURANCE COMPANY, Appellee.
    No. 14-99-00825-CV.
    Court of Appeals of Texas, Houston (14th Dist.).
    Nov. 16, 2000.

      Mary F. Keller, Austin, Christopher A. Kesler, Sylvia Davidow, Donald B. McFall, Houston, for appellants.
    Roger D. Higgins, Dallas, John MeEl-downey, Scott Derek Daniel, Galveston, for appellees.
    Panel consists of Justices ANDERSON, FROST, and CANNON.

       Senior Justice Bill Cannon sitting by assignment.

   OPINION

KEM THOMPSON FROST, Justice.

This is an appeal of a summary judgment in a class action lawsuit by a policyholder against his insurance company to recover damages for losses suffered as the result of damage to his insured automobile. The policyholder, Dennis Carlton, brought suit against Trinity Universal Insurance Company on behalf of himself and all insureds similarly situated, claiming Trinity was obligated to pay for the “inherent diminished value” of his vehicle. At issue is the scope of coverage and the insurer’s limit of liability under the insurance policy.

I. Factual and Procedural Background

Carlton purchased a “Texas Standard Personal Auto Policy” from Trinity covering his 1993 Dodge Spirit automobile. During the policy period, thieves stole Carlton’s vehicle. Carlton promptly notified Trinity of the loss. Although the police were able to recover Carlton’s automobile, it suffered damages as a result of the theft. In addition, the thieves put more than 3,500 miles on the vehicle while it was in their possession. Carlton originally asked Trinity to declare his vehicle a total loss because of the extent of the damage and the additional mileage. Trinity, however, determined that Carlton’s automobile could be repaired and returned to its pre-theft condition. Carlton authorized Trinity to repair the vehicle, and Carlton had no complaint with the extent, nature, or quality of the repairs Trinity made. However, he alleged that even though the repairs were not improper, inadequate or incomplete, the value of his automobile was diminished as a result of the loss. Carlton asserted that Trinity was required to pay the “inherent diminished value,” which Carlton defines as the difference between the pre-loss value of the insured automobile and its value after Trinity repaired it and returned it to him. Carlton alleged that his vehicle’s “inherent diminished value” was appraised at no less than $449.90, and that when he traded his repaired automobile to a dealer the same day Trinity returned it to him, he received at least $2,000 less than the “blue book” trade-in value. Trinity refused to pay on the stated grounds that “inherent diminished value” was not a covered loss under the policy-

On July 24,1998, Carlton’s attorney sent a notice letter, under the Texas Deceptive Trade Practices — Consumer Protection Act (“DTPA”), to Trinity’s president on behalf of Carlton and all others similarly situated. Enclosed in the letter was a draft of an unfiled original class action petition. The letter demanded that Trinity pay Carlton $8,780.88, which included damages and attorney’s fees, within sixty days of receipt of the letter. The letter also demanded, “that Trinity settle on similar terms” with the class defined in the enclosed draft petition. Trinity sent a response letter to Carlton’s counsel on August 26, 1998, tendering a check in the amount of $8,780.88 to Carlton individually. The letter did not offer to settle or purport to settle with anyone else. Carlton characterized Trinity’s tender as an “offer” and rejected it by a letter dated September 16,1998.

Carlton brought a class action suit, asserting a number of class claims, including breach of contract and violations of the Texas Insurance Code and DTPA. Trinity moved for summary judgment on three independent grounds; Carlton responded and, in addition, filed a cross-motion for partial summary judgment. The trial court granted summary judgment in favor of Trinity and denied Carlton’s motion for partial summary judgment. Carlton filed a motion for a new trial, which was overruled by operation of law.

II. Issues Presented on Appeal

Carlton appeals on five issues. In the second and fifth issues, he alleges the trial court erred in granting summary judgment in favor of Trinity on the grounds that “inherent diminished value” is not a covered loss under the Texas Standard Personal Auto Policy and asserts the trial court should have entered partial summary judgment in his favor because “inherent diminished value” is a covered loss. In his fourth issue, Carlton alleges the trial court erred in granting summary judgment in favor of Trinity on the grounds that Trinity’s tender of payment to him alone, in response to a demand letter sent on behalf of both the prospective class members and Carlton individually, bars the DTPA class claims as a matter of law. Finally, in the remaining issue, Carlton alleges the trial court erred in granting summary judgment in favor of Trinity on the grounds that the DTPA correspondence constituted an agreement enforceable under Texas Rule of Civil Procedure 11, settling all class claims as a matter of law. For the reasons explained below, we affirm the judgment of the trial court.

III. Motions to Strike

Before reaching the merits of Carlton’s appellate issues, we first address a motion Trinity filed in this court asking us to strike what Trinity describes as “extraneous and improper information” in Carlton’s appellate briefing. Trinity’s motion is aimed at a portion of the appendix filed with Carlton’s appellate brief containing several documents from cases that are not in the appellate record, including: (a) an unpublished summary judgment order that is currently the subject of a separate, unrelated appeal; (b) a document entitled “Stipulation of Damages,” apparently from the same unrelated case; and (c) an unpublished interlocutory order denying “Defendant’s Motion for Summary Judgment” in another unrelated case. After submission, Trinity, like Carlton, also submitted a document that was not in the appellate record, a bulletin from the Texas Department of Insurance. Our review is confined to the evidence in the appellate record. See Sabine. Offshore Serv., Inc. v. City of Port Arthur, 595 S.W.2d 840, 841 (Tex.1979); Sewell v. Adams, 854 S.W.2d 257, 259 (Tex.App. — Houston [14th Dist.] 1993, no writ). It is improper for any party to cite unpublished judgments and orders from various courts as authority when such items do not appear in the appellate record. See Tex.R.App.P. 47.7; Carlisle v. Philip Morris, Inc., 805 S.W.2d 498, 501 (Tex.App. — Austin 1991, writ denied). It is also improper for parties to rely on matters outside the record in making arguments to the court. See, e.g., Melendez v. Exxon Corp., 998 S.W.2d 266, 280 (Tex. App. — Houston [14th Dist.] 1999, no pet.) (holding parties are to confíne their arguments and factual recitations to matters contained in the record). Therefore, we shall strike and not consider the improper items submitted by both Carlton and Trinity and shall confíne our review to the appellate record.

IV. Standard of Review For Summary Judgments

We review summary judgments in accordance with the following rules:

(1) The movant has the burden of showing there is no genuine issue of material fact and that he is entitled to judgment as a matter of law;
(2) In deciding whether there is a disputed material fact issue precluding summary judgment, evidence favorable to the non-movant will be taken as true; and
(3)Every reasonable inference must be indulged in favor of the non-movant, and any doubts will be resolved in favor of the non-movant.

See Metromarketing Servs., Inc. v. HTT Headwear, Ltd., 15 S.W.3d 190, 193-94 (Tex.App. — Houston [14th Dist.] 2000, no pet.) (citing Am. Tobacco Co. v. Grinnell, 951 S.W.2d 420, 425 (Tex.1997)). A mov-ant is entitled to summary judgment when it negates at least one element of the plaintiffs theory of recovery or pleads and conclusively establishes each element of an affirmative defense. See Science Spectrum, Inc. v. Martinez, 941 S.W.2d 910, 911 (Tex.1997). In reviewing the denial of a motion for partial summary judgment, we use the same standard of review that governs the granting of a summary judgment. See Am. Broad. Cos., Inc. v. Gill, 6 S.W.3d 19, 27 (Tex.App. — San Antonio 1999, pet. denied); Evans v. Dolcefino, 986 S.W.2d 69, 75 (Tex.App. — Houston [1st Dist.] 1999, no pet.). When a trial court grants summary judgment for one movant and denies it for another without specifying the reason for its ruling, we may affirm the trial court’s judgment if any of the grounds raised in the prevailing party’s motion are meritorious. See Camco Int'l, Inc. v. Perry R. Bass, Inc., 926 S.W.2d 632, 635 (Tex.App. — Fort Worth 1996, writ denied). However, if the non-prevailing movant raised meritorious grounds in its previously denied motion, then we may reverse and render judgment in favor of that party. See id.

V. Construction and Interpretation of Insurance Policy Provisions

In his second issue, Carlton asserts the trial court erred in granting summary judgment in favor of Trinity on the grounds that “inherent diminished value” is not a covered loss under the Texas Standard Personal Auto Policy. In Carlton’s fifth issue, he asserts that “inherent diminished value” is covered under the policy as a matter of law and, therefore, we must render partial summary judgment for him.

A. Applicable Rules of Construction and Interpretation

We interpret insurance policies in accordance with the rules of contract construction. See Kelley-Coppedge, Inc. v. Highlands Ins. Co., 980 S.W.2d 462, 464 (Tex.1998). In applying these rules, our primary concern is to ascertain the parties’ intent as expressed in the policy. See id. (citing Nat’l. Union Fire Ins. Co. v. CBI Indus., Inc., 907 S.W.2d 517, 520 (Tex.1995)). In determining the intention of the parties, we look only within the four corners of the insurance agreement to see what is actually stated, and not at what was allegedly meant. See Esquivel v. Murray Guard, Inc., 992 S.W.2d 536, 544 (Tex.App. — Houston [14th Dist.] 1999, pet. denied). “We must consider all of the provisions with reference to the entire contract; no single provision will be controlling.” Cook Composites, Inc. v. Westlake Styrene Corp., 15 S.W.3d 124, 132 (Tex.App. — Houston [14th Dist.] 2000, pet. dism’d) (citing Coker v. Coker, 650 S.W.2d 391, 393 (Tex.1983); Esquivel, 992 S.W.2d at 543). “If a written contract is so worded that it can be given a definite or certain legal meaning,” i.e., unambiguous, then we may not accept parol evidence as to the parties’ intent. Kelley-Coppedge, 980 S.W.2d at 464 (citing CBI Indus., 907 S.W.2d at 520). If there is no ambiguity in the policy, we must give “the words of the policy their generally accepted meaning unless the policy shows that the words were meant in a technical or different sense.” W. Indem. Ins. Co. v. Am. Physicians Ins. Exch., 950 S.W.2d 185,188 (Tex.App. — Austin 1997, no writ) (citing Sec. Mut. Cas. Co. v. Johnson, 584 S.W.2d 703, 704 (Tex.1979); Guardian Life Ins. Co. v. Scott, 405 S.W.2d 64, 65 (Tex.1966)). Notably, neither party claims the language of the policy at issue in this case is ambiguous, nor do we find it ambiguous. Therefore, we determine the meaning of the insurance policy without reference to parol or other extrinsic evidence.

Trinity and several amici urge this court to adopt the view set forth by the Texas Department of Insurance in a recent bulletin. In making this argument, each implies or asserts that Texas courts are to give deference to an enforcing agency’s interpretation of a statute or policy. However, the cases cited to support their contention almost all pertain to statutory construction and not contract construction. See, e.g., Quick v. City of Austin, 7 S.W.3d 109, 123 (Tex.1998) (considering an agency’s intent in interpreting a statute); State v. Pub. Util. Comm’n, 883 S.W.2d 190, 196 (Tex.1994) (considering an agency’s intent in interpreting a statute); Dodd v. Meno, 870 S.W.2d 4, 7 (Tex.1994) (considering an agency’s intent in interpreting a statute); Berry v. State Farm Mut. Auto. Ins. Co., 9 S.W.3d 884, 890 (Tex.App. — Austin 2000, no pet.) (considering an agency’s intent in interpreting a statute); City of Plano v. Pub. Util. Comm’n, 953 S.W.2d 416, 421 (Tex.App. — Austin 1997, no writ) (considering an agency’s intent in interpreting a statute). These cases provide that, where a statute is at issue, courts are to give deference to an enforcing agency’s interpretation of the statute. By contrast, however, insurance policies are governed by rules of contract construction which expressly limit a court’s review of an unambiguous contract to the contract itself. See Cook, 15 S.W.3d at 132; Esquivel, 992 S.W.2d at 544; Kelley-Coppedge, 980 S.W.2d at 464; CBI Indus., 907 S.W.2d at 520. Thus, while the tenets of statutory construction allow a court to consider extrinsic evidence when interpreting an unambiguous statute, this rule does not apply to contract construction.

The few cases cited by Trinity and the amici that mention the interpretation of an insurance policy in the context of giving deference to the Texas Department of Insurance’s interpretation are distinguishable from the situation presented by the record now before us. One amici (State Farm) asserts “[t]he Texas Supreme Court has recognized that promulgated policy forms should be interpreted according to the ‘intent’ of the Insurance Commissioner,” citing United States Ins. Co. of Waco v. Boyer, 153 Tex. 415, 269 S.W.2d 340 (1954). In Boyer, the Texas Supreme Court acknowledged that, as a practical matter, the actual intent involved in choosing the words of the policy is that of the Insurance Commission. 269 S.W.2d at 341. However, the Boyer court construed the policy by determining the meaning of the words to the general public and then by examining the choice the policyholder had and the choice he made. See id. No further mention was made of the Insurance Commission’s intent, including what that intent might be. Of course, where the words of the policy are ambiguous, we look to the intent of the Texas Department of Insurance in determining the meaning of the policy terms. See, e.g., Balandran v. Safeco Ins. Co. of Am., 972 S.W.2d 738, 741 (Tex.1998) (considering an agency’s intent in interpreting an ambiguous policy). However, because the policy language at issue here is not ambiguous, the rules of contract construction expressly prohibit us from considering parol or other extrinsic evidence of the parties’ intent. Thus, our review and determination of the meaning of the policy is necessarily limited to the terms of the policy itself.

B. Operative Policy Provisions

Carlton, as the insured, asserted a first party claim under his Texas Standard Personal Auto Policy. A first party claim sounds in contract and thus is determined by the terms of the insurance agreement between the insurer and the insured. The insuring agreement states in “Part D— Coverage for Damage to Your Auto”:

We will pay for direct and accidental loss to your covered auto, including its equipment less any applicable deductible shown in the Declarations.

It provides further that Trinity may discharge its liability under the policy by paying for the loss in money or by repairing or replacing damaged or stolen property. Trinity’s obligations under the policy, however, are subject to a contractual limitation of liability, also found in Part D. Under the heading “Limit of Liability,” the insurance policy reads in pertinent part:

Our limit of liability will be the lesser of the:
1. Actual cash value of the stolen or damaged property;
2. Amount necessary to repair or replace the property with other of like kind and quality; or
3. Amount stated in the Declarations of this policy.

After inspecting Carlton’s automobile, Trinity elected the second option, i.e., to pay the “[ajmount necessary to repair or replace the property with other of like kind and quality.”

Trinity does not dispute that diminution in value is a “direct and accidental loss” under the coverage agreement; rather, Trinity insists that its liability for the loss is expressly limited by contract to the amount necessary to “repair or replace the property with other of like kind and quality.” Thus, the issue is not whether the insurance agreement is broad enough to cover the loss, but whether the limit of liability is broad enough to cap Trinity’s obligation to pay it.

Trinity maintains, “if a vehicle is not repairable, it is a total loss,” and if “a vehicle can be repaired, the insurer is responsible only for the cost of repair.” In making this argument, Trinity and the am-ici urge this court to define “repair or replace” to mean returning the vehicle to its original physical state. They contend that interpreting this phrase as encompassing “inherent diminished value” would go beyond the plain meaning of the words in the policy. Carlton, on the other hand, argues that “repair or replace” should be defined broadly to encompass any change in the value of the vehicle before and after the loss. Thus, we must determine whether the “repair or replace” clause in the auto insurance policy permits the insurer to pay only the cost of physical repair when the otherwise covered loss would be greater.

Although the words “repair or replace” are not defined in the insuring agreement, Texas courts have long held that, in an auto insurance policy, these words mean “the restoration of the automobile to substantially the same condition in which it was immediately prior” to the loss; the vehicle “would not be restored to the same condition if the repairs left the market value of the automobile substantially less than the value immediately” before the loss. See Northwestern Nat'l Ins. Co. v. Cope, 448 S.W.2d 717, 719 (Tex.Civ.App.—Corpus Christi 1969, no writ); Fid. & Cas. Co. of N.Y. v. Underwood, 791 S.W.2d 635, 643 (Tex.App.—Dallas 1990, no writ); Queen Ins. Co. v. Dominguez, 426 S.W.2d 286, 289 (Tex.Civ.App.—San Antonio 1968), rev’d on other grounds, Superior Pontiac Co. v. Queen Ins. Co. of Am., 434 S.W.2d 340 (Tex.1968); see also Great Tex. County Mut. Ins. Co. v. Lewis, 979 S.W.2d 72, 74 (Tex.App.—Austin 1998, no pet.) (finding the words “repair or replace” mean restoring to a condition substantially the same as that existing before the damage). In many of the cases where courts have awarded diminution in value, the damage giving rise to the diminished market value could be repaired. Here, Carlton seeks to recover for a diminution in the value of his automobile resulting from damages that, in common understanding and parlance, are not subject to “repair” (e.g., additional mileage and the marketplace perception that a fully repaired vehicle is inferior to its never-damaged counterpart), but which nonetheless may adversely impact the vehicle’s market value. While several of our sister courts of appeals have addressed the insurer’s obligation under the “repair or replace” clause, very few of them appear to have addressed the particular issue now before us, i.e., whether an insurer electing to “repair or replace” is obligated to pay not only the cost of repair or replacement but also the difference in value before the loss and after full and adequate repair. In other words, must the insurer pay for damage which is not repairable but which nonetheless results in a diminution in value of the insured automobile?

Only a few Texas cases discuss post-repair reduction in value where the adequacy of the repairs is not in issue. In Higgins v. Standard Lloyds, 149 S.W.2d 143 (Tex.Civ.App.—Galveston 1941, writ dism’d), decided almost sixty years ago, the court addressed whether the insured’s repaired vehicle was in better condition and value than before the accident. Although the court in Higgins did not address whether the insured was entitled to diminished value, the court stated, in obi-ter dictum, that, under certain circumstances, post-repair reduction in value could be recovered. Id. at 147. Nearly a decade later, in Roberdeau v. Indemnity Insurance Co. of North America, 231 S.W.2d 948, 951 (Tex.Civ.App.—Austin 1950, writ ref'd n.r.e.), the Austin Court of Appeals rejected the Higgins rationale, stating:

We do not agree with appellant that the measure of his damage here is the difference in the reasonable cash market value of the automobile immediately before and after the collision, since the contract of insurance does not so provide. In support of this theory of his measure of damage appellant testified that because the automobile was damaged in the collision it could not be restored to its former condition, and after repairs its value would still be that of a wrecked automobile. We are not impressed with this view because: (1) it is an issue of fact as to whether or not the repairs do or do not restore the automobile to its former condition, and (2) to apply such measure of damage would be arbitrarily reading out of the policy the right to make repairs and replacements.

Id. at 951. Recently, the Austin Court of Appeals examined the identical limit of liability provision now before us in a case involving the closely-related question of whether an insurer may take a deduction for “betterment,” when electing to repair an automobile. See Lewis, 979 S.W.2d at 73. In construing the meaning of the phrase “of like kind and quality,” the Lewis court rejected the insurer’s effort to pay less than the cost of repair on the basis that the repairs increased or “bettered” the value of the automobile. Id. at 74. Carlton points to a number of cases from other jurisdictions which address auto insurance policies containing similar limitations on liability, to support the notion that an insurer is liable for any change in market value of an insured’s property after a loss. Many of these cases find that insurance companies are obligated to compensate for any diminution in value as a part of “repairing or replacing” damaged property of their insureds. Not all jurisdictions, however, take this expansive view of the “repair or replace” language. Noting the absence of any policy language requiring the insurer to restore the insured vehicle to its pre-loss value or to pay the insured the difference in market value immediately before and after the loss, other jurisdictions have refused to embrace this interpretation and have declined to find the insurer liable for a diminution in value of the insured’s vehicle after adequate repairs.

Cases from other jurisdictions are informative but not controlling on this court. In deciding this issue, we do not consider what measure of recovery would make the insured whole after a loss or what would be fair and reasonable compensation for the loss he sustained, for we are not deciding a tort claim. Because the parties’ rights and obligations are governed by the contract between them, we instead focus on the plain, unambiguous language of the insurance policy and the ordinary meaning of the words defining the parties’ obligations. See Puckett v. United States Fire Ins. Co., 678 S.W.2d 936, 938 (Tex.1984) (noting court should apply plain meaning of words in construing insurance policy where there is no ambiguity).

In common usage, “repair” means “to restore by replacing a part or putting together what is torn or broken” or, stated slightly differently, “[t]o bring back to good or usable condition.” There is no concept of “value” in the ordinary meaning of the word. Ascribing to the words “repair or replace” an obligation to compensate the insured for things which, by their very nature, cannot be “repaired” or “replaced” would violate the most fundamental rules of contract construction. If there is a single guiding principle that governs our interpretation of the insuring agreement, it is to give effect to the parties’ intent as expressed in the plain language of the written policy. See Forbau v. Aetna Life Ins. Co., 876 S.W.2d 132, 133 (Tex.1994). Therefore, we must conclude that the limit of liability provision means what it says.

We hold that where an insurer has fully, completely, and adequately “repaired or replaced the property with other of like kind and quality,” any reduction in market value of the vehicle due to factors that are not subject to repair or replacement cannot be deemed a component part of the cost of repair or replacement. Under the “repair or replace” provision of the policy’s limit of liability, the insurer’s liability is capped at the cost of returning the damaged vehicle to substantially the same physical, operating, and mechanical condition as existed immediately before the loss. This obligation does not include liability for any inherent diminished value caused by conditions or defects that are not subject to repair or replacement, such as a stigma on resale resulting from “market psychology” that a vehicle that has been damaged and repaired is worth less than a similar one that has never been damaged. While the insured may well suffer this type of damage as a result of a direct or accidental loss, the plain language of the policy clearly and unambiguously limits the insurer’s liability to “the amount necessary to repair or replace the property with other of like kind and quality.” If the market value of the vehicle, after full, adequate, and complete repair or replacement, is diminished as a result of factors that are not subject to “repair” or “replacement,” the insurer has no obligation to pay the diminution in value. No other reasonable interpretation can be given to the parties’ express agreement that the insurer’s liability is capped at the amount necessary to “repair or replace.”

While Carlton argues that failure to find coverage for “inherent diminished value” would result in a “windfall for the insurer,” this argument is not germane to the issue now before us. It is not the province of this court to promulgate the terms of the policy or to modify the coverage it provides; rather, the role of the court is to interpret the meaning of the insurance agreement and to construe it to follow the expressions in the written instrument. Therefore, we cannot rewrite the policy or revise its provisions to avert what the parties perceive to be unfavorable consequences that might flow from our interpretation and construction.

VI. Conclusion

Trinity’s liability for direct and accidental loss to Carlton’s vehicle is capped at the “[ajmount necessary to repair or replace the property with other of like kind and quality.” Therefore, Trinity is not liable, as a matter of law, for the “inherent diminished value” to Carlton’s automobile. The trial court did not err in granting summary judgment in favor of Trinity or in denying Carlton’s motion for partial summary judgment. Accordingly, we overrule Carlton’s second and fifth issues.

Having determined that the trial court properly granted summary judgment for Trinity on the ground of that Trinity is not hable for “inherent diminished value,” we do not reach the remainder of Carlton’s appellate issues. See Star-Telegram, Inc. v. Doe, 915 S.W.2d 471, 473 (Tex.1995) (holding where movant asserts several grounds in support of its summary judgment motion, and the trial court does not specify the grounds on which judgment was granted, the reviewing court can affirm the judgment if any of the grounds are meritorious).

The judgment of the trial court is affirmed.

      . The Texas legislature has delegated to the State Board of Insurance the duty to promulgate a standard and uniform insurance policy for private passenger automobiles. See Tex. Ins.Code Ann. § 5.06(1) (Vernon Supp.2000). "A contract or agreement not written into the application and policy is void and of no effect and in violation of the provisions of this sub-chapter, and is sufficient cause for revocation of license of such insurer to write automobile insurance within the State.” Tex Ins.Code Ann. § 5.06(2) (Vernon Supp.2000). All insurers writing insurance in Texas for private passenger automobiles must use this form. See id.

      . The trial court granted summary judgment before reaching the class certification issue.

      . All of Carlton’s claims below are premised on the notion that Texas automobile insurance contracts require coverage of inherent diminished value.

      .Carlton actually asserts only four issues; the first issue merely states that the trial court erred in granting summary judgment and sets out the summary judgment law without stating how the trial court erred.

      . Trinity filed another motion to strike portions of Carlton’s post-submission briefing. Although Trinity characterized this filing as its third motion to strike, there are only two such motions on file. We denied this second motion, resolving to consider only those documents that are part of the appellate record.

      . Texas Farmers Insurance Company, Mid Century Insurance Company of Texas & Farmers Texas County Mutual Insurance Company, State Farm Mutual Automobile Insurance Company ("State Farm”) and United Services Automobile Association ("USAA”).

      . In that bulletin, the Texas Department of Insurance states that its intent in promulgating the standard personal auto policy form was not to require payment for inherent diminished value.

      . The Texas Insurance Commission was the predecessor to the Texas Department of Insurance.

      . Trinity made no assertion in its motion for summary judgment that diminished value is not a direct or accidental loss or that it does not fall within the coverage afforded under Part D of the insuring agreement.

      . Cope cites cases from several courts of appeals in this state to support this statement. E.g., Calvert Fire Ins. Co. v. McClintic, 267 S.W.2d 568 (Tex.Civ.App.—Waco 1954, writ ref.'d n.r.e.); American Standard County Mut. Ins. Co. v. Barbee, 262 S.W.2d 122 (Tex.Civ. App.—Fort Worth 1953, no writ); Stuyvesant Ins. Co. v. Driskill, 244 S.W.2d 291 (Tex.Civ.App.—Fort Worth 1951, no writ); Smith v. Am. Fire & Cas. Co., 242 S.W.2d 448 (Tex.Civ.App.—Beaumont 1951, no writ); Mut. Fire & Auto. Ins. Co. v. Muckelroy, 236 S.W.2d 555 (Tex.Civ.App.—San Antonio 1951, no writ); Roberdeau v. Indem. Ins. Co. of N. Amer., 231 S.W.2d 948 (Tex.Civ.App.—Austin 1950, writ ref.'d n.r.e.); Am. Indem. Co. v. Jamison, 62 S.W.2d 197 (Tex.Civ.App.—Tex-arkana 1933, no writ); Standard Accident Ins. Co. of Detroit v. Richmond, 297 S.W. 879 (Tex.Civ.App.—Texarkana 1927, writ dism’d).

      . For example, in Barbee, 262 S.W.2d at 123-24, over twenty items on the insured’s car were either unrepaired or improperly repaired. Similarly, in Roberdeau, 231 S.W.2d at 951, the court noted that further repair could restore the insured’s vehicle to the same, or as good, condition as before.

      .Many of the cases address how to remedy inadequate or defective repairs. See, e.g., Barbee, 262 S.W.2d at 123-24 (finding more than twenty items on the insured’s vehicle were repaired improperly or not repaired at all; the court concluded the repairs did not restore the car to its former condition and value); Roberdeau, 231 S.W.2d at 951-52 (finding some repairs made but additional repairs could have restored vehicle to the same or as good condition); see also Cope, 448 S.W.2d at 718 (finding no repairs were made due to parties' disagreement over the correct measure of damages). Other cases address the consequences of an insurer’s inappropriate decision to repair rather than declare the vehicle a total loss. See, e.g., Fid. & Cas. Co. of N.Y. v. Underwood, 791 S.W.2d 635, 643-45, 647 (Tex.App.—Dallas 1990, no writ) (finding insured’s truck was incapable of being repaired because it was flood damaged); Cope, 448 S.W.2d at 718-719 (holding that if the insurer cannot return the vehicle to substantially the same condition, then the actual cash value is the appropriate measure, where insured sued for damages caused by insurer’s inappropriate election to repair, and the value after repairs was almost sixty percent less than its pre-loss value).

      . Although the court in Higgins was deciding coverage under the insurance policy, it did not engage in an analysis of the contract language but instead recited the tort measure of damages to personal property, i.e. ”[t]he difference between its reasonable market value at the time and place of its injury immediately before its injury and its value immediately after the injury.” 149 S.W.2d at 147. In stating that post-repair reduction in value could be recovered, the Higgins court cited cases involving tort, not contractual, measures of recovery. Id.

      . In the Roberdeau case, the insurer paid for $575 of repairs to the insured's station wagon after it was damaged in a collision. See 231 S.W.2d at 949. The insurer then offered to pay $475 (the amount of repairs minus the $100 deductible). See id. The policy stated that the insurer’s limit of liability would not exceed the vehicle’s actual cash value nor the cost to repair or replace the vehicle with another of like kind and quality. As here, the policy also gave the insurer the option of paying for the loss in money or paying for repair or replacement. See id. at 950. The insured refused the offer and sued the insurer for the difference between the vehicle’s actual cash value before and after the accident. claiming that the repairs did not restore his car to its pre-accident condition and value. See id. After a bench trial, the court entered judgment for the insured for $475 — the amount spent on repairs, less the deductible. See id. The trial court expressly found, however, that these repairs did not restore the vehicle to its pre-accident condition, and that it was possible to restore it to its pre-accident condition through additional repairs. See id. The Austin Court of Appeals reversed and remanded for further development of the facts on damages. See id. at 951. In doing so, the court noted that the insurer did not discharge its repair obligations because it had failed to repair the car to its pre-accident condition; accordingly, the cost of the inadequate repairs was not the proper measure of recovery. See id. Remand was necessary because of the absence of a finding concerning the cost to properly repair the vehicle to its pre-accident condition. See id. The appellate court disregarded the trial court’s findings regarding post-accident and post-repair reduction in the actual cash value of the car. See id.

      . See Delledonne v. State Farm Mut. Auto. Ins. Co., 621 A.2d 350, 353 (Del.Super.Ct.1992) (holding in a case of first impression that "an insurer’s provision to 'repair or replace’ a vehicle or its parts with 'like kind and quality’ requires that the insurer pay for diminution in value.”); Senter v. Tenn. Farmers Mut. Ins. Co., 702 S.W.2d 175, 178 (Tenn.Ct.App.1985) ("Each of three factors — function, appearance, and value — must be substantially restored. If the repairs restore function and appearance but not fair market value, then the insured is entitled to recovery. We believe the measure of recovery should be the difference in the fair market value of the property immediately before the accident and immediately after the accident assuming all repairs had been completed.”); MFA Ins. Co. v. Citizens Nat’l Bank of Hope, 260 Ark. 849, 545 S.W.2d 70, 71-72 (1977) (holding that if repairs to a fire-damaged vehicle with parts of like kind and quality would not restore the vehicle to its former market value, the proper measure of damages was the difference in market value before and after the loss); Venable v. Import Volkswagen, Inc., 214 Kan. 43, 519 P.2d 667, 673 (1974) ("When an insurer makes an election to repair or rebuild under a 'repair, restore or replace clause’ in its policy, the insurer is then obligated to put the vehicle in substantially the same condition as it was prior to the collision so as to render it as valuable and as serviceable as before.”); Dependable Ins. Co. v. Gibbs, 218 Ga. 305, 127 S.E.2d 454, 461 (1962); Eby v. Foremost Ins. Co., 141 Mont. 62, 374 P.2d 857, 858 (1962) (following Rossier v. Union Automobile Ins. Co., 134 Or. 211, 291 P. 498 (1930) ); Campbell v. Calvert Fire. Ins. Co., 234 S.C. 583, 109 S.E.2d 572, 577 (1959) (holding there cannot be "a complete restoration of the property unless it can be said that there has been no diminution of value after repair of the car,” and adding that "the appropriate and fair measure of damages could be achieved by awarding either the difference between the fair cash value of the car before and after the collision, or similarly, the cost of repairs plus any diminution in value.”) (footnote omitted); Nat’l Farmers Union Prop. and Cas. Co. v. Watson, 298 P.2d 762, 767 (Okla.1956) (holding that unless the collision resulted in a total loss, the measure of recovery is the difference between the fair market value of the vehicle in the condition in which it was immediately prior to the collision, and its value thereafter); Barton v. Fanners Ins. Exch., 255 S.W.2d 451, 456 (Mo.App.1953) (holding the measure of damages is "the difference between the value of the automobile prior to the upset and its value when prepared and presented to the plaintiff for acceptance.”); Potomac Ins. Co. v. Wilkinson, 213 Miss. 520, 57 So.2d 158, 160 (1952) (holding that if, despite repairs, there remains "a loss in actual market value, estimated as of the collision date, such deficiency is to be added to the cost of repairs.”); Dunmire Motor Co. v. Or. Mut. Fire Ins. Co., 166 Or. 690, 114 P.2d 1005, 1009 (1941) (stating "it cannot be said that there has been a complete restoration of the property unless it can be said that there has been no diminution of value after repair of the car.”); Ciresi v. Globe & Rutgers Fire Ins. Co., 187 Minn. 145, 244 N.W. 688, 690 (1932) (holding plaintiff entitled to "depreciation” after repairs; "in determining [the vehicle’s] value at the time of the theft, allowance must be made for depreciation then accrued.”); Edwards v. Md. Motorcar Ins. Co., 204 A.D. 174, 197 N.Y.S. 460, 461 (N.Y.App.Div.1922) (“We think diminution in value is damage embraced within the clause of the policy insuring plaintiff ‘against direct loss or damage' by the perils of ‘theft, robbery or pilferage.’ This liability is not cut down by the subsequent 'additional condition’ making defendant liable for actual cost of repairs or replacement.”).

      . In at least some of these cases, however, courts found the policy language ambiguous and therefore applied the rules of construction requiring the court to construe the terms of the insurance policy against the insurer. See, e.g., Delledonne, 621 A.2d at 354; Campbell, 109 S.E.2d at 577. In others, courts applied rules of construction contrary to those followed in Texas and strictly construed the policy language against the insurer without first finding that the language was ambiguous. See, e.g., Gibbs, 127 S.E.2d at 461; Corbett, 134 S.E. at 338.

      . See, e.g., Johnson v. State Farm Mut. Auto. Ins. Co., 157 Ariz. 1, 754 P.2d 330, 331 (1988) (holding that an insurer has no obligation to pay diminished value in addition to repairs); Ray v. Farmers Ins. Exch., 200 Cal.App.3d 1411, 246 Cal.Rptr. 593 (1988) (holding insurer was not obligated to repair the damaged automobile to both its pre-accident condition and market value, concluding that permitting coverage of diminished value would render meaningless the insurer’s clear policy right to repair rather than pay actual cash value); Bickel v. Nationwide Mut. Ins. Co., 206 Va. 419, 143 S.E.2d 903, 906 (1965) (holding that to find the measure of damages as the difference in market value immediately before and after the collision "would be arbitrarily reading out of the policy the right of defendant to make repairs or replace the damaged part with materials of like kind and quality.”).

      . See Milby Auto Co. v. Kendrick, 8 S.W.2d 743, 744 (Tex.Civ.App.—Galveston 1928, writ dism’d w.o.j.) (holding the measure of damages in a negligence action is the “reasonable[,] necessary cost of restoring the injured automobile to its condition prior to its injury, thereby giving it the same value it possessed immediately before its injury.”).

      . Webster’s Third New International Dictionary 1923 (1993).

      . Riverside Webster’s II Dictionary 580 (rev. ed.1996).


source: Caselaw Access Project

author: WINTERSHEIMER, Justice.

license: Public Domain

text:
    Robert L. WHITTAKER, Director of Special Fund, Appellant, v. Phyllis HARDIN; Kentucky Department of Transportation; Donald G. Smith, Administrative Law Judge; and Workers’ Compensation Board, Appellees.
    No. 1999-SC-0584-WC.
    Supreme Court of Kentucky.
    Aug. 24, 2000.
    As Modified Dec. 21, 2000.
    David W. Barr, Frankfort, for Appellant.
    Jackson W. Watts, Versailles, W. Charles Jobson, Ferreri & Fogle, Louisville, for Appellees.
   WINTERSHEIMER, Justice.

This appeal is from an opinion of the Court of Appeals reversing and remanding an opinion of the Workers’ Compensation Board which affirmed an opinion and award of an Administrative Law Judge.

Hardin was injured in an automobile accident while working for the Department of Transportation. She filed a personal injury action for damages against the driver of the other vehicle. Her employer, the Department of Transportation, intervened in the action to recoup medical expenses and income benefits it paid and would pay to Hardin as workers’ compensation benefits. Eventually the tort action settled with the agreement and participation of the Department of Transportation. The settlement of $100,000 included an attorneys’ fees of $25,000 and expenses of $3,273.76, leaving a balance of $71,726.24 for Hardin. The settlement agreement provided no allocation among types of damages and stated that the claim was to be dismissed with prejudice.

Hardin also filed a worker’s compensation claim against the Department of Transportation and the Special Fund. When the claim came before the Administrative Law Judge, it was stipulated that Transportation paid temporary total disability benefits of $235.36 per week from March 9, 1995 through July 23, 1996, for a total of $16,911.38, and had paid medical expenses for Hardin in the sum of $30,-923.50. The ALJ awarded Hardin total permanent disability benefits beginning on March 9, 1995 of $235.36 per week. Liability for the award was apportioned equally between the Department of Transportation and the Special Fund. The findings by the ALJ concerning the extent of Hardin’s disability and the apportionment of liability for the award are not contested in this case. The ALJ stated that because the parties in the civil action failed to allocate the settlement between compensable and noncompensable items of damage, he had no means of determining an allocation. Consequently, the ALJ awarded the Department of Transportation and the Special Fund a credit against Hardin’s future compensation benefits totaling $71,726.24, the entire net settlement proceeds.

The Workers’ Compensation Board affirmed the decision by the ALJ because it believed the ALJ was without jurisdiction to make such an allocation. The Court of Appeals reversed and remanded. It held that KRS 342.325 confers upon the ALJ the right to resolve all questions arising under Chapter 342, and it directed the ALJ to make appropriate findings regarding the allocation of the settlement proceeds. This appeal followed.

The Special Fund and the Department of Transportation argue that where there is no allocation of damages in a settlement between the injured employee and the tortfeasor, the compensation carrier is entitled to the entire recovery as a subrogation credit. They also contend that it is not the ALJ’s role to make findings of apportionment where there has not been one in the civil suit. We disagree.

Hardin is entitled to have an independent and impartial trier of fact allocate elements of damages. See Mastin v. Liberal Markets, Ky., 674 S.W.2d 7 (1984); Hillman v. American Mutual Liability Insurance Co., Ky., 631 S.W.2d 848 (1982). Reliance by the Special Fund and the Department of Transportation on Southern Quarries and Contracting Co. v. Hensley, Ky., 313 Ky. 640, 232 S.W.2d 999 (1950) and Stacy v. Noble, Ky., 361 S.W.2d 285 (1962), is misplaced. In Hensley, supra, the compensation carrier had paid $9,000 in income benefits. In the civil action against the tortfeasor, a jury awarded the plaintiff $6,000. Hensley held that the compensation carrier, which had intervened in the personal injury claim was entitled to the entire $6000 recovery minus attorney fees and expenses. The injured employee claimed that the compensation carrier was not entitled to the whole recovery because part of the jury award had to be for pain and suffering which is not compensable under the Act. Hensley stated:

It is sufficient to answer to this contention that the jury in its verdict made no allocation for pain and suffering. The jury simply divided its verdict into a certain sum for medical expenses and hospital bills and a certain sum for bodily injuries. We cannot speculate or guess what proportion of the $6,000, if any, was for pain and suffering.

Similarly, in Stacy, supra, the jury verdict in the personal injury claim did not account for special damages. The court quoted Hensley, in ruling that the entire jury award was to be credited for subrogation. It also refused to speculate as to the elements of damages because the jury had the opportunity to allocate for special damages and chose not to.

Hensley and Stacy do not apply in this situation because in both of those cases a jury had the ability to allocate damages and did not. Here, the personal injury claim was settled, not decided by a jury. Furthermore, unlike Mastín, the employer was party to the agreement, and the parties did not agree to an allocation of the proceeds among the items of damage. We are persuaded that in this situation because there has never been an opportunity for the allocation of damages by an independent and impartial trier of fact, to which Hardin is entitled, this case must be remanded for such a determination. Mas-tin; Hillman, supra.

Moreover, the ALJ has jurisdiction to determine credit for subrogation. KRS 342.325 defines the jurisdiction of the ALJ. It states as follows:

All questions arising under this chapter, if not settled by agreement of the parties interested therein, with the approval of the arbitrator or administrative law judge, shall be determined by the arbitrator or administrative law judge except as otherwise provided in this chapter.

The right to subrogation credit in a worker’ compensation case is purely statutory. See KRS 342.700. Thus, because the statutory right to subrogation falls with the workers’ compensation chapter, then by definition, the administrative law judge has jurisdiction to resolve any subro-gation issues.

The burden of proving the affirmative defense of entitlement to a credit is on the employer. Where prima facie evidence of a credit is introduced, the burden of going forward with evidence that a portion of the tort recovery is not available for subrogation credit should be properly placed on the employee. In support of this view, we find that Hensley and Stacy are persuasive and apply. A review of the record indicates that Hardin presented sufficient evidence for the ALJ to allocate the damages properly.

It should be made abundantly clear that once an independent trier of fact has made an allocation of damages, Hardin is entitled to recover her share of damages before the employer or the Special Fund can recover its subrogation interest. See Great American Insurance Companies v. Witt, Ky.App., 964 S.W.2d 428 (1998). In Witt, the Court of Appeals held that injured employees and the compensation carrier were no longer on the same level in seeking recovery for their losses. Priority is now given to “making whole” the injured employee. Consequently, neither the employer nor the Special Fund should recover its subrogation interest until Hardin recovers all of her damages.

The motion by Hardin to strike the response brief of the Kentucky Department of Transportation is denied. We also decline the request by counsel for Hardin to award attorneys’ fees or to impose sanctions in this case.

The opinion of the Court of Appeals is affirmed. This case is remanded to the ALJ to make appropriate findings regarding the allocation of the settlement proceeds between compensable and noneom-pensable items of damage and to award any appropriate credit to the employer and the Special Fund.

All concur.


author: HUDDLESTON, Judge.

text:
    Rhonda CRITTENDON, Administratrix of the Estate of Gary Glenn Saxon, Appellant, v. Theresa SAXON, Mother and Natural Guardian of Amber Saxon, Appellee.
    No. 1998-CA-002108-DG.
    Court of Appeals of Kentucky.
    Nov. 24, 1999.
    Rehearing Denied March 24, 2000.
    Discretionary Review Denied by Supreme Court Dec. 13, 2000.
    Benjamin J. Lookofsky, Mayfield, for Appellant.
    Randy L. Treece, Paducah, for Appellee.
    Before: COMBS, HUDDLESTON and KNOPF, Judges.
   OPINION

HUDDLESTON, Judge.

When Gary Saxon died intestate in 1994, his sole surviving heir was his infant daughter, Amber Saxon. Following Gary Saxon’s death, the Workers’ Compensation Board ordered that survivor benefits be paid to Amber. After the filing of a petition to probate the decedent’s estate, Amber’s mother, Theresa Saxon, entered the decedent’s residence and, acting without authorization from Rhonda Crittendon, the Administratrix of Gary Saxon’s estate, removed an undetermined amount of personal property. Subsequently, Theresa Saxon filed an affidavit listing items that had been taken, but the parties dispute whether that affidavit listed all of the items removed from the decedent’s residence.

Theresa Saxon then petitioned Graves District Court claiming that she, as guardian of Amber, was entitled to the $7,500.00 personal property exemption authorized by Kentucky Revised Statutes (KRS) 391.030(l)(c). The district court determined that the workers’ compensation benefits should not be included in the accounting of the $7,500.00 exemption given to children under KRS 391.030(l)(c), and Graves Circuit Court affirmed. We granted Crittendon’s motion for discretionary review.

When a person dies intestate, KRS 391.030(l)(c) provides that an exemption for personal property in the amount of $7,500.00 shall be given “to the surviving spouse, or if there is no surviving spouse, to the children surviving.” Theresa Saxon was not married to Gary Saxon at the time of his death, so Amber was entitled to the personal property exemption.

Neither party contests the applicability of the exemption to Amber. Rather, Crit-tendon claims that the award made by the Workers’ Compensation Board to Amber should be used to offset the exemption because her mother, Theresa Saxon, removed personal property from the decedent’s residence.

KRS 342.730 dictates the manner in which workers’ compensation benefits are awarded after the death of a disabled employee. KRS 342.730(3) provides, in pertinent part, that:

Subject to the limitations contained in subsection (4) of this section, when an employee, who has sustained disability compensable under this chapter, and who has filed, or could have timely filed, a valid claim in his lifetime, dies from causes other than the injury before the expiration of the compensable period specified, portions of the income benefits specified and unpaid at the individual’s death, whether or not accrued or due at his death, shall be paid, under an award made before or after the death, for the period specified in this section, to and for the benefit of the persons within the classes at the time of death and in the proportions and upon the conditions specified in this section and in the order named:
(c) If there is no widow or widower but such a child or children, then to the child or children, fifty percent (50%) of the benefits specified in the award to one (1) child, and fifteen percent (15%) of those benefits to a second child, to be shared equally. If there are more than two (2) such children, the indemnity benefits payable on account of two (2) children shall be divided equally among all the children....

Although Crittendon argues that the workers’ compensation benefits should be used to offset the $7,500.00 exemption, the benefits were not paid directly to the estate and then distributed to Amber. Rather, KRS 342.730(3) clearly provides that the benefits are to be paid directly to Amber as the decedent’s child. The $7,500.00 personal property exemption found in KRS 391.030 entitles Amber to an exemption of personal property in the estate. Thus, the exemption is inapplicable to the workers’ compensation benefits.

As Kentucky’s highest court observed in Thacker v. Cook, insurance policy benefits payable directly to a beneficiary do not become part of the decedent’s estate and cannot be used to offset a statutory exemption entitling the spouse to a certain amount of the decedent’s property. The Court reached a similar conclusion in Vandyke v. Vandyke where it stated that the spouse’s exemption refers only to “property of which the deceased and the intestate spouse was the owner and died seized.” Although Vandyke involved a spouse electing to take the exemption, it is analogous to this case because the Court used a similar rationale in reaching its conclusion.

Crittendon bases her appeal partially on an equitable argument — Anber should not be entitled to the $7,500.00 exemption because of Theresa Saxon’s conduct. While this Court certainly does not condone Theresa Saxon’s removal of personal property from the decedent’s residence without the Administratrix’s authorization, it would be unfair to punish Amber for Theresa Saxon’s conduct.

The Graves Circuit Court judgment that affirmed the order of Graves District Court is affirmed.

ALL CONCUR.

      . 236 Ky. 159, 32 S.W.2d 738, 741 (1930).

      . 223 Ky. 49, 2 S.W.2d 1057, 1059 (1928). See also 1 James R. Merritt, Kentucky Practice § 306 (2d ed.1984).


author: KNOX, Judge:

text:
    John WEBB; Tudell Webb; Bill Webb; and, Lena Webb, Appellants, v. James MAYNARD; Mary Ruth Maynard; and, Addington Enterprises, Appellees.
    No. 1998-CA-002873-MR.
    Court of Appeals of Kentucky.
    Dec. 30, 1999.
    Rehearing Denied Feb. 18, 2000.
    Discretionary Review Denied by Supreme Court Dec. 13, 2000.
    Miller Kent Carter, Pikeville, for Appellants.
    Lawrence R. Webster, Pikeville, for Ap-pellees.
    Before: GUDGEL, Chief Judge; GARDNER and KNOX, Judges.
   OPINION

KNOX, Judge:

In this will construction case, appellants appeal from a summary judgment entered by the Pike Circuit Court wherein appel-lee, Mary Ruth Maynard, sister of appellants John and Bill Webb, was adjudged the owner of an undivided one-tenth interest in certain real property devised by Condor Webb upon his death.

Condor Webb, the owner of five (5) tracts of land in Pike County, Kentucky, died testate in October 1990. Surviving him were his widow, Sadie, and their eleven (11) adult children, three (3) of whom are appellants, John and Bill Webb, and appellee, Mary Ruth Maynard. In 1993, Sadie sold and conveyed to sons John and Bill the interest she had acquired in her deceased husband’s real property pursuant to his will. Shortly thereafter, John and Bill conveyed certain mining rights to ap-pellee, Addington Enterprises, which had undertaken mining operations on the property.

Sadie Webb died in March 1995, eight (8) months after which Mary Ruth filed this action in Pike Circuit Court alleging that Sadie, her mother, had acquired only a lifetime interest in Condor’s real property, not a fee simple which she had the power to convey to her sons. As a remain-derman under her father’s will, the complaint alleged, Mary Ruth had acquired an undivided one-tenth interest in her father’s property upon her mother’s death and was entitled to share in those sums paid by Addington Enterprises for the right to mine the land. The circuit court entered summary judgment in favor of Mary Ruth, and this appeal ensued.

In 1975, Condor Webb executed a will whereby, pursuant to Item III thereof, he devised his real property in the event of his death. The first paragraph under Item III stated:

All of my real property, of whatsoever kind and description, wheresoever situated, which I may own or have an interest in, or have the right to dispose of at the time of my decease, I do hereby give, bequeath and devise to my beloved wife, Sadie Webb, absolutely and in fee simple.

The second paragraph of Item III provided for the disposition of a particular tract of land in the event Sadie predeceased Condor:

However, should my wife predecease me or should we die simultaneously, then it is my desire that I give, bequeath and devise to my daughter, Marcella Stanley, the following described tract or parcel of land lying and being in Pike County, Kentucky, on Brushy Creek of Johns Creek, and being more particularly bounded and described as follows....

It is the third paragraph of Item III which is the focus of this appeal, and upon which Mary Ruth relied in support of her position that her mother acquired only a life estate in the property at issue and that upon her mother’s death, Mary Ruth acquired a one-tenth interest in the property:

Further, upon my wife’s death, I give, bequeath and devise all the rest and residue of my real property to my ten remaining children, Ethel Young, Gracie Morrison, Lucille Lowe, Mary Ruth Maynard, Billy Webb, John Webb, Clifton Webb, Doris Webb, Haskel Webb, and Ronnie Webb, absolutely and in fee simple, share and share alike.

Apparently, from the moment Condor died in 1990, there was some confusion concerning the terms of Condor’s will under Item III. For example, it appears that even though Sadie did not predecease Condor, Marcella took title to the property described in the second paragraph of Item III. Further, Sadie’s first attempt to convey Condor’s property to appellants John and Bill occurred on August 18, 1998, when she conveyed only a one-eleventh interest in the property. Thus, it appears that although Sadie was still alive when Condor died, she erroneously believed she merely shared an interest in Condor’s real estate with ten (10) of her children (absent Marcella) pursuant to the third paragraph of Item III, in spite of the fact that the will devised Condor’s real property to those children only “upon [Sadie’s] death.”

It appears that immediately after the above-referenced conveyance, Mary Ruth raised the question whether her mother had the power to convey the five (5) tracts of land to Mary Ruth’s brothers, John and Bill. Five (5) months later, apparently taking the position that their father meant for Sadie to inherit all of his real property upon his death, the couple’s children, save for the three (3) involved in this action, executed quitclaim deeds conveying to Sadie any interest they may have acquired in their father’s five (5) tracts under his will.

On February 16, 1994, Sadie executed yet another deed, this time a warranty deed, conveying to John and Bill “all her right, title and interest in” the five (5) tracts of land. The deed further recited:

This Deed does not convey any property willed to Marcella Stanley by Condor Webb recorded in Will Book T, Page 819, in the Pike County Clerk’s Office and includes all interest conveyed from Gracie Morrison, Dorris Webb, Ronnie Webb, Mary Ruth Maynard, Lucille Lowe, Clifton Webb, Haskell Webb, Ethel Young and Marcella Stanley, and their spouses, by Quitclaim Deeds.

Following these transactions, John and Bill Webb conveyed mining rights in the property to Addington Enterprises. It is Mary Ruth’s position that she owns one-tenth of the property, acquired upon her mother’s death, and deserves to share in the monies collected from Addington Enterprises pursuant to its right to mine the land.

In September 1996, Mary Ruth moved for summary judgment, arguing that pursuant to the language used under Item III of Condor’s will, Condor intended that his children share in the five (5) tracts of land equally upon their mother’s death, and that, as such, Sadie took only a life estate in Condor’s real property. Appellants also moved the court for summary judgment, arguing that, according to case law, an estate given in fee cannot be defeated by a subsequent provision limiting it to a smaller estate unless the testator clearly intended to do so. They maintained that from the very language of Condor’s will devising his property in fee simple to Sadie, Condor did not intend that his wife have only a life estate in that property. Appellants also argued that pursuant to KRS 394.240(1), Mary Ruth had only two (2) years after Condor’s will was admitted to probate (November 11,1990) in which to file a complaint concerning disposition of Condor’s property. Appellants maintained that Mary Ruth had failed to do so in a timely manner, having filed this action over five (5) years later.

The circuit court found that Item III of Condor’s will contained contradictory provisions:

The first paragraph of Item III purports to leave Mr. Webb’s property in fee simple to his wife, Sadie Webb, but thereafter the Will provides that upon his wife’s death that the one particular tract would go to Marcella and that the remaining property would be divided among his other ten children, one of which is the Plaintiff, Mary Ruth Maynard.

The court further found that by securing quitclaim deeds from Sadie’s other children conveying to her whatever interest they might have acquired in their father’s property under his will, and by accepting without protest Marcella’s title to a certain portion of her father’s property, appellants in effect supported Mary Ruth’s interpretation of Condor’s will.

In determining that Sadie took only a life estate in her husband’s property and that Mary Ruth inherited a one-tenth interest in that property upon Sadie’s death, the court concluded, in pertinent part:

Where a Will devises property to one person absolutely and in a subsequent clause all of the same property is disposed of to others after the death of the first taker, the first taker receives only a life estate, absent language in the will giving disposal power.
... Hanks [v. McDanell, 307 Ky. 243, 210 S.W.2d 784 (1948),] holds that a Will bequeathing property to a designated person in language which would otherwise be a fee with the further provision that any of the said property remaining at the death of the second taker should be divided equally among named persons, gives the first taker a life estate only.
The court may consider the conduct of parties as being admissions as to a position on a matter pending in a judicial proceeding. The actions of the Defendants in securing quitclaim deeds which acknowledge the validity of the will clause granting Marcella Stanley property amounts to a recognition of the Plaintiffs position, but the Court places little reliance upon these acts, the will speaking for itself under the foregoing Conclusions of Law.

Addressing appellants’ argument that Mary Ruth had filed her complaint beyond the statute of limitations period, the court concluded:

[T]he court notes that no party hereto is “contesting” the Will of Condor Webb in the sense that anyone denies its execution, or the mental capacity of the Testator nor claims that the Testator signed the same other than lawfully. All this Court is being asked to do is[,] not to set aside the Will of Condor Webb[,]but to interpret the same.
The two year Statute of Limitations interposed by KRS 394.240 relates only to actions in which persons feel themselves aggrieved by the action of the District Court in admitting a will to record or rejecting it[,] and has no relation to an action asking for an interpretation of the provisions of a valid will.

Appellants have appealed the court’s decision.

We agree with the circuit court that KRS 394.240 does not apply under the circumstances to bar Mary Ruth’s cause of action. The court correctly decided that this action is not one which contests the validity of Condor Webb’s will. Rather, Mary Ruth’s allegations are more akin to an action to recover real property or, at the very least, to recover profits or damages for the wrongful withholding of real property. At any rate, we do not believe the action is barred by any applicable statute of limitations.

As we review the circuit court’s interpretation of Condor’s will, we are mindful of the following:

In an effort to achieve a proper result in this case, we go first to the most basic of all such rules, the so-called “polar star rule.” This rule holds that in the absence of some illegality, the intention of the testator is controlling. To ascertain the testator’s intention, it is necessary to first examine the language of the instrument. If the language used is a reasonably clear expression of intent, then the inquiry need go no further. If it is not such a clear expression, then it is necessary to construe the language used according to appropriate rules of construction.

Clarke v. Kirk, Ky., 795 S.W.2d 936, 938 (1990) (citations omitted).

The circuit court relied heavily on Hanks v. McDanell, 307 Ky. 243, 210 S.W.2d 784 (1948), in support of its determination that Sadie acquired only a life estate in Condor’s real property. Hanks addressed a situation in which the testator, rather than expressly devising his estate to his wife, Sallie, in fee simple, devised his property to her “to be used, enjoyed and disposed of by her in any way she may choose,” which terms were followed by this condition: “ ‘[Sjhould any of said property belonging to my estate remain at the death of my said wife, the same shall be divided equally among Mollie Bledsoe, Louisa Hanks, John W. McDanell and Flora Woo-ley.’” Mat785.

The testator died in 1936, at which time his wife, Sallie, assumed control over his property. Meanwhile, Sallie executed a will devising the balance of her estate, upon her death, to her sister, Louisa Hanks, and others.

When Sallie died eleven (11) years later, she had not used or otherwise disposed of all the property she had acquired under her husband’s will. Sallie’s sister, Louisa, sought construction of that will, arguing that under the terms therein, Sallie had acquired her husband’s property in fee simple. Thus, Louisa maintained, she was entitled to that portion of the property remaining in Sallie’s estate by way of Sallie’s will. The Court, however, found that under her husband’s will, Sallie had taken only a life estate with the power of disposition and, given that Sallie had not disposed of all the property acquired thereunder, the remaindermen named in her husband’s will were entitled to that property.

In the case now before us, while the circuit court found Hanks to be “disposi-tive” of the decision it reached, we do not. Condor expressly devised his property to Sadie in fee simple absolute. He used no words suggestive of any limitation whatsoever on Sadie’s right to treat the property as her own, whereas in Hanks, the intent of the testator is less clear. Thus, we believe it would be helpful to review two (2) post-Hanks decisions involving wills which used language more similar to that in Condor’s will.

In Swango v. Swango’s Adm’r, 313 Ky. 495, 232 S.W.2d 347 (1950), the testator devised his property to his wife in the following manner:

“I bequeath all my land ... unto my wife, Jimmie Swango, to and for her absolute use and benefit according to nature and quality thereof respectively, I want her to use the above to suit herself, to sell, trade or barter, or spend as she sees fit ....
“After my wife’s death I desire the real and personal property, money if any, that may be left to be divided equally between my wife’s and my heirs.... ”

Id. The testator’s widow used a portion of her husband’s estate after his death, and the portion she did not use, she devised by will. After her death, the question arose whether the widow had acquired her husband’s estate in fee simple, in which case the beneficiaries under her will would inherit the unused portion of the testator’s estate, or whether the widow had acquired merely a life estate with the power to dispose, in which case the heirs referenced in the testator’s will would inherit the remainder of his property upon his wife’s death. The trial court determined that the widow had acquired her husband’s estate in fee simple. The appellate court affirmed, reasoning:

It will be noted the testator first gave his property absolutely to his widow. In the second paragraph he expressed a “desire” that if any of the estate remained at her death it should be divided equally between the heirs of each. Thus we have a precatory expression which it is claimed was a limitation on the estate devised and bequeathed to the widow.
While this Court has repudiated the rule that where an absolute estate is devised, subsequent provisions will not be held to impair that estate, we still must seek out the true intention of the testator.
... Unless the context forces the conclusion that the precatory words were used in a stronger sense, they will not be construed as a limitation on the primary estate devised.
... [T]he second paragraph of the will quoted did not impair the estate created in the first paragraph. The testator gave all his property to his wife for her absolute use and benefit, and further emphasized her complete discretionary powers by stating that she was to use it “to suit herself.” In the second paragraph of the will he apparently anticipated that all of the estate might not be consumed or disposed of by his wife, and in that event what remained he wished divided equitably.
Reading the entire will, it is clear to us that the testator intended no legal or enforceable limitation on the estate left to his wife, except possibly in the event she died without having disposed of a portion of it. Since she had, by use and by will, appropriated it all, there was no remaining estate in which appellants could share.

Id. at 348.

In Flynn v. Flynn, Ky., 469 S.W.2d 886 (1971), the Court reviewed the following will:

“I, hereby devise and bequeath all of my property both real and personal ... to my beloved wife, Eugenia Flynn, for and during her natural life, in fee simple absolute with the expressed desire that if she does not need to sell same, that she dispose of same to be effective at her death in an equitable manner to our son John, and my son Lewis.”

Id. at 887. Following the testator’s death, devisees, John and Lewis, brought a declaratory action, maintaining that Eugenia had acquired only a life estate in her husband’s property. The Court disagreed, finding that Eugenia had acquired the property in fee simple:

In order to determine the intention of the testator, it is necessary to look at the will as a whole.
Item Two describes the estate devised to appellee as a “fee simple absolute.” The appellants would have us find that the other words used in Item Two restrict the estate to a life interest. Among the other words are ones giving the appellee the power to sell the property. This is not consistent with a life estate. Also, there is the statement of the testator’s desire that appellee leave the remainder, if any, of his estate at her death to the testator’s two sons. The word “desire” is a precatory term. It lacks the force necessary to limit a prior estate. The only words used in Item Two that could be regarded as limiting the fee simple estate are “for and during her natural life.” Those words alone, in view of the other provisions of the will, cannot be taken as establishing an intent that appellee should have only a life estate.

Id. (Citations omitted).

We believe the above-quoted cases provide greater assistance than Hanks in analyzing Condor’s will in its totality. Most significant is Condor’s express devise of all of his real property to Sadie, “absolutely and in fee simple,” placing no limitations at all on Sadie’s power to dispose of the property. Apparently needing the income therefrom, she sold the property to her sons for $35,000.00. Second, under Item II of his will, Condor likewise devised all of his personal property to Sadie, “absolutely,” stating that his children were to receive it only in the event that Sadie predeceased him. Third, by way of quitclaim deeds conveying to Sadie any interest they may have acquired in their father’s property under his will, Condor’s children evidently believed he intended that Sadie acquire all of his property, in fee simple and for her own use and benefit.

Fourth, pursuant to the analysis in Swango, even if Condor intended that his children receive the “rest and residue” of his real property in the event Sadie did not dispose of it in its entirety, the fact remains that she did dispose of it, and there is simply nothing left for Mary Ruth to take. Finally, we are cognizant of the following law:

A controlling principle is thus stated in Clay v. Chorn’s Ex’r, 152 Ky. 271, 153 S.W. 425, 426:

“An estate once given in fee will not be defeated by a subsequent provision in the same instrument limiting it to a smaller estate, unless the language of the instrument or the intention of the testator requires it, and when, upon the consideration of the whole instrument, the mind is in doubt as to what estate was intended to pass, that construction will be adopted which passes the fee.” [Citations omitted].
Another principle of significance here is that the law favors the vesting of a fee.

Chaffin v. Adams, Ky., 412 S.W.2d 563, 564 (1967) (citation omitted).

We are mindful of the standard by which we may reverse the circuit court:

The standard of review on appeal of a summary judgment is whether the trial court correctly found that there were no genuine issues as to any material fact and that the moving party was entitled to judgment as a matter of law. There is no requirement that the appellate court defer to the trial court since factual findings are not at issue. “The record must be viewed in a light most favorable to the party opposing the motion for summary judgment and all doubts are to be resolved in his favor.” Summary “judgment is only proper where the movant shows that the adverse party could not prevail under any circumstances.”

Scifres v. Kraft, Ky.App„ 916 S.W.2d 779, 781 (1996) (citations omitted).

In light of the above-cited case law rendered subsequent to Hanks, we do not believe that Mary Ruth was entitled to judgment as a matter of law. Rather, we believe the case law supports appellants’ position, as they argued it in both their motion for summary judgment and in this appeal, that Condor devised his real property to his wife, Sadie, in fee simple absolute. As such, we reverse the judgment of the Pike Circuit Court, and remand with instructions to enter summary judgment in favor of appellants.

ALL CONCUR.

      . Interestingly, there appears to have been no question raised regarding Marcella’s acquisition of a portion of her father’s property although the condition by which she should have taken, Sadie’s predeceasing Condor, had not been met.

      . At this point in time, these children had actually acquired no interest in the property, Sadie’s not yet having died. Nonetheless, they executed the deeds, excepting from conveyance the property "willed” to daughter Marcella.

      . Although there is reference made to Mary Ruth’s having conveyed to her mother any interest Mary Ruth may have acquired in the property, the record does not establish that any such deed was ever executed.

      .KRS 394.240(1):
      Any person aggrieved by the action of the District Court in admitting a will to record or rejecting it may bring an original action in the Circuit Court of the same county to contest the action of the District Court. Such action shall be brought within two (2) years after the decision of the District Court. The parties may, in the same action, or in a separate action if the validity of the will is not in issue, seek construction, interpretation or reformation of a will.


author: COMBS, Judge:

text:
    STATE AUTOMOBILE INSURANCE COMPANY and American States Insurance Company, Appellants, v. James REYNOLDS, Appellee.
    No.1998-CA-001245-MR.
    Court of Appeals of Kentucky.
    Feb. 4, 2000.
    Discretionary Review Denied by Supreme Court Nov. 15, 2000.

      Melanie Straw-Boone, Louisville, KY, John Crutchfield, Louisville, KY, for Appellants.
    Mark D. Fischer, Louisville, KY, for Ap-pellee.
    Before: COMBS, EMBERTON, and GUIDUGLI, Judges.
   OPINION

COMBS, Judge:

The appellants, State Automobile Insurance Company and American States Insurance Company, appeal from the judgment of the Shelby Circuit Court dismissing their claims against the appellee, James Reynolds. Having reviewed the record on appeal, we vacate and remand the judgment of the circuit court.

On February 2, 1991, Sarah Reynolds, the seventeen-year-old daughter of James Reynolds, was involved in a car accident. Sarah was driving a vehicle containing four passengers when she turned into the path of an oncoming car. Two of her passengers, Carl Lee Perry and Dwayne Todd, were killed in the accident. The estates of both Perry and Todd filed negligence actions against both James and Sarah. Perry’s estate also filed underinsurance claims against State Auto and American States. The Reynoldses settled both claims for the policy limits of Sarah’s insurance. State Auto and American States substituted payment to the Perry estate and filed a third-party action against James and Sarah.

Prior to the bench trial, the parties stipulated that Sarah was negligent and that the damages paid by State Auto and American States to the Perry estate were reasonable. The remaining issue before the circuit court was whether James could be held liable for Sarah’s negligence. James maintained that Sarah was an emancipated minor and that this status precluded any recovery against him for Sarah’s negligence.

In October 1990, four months prior to the accident, Sarah had moved out of her parents’ home following a disagreement over her church attendance. James had told Sarah that as long as she lived in his house, she would have to abide by his rules; and that if she did not want to follow the rules, she could move out of the house. She chose to leave her parents’ house. She moved in with her older brother for a couple of days; she then moved in with her older sister, where she was living at the time of the accident. James and Sarah both testified that it was understood that if she moved out, her parents would no longer support her and that she would be responsible for her own livelihood. Sarah supported herself with income from a part-time job at Pizza Express, a business owned by her mother.

On the night of the accident, Sarah was driving a 1989 Nissan Pulsar, which had been purchased shortly before the accident. The car was registered in James’s name, and he co-signed Sarah’s loan on the car. Sarah, however, paid the insurance and loan payments. After conducting a bench trial, the court rendered judgment on March 20, 1998, dismissing the claims against James. The court found that Sarah was emancipated from her parents and accordingly determined that her status of emancipation terminated “her relationship to them as a minor for all purposes including KRS 186.590(3)_” (Emphasis original.) The court held that James could not be held hable for Sarah’s negligence pursuant to KRS 186.590(3) or any other doctrine. Subsequently, on April 17,1998, the court entered an order granting judgment against Sarah to State Auto and American States. State Auto and American States filed this appeal from the earlier order of March 20, 1998, that had dismissed the claims against James.

State Auto and American States argue on appeal that the court erred in dismissing their claims against James. They contend that pursuant to KRS 186.590(3), James is liable for Sarah’s negligence. KRS 186.590(3) provides:

Every motor vehicle owner who causes or knowingly permits a minor under the age of eighteen (18) to drive the vehicle upon a highway, and any person who gives or furnishes a motor vehicle to the minor shall be jointly and severally liable with the minor for damage caused by the negligence of the minor in driving the vehicle.

“By making the person liable who enables a minor to operate a motor vehicle, an additional source for the recovery of damages is provided.” Peters v. Frey, Ky., 429 S.W.2d 847, 849 (1968). Under the plain language of KRS 186.590(3), James is liable for Sarah’s negligence if three elements are met: (1) he is the owner of the motor vehicle involved in the accident; (2) he caused or knowingly permitted Sarah to drive the vehicle; and (3) Sarah is a minor under the age of eighteen.

KRS 186.010(7)(a) defines “owner” as used in KRS 186.010 through KRS 186.640 as “a person who holds the legal title of a vehicle or a person who pursuant to a bona fide sale has received physical possession of the vehicle subject to any applicable security interest.” (Emphasis added). It is undisputed in the record that the 1989 Nissan Pulsar was registered under James’s name and that he held legal title to the car. The evidence reveals that James knowingly permitted Sarah to drive the car; James testified that Sarah was using the car with his permission, knowledge, and consent. He further testified at the bench trial that he knew that Sarah was driving and using the car. Although Sarah did not consult or seek James’s permission each time that she drove the car, James allowed Sarah to keep the car and to use the car as she pleased without any restrictions or interference on his part. Thus, the first two elements of KRS 186.590(3) have been met.

The third element, her status as a minor, remains to be examined. At the time of the accident, Sarah was seventeen years of age. However, James contends that since Sarah was emancipated at the time of the accident, she did not qualify as “a minor under the age of eighteen.” KRS 186.590(3). His position is premised on an assumption that the status of emancipation suffices to negate the significance of her chronological age (17), rendering her no longer a minor as a matter of law.

The trial court found that Sarah was emancipated from her parents.

“The doctrine of ‘emancipation’, ... is a recognition of the right of the parent to relinquish control and authority over his child to whose custody and service he is entitled; or to surrender, if he so elects and desires, to his minor son, who is capable of making his own living, the right to do so, and the privilege of receiving the wages that he earns.... In other words, when a child has been emancipated, he occupies the same legal relation towards the parent as if he has arrived at full age.”

Carricato v. Carricato, Ky., 384 S.W.2d 85, 88 (1964) (quoting Rounds Bros, v. McDaniel, Ky., 133 Ky. 669, 118 S.W. 956 (1909). However, while a child may be emancipated for some purposes, minority status may still attach otherwise:

Although [emancipation] may remove the infant from parental control or destroy the common-law right of the parent to the services of the child, it has never been held in this or any other jurisdiction that such emancipation will render an infant sui juris.

Bensinger’s Coex’rs v. West, Ky., 255 S.W.2d 27, 28 (1953).

“[I]t does not remove all of the disabilities of infancy. It does not, for example, enlarge or affect the minor’s capacity or incapacity to contract.”

Id. at 29 (quoting C.J.S., Infants, Sec. 28, p. 91).

We hold that Sarah is a “minor under the age of eighteen” and that the express statutory language prevails over any ambiguity arising as a result of the impact of emancipation. The effects of emancipation in this case are limited to the relationship between the parents and the child. While the rights and responsibilities of the parents regarding the child may have altered, emancipation does not change the child’s potential legal status as a minor under KRS 186.590(3). That statute unambiguously imposes liability upon the owner of a motor vehicle who knowingly permits a minor under the age of eighteen to drive his or her car. Parenthetically, we note that Sarah was charged and convicted of crimes relating to the accident in juvenile court. In summary, we hold that KRS 186.590(3) applies to all minors — emancipated and unemancipated — under the age of eighteen.

We find that the court erred in holding that James could not be held Hable under KRS 186.590(3) due to Sarah’s emancipation. James’s liability arises under KRS 186.590(3), which imposes legal minority upon her with respect to the operation of a motor vehicle regardless of her emancipation from the child-parent relationship otherwise.

We vacate and remand the judgment of the circuit court for additional proceedings consistent with this opinion.

EMBERTON, Judge, concurs.

GUIDUGLI, Judge, concurs in result.


author: KNOPF, Judge:

text:
    Tori LOZIER, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    No. 1999-CA-001117-MR.
    Court of Appeals of Kentucky.
    April 7, 2000.
    Discretionary Review Denied by Supreme Court Dec. 13, 2000.

      Irvin J. Halbleib, Louisville, for Appellant.
    Albert B. Chandler, III, Attorney General of Kentucky, Anitria M. Franklin, Assistant Attorney General, Frankfort, for Appellee.
    Before: Chief Judge, GUDGEL; KNOPF and McANULTY, Judges.
   OPINION

KNOPF, Judge:

This is an appeal from a judgment of conviction by the Wolfe Circuit Court on the charge of third-degree sodomy. The trial court sentenced the appellant to a five-year term of imprisonment and a three-year term of conditional discharge. We find that the application of KRS 532.043 to the appellant’s sentence is unconstitutional as an ex post facto law. However, we also find that the application of KRS 197.045(4) does not operate as an ex post facto law as applied to the appellant. Hence, we affirm the judgment in part, vacate the judgment in part, and remand for entry of a new sentence without the imposition of the additional term of conditional discharge.

On October 9, 1997, a Wolfe Circuit Court Grand Jury returned an indictment against the appellant, Tori Lozier, charging her with first-degree sodomy by engaging in deviate sexual intercourse with a minor child less than twelve years of age. KRS 510.070. On January 8, 1999, Lozier filed a motion to enter a guilty plea to an amended charge of third-degree sodomy. KRS 510.090. The trial court accepted the plea agreement and sentenced Lozier to a total sentence of five years.

During her sentencing hearing, Lozier argued that KRS 532.048 (which mandates the imposition of an additional three-year period of conditional discharge for persons convicted of certain sexual offenses), and KRS 197.045(4) (regulating “good time” credit for incarcerated sex offenders), are unconstitutionally applied to her as ex post facto laws. Following briefing of the issue by both sides and oral arguments, the trial court denied Lozier’s motion to declare the statutes unconstitutional. This appeal followed.

On appeal, Lozier again argues that the additional three year conditional discharge imposed by KRS 532.043, and the additional requirements imposed by KRS 197.045(4) for earning credit toward her parole for good behavior, are ex post facto laws. Thus, she contends that the statutes are unconstitutional as applied to her. For the reasons that follow, we agree with her reasoning with regard to the application of KRS 532.043, but we disagree with her reasoning with regard to the application of KRS 197.045(4).

Both the United States Constitution and the Kentucky Constitution prohibit ex post facto laws. As the United States Supreme Court observed in Weaver v. Graham, 450 U.S. 24, 101 S.Ct. 960, 67 L.Ed.2d 17, (1981), “the ex post facto prohibition ... forbids the imposition of punishment more severe than the punishment assigned by law when the act to be punished occurred.” Id. at 30, 101 S.Ct. 960. Two elements must be present for a law to be considered ex post facto: “(1) ‘it must apply to events occurring before its enactment,’ and (2) ‘it must disadvantage the offender.’ ” Lattimore v. Corrections Cabinet, Ky.App., 790 S.W.2d 238, 239 (1990); (quoting Weaver, 450 U.S. at 29, 101 S.Ct. 960).

In the present case, the application of this rule leads to different results in reviewing the constitutionality of KRS 532.043 and KRS 197.045(4). With regard to both statutes, the first element is applicable in these circumstances. KRS 532.043 and KRS 197.045(4) each became effective on July 15, 1998. The crime to which Lozier pleaded guilty on January 8, 1999—third-degree sodomy—occurred on August 11, 1997. Lozier committed the crime prior to the enactment of the statutes. Accordingly, the circuit court retrospectively applied KRS 532.043 and KRS 197.045(4) to Lozier.

In addition to retrospective application, the statutes must also disadvantage Lozier to be unconstitutional ex post facto laws. When Lozier committed third-degree sodomy, a Class D felony, she was exposed to the possibility of a maximum five-year sentence. KRS 532.060(2)(d). According to KRS 532.043(5), if Lozier violates the terms of her conditional discharge, “[t]he Commonwealth’s attorney may petition the court to revoke the defendant’s conditional discharge and reincar-cerate the defendant for no longer than the time remaining on the conditional discharge.” Thus, under KRS 532.043, Lozier is subject to the possibility of serving three additional years beyond the maximum five-year sentence to which she was subject when she committed the crime of third-degree sodomy. Such a result obviously disadvantages Lozier.

In contrast, application of KRS 197.045(4) does not impose any additional punishment upon Lozier. A person convicted and sentenced to a state penal institution may receive credit on his or her sentence for good behavior or for other meritorious conduct. KRS 197.045(1). Since Lozier was convicted and sentenced after the effective date of the statute, it does not deprive her of any previously earned credits. In addition, KRS 197.045(4) does not deprive Lozier of the opportunity to earn good time credit and to qualify for early parole. Rather, KRS 197.045(4) merely defers the effective date of any good time credit which Lozier may earn in prison until she has successfully completed a sex offender treatment program. Once she completes the program, her accrued good time credit will be credited against her sentence. Consequently, we find no indication that Lozier will be disadvantaged by the application of KRS 197.045(4).

Because the circuit court retrospectively applied KRS 532.043 to Lozier, and the application of that statute disadvantaged her, we hold that KRS 532.043 is unconstitutional as applied to Lozier and to any defendant whose crime was committed prior to July 15, 1998. However, we also find that the application of KRS 197.045(4) does not retrospectively disadvantage Lozier’s accumulation of good time credits. Consequently, we find that KRS 197.045(4) may be constitutionally applied to Lozier. Accordingly, we affirm those portions of the judgment imposing upon Lozier a five-year sentence for third-degree sodomy and upholding the constitutionality of KRS 197.045(4), but we vacate that portion of the judgment imposing an additional three-year period of conditional discharge. We remand this matter to the Wolfe Circuit Court for entry of a new judgment in accord with this opinion.

ALL CONCUR.

      . An ex post facto law is a law passed after the occurrence of a fact or commission of an act, which retrospectively changes the legal consequences or relations of such fact or deed. In the criminal law context, an ex post facto law is one that inflicts a greater punishment than the law annexed to the crime when it was committed. Blacks Law Dictionary, (6 th ed., 1990), p. 580.

      . KRS 532.043 provides as follows:
      (1) In addition to the penalties authorized by law, any person convicted of, pleading guilty to, or entering an Alford plea to a felony offense under KRS Chapter 510, KRS 530.020, 530.064, or 531.310 shall be sentenced to a period of conditional discharge following release from:
      (a) Incarceration upon expiration of sentence; or
      (b) Completion of parole.
      (2) The period of conditional discharge shall be three (3) years.
      (3) During the period of conditional discharge, the defendant shall:
      (a) Be subject to all orders specified by the Department of Corrections; and
      (b) Comply with all education, treatment, testing, or combination thereof required by the Department of Corrections.
      (4) Persons under conditional discharge pursuant to this section shall be subject to the supervision of the Division of Probation and Parole.
      (5) If a person violates a provision specified in subsection (3) of this section, the violation shall be reported in writing to the Commonwealth’s attorney in the county of conviction. The Commonwealth's attorney may petition the court to revoke the defendant’s conditional discharge and reincarcerate the defendant for no longer than the time remaining on the conditional discharge.
      (6)The provisions of this section shall apply only to persons convicted, pleading guilty, or entering an Alford plea after July 15, 1998.

      .KRS 197.045(4) provides as follows:
      Until successful completion of the sex offender treatment program, a sex offender may earn good time. However, the good time shall not be credited to the sex offender’s sentence. Upon the successful completion of the sex offender treatment program, as determined by the program director, the offender shall be eligible for all good time earned but not otherwise forfeited under administrative regulations promulgated by the Department of Corrections. After successful completion of the sex offender treatment program, a sex offender may continue to earn good time in the manner provided by administrative regulations promulgated by the Department of Corrections. Any sex offender, as defined in KRS 197.410, who has not successfully completed the sex offender treatment program as determined by the program director shall not be entitled to the benefit of any credit on his sentence. A sex offender who does not complete the sex offender treatment program for any reason shall serve his entire sentence without benefit of good time, parole, or other form of early release. The provisions of this section shall not apply to any sex offender convicted before July 15, 1998, or to any mentally retarded sex offender.

      . See U.S. Const. Art. I, § 9, cl. 3, and § 10; Ky. Const. § 19.