text:
    Caryn Renee ROACH, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    No. 2009-SC-000058-MR.
    Supreme Court of Kentucky.
    May 20, 2010.

      Emily Holt Rhorer, Department of Public Advocacy, Frankfort, KY, Counsel for Appellant.
    Jack Conway, Attorney General of Kentucky, Micah Brandon Roberts, Assistant Attorney General, Office of Criminal Appeals, Office of the Attorney General, Frankfort, KY, Counsel for Appellee.
   Opinion of the Court by

Chief Justice

MINTON.

I. INTRODUCTION.

A circuit court jury convicted Caryn Renee Roach of adult exploitation, three counts of second-degree criminal possession of a forged instrument, and being a second-degree persistent felony offender (PFO 2). In accordance with the jury’s recommendation, the trial court sentenced Roach to twenty years’ imprisonment and entered judgment accordingly. Roach now appeals this judgment as a matter of right.

Roach contends that the trial court erred by (1) failing to direct a verdict of acquittal on the adult exploitation charge because the evidence at trial showed that the alleged victim had no mental or physical impairment requiring the alleged victim to need assistance with managing her affairs, (2) allowing introduction of the testimony of the lead detective opining that several checks written on the alleged victim’s account likely had not been signed by the alleged victim, and (3) allowing witnesses to testify to statements made by the alleged victim before her death. Roach further urges reversal based upon alleged palpable error arising in the trial proceeding as a result of (1) the lead detective’s vouching for other witnesses and bolstering his own investigation, (2) the prosecutor improperly citing law in his closing argument, and (3) the cumulative effect of all alleged errors.

We find no reversible error and affirm the judgment of the trial court.

II. FACTS.

This case arose when the family of 90-year-old Eba Wilson suspected that several checks written on her account had been forged. Although no one disputed that Eba remained mentally alert until her death, Eba’s eyesight had deteriorated to the point that she often had family members or her caretaker, Roach, fill in her checks, which she then signed.

In addition to the loss of eyesight, Eba also suffered from significant hearing loss, knee problems, and diabetes. Despite her physical frailties and advanced age, Eba strove to maintain her independence as much as possible. She exercised control over her finances by having her monthly checking account statements read to her by her son, Wendell Wilson, or Wendell’s wife, Jean, and by remaining aware of her checkbook balance and her expenditures. Wendell remembered Eba as being frugal with her money and closely tracking her expenses because she was aware that her financial resources were limited, and she intended to make these limited resources last.

Several months before her death, Eba and Wendell both suffered health setbacks that forced a deviation from their routine review of Eba’s checking account statements, which customarily happened soon after each statement arrived in the mail. Wendell was hospitalized for about a month and was unable to review Eba’s checking account statement for the preceding month with her. Later, he testified at trial to never having seen the statement missed because of his hospitalization.

A month later, Eba passed out at home; and Roach, who had been working for several months as Eba’s live-in caretaker, called an ambulance. Eba was then taken to a hospital where she remained for two or three days before being released to a nursing home. Because Eba never returned home after being taken to the hospital, Roach’s employment as Eba’s caretaker ceased.

After Eba was placed in the nursing home, her checking account statements were redirected to Wendell’s home address. Wendell had obtained power of attorney to handle financial matters for Eba and had also been designated as a signatory on her checking account. Wendell became alarmed when he noticed several large checks totaling $6,000 written out to Roach and to Roach’s daughter, Chasity Goatee.

After Wendell went to his mother’s bank to sign affidavits of forgery on several suspicious checks, the police and the Cabinet for Health and Family Services (CHFS) Adult Protective Unit commenced investigations, including separate interviews with Wendell, Jean, Eba, Roach, and Goatee. Ultimately, the authorities charged Roach with adult exploitation and three counts of second-degree criminal possession of a forged instrument.

Lead detective Robert Duvall and Lisa Loftus of the CHFS Adult Protective Unit both testified at trial about their investigations. Both noted that Roach denied writing the allegedly forged checks and indicated that Roach asserted that Eba had loaned her money through some of these checks.

The jury found Roach guilty of adult exploitation, three counts of second-degree criminal possession of a forged instrument, and PFO 2. It recommended a total sentence of twenty years’ imprisonment. The trial court entered judgment in accordance with the jury’s recommendations and also ordered Roach to make restitution for the forged checks to the victim’s family.

III. ANALYSIS.

A. Trial Court Properly Denied Directed Verdict Motion.

Roach contends that the trial court erred in denying her motion for a directed verdict on the adult exploitation charge because of an alleged lack of evidence that Eba was unable to manage her own affairs as required to invoke the protection of Kentucky Revised Statutes (KRS) Chapter 209, the Kentucky Adult Protection Act. Roach points to a lack of evidence that Eba suffered any mental dysfunction and argues that Eba’s physical infirmities did not rise to the level of physical dysfunction to render her unable to manage her own affairs, pointing out that Eba was aware of her financial situation. We are unaware of any other Kentucky appellate opinions that directly construe the requirements for a conviction of adult exploitation under KRS 209.990(5), so this appears to be a matter of first impression.

The controlling statutes allow for finding adult exploitation if the adult victim suffers from either mental or physical limitations

preventing that adult from managing her own affairs. So, despite the undisputed fact that Eba suffered no mental impairment, the evidence at trial was sufficient to show that Eba’s physical limitations forced her to seek assistance in managing her affairs. For example, ample testimony proved that Eba’s limited vision required her to call on others to fill in checks, which she signed herself. And her customary awareness of her checking account balance stemmed largely from Wendell’s or Jean’s oral review of the bank statements with Eba. In other words, Eba was able to keep track of her finances but only with assistance. As the Commonwealth contends, the fact that she needed a live-in caretaker to help her with everyday living activities is further evidence that despite her mental acuity, Eba required assistance to manage her affairs.

Given our well-known standard for reviewing rulings on motions for directed verdict, articulated in Commonwealth v. Benham, we conclude that the trial court did not err in denying Roach’s directed verdict motion.

B. Any Error in Admitting Detective’s Testimony Concerning Differences in Signatures on Checks was Harmless.

Roach contends that the trial court erroneously admitted opinion testimony from lead detective Robert Duvall concerning whether the signatures on certain checks were likely Eba’s. We conclude that to the extent that the trial court erred in admitting Duvall’s testimony concerning his examination of signatures on the checks, the error was harmless.

Wendell was permitted to offer his opinion that the signatures on several checks did not appear to be Eba’s. Roach does not attack the admissibility of Wendell’s opinion testimony on appeal despite having challenged it at trial. As a result, the admissibility of Wendell’s opinion testimony is not before us, so we make no specific determination about it. We do note in passing that Kentucky caselaw has previously recognized the propriety of admitting such lay witness testimony when the lay witness is very familiar with the signatory’s handwriting, and the testimony would be helpful to the jury.

Perhaps the case at hand presented more than the usual evidentiary challenges in judging the authenticity of signatures because of Eba’s impaired vision and the absence of any official exemplar of her signature, such as a current driver’s license. Eba’s signature varied on different documents, and she depended upon the handwriting of others to complete all but the signature on her checks. For example, Wendell admitted that a signature on an unchallenged check to a doctor did not really look like his mother’s signature and also admitted that his mother’s signature changed somewhat from check to check. Jean testified that the handwriting on an unchallenged check written to a hairdresser looked like her own handwriting, although from our review of her testimony, it is unclear whether Jean meant the handwriting on other portions of the check or the actual signature portion. Given Jean’s other testimony that she sometimes filled in other portions of the check for Eba, perhaps Jean meant that other portions of the check looked to be in Jean’s handwriting without actually meaning to suggest that the signature looked like Jean’s handwriting.

We recognize that Detective Duvall’s opinion testimony could appear to the jury to be potentially more reliable testimony that might tend to buttress the testimony of Eba’s family members, who conceivably might stand to inherit assets and, thus, might benefit financially from Roach’s conviction. But having reviewed Detective Duvall’s testimony in detail, we find no reversible error in its admission.

As Roach points out, the trial court did not allow admission of Duvall’s testimony as expert testimony under KRE 702. Despite having taken some college courses that covered handwriting analysis and having had experience in cases involving fraud and crimes against the elderly, Detective Duvall testified that he was “by no means a handwriting expert.” The trial court did not make any finding that he was a handwriting expert. Instead, the trial court admitted Detective Duvall’s testimony as lay witness opinion testimony under KRE 701.

Having reviewed his testimony, we note that Detective Duvall never directly opined that the signatures on certain checks were actually forged. More accurately, in the context of explaining how the investigation proceeded and why the prosecution went forward, Detective Duvall recounted how he recognized significant differences between the signatures on those cheeks that Wendell purported to know were Eba’s as compared to those that Wendell contended were suspicious.

Detective Duvall noted that in the unchallenged signatures, there was no gap in Eba, whereas, in the supposedly suspicious checks, the E stands by itself with some space before the rest of the name. He also observed the presence of flat E ⅛ in unchallenged signatures versus the presence of curls at the top of E’s in the signatures on suspicious checks. He also pointed out that the unchallenged signatures contained rounded M ’s and W’s, but the suspicious signatures contained spiked M’s and W’s. Detective Duvall expressed the opinion that even laypeople should be able to observe such differences and that most people have a fairly consistent pattern in writing, although subtle differences appear among the same person’s handwriting samples. Under the relatively recent precedent we established in Hampton, the trial court did not abuse its discretion by admitting this lay witness opinion testimony on handwriting because it was based upon Detective Duvall’s own observations and was potentially helpful to the jury.

While Detective Duvall did not directly opine that the checks were forged, we acknowledge that his testimony certainly added credence to Wendell’s opinion that they were. Detective Duvall’s testimony essentially pointed out differences in the signatures that the jury could observe for itself and judge whether any such differences indicated forgery when it examined the evidentiary exhibit of the challenged and unchallenged checks.

Even assuming for the sake of argument that Detective Duvall’s lay witness opinion testimony concerning the signatures was admitted in error, we conclude that any error would have been harmless because we can say with fair assurance that this testimony did not substantially sway the judgment.

C. Inadvertent Presentation of Hearsay Evidence from Deceased Victim Did Not Result in Reversible Error.

Roach argues that palpable error and manifest injustice resulted from hearsay statements from Eba being repeated by other witnesses at trial. Having thoroughly examined the record, we note that most, if not all, of the challenged hearsay appears to have been volunteered by witnesses rather than intentionally elicited by the Commonwealth and that the trial court sustained all hearsay objections lodged by Roach. With that perspective, we conclude that the effect of the single isolated hearsay statement admitted without objection did not result in reversible error.

The investigation of this case commenced about six months before Eba died, and Roach’s trial took place some four months after Eba died. But, apparently, Eba’s version of events was never preserved by deposition or affidavit.

At trial, in response to the Commonwealth’s questions asking Wendell why he became suspicious and went to his mother’s bank seeking to take action, Wendell testified on direct examination that he asked his mother if she had written checks to Roach and said that he went to her bank to file a complaint because “I asked my mother first if she had written checks to her, to anybody, she said no, she hadn’t written any.” Roach objected on hearsay grounds, and the trial court sustained her objection. Roach did not request an admonition.

As Wendell’s direct examination continued, the Commonwealth read the affidavit of forgery aloud and then asked Wendell about the basis of an allegation regarding one suspicious check. Wendell responded that the signature did not look like his mother’s signature and said, “I had talked to my mother about it; she didn’t authorize nobody.” Roach did not object to this statement.

The Commonwealth then asked Wendell about the affidavit of forgery on another check. Wendell stated that he had not authorized that check and stated, “My mother said she didn’t authorize it.” Roach objected on hearsay grounds. The trial court sustained the objection, and no admonition was requested.

After Wendell reviewed the other checks, the Commonwealth then asked him about the bases for the affidavits of forgery on those checks “other than what your mother said.” Wendell responded that he did not authorize the checks. Roach did not object to the question or move to strike the answer.

Following Wendell’s testimony and the rest of the Commonwealth’s case, Detective Duvall testified as the last witness for the Commonwealth. In his testimony, he indicated that he had interviewed Eba at the nursing home. The prosecutor cautioned him not to tell the jury what Eba said but asked about his perception of her. He responded, characterizing her as a “spunky lady” and further stating: “She knew exactly what was going on.... She knew what happened and she wasn’t a happy camper.” Roach objected, arguing that Detective Duvall had just gotten the substance of Eba’s interview into evidence and requested an admonition. The trial court then admonished the jury to disregard what Detective Duvall said Eba knew or what her feelings were because he could not know what was going on in her mind.

Although the jury clearly heard hearsay statements attributed to Eba, the trial court granted all the relief that Roach requested. Specifically, when Roach objected on hearsay grounds during Wendell’s testimony, the trial court sustained the objections; and when Roach requested an admonition during Detective Duvall’s testimony, the trial court admonished the jury to disregard the detective’s comments, which technically were not direct recountings of any specific statements by Eba.

We have clearly stated in our precedent that where an objection on hearsay grounds is sustained and no admonition is requested, no error occurs. We have also clearly stated in precedent that an admonition is presumed to cure any error.

Roach argues that the presentation of hearsay statements by Eba without opportunity for cross-examination violated her Confrontation Clause rights and resulted in palpable error. But we conclude that any error in the trial court’s handling of these statements did not arise to the level of palpable error.

The Sixth Amendment prohibits the admission of a testimonial statement of a declarant who does not appear at trial, unless the declarant is unavailable to testify and the defendant had a prior opportunity for cross examination. The admissibility of non-testimonial hearsay is governed by a state’s rules of evidence.

While we refrain from determining whether the statements at issue were testimonial, obviously the admission of any testimonial statements by Eba would be in error because of her unavailability at trial and the lack of prior opportunity for cross-examination. But we note that the trial court sustained all of Roach’s hearsay objections. Hearsay statements were excluded when Roach objected, and an admonition given when Roach requested it. We further conclude that in the instances where Roach failed to object or failed to request an admonition, no palpable error resulted.

Some of the statements of which Roach now complains simply were not hearsay. For example, when the prosecutor asked Wendell about his basis for an affidavit of forgery “other than what your mother said,” the prosecutor appears to be directing Wendell not to recount hearsay statements. And Wendell’s response to this question — that he did not authorize the checks — in no way recounted any statement by his mother. As another example, the detective’s descriptions of Eba knowing what was going on and “not being a happy camper” did not directly relate any statements by her. Furthermore, the trial court admonished the jury to disregard the detective’s testimony on this matter.

In regard to the three actual hearsay statements recounted in Wendell’s testimony: all stating that his mother said she did not write or authorize checks, two of these statements were not admitted because the trial court sustained Roach’s objections on hearsay grounds and Roach did not request admonitions. And we conclude that no palpable error resulted from the trial court failure to admonish the jury on its own motion to disregard these statements or from the unobjected-to testimony of Wendell that “I had talked to my mother about it; she didn’t authorize anybody.” Even without this statement, the jury heard that Wendell and Eba regularly reviewed her checking account statements and that she remained mentally astute during the last few months of her life; thus, they would likely have reasonably surmised that Eba denied writing or authorizing the checks during her lifetime for the prosecution to go forward. Thus, Roach is not entitled to relief on this ground.

D. No Reversible Error from, Alleged Bolstering.

Admitting that the issue was not preserved for review by objection at trial, Roach argues that palpable error resulted from Detective Duvall being allowed to bolster the testimony of Lisa Loftus of the CHFS Adult Protective Unit, Wendell, and Goatee and his own investigation by testifying that nothing in them testimony was inconsistent with what he found in his investigation.

As the representative of law enforcement for this case, Detective Duvall was permitted to sit at the prosecution table and to observe other witnesses’ testimony before he testified as the Commonwealth’s final witness. Generally, a witness should not be allowed to vouch for the truthfulness of other witnesses. But any error in the trial court’s permitting Detective Duvall to testify in this fashion did not rise to the level of palpable error.

Detective Duvall did not directly assert that the other witnesses were truthful, although his testifying to their testimony being consistent with his investigation does suggest that he found their accounts credible. Nonetheless, this testimony would seem to have little practical effect because without it, the jurors could still compare his account of the results of his investigation with the information provided by other witnesses in their testimony and observe no troubling inconsistencies among their accounts. In short, the admission of this testimony does not rise to the level of palpable error.

E. Prosecutor’s Reading of KRS 209.090 in Closing Argument Not Palpable Error.

Roach argues palpable error in the prosecutor’s reading from KRS 209.090 in closing argument, thus permitting the prosecution to cite law outside the trial court’s instructions to the jury. Although our predecessor court did state that “[t]he only law which the jury should be interested in is that contained in the court’s instructions” and that “[t]he argument of an attorney should be confined to a discussion of the facts of the case and to the instructions as they apply to those faets[,]” we find no palpable error here in light of the fact that the Commonwealth was simply responding to Roach’s argument that the statute prohibiting exploitation of adults was only aimed at protecting adults “who don’t have their mental facilities about them, folks that can’t care for themselves, folks that wouldn’t know if you were stealing from them or giving to them.”

Because the defense opened the door to arguments about the intent of the legislature, we find no palpable error in the trial court allowing the Commonwealth to respond by reading a statute purportedly stating the legislature’s intent on the contested issue. So no reversible error occurred from the reading of this statute in the Commonwealth’s closing argument.

F. No Cumulative Error Meriting Reversal.

Lastly, Roach contends that even if no one error in this case demands reversal in and of itself, the cumulative effect of the errors she alleges demands reversal. We disagree. Roach received a fundamentally fair trial with any errors being so minor that even their cumulative effect does not demand reversal.

IV. CONCLUSION.

For the foregoing reasons, the judgment of the trial court is affirmed.

All sitting. ABRAMSON, CUNNINGHAM, SCOTT, and VENTERS, JJ., concur.

NOBLE and SCHRODER, JJ., concur in result only.

      . Ky. Const. § 110(2)0»)-

      . Although our normal practice is to refer to people by their surnames rather than their first names in our opinions, we will refer to the several Wilsons involved in this case by their first names to avoid confusion.

      . The disputed checks were all written during the period of Wendell’s temporary incapacity.

      . Apparently, Goatee was also criminally charged; but any resolution of the criminal case against her occurred separately from the resolution of the criminal case against Roach.

      . Before finding Roach guilty of PFO 2, the jury recommended underlying sentences of ten years' imprisonment on the adult exploitation conviction, to run concurrently with sentences of five years’ imprisonment each on the three second-degree criminal possession of a forged instrument convictions. After convicting her of PFO 2, the jury recommended enhancing her underlying sentences to twenty years’ imprisonment on the adult exploitation conviction and ten years’ imprisonment on each of the three other convictions, all to run concurrently for a total of twenty years' imprisonment. The trial court entered judgment accordingly.

      . KRS 209.080 states: "This chapter may be cited as the Kentucky Adult Protection Act.” KRS 209.090 declares a legislative intent to establish protective services for adults who "are unable to manage their own affairs or to protect themselves from abuse, neglect, or exploitation.” KRS 209.020(4) defines an adult subject to the protection offered by this chapter (including provisions criminalizing abuse, neglect, and exploitation of such adults such as KRS 209.990) as "a person eighteen (18) years of age or older who, because of mental or physical dysfunctioning, is unable to manage his or her own resources, carry out the activity of daily living, or protect himself or herself from neglect, exploitation, or a hazardous or abusive situation without assistance from others, and who may be in need of protective services...."

      . A recent Westlaw search for Kentucky state court cases citing KRS 209.990 showed that the Court of Appeals noted a litigant’s conviction for adult exploitation in a published case, but the analysis of the Court of Appeals concerned issues relating to work release, home incarceration, and contempt and did not construe the elements of adult exploitation under KRS 209.990(5). See Louisville Metro Dept, of Corrections v. King, 258 S.W.3d 419 (Ky.App. 2007). Our search also revealed that this Court analyzed the offense of adult neglect under KRS 209.990(2) in Caretenders, Inc. v. Commonwealth, 821 S.W.2d 83 (Ky.1991) and the Court of Appeals reviewed the offense of adult abuse in Morris v. Commonwealth, 783 S.W.2d 889 (Ky.App.1990). The Court of Appeals also noted a litigant's conviction for adult abuse or neglect; but its analysis concerned only jurisdictional issues in the unpublished case of Smith v. Commonwealth, No.2005-CA-001458-MR, 2006 WL 3456668 (Ky.App. Dec.l, 2006).

      .KRS 209.990(5) states: "Any person who knowingly exploits an adult, resulting in a total loss to the adult of more than three hundred dollars ($300) in financial or other resources, or both, is guilty of a Class C felony.” KRS 209.020(4) defines an adult under the protection of KRS Chapter 209 as "a person eighteen (18) years of age or older who, because of mental or physical dysfunc-tioning, is unable to manage his or her own resources, carry out the activity of daily living, or protect himself or herself from neglect, exploitation, or a hazardous or abusive situation without assistance from others, and who may be in need of protective services (emphasis added). See also KRS 209.020(9) (defining exploitation as "obtaining or using another person's resources, including but not limited to funds, assets, or property, by deception, intimidation, or similar means, with the intent to deprive the person of those resources. ...”).

      . Roach argues that perhaps adults who retain their mental faculties but have physical disabilities would not wish to have the special protection provided by KRS Chapter 209. But we need not determine the wisdom of the public policy ramifications of KRS Chapter 209. Robinson v. Commonwealth, 212 S.W.3d 100, 106 (Ky.2006), quoting Commonwealth ex rel. Cowan v. Wilkinson, 828 S.W.2d 610, 614 (Ky.1992) ("It is beyond the power of a court to vitiate an act of the legislature on the grounds that public policy promulgated therein is contrary to what the court considers to be in the public interest. It is the prerogative of the legislature to declare that acts constitute a violation of public policy.”) (internal quotation marks omitted). Here, by the plain language of the governing statutes, the legislature clearly intended to offer protection not only to adults who required assistance in managing their affairs because of their mental dysfunction, but also to adults who required such assistance as a result of physical dysfunction. We refuse to disturb this clear expression of legislative intent by questioning the wisdom of this public policy.

      . 816 S.W.2d 186, 187 (Ky.1991) ("On appellate review, the test of a directed verdict is, if under the evidence as a whole, it would be clearly unreasonable for a jury to find guilt, only then the defendant is entitled to a directed verdict of acquittal.”).

      .Before the adoption of the Kentucky Rules of Evidence (KRE), our caselaw permitted lay witness opinion testimony concerning the authenticity or identity of handwriting or signatures upon a sufficient showing of familiarity with the handwriting or signature. See, e.g., Roberts v. McCown, 288 Ky. 543, 156 S.W.2d 840, 844 (1941), Bates v. Hogg, 199 Ky. 465, 251 S.W. 620, 621 (1923). We have produced a paucity of reported cases concerning requirements for the admission of lay witness opinion testimony on handwriting since the adoption of the KRE, although we expressed an inclination toward an inclusionary rather than exclusionary approach to such testimony in Hampton v. Commonwealth, 133 S.W.3d 438, 440-41 (Ky.2004) (concluding that bank employee’s non-expert opinion that signature on loan documents differed from that on driver's license was properly admitted under KRE 701, despite rejecting Commonwealth's argument that bank employee had become familiar with signature from processing loan because "the documents that the Commonwealth contends established [bank employee’s] familiarity, the loan papers, are that which it seeks to prove as a forgery.”).

      .KRE 702 states:
      If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.
      Although we express no opinion on whether Duvall’s testimony could have been properly admitted as expert testimony in this case, we note that an example of a case in which expert testimony concerning handwriting was held properly admitted can be found in our opinion in Florence v. Commonwealth, 120 S.W.3d 699, 701-03 (Ky.2003) (upholding forgery conviction where detective testified as handwriting expert).

      . KRE 701 states:
      If the witness is not testifying as an expert, the witness’ testimony in the form of opinions or inferences is limited to those opinions or inferences which are:
      (a) Rationally based on the perception of the witness,
      (b) Helpful to a clear understanding of the witness’ testimony or the determination of a fact in issue, and
      (c) Not based on scientific, technical, or other specialized knowledge within the scope of Rule 702.

      . Compare Hampton, 133 S.W.3d at 441 (noting bank employee "did not opine that the signatures on the loan documents were, in fact, forged. Rather, she stated that in her opinion the signatures on the documents and the signature on Wade's driver’s license did not look the same.”).

      . Eba signed her name as “Eba M. Wilson " on checks.

      . Id. (Bank employee's "testimony was based on her personal observation and was helpful to determining a fact in issue, viz: whether Appellant had a financial motive for murdering her husband. Accordingly, [bank employee's] testimony was properly admissible under KRE 701.”).

      . Without reaching the issue ourselves, we note that some other courts do not permit lay witness testimony concerning the authenticity of signatures where the witness only became familiar with the subject's handwriting in anticipation of litigation. See, e.g., Bell v. State, 910 So.2d 640, 644 (Miss.Ct.App.2005) (holding that authentication of handwriting by lay witness is only permitted under Mississippi rules of evidence if lay witness's familiarity with handwriting is "based upon familiarity not acquired for purposes of the litigation.”) (internal quotation marks omitted). We also note KRE 901 offers "[b]y way of illustration only, and not by way of limitation” an example of a proper means of authentication of a handwritten document by "[n]onexpert opinion as to the genuineness of handwriting, based upon familiarity not acquired for the purposes of litigation.” KRE 901(b)(2). We neither adopt nor reject Roach's reading of this example of proper authentication of a document as clearly providing that lay witness testimony on handwriting is necessarily prohibited if the familiarity with the handwriting was acquired for purposes of litigation because we conclude that any error in the instant case was harmless.

        .Winstead v. Commonwealth, 283 S.W.3d 678, 688-89 (Ky.2009), citing Kotteakos v. United States, 328 U.S. 750, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946) ("A nonconstitutional evi-dentiary error may be deemed harmless, the United States Supreme Court has explained, if the reviewing court can say with fair assurance that the judgment was not substantially swayed by the error."). See also Kentucky Rules of Criminal Procedure (RCr) 9.24 ("No error in either the admission or the exclusion of evidence and no error or defect in any ruling or order, or in anything done or omitted by the court or by any of the parties, is ground for granting a new trial or for setting aside a verdict or for vacating, modifying or otherwise disturbing a judgment or order unless it appears to the court that the denial of such relief would be inconsistent with substantial justice. The court at every stage of the proceeding must disregard any error or defect in the proceeding that does not affect the substantial rights of the parties.”).

      . In her briefs to this Court, Roach specifically invokes RCr 10.26 and KRE 103(e) in arguing that she is entitled to relief due to a palpable error affecting her substantial rights and resulting in manifest injustice. Because these rules provide guidance on when relief may be granted despite the fact that an issue is insufficiently preserved for review, Roach appears to concede that the she did not adequately preserve these hearsay issues for review. We note that she objected to some but not all of the statements she contends were erroneously admitted and that the trial court sustained all of her objections. With regard to Roach’s single requested admonition, the trial admonished the jury to disregard the detective's testimony.

      . See KRE 801(c) (defining hearsay as "a statement, other than one made by the declar-ant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted."). No one has suggested that the statements were offered for reasons other than to prove the truth of the matter asserted: thus, presumably these statements by Eba can be fairly characterized as hearsay. Generally, hearsay is not admissible in evidence, KRE 802, except under certain recognized exceptions. See, e.g., KRE 803, KRE 804. No one has argued that any hearsay statements were properly admitted under any recognized exception.

      . Soto v. Commonwealth, 139 S.W.3d 827, 861-62 (Ky.2004) ("Appellant objected to this testimony as hearsay and the trial judge sustained the objection. Appellant did not request an admonition to the jury to disregard the evidence; thus, no error occurred. (Merely voicing an objection, without a request for a mistrial or at least for an admonition, is not sufficient to establish error once the objection is sustained.). Absent countervailing evidence, the failure to request a limiting admonition is regarded as a trial tactic, intended to avoid calling further attention to the improper evidence.”) (citations and internal quotation marks omitted).

      . Parker v. Commonwealth, 291 S.W.3d 647, 658, (Ky.2009), quoting Johnson v. Commonwealth, 105 S.W.3d 430, 441 (Ky.2003) (("jury is presumed to follow an admonition to disregard evidence!,] and an admonition is presumed sufficient to cure errors.") internal quotation marks omitted).

      . Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004).

      . Rankins v. Commonwealth, 237 S.W.3d 128, 130 n. 5 (Ky.2007), (citing Crawford, 541 U.S. at 68, 124 S.Ct. 1354).

      . Stringer v. Commonwealth, 956 S.W.2d 883, 888 (Ky.1997).

      . RCr 10.26 ("A palpable error which affects the substantial rights of a party may be considered by the court on motion for a new trial or by an appellate court on appeal, even though insufficiently raised or preserved for review, and appropriate relief may be granted upon a determination that manifest injustice has resulted from the error.”).

      . The prosecutor read the following portion of KRS 209.090 (titled as "Legislative intent”): "The General Assembly of the Commonwealth of Kentucky recognizes that some adults of the Commonwealth are unable to manage their own affairs or to protect themselves from abuse, neglect, or exploitation.” The rest of KRS 209.090 (which the prosecutor did not read to the jury) states:
      Often such persons cannot find others able or willing to render assistance. The General Assembly intends, through this chapter, to establish a system of protective services designed to fill this need and to assure their availability to all adults. It is also the intent of the General Assembly to authorize only the least possible restriction on the exercise of personal and civil rights consistent with the person's needs for services, and to require that due process be followed in imposing such restrictions.

        .Broyles v. Commonwealth, 267 S.W.2d 73, 76 (Ky.1954).


source: Caselaw Access Project

author: Justice ABRAMSON.

license: Public Domain

text:
    SUNBEAM CORPORATION, Appellant, v. Honorable Ronnie C. DORTCH, Judge, Hancock Circuit Court, Appellee and Sherry J. McGlenon and Terry L. Parker, Co-Executors of the Estate of Leon J. Fischer, Real Parties in Interest.
    No. 2009-SC-000501-MR.
    Supreme Court of Kentucky.
    May 20, 2010.

      Rebecca F. Schupbach, Wyatt, Tarrant & Combs, LLP, Louisville, KY, Counsel for Appellant.
    Ronnie C. Dortch, Circuit Court Judge, Hartford, KY, pro se.
    Rickie A. Johnson, Kenneth L. Sales, Joseph Donald Satterley, Sales, Tillman, Wallbaum, Catlett & Satterley, Louisville, KY, Counsel for Real Parties in Interest.
   Opinion of the Court by

Justice

ABRAMSON.

Sunbeam Corporation appeals from a 2009 Order of the Court of Appeals denying its petition for a writ to compel its dismissal from a wrongful death action. Agreeing with the Court of Appeals that Sunbeam has failed to establish its entitlement to extraordinary relief, we affirm.

RELEVANT FACTS

Sunbeam Corporation (now known as American Products, Inc., but referred to in these proceedings by its former name) is one of several defendants in a wrongful death suit now proceeding in the Hancock Circuit Court. The wrongful death action is being pursued by Sherry McGlenon and Terry Parker, the real parties in interest who are co-executors of the estate of their father, Leon Fischer. Fischer died from lung-related mesothelioma, and the executors allege that he contracted that disease as a result of being exposed to asbestos fibers during the course of his career as a maintenance worker, including during his work for National Aluminum in Hawes-ville, Kentucky. At National Aluminum, allegedly, Fischer was exposed to asbestos-containing furnaces supplied by Sunbeam or a predecessor in interest. Sunbeam moved to be dismissed from the executors’ suit on the ground that its 2002 reorganization under the bankruptcy laws discharged any claim that Fischer may have had against it.

When the trial court indicated that it would deny the motion to dismiss, Sunbeam added to its motion a contention that jurisdiction over claims bearing on its discharge was lodged exclusively in the bankruptcy court and accordingly that the Hancock Circuit Court lacked jurisdiction to proceed. By order entered April 23, 2009, the trial court denied the motion to dismiss, whereupon Sunbeam moved the Court of Appeals for a writ compelling the dismissal. The Court of Appeals denied extraordinary relief and explained that in its view the trial court was acting within its jurisdiction over wrongful death cases and that otherwise Sunbeam had an adequate remedy by appeal from the trial court’s alleged error in not giving effect to Sunbeam’s discharge.

Pursuant to CR 76.36(7)(a), Sunbeam now appeals from the Court of Appeals’ decision, and reiterates its contentions that only the bankruptcy court has jurisdiction to construe its discharge and that it will suffer irreparable injury if not given immediate relief from the trial court’s erroneous refusal to give effect to Sunbeam’s discharge. Although our reasoning differs slightly from that of the Court of Appeals, we agree that the writ was properly denied and so affirm that Court’s Order.

ANALYSIS

Sunbeam asserts, correctly, that it is not, as the Court of Appeals apparently believed, attacking the trial court’s jurisdiction to entertain wrongful death cases. It is attacking rather the court’s jurisdiction to construe Sunbeam’s bankruptcy discharge, a subject matter, according to Sunbeam, reserved exclusively for bankruptcy courts. Sunbeam, however, has read the bankruptcy court’s exclusive jurisdiction too broadly. While it is true that state courts lack jurisdiction to modify or to grant relief from a bankruptcy court’s discharge injunction, they retain, with a few exceptions not pertinent here, concurrent jurisdiction under 28 U.S.C. § 1334(b) “to construe the discharge and determine whether a particular debt is or is not within the discharge.” In re Pavelich, 229 B.R. 777, 783 (B.A.P. 9th Cir. 1999). See also, In re Stabler, 418 B.R. 764, 770 (8th Cir. BAP 2009) (with a few exceptions, “state courts have concurrent jurisdiction to determine the dischargeability of a debt,” as well as “whether [certain debts] constituted post-petition debts outside the penumbra of the discharge and discharge injunction.”); In re Hamilton, 540 F.3d 367, 373 (6th Cir.2008) (“[s]tate courts have unbridled authority to determine the dischargeability of debts” but an incorrect interpretation that effectively modifies the discharge order is ineffective.); In re McGhan, 288 F.3d 1172 (9th Cir.2002) (approving of Pavelich, supra); In re Lenke, 249 B.R. 1 (Bankr.D.Ariz. 2000) (“ ‘[T]he bankruptcy court’s jurisdiction [to determine that a debt has been discharged] is concurrent with that of the appropriate local court.’ ”) (brackets in original; quoting from 1A Collier On Bankruptcy § 17.28A at 1739 (14th ed. 1978)); In re Honeycutt, 228 B.R. 428, 430 (Bankr.E.D.Ark.1998) (With a few exceptions, “state courts have concurrent jurisdiction with the bankruptcy court to determine the dischargeability of debts.”).

In Herring v. Texaco, Inc., 161 Wash.2d 189, 165 P.3d 4 (2007), the Supreme Court of Washington had before it a ease, like this one, in which the defendant’s Chapter 11 bankruptcy discharge was alleged to bar an asbestos-related wrongful death claim. The plaintiff maintained that the decedent’s claim had not been discharged, and the Court, noting its authority to address the issue, explained that “[s]tate courts have concurrent jurisdiction with federal bankruptcy courts over dis-chargeability issues.... While state courts lack the power to modify or dissolve an order, we do have the power to determine its applicability when discharge is raised as a defense to a state cause of action filed in state court.” Id. at 7-8 (citations omitted). We agree.

Here, the executors are not asking the trial court to exempt Fischer’s claim from Sunbeam’s discharge. They assert rather that Fischer’s claim was not discharged, on the ground, apparently, that Sunbeam did not comply with requirements for bringing asbestos claims within the discharge. The merits of that assertion are not before us. We are concerned only with whether the trial court has jurisdiction to entertain it, and as the cases cited above make clear, it does.

Against this conclusion, Sunbeam cites three cases in support of its contention that only the bankruptcy court has jurisdiction to consider the dischargeability of a debt. Two of them, Matter of Halpern, 50 B.R. 260 (Bankr.N.D.Ga.1985), affd 810 F.2d 1061 (11th Cir.1987), and Matter of Moccio, 41 B.R. 268 (Bankr.D.N.J.1984) address claims that fall within exceptions to the general rule of concurrent state court jurisdiction. Those exceptions do not apply here. In the third, In re Comer, 723 F.2d 737, 740 (9th Cir.1984), the Court noted that “the 1970 Amendments to the Bankruptcy Act ... imposed exclusive jurisdiction upon the bankruptcy courts to determine dischargeability.” The Comer Court did not address 28 U.S.C. § 1334, which divides jurisdiction between bankruptcy and state courts under the current Bankruptcy Code. To the extent that Comer might be construed as authority for the proposition that bankruptcy courts have exclusive jurisdiction to determine dis-chargeability under current law, we find it unpersuasive in light of the more recent United States Court of Appeals for the Ninth Circuit authority cited above, McGhan, which is to the contrary.

Finally, Sunbeam contends that even if the trial court is acting within its jurisdiction, a writ should still issue because the trial court is acting erroneously “and there exists no adequate remedy by appeal or otherwise and great injustice and irreparable injury will result if the petition is not granted.” Estate of Cline v. Weddle, 250 S.W.3d 330, 334 (Ky.2008) (reiterating the narrow grounds upon which a writ of prohibition or mandamus may be granted); Cox v. Braden, 266 S.W.3d 792 (Ky.2008) (writs are disfavored and are to be granted only in extraordinary circumstances). Where the trial court is acting within its jurisdiction, “a showing of no adequate remedy by appeal is ‘an absolute prerequisite’ to obtaining a writ for extraordinary relief.” Estate of Cline, 250 S.W.3d at 335 (quoting The Independent Order of Foresters v. Chauvin, 175 S.W.3d 610 (Ky.2005)).

Sunbeam claims that it lacks an adequate remedy by appeal “because without relief from the lower court’s erroneous denial of its motion to dismiss, it will be forced to prepare for and defend itself before a court that lacks jurisdiction on a matter that has already been discharged in bankruptcy.” As explained above, however, the trial court has jurisdiction to consider whether the executors’ claim has been discharged. Otherwise, as correctly noted by the Court of Appeals, under our law the ordinary expense of litigation does not render an appeal inadequate. Estate of Cline, 250 S.W.3d at 335 (citing Chau-vin ). Sunbeam’s resort to foreign authority for a different rule is not persuasive. Finally, Sunbeam’s unsupported assertion that the executors’ claim is being pursued in bad faith is equally unpersuasive as a basis for extraordinary relief.

CONCLUSION

In sum, although for reasons slightly different than those relied upon by the Court of Appeals, we agree with that Court that the trial court has jurisdiction to consider the dischargeability of the executors’ claim against Sunbeam and that Sunbeam has an adequate remedy by appeal should it desire review of the trial court’s rulings on that question. Accordingly, we affirm the July 9, 2009 Order of the Court of Appeals denying Sunbeam’s petition for a writ.

All sitting.

All concur.


author: DIXON, Judge:

text:
    Ronald STEWART, Jr., Appellant, v. ELCO ADMINISTRATIVE SERVICES, INC. and Enterprise Rent-A-Car, Appellee.
    No. 2009-CA-000828-MR.
    Court of Appeals of Kentucky.
    May 14, 2010.

      Timothy R. McCarthy, Louisville, KY, for appellant.
    Jay Langenbahn, Cincinnati, OH, for ap-pellee.
    Before DIXON and NICKELL, Judges; KNOPF, Senior Judge.

      . Judge William L. Knopf concurred in this opinion prior to the expiration of his term of Senior Judge service on May 7, 2010. Release of this opinion was delayed by administrative handling.

   OPINION

DIXON, Judge:

Appellant, Ronald Stewart, Jr., appeals from an order of the Jefferson Circuit Court granting summary judgment in favor of Appellees, ELCO Administrative Services and Enterprise Rent-A-Car. The trial court ruled that Stewart “constructively waived” his right to basic reparations benefits despite the fact he was injured while riding as a passenger in a secured automobile. For the reasons set forth herein, we reverse and remand for further proceedings.

The facts in this case are undisputed. On November 17, 2007, Stewart was injured in a motor vehicle accident while riding as a passenger in a rental vehicle owned by Enterprise and operated by Martess Bethel. As a result of his injuries, Stewart incurred medical expenses and lost wages in excess of $10,000. At the time of the accident, Stewart owned a 2003 Chevy Impala that was uninsured. Although it is unclear from the record whether the Impala was actually registered as of November 2007, Stewart had permitted the insurance to lapse because the car was inoperable.

Since Stewart was an occupant in a vehicle owned and rented by Enterprise, he submitted an application for Kentucky No-Fault benefits, also known as basic reparations benefits (BRB), to Enterprise. Enterprise referred the case to ELCO, a wholly-owned subsidiary of Enterprise, who administered the claim. By letter dated February 11, 2008, ELCO denied Stewart’s claim on the grounds that his vehicle was uninsured at the time of the accident, thus prohibiting him from claiming BRB from Enterprise.

On July 11, 2008, Stewart filed a complaint in the Jefferson Circuit Court against ELCO, claiming that ELCO wrongfully refused to pay BRB and seeking payment of his medical bills. Stewart subsequently amended the complaint to add Enterprise as a party.

Both ELCO and Enterprise filed motions for summary judgment, arguing that Stewart’s failure to obtain motor vehicle insurance coverage for his own vehicle constituted a constructive rejection of his tort rights and liabilities under Kentucky’s Motor Vehicle Reparations Act. ELCO also claimed it was not the real party in interest since the vehicle was owned by Enterprise, a self-insured entity. Stewart responded with a cross-motion for summary judgment, arguing that there is no such thing as a “constructive rejection” of one’s right to collect BRB and that in order to reject no-fault coverage, there must be strict compliance with KRS 804.39-060(4).

On April 14, 2009, the trial court entered a memorandum and order granting summary judgment in favor of ELCO and Enterprise. In so doing, the court concluded:

Under the holdings in [Thomas v. Ferguson, 560 S.W.2d 835 (Ky.App.1978) j and [Shelter Insurance Company v. Humana Health Plans, Inc., 882 S.W.2d 127 (Ky.App.1994) ] and the language of the MVRA, it does not appear that Stewart is entitled to recover basic reparations benefits from Enterprise. Although Stewart was the passenger in a motor vehicle owned by Enterprise, the record is undisputed that he was the owner of an uninsured motor vehicle. In choosing not to insure his motor vehicle, Stewart has forfeited any entitlement to basic reparations benefits that he would have from Enterprise had he carried insurance on the motor vehicle.

The court also found that because the vehicle was owned by Enterprise, a self-insured entity, ELCO was merely the processing agent and was not, as a matter of law, a real party in interest. Stewart thereafter appealed to this Court.

On appeal, Stewart argues that the trial court erred in finding that he constructively waived his right to BRB. Stewart points out that any “rejection” of benefits must strictly comply with the provisions of KRS 304.39-060(4), which was simply not done in this case. As a result, he was entitled to receive BRB from Enterprise since he was injured while riding as a passenger in its insured vehicle. Finally, Stewart contends that contrary to the trial court’s opinion, the Thomas and Shelter Insurance Company decisions have no applicability to this case.

Summary judgment serves to terminate litigation when there is no issue of material fact and the moving party is entitled to summary judgment as a matter of law. CR 56. On a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party, and summary judgment should be granted only if it appears impossible that the nonmoving party will be able to produce evidence at trial warranting a judgment in his favor. Steelvest, Inc. v. Scansteel Service Center, Inc., 807 S.W.2d 476, 480 (Ky.1991). Summary judgment “is only proper where the movant shows that the adverse party could not prevail under any circumstances.” Id. (Citing Paintsville Hospital Co. v. Rose, 683 S.W.2d 255 (Ky.1985)).

The standard of review on appeal when a trial court grants a motion for 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.” Scifres v. Kraft, 916 S.W.2d 779, 781 (Ky.App.1996). Because summary judgment involves only legal questions and the existence of any disputed material issues of fact, an appellate court need not defer to the trial court’s decision and will review the issue de novo. Lewis v. B & R Corporation, 56 S.W.3d 432, 436 (Ky.App.2001) (internal footnotes and citations omitted). See also Goldsmith v. Allied Building Components, Inc., 833 S.W.2d 378, 381 (Ky.1992).

Kentucky’s Motor Vehicle Reparations Act (“MVRA”), also known as the No-Fault Act, was enacted to “create a comprehensive compulsory insurance system that requires owners to provide vehicle security covering basic reparation benefits and that imposes legal liability on vehicle owners for damages or injuries arising out of ownership of or use of the vehicle. KRS 304.39-010; KRS 304.39-080(5).” McGrew v. Stone, 998 S.W.2d 5, 6 (Ky.1999). KRS 304.39-030(1) provides in pertinent part:

If the accident causing injury occurs in this Commonwealth every person suffering loss from injury arising out of maintenance or use of a motor vehicle has a right to basic reparation benefits, unless he has rejected the limitation upon his tort rights as provided in KRS 304.39-060(4).

Furthermore, KRS 304.39-060 states, in part:

(1) Any person who registers, operates, maintains or uses a motor vehicle on the public roadways of this Commonwealth shall, as a condition of such registration, operation, maintenance or use of such motor vehicle and use of the public roadways, be deemed to have accepted the provisions of this subtitle, and in particular those provisions which are contained in this section.
(2) (a) Tort liability with respect to accidents occurring in this Commonwealth and arising from the ownership, maintenance, or use of a motor vehicle is “abolished” for damages because of bodily injury, sickness or disease to the extent the basic reparation benefits provided in this subtitle are payable therefor, or that would be payable but for any deductible authorized by this subtitle, under any insurance policy or other method of security complying with the requirements of this subtitle, except to the extent noneconomic detriment qualifies under paragraph (b) of this subsection.

With respect to the payment of BRB, KRS 304.39-050(1) provides that “[t]he basic reparation insurance applicable to bodily injury to which this subtitle applies is the security covering the vehicle occupied by the injured person at the time of the accident....” Thus, the statutory language is unambiguous that the vehicle occupied by the injured person is responsible for the payment of BRB. Agreeing with this concept, a panel of this Court in Rees v. USF & G, 715 S.W.2d 904, 906 (Ky.App.1986) held:

Unless he has rejected the limitation on his tort rights as provided in KRS 304.39-060(4), every person suffering loss from injury arising out of the maintenance or use of a motor vehicle has a right to basic reparation benefits. See KRS 304.39-030(1). The legislative policy as announced in KRS 304.39-050(1) is that the basic reparation insurance applicable to bodily injury “is the security covering the vehicle occupied by the injured person at the time of the accident.” The “security covering the vehicle” in the present case is the policy written by USF & G, see KRS 304.39-080, which is, therefore, primarily liable for the payment of basic reparation benefits to the injured passenger. We have been referred to nothing in the MVRA which permits shifting the liability for the payment of basic reparation benefits as is the case with respect to the payment of tort liabilities. As a consequence, the policy written by USF & G must be interpreted to furnish primary coverage for basic reparation benefits to the injured passenger. See KRS 304.39-100.

Enterprise argued, and the trial court herein agreed, that despite the legislature’s expressed intent that “every person suffering loss from injury arising out of maintenance or use of a motor vehicle has a right to basic reparation benefits ...,” Stewart’s failure to procure insurance on his own vehicle acted as a “constructive waiver” of his tort rights and liabilities. We disagree.

Under the MVRA all persons owning an automobile, whether insured or not, are subject to the limitations of “no-fault,” unless the owner actually rejects the limitation of his tort rights and liabilities under KRS 304.39-060. Atchison v. Overcast, 563 S.W.2d 736 (Ky.App.1977). Specifically, KRS 304.39-060 provides:

(4) Any person may refuse to consent to the limitations of his tort rights and liabilities as contained in this section. Such rejection must be in writing in a form to be prescribed by the Office of Insurance and must have been executed and filed with the office at a time prior to any motor vehicle accident for which such rejection is to apply. Such rejection form together with a reasonable explanation thereof shall be furnished by the reparation obligor with each policy to each prospective insurance applicant. Such rejection form shall affirmatively state in bold print that acceptance of this form of insurance denies the applicant the right to sue a negligent motorist unless certain ' requirements contained in the policy of insurance are met. Rejection by a person who is under legal disability shall be made on behalf of such person by his legal guardian, conservator or his natural parent. The failure of such guardian or a natural parent of a person under legal disability to file a rejection, within six (6) months from the date that this subtitle would otherwise become applicable to such person, shall be deemed to be an affirmative acceptance of all provisions of this subtitle. Provided, however, any person who, at the time of an accident, does not have basic reparation insurance but has not formally rejected such limitations of his tort rights and liabilities and has at such time in effect security equivalent to that required by KRS 304.39-110 shall be deemed to have fully rejected such limitations within meaning of this section for that accident only.
(5) (a) Any rejection must be filed with the Office of Insurance and shall become effective on the date of its filing until revoked;
(b) Any rejection filed prior to June 30, 1980, shall be deemed to be effective from the date of its filing until revoked; and
(c) Any revocation shall be in writing and shall become effective upon the date of its filing with the Office of Insurance. (Emphasis added).

The plain language of KRS 304.39-060(4) explicitly requires any rejection of one’s tort rights and liabilities to be in writing and filed with the Department of Insurance. Atchison, 563 S.W.2d at 737. “[0]ur duty is to ascertain and give effect to the intent” of the Legislature. Beckham v. Board of Education of Jefferson County, 873 S.W.2d 575, 577 (Ky.1994). In so doing, we are directed to follow the clear language of the statute and when “plain and unambiguous” words are employed, we must apply those terms “without resort to any construction or interpretation.” Terhune v. Commonwealth, 907 S.W.2d 779, 782 (Ky.App.1995). We find KRS 804.89-060 to be clear on its face and not susceptible of interpretation-especially not the proposition that one can “constructively” or implicitly reject tort limits and liabilities.

Ignoring the requirements set forth in KRS 304.39-060, the trial court relied upon the decisions from this Court in Thomas v. Ferguson, 560 S.W.2d 835 (Ky.App.1978) and Shelter Insurance Company v. Humana Health Plans, Inc., 882 S.W.2d 127 (Ky.App.1994), wherein uninsured motorists were precluded from maintaining a cause of action for BRB against an insured motorist. In both cases, the Court held that by being voluntarily uninsured, an uninsured driver “waived” the right to collect BRB from an insured tortfeasor. Enterprise urges herein that denying Stewart BRB under the facts of this case is simply a logical extension of Thomas and Shelter Insurance.

Importantly, however, there is a crucial factual distinction between the above cases and the instant matter. In both Thomas and Shelter Insurance, an uninsured driver, who was injured while operating his own uninsured vehicle, was attempting to claim BRB from the adverse insured driver. In the accident giving rise to the cause of action herein, Stewart was not operating his own vehicle, but was instead riding as a passenger in a vehicle owned and insured by Enterprise. Had Stewart not owned a vehicle, or had he maintained insurance on his own vehicle, there would be no question that Enterprise would be liable for BRB as a result of the accident causing Stewart’s injuries. See KRS 304.39-050(1).

Furthermore, we are of the opinion that Enterprise and the trial court have misconstrued the holdings and rationale of both Thomas and Shelter Insurance. Neither decision hinged upon a finding that the uninsured motorist, by failing to comply with the compulsory insurance requirements of the MVRA, constructively or implicitly rejected his rights and liabilities under KRS 304.39-060. In fact, such subsection is never referenced in either case. Rather, the Court precluded the uninsured motorist from claiming BRB from an insured motorist on public policy reasons. “We do not feel that the public policy of the Commonwealth of Kentucky allows us to give this uninsured motorist a cause of action for personal injuries as against the adverse driver, an insured motorist.” Thomas, 560 S.W.2d at 836.

Indeed, since the enactment of the MVRA there have been several published decisions relating to the Act and the uninsured motorist. As noted in Bartlett v. Prime Insurance Syndicate, Inc., 156 S.W.3d 299, 303 (Ky.App.2004), “[t]he inability of an uninsured motorist to recover basic reparations benefits is one of the penalties recognized by this court as being imposed within the no fault framework of the Motor Vehicle Reparations Act.” (Citing Gussler v. Damron, 599 S.W.2d 775, 778 (Ky.App.1980)). However, in every case, the uninsured motorist had been operating his own vehicle at the time of the accident.

Certainly, we believe that public policy dictates that a motorist who voluntarily fails to comply with the insurance requirements of the MVRA should not be entitled to BRB if the accident and injury results from the operation or use of that uninsured vehicle. However, we simply cannot reach the same conclusion when the injury is not attributable to the motorist’s use or operation of the uninsured vehicle. Here, Stewart was not operating his vehicle, but was rather merely riding as a passenger in another vehicle. In fact, Stewart claims, and the trial court found, that his vehicle was not operable, which leads to an entirely separate inquiry of whether or not he was even required to maintain insurance on the vehicle. See KRS 304.39-020(7) and Auto-Owners Insurance Company v. Goode, 294 S.W.3d 32 (Ky.App.2009).

Regardless, this Court is of the opinion that to create a blanket rule that one who is uninsured is prohibited from claiming BRB under any circumstances not only contravenes the language and intent of the MVRA, but violates the public policy of this Commonwealth. BRB follows the vehicle, not the person. And KRS 304.39-050(1) provides that “[t]he basic reparation insurance applicable to bodily injury ... is the security covering the vehicle occupied by the injured person at the time of the accident....” Stewart was occupying a car owned and insured by Enterprise at the time he was injured.

The language of KRS § 304.39-030 broadly provides for basic reparation benefits for car accident victims. “If the accident causing injury occurs in this Commonwealth every person suffering loss from injury arising out of maintenance or use of a motor vehicle has a right to basic reparation benefits, unless he has rejected the limitation upon his tort rights as provided in KRS 304.39-060(4).” KRS § 304.39-030(1) (emphasis added). As noted by our Supreme Court in Mitchell v. Allstate Insurance Company, 244 S.W.3d 59, 64 (Ky.2008), “this Court can and will see that the General Assembly’s clear intent-that all Kentucky motorists should have automobile liability coverage-is satisfied in all reasonable instances.” (Citing Beacon Insurance Co. of America v. State Farm Mutual Insurance Co., 795 S.W.2d 62, 63 (Ky.1990)).

For the reasons stated herein, we vacate the order of the Jefferson Circuit Court granting summary judgment in favor of Enterprise and remand the matter for entry of a judgment in favor of Stewart on his claim of entitlement to BRB.

ALL CONCUR.