author: Justice VENTERS. Justice SCOTT.

text:
    COMMONWEALTH of Kentucky, Appellant, v. E. John REINHOLD (d/b/a American Evangelistic Association), Medi-Share, and Christian Care Ministry, Appellees.
    No. 2008-SC-000839-DG.
    Supreme Court of Kentucky.
    Aug. 26, 2010.
    Rehearing Denied Dec. 16, 2010.

      Jack Conway, Attorney General, Stephan L. Taylor, Special Assistant Attorney General, Frankfort, KY, Counsel for Appellant.
    Brent L. Caldwell, Boehl, Stopher and Graves, Lexington, KY, Richard Lynn Masters, Masters, Mullins & Arrington, Louisville, KY, Counsel for Appellee.
    Kevin Crosby Burke, Louisville, KY, H. Philip Grossman, Grossman & Moore, PLLC, Louisville, KY, Counsel for Amicus Curiae-Kentucky Justice Association.
   Opinion of the Court by

Justice VENTERS.

We granted discretionary review in this case to address two issues. The first issue is whether Appellees, E. John Reinhold, American Evangelistic Association, The Christian Care Ministry, and their Medi-Share program provide a “contract for insurance” as defined by KRS 304.1-030. The second issue is whether Medi-Share, if determined to be a “contract for insurance” under KRS 304.1-030, falls within the Religious Publications Exemption from Kentucky’s Insurance Code under KRS 304.1-120(7).

For the reasons stated below, we conclude that the Medi-Share program does provide a “contract for insurance” as defined by KRS 304.1-030. We also con-elude that Medi-Share does not fall within the Religious Publications Exemption. Thus, we reverse the decision of the Court of Appeals, and remand the cause to the Franklin Circuit Court for entry of an appropriate judgment.

FACTS

Medi-Share is a program operated by the American Evangelistic Association and the Christian Share Ministry, which advertises itself as a “sharing ministry” providing “Affordable, Biblical Healthcare.” Medi-Share calls itself a “sharing ministry” because people voluntarily join the program, according to Appellees, to help pay the medical bills of other members. In return, the people who join Medi-Share are eligible to receive donations from other members to help pay for their own medical expenses. Since Medi-Share does not consider itself insurance, it is not licensed to sell insurance in the Commonwealth, and it avoids other regulatory requirements and oversight to which conventional insurance companies are subject.

Medi-Share offers several different membership plans for singles, couples, and families, each providing different benefits and financial obligations. To join Medi-Share, a prospective member must first fill out an application form and pay a $175.00 fee. The application form serves a dual purpose. First, the form is a way for Medi-Share to review the applicant’s information to determine if that person is eligible to join the program. Second, and more importantly, the application form serves as a “commitment” contract whereby the applicant promises to abide by certain Medi-Share rules and regulations while participating in the program. These rules and regulations include that the applicant be committed to being a Christian, live by “biblical standards,” attend church regularly, not use tobacco or illegal drugs, and refrain from abusing legal substances such as alcohol. The “commitment contract” also places the following responsibility on being a Medi-Share member:

I understand that I will be responsible each month to access the member website, which identifies a fellow Christian who will be receiving my gift toward their medical need. I will endeavor to pray for this person and to give him or her encouragement by mail. I understand that my fellow believers in Christ are relying upon the receipt of my monthly share by the first of each month.

The “commitment” contract also includes the following disclaimer:

I understand that Christian Care Ministry (CCM) matches a Medi-Share member’s medical need with other Members who have volunteered, in faith, to share in meeting needs through the biblical concept of Christian mutual sharing. I further understand that all money comes from the voluntary giving of Members, not from the Christian Care Ministry, and that the Christian Care Ministry is not liable for the payment of any medical bills. I will accept the decisions made during the Appeal Process by the ‘Seven Member Appeal Panel’ described in the Guidelines and will bring no suit, legal claim or demand of any sort against CCM for unpaid medical expenses.

The application form expressly states that a Medi-Share contract is not an insurance policy. The disclaimer provides as follows:

ATTENTION — This publication is not issued by an insurance company, nor is it offered through an insurance company. This publication does not guarantee or promise that your medical bills will be published or assigned to others for payment. Whether anyone chooses to pay your medical bills is strictly voluntary. This publication should never be considered a substitute for an insurance policy. Whether or not you receive any payments for medical expenses and whether or not this publication continues to operate, you are responsible for payment of your own medical bills.

Similar disclaimers appear throughout Medi-Share’s subscriber information, member guidelines, promotional materials, and all periodic publications.

An underwriting manual is used by Medi-Share to review each applicant’s information. This manual contains information on pre-existing medical exclusions and other exclusions which can keep a person from being granted membership in Medi-Share. Such exclusions frequently appear in the health insurance industry.

If an applicant is approved to join Medi-Share, the member is issued a membership card, and is expected to pay an annual fee of $150 and to make the monthly “share” payment as stated in the “commitment” contract. Medi-Share calculates the member’s monthly “share” by applying underwriting standards and interpreting statistical data to fix the contribution based on anticipated future claims. The member’s expected monthly “share” can also be increased by Medi-Share based on that member’s previous claims history and an actuarial analysis of risk. A member who is late in paying his monthly “share” is assessed an “extra blessing gifts” penalty. Members who fail to pay their monthly “share” within a certain period of time are removed from the Medi-Share program.

The monthly “share” payments are sent directly from the member to Medi-Share. Medi-Share retains a portion of each member’s “share” to cover its administrative costs. The remainder of the member’s “share” is placed into a trust with sub-accounts designated by individual member. The sub-accounts function in many ways like an escrow account.

When a member has a medical expense, he pays the applicable co-payment to the medical provider, and sends the claim form directly to Medi-Share. Medi-Share’s claims adjusters review the claim to see if it is covered under the plan. If the claim is approved to be paid, the payment for the member’s medical bills is taken directly from another member’s sub-account. Payments of claims are made directly to the medical provider. The determination of which member sub-accounts are used to pay the approved claims is made by Medi-Share. The members have no control over which claims get paid for from their individual sub-account. Thus, a member does not designate any specific recipient of the “donation” from his sub-account. However, the “commitment” contract requires each member to log on to the Medi-Share website each month to see who received the benefit of payments made from his sub-account for that month.

Medi-Share has a series of guidelines for its members which define what types of claims will be paid, provide for deductibles, and outline yearly and lifetime caps on benefits each member may receive. The guidelines also encourage the use of medical services within Medi-Share’s “Preferred Provider Organization” by providing penalties for the use of out-of-network providers.

The Commonwealth of Kentucky filed suit in the Franklin Circuit Court on June 21, 2002, alleging that Medi-Share, American Evangelistic Association, and the Christian Care Ministry were engaging in the unauthorized sale of insurance. The Circuit Court held a bench trial on October 25-26, 2006, and ruled that Medi-Share is not a “contract for insurance,” as defined by KRS 304.1-030, because its programs do not shift the risk of incurring medical charges from its members to itself. The Circuit Court also ruled that KRS 304.1-120(7), the Religious Publication Exception to our Insurance Code, applied to Medi-Share, and thus even if Medi-Share was a “contract for insurance,” it nevertheless is not subject to regulation by the Commonwealth.

The Court of Appeals, in a divided opinion, affirmed the Franklin Circuit Court ruling that Medi-Share was not insurance. However, while the majority opinion stated that the Religious Publication Exemption in KRS 304.1-120(7) applied to Medi-Share, in actuality two of the three judges on the panel believed that Medi-Share did not qualify for that exception, and thus the majority view of the panel was that Medi-Share did not satisfy the requirements for the Religious Publication Exemption.

For the reasons set forth below, we now reverse the decision of the Court of Appeals, and remand to the trial court for entry of a judgment consistent with this opinion.

I. MEDI-SHARE IS A CONTRACT FOR INSURANCE AS DEFINED BY KRS 3011-030

The primary issue in this case is whether Medi-Share provides a contract for insurance as defined by KRS 804.1-030. KRS 304.1-030 defines insurance as “a contract whereby one undertakes to pay or indemnify another as to loss from certain specified contingencies or perils called ‘risks,’ or to pay or grant a specified amount or determinable benefit or annuity in connection with ascertainable risk contingencies, or to act as surety.”

We begin by noting that this case was tried by the circuit court sitting without a jury. It is before this Court upon the trial court’s findings of fact and conclusions of law and upon the record made in the trial court. Accordingly, appellate review of the trial court’s findings of fact is governed by the rule that such findings shall not be set aside unless clearly erroneous. A factual finding is not clearly erroneous if it is supported by substantial evidence. Owens-Corning Fiberglas Corp. v. Golightly, 976 S.W.2d 409, 414 (Ky.1998); Uninsured Employers’ Fund v. Garland, 805 S.W.2d 116, 117 (Ky.1991). Substantial evidence is evidence, when taken alone or in light of all the evidence, has sufficient probative value to induce conviction in the mind of a reasonable person. Golightly, 976 S.W.2d at 414; Largent v. Largent, 643 S.W.2d 261 (Ky.1982); CR 52.01. The trial court’s conclusions of law, however, are subject to independent de novo appellate determination. A & A Mechanical, Inc. v. Thermal Equipment Sales, Inc., 998 S.W.2d 505, 509 (Ky.App.1999).

Both lower court decisions correctly concluded that the shifting of risk from one party to another was a necessary component of an insurance contract. The United States Supreme Court agrees with this principle, describing insurance as, “an arrangement for transferring and distributing risk.” Group Life & Health Insurance Co. v. Royal Drug Co., 440 U.S. 205, 211, 99 S.Ct. 1067, 59 L.Ed.2d 261 (1979). The lower court decisions, however, incorrectly determined that the Medi-Share program did not shift risk because each individual member remains personally liable for paying his own medical bills. We note that even under conventional health insurance plans a member remains personally liable to the medical provider for payment. Key to the Court of Appeals decision were the uncontroverted facts that Medi-Share disclaimed any liability for members’ medical expenses and guaranteed payment of no claims, that Medi-Share informed its members that it was not a substitute for insurance, that any medical bill payments were considered voluntary donations from other members, and that Medi-Share does not pay member claims, but, rather, claims are paid by the transfer of money from one member’s sub-account to another, and from there sent to the medical care provider.

However, the lower court opinions overlook the risk-shifting nature of the “commitment” contract that members enter into when they become a part of the Medi-Share program, and thus the lower courts erroneously concluded that the process does not constitute a “contract for insurance” as defined by KRS 304.1-030. As discussed below, the Medi-Share program fits comfortably within the statutory definition of an insurance contract.

In reviewing the “commitment” contract to evaluate whether it is a contract for insurance, we note that its wording, standing alone, is not controlling.

It is immaterial, or at least not controlling, that the term “insurance” nowhere appears in the contract the nature of which is to be determined; indeed, the fact that it states that it is not an insurance policy is not conclusive, and a company may be found to be engaged in an insurance business even though it expressly disclaims any intention to sell insurance. Neither are the terms or mode of payment of the consideration determinative of the question whether the contract is one of insurance. The nature of a contract as one of insurance depends upon its contents and the true character of the contract actually entered into or issued — that is, whether a contract is one of insurance is to be determined by a consideration of the real character of the promise or of the act to be performed, and by a consideration of the exact nature of the agreement in light of the occurrence, contingency, or circumstances under which the performance becomes requisite, and not by what it is called.

4B Am.Jur.2d Insurance § 4 (1982) (footnotes omitted); see also Barberton Rescue Mission, Inc. v. Insurance Division of the Iowa Department of Commerce, 586 N.W.2d 352 (Iowa 1999). It is the actual nature and effect of the “commitment” contract that determines whether it is one for insurance. See Wheeler v. Ben Hur Life Ass’n., 264 S.W.2d 289, 291 (Ky.1953) (“Broadly speaking ... when a company, society, or association, either voluntary or incorporated, and known as a relief, benevolent or benefit society, or by some similar name, contracts for a consideration to pay a sum of money upon the happening of a certain contingency, and the prevalent purpose and nature of the organization is that of insurance, it will be regarded as an insurance company, and its contracts as insurance contracts, regardless of the manner or mode of payment of consideration or of loss or benefit”); Allin v. Motorists’ Alliance of America, 234 Ky. 714, 29 S.W.2d 19, 23 (1930) (holding that one cannot change the nature of insurance business by declaring in the contract that it is not insurance).

The “commitment” contract, as previously quoted, obligates Medi-Share members to pay their monthly “share” by the first of each month because their “fellow believers in Christ” rely upon that payment to satisfy their medical needs. In return for paying their monthly “share,” Medi-Share members remain eligible to receive payment for their medical needs through the program. This process clearly shifts the risk of payment for medical expenses from the individual member to the pool of sub-accounts from which his expenses will be paid. Thus, regardless of how Medi-Share defines itself or what disclaimers it includes in its literature, in the final analysis, there is a shifting of risk.

Moreover, as Medi-Share’s advertising materials tout, all members’ medical needs have thus far been satisfied through the program. This level of success in paying claims, the record reflects, is due to Medi-Share, using actuary tables, and setting each member’s monthly “share” at a level commensurate with anticipated future member medical claims. Medi-Share utilizes statistical actuarial tables to shift risk the same way a traditional health insurance company sets its premiums. Clearly, this arrangement entered into via the “commitment” contract shifts risk between Medi-Share members in the same manner traditional health insurance contracts shift risk between policyholders.

Thus, through the “commitment” contract Medi-Share’s members “undertake [ ] to pay or indemnify another as to loss from certain specified contingencies or perils called ‘risks’.” KRS 804.1-030. Further, Medi-Share “undertakes” to actually pool the members’ monthly “shares” together and pay the actual medical bills as claims for payment are submitted. Thus, the “commitment” contract is, in practice and function, one for insurance.

Medi-Share argues, however, that the disclaimer in the “commitment” contract which states that Medi-Share takes no responsibility for the payment of the members’ medical bills indicates that no risk shifting occurs. Nevertheless, this disclaimer, while perhaps shielding Medi-Share from any liability for its members’ medical bills, does not overcome the fact that through the Medi-Share program the individual members pool resources together to distribute the risk of major medical bills amongst each other. As previously stated, one cannot change the nature of an insurance business by simply declaring in the contract that it is not insurance. Allin, 29 S.W.2d at 23.

Medi-Share also argues that a member who joins their program is actually undertaking a charitable endeavor and not attempting to shift risk. Medi-Share compares a member’s participation in their program to one who throws a dollar into a fireman’s boot during the annual WHAS Crusade for Children, or makes a monthly donation to the United Way. The facts presented do not support this contention. A person in the above examples generally provides his or her gift altruistically. The giver receives no financial benefit from the gift. The only direct benefit is the joy derived from helping a person in need or supporting a worthy cause. While we do not doubt the claim that Medi-Share members are altruistically inspired, neither do we doubt that they pay “shares” with the expectation of a financial return based on Medi-Share’s history of claims payments in the form of the payment of their own medical bills.

Medi-Share’s advertising, examples of which are included in the record, supports this conclusion. Medi-Share advertisements call itself an “alternative to expensive health insurance [which] could save [its members] $2,000 to $4,000 a year or more.” If one does qualify for Medi-Share one “enjoy[s] significant savings.” Further, member testimonials tout the monetary amount of their medical bills which were paid through Medi-Share and make claims such as “the medical bills would have destroyed us financially, except for Medi-Share.” If Medi-Share was a pure charity, it is doubtful that its advertising would focus so heavily on the personal benefits one can receive by becoming a member. Indeed, the thrust of the advertising is that it is an economical alternative to conventional health insurance programs. The conclusion that Medi-Share functions not as a charity, but as a type of insurance is well supported by the evidence in the record.

II. MEDI-SHARE DOES NOT QUALIFY FOR THE RELIGIOUS PUBLICATION EXCEPTION PROVIDED IN KRS 301.1-120(7)

Medi-Share argues that if it is found to be a “contract for insurance” it is still exempt from state regulation because it qualifies for the Religious Publication Exception from the Kentucky Insurance Code provided by KRS 304.1-120(7). KRS 304.1-120(7) states:

No provision of [the Kentucky Insurance Code] shall apply to ...
(7) A religious publication (as identified in this subsection), or its subscribers, that limit their operations to those activities, and:
(a) Is a non-profit religious organization;
(b) Is limited to subscribers who are members of the same denomination or religion;
(c) Acts as an organizational clearinghouse for information between subscribers who have financial, physical, or medical needs and subscribers who choose to assist with those needs, matching subscribers with the present ability to pay with subscribers with a present financial or medical need;
(d) Pays for the subscribers’ financial or medical needs by payments directly from one (1) subscriber to another;
(e) Suggests amounts to give that are voluntary among the subscribers, with no assumption of risk or promise to pay either among the subscribers or between the subscribers and the publication; and
(f) Provides the following verbatim written disclaimer as a separate cover sheet for all documents distributed by or on behalf of the exempt entity, including all applications, guidelines, promotional or informational’ materials, and all periodic publications:
‘This publication is not issued by an insurance company nor is it offered through an insurance company. This publication does not guarantee or promise that your medical bills will be published or assigned to other for payment.
Whether anyone chooses to pay your medical bills will be totally voluntary. This publication should never be considered as a substitute for an insurance policy.
Whether you receive any payments for medical expenses, and whether or not this publication continues to operate, you will always remain liable for any unpaid bills.’

It is clear from the statutory language of KRS 304.1-120(7) that for Medi-Share to qualify for the Religious Publications Exception, it must meet every criterion listed. Harris v. Commonwealth, 793 S.W.2d 802, 809 (Ky.1990) (“This conclusion is inescapable because otherwise the General Assembly would have used the disjunctive ‘or’ instead of the conjunctive ‘and’ ”). Medi-Share does not.

Subsection (d) requires that the publication subscribers’ needs be paid “directly from one (1) subscriber to another.” Therefore to satisfy the requirement of subsection (d), the religious publication must be set up so that one subscriber sends the money for assistance to the other subscriber without having the money passing through an intermediary. Medi-Share does not operate in this manner. Medi-Share serves an intermediary by which monthly “shares” from members are collected and held until being used to pay other members’ needs. Medi-Share determines which needs are paid, how they are paid, and when they are paid. Each “subscribers’ needs” are thus not paid directly from one subscriber to another, but through Medi-Share. Since Medi-Share does not satisfy KRS 304.1-120(7)(d), it does not qualify for the Religious Publication Exception.

CONCLUSION

For the above stated reasons, the opinion of the Court of Appeals is reversed, and the cause is remanded to the Franklin Circuit Court for entry of a judgment consistent with this opinion.

All sitting. MINTON, C.J., ABRAMSON, NOBLE, SCHRODER, JJ., concur.

SCOTT, J., dissents by separate opinion in which CUNNINGHAM, J., joins.

Dissenting Opinion by

Justice SCOTT.

I do not believe that Medi-Share is in the business of insurance and I further disagree that the Medi-Share contract falls within the ambit of definitional insurance as outlined in KRS 304.1-030. Furthermore, because I believe that the activities of Medi-Share should be sheltered by the Religious Publication Exemption as provided for by the General Assembly in KRS 304.1-120(7), I respectfully dissent from the Court’s opinion.

I. Medi-Share is Not in the Business of Insurance

As noted by the Court of Appeals, the United States Supreme Court has described insurance as, “an arrangement for transferring and distributing risk.” Group Life & Health Ins. Co. v. Royal Drug Co., 440 U.S. 205, 211, 99 S.Ct. 1067, 59 L.Ed.2d 261 (1979). Additionally, our federal counterpart has identified three criteria that indicate that a company is in the “business of insurance”: (1) whether the practice has the effect of transferring or spreading a policyholder’s risk; (2) whether the practice is an integral part of the policy relationship between the insurer and the insured; and (3) whether the practice is limited to entities within the insurance industry. Metropolitan Life Ins. Co. v. Massachusetts, 471 U.S. 724, 743, 105 S.Ct. 2380, 85 L.Ed.2d 728 (1985). I interpret these opinions like the Court of Appeals and agree with its view that “[c]en-tral to the United States Supreme Court’s analysis of the ‘business of insurance’ is the distribution of risk between the policy holder and the insurer.” Because the relationship between Medi-Share and its subscribers does not amount to a distribution of risk between the policy holder (the subscribers) and Medi-Share (the conduit to the pool of subscribers), I do not believe Medi-Share to be in the business of insurance as described by the United States Supreme Court. Rather, I believe that the system set up by Medi-Share shifts the risk from one subscriber (the insured) to the pool of subscribers (the insurers) that is controlled and managed by Medi-Share. Thus, while Medi-Share is in the business of promoting and managing a cost-sharing organization, it is not in the business of insurance itself.

The crux of my position is based on the fact that Medi-Share bears no risk when it admits a member to the pool. That risk is carried by the members of the pool — not Medi-Share. This conclusion derives from a plain meaning of the commitment contract submitted by Medi-Share to new members. That contract states that Medi-Share takes no responsibility for the payment of the members’ medical bills. And as recognized by the majority, that provision likely shields Medi-Share from any liability for its members’ medical bills. This begs the question: what risk does Medi-Share, as an entity, bear? The answer is clearly none. However, the majority reasons that the contract language alone does not overcome “the fact that through the Medi-Share program the individual members pool resources together to distribute the risk of major medical bills amongst each other.” (emphasis added). I whole-heartedly agree with this statement, but believe that this does not support a legal finding that Medi-Share is in the business of insurance, but rather that Medi-Share is in the business of administrating and managing a cost-sharing organization on behalf of others — in this instance, people of faith. In contrast, a true insurance company takes on risks and the company itself bears those risks, not the individually insured policy holders.

What’s more, I believe that Medi-Share’s contract does not meet the definition of insurance as promulgated by the legislative authority in this Commonwealth. The General Assembly of Kentucky has defined insurance as:

“[A] contract whereby one undertakes to pay or indemnify another as to loss from certain specified contingencies or perils called “risks,” or to pay or grant a specified amount or determinable benefit or annuity in connection with ascertainable risk contingencies, or to act as surety.”

KRS 304.1-030. In order for Medi-Share to fit this definition, it would have to undertake to pay or indemnify another for risks, or to pay or grant a specified amount or to act as a surety. Like the majority opinion of the Court of Appeals, I believe Medi-Share does none of these, but rather, these activities are assumed by the members of the pool, since each of them agrees to pay for the other’s losses in exchange for other members paying for their losses. Had Medi-Share agreed to pay the losses from their funds or pooled the subscribers’ funds into one pool, I would agree that Medi-Share’s contract is in fact definitional insurance. But Medi-Share simply does not do this.

Moreover, I admit that Medi-Share has extraordinary control over the funds and I also acquiesce to the majority’s position that Medi-Share’s decision-making abilities tend to lean toward finding that it is in the business of insurance. But my concerns are resolved by the fact that, at the end of the day, the individual sub-pools of subscribers bear the risks and not Medi-Share. And with regard to the extraordinary control exercised by Medi-Share, I believe it to be no more than a proper delegation of a duty. Such a delegation is necessary so that the subscribers are not overburdened with making administrative decisions (including who gets what and when). Otherwise, the benefits of this cost-sharing organization would likely transform into an administrative encumbrance upon its subscribers. Moreover, as discussed below, I believe this type of management and delegation of authority is contemplated in KRS 304.1-120(7)(c) and that the actions of the Medi-Share administrators comply with the spirit of this rule.

II. If Medi-Share Is An Insurance Company, It Should Fall Under the Religious Publication Exemption As Outlined in KRS 304.1-120(7).

Additionally, I believe that Medi-Share substantially complies with the provisions outlined in KRS 304.1-120(7) and therefore would consider it exempt from state regulation.

Under KRS 304.1-120(7), no provision of [the Kentucky Insurance Code] shall apply to:

(7) A religious publication (as identified in this subsection), or its subscribers, that limit their operations to those activities permitted by this subsection, and:
(a) Is a nonprofit religious organization;
(b) Is limited to subscribers who are members of the same denomination or religion;
(c) Acts as an organizational clearinghouse for information between subscribers who have financial, physical, or medical needs and subscribers who choose to assist with those needs, matching subscribers with the present ability to pay with subscribers with a present financial or medical need;
(d) Pays for the subscribers’ financial or medical needs by payments directly from one (1) subscriber to another;
(e) Suggests amounts to give that are voluntary among the subscribers, with no assumption of risk or promise to pay either among the subscribers or between the subscribers and the publication; and
(f) Provides the following verbatim written disclaimer as a separate cover sheet for all documents distributed by or on behalf of the exempt entity, including all applications, guidelines, promotional or informational materials, and all periodic publications:
“This publication is not issued by an insurance company nor is it offered through an insurance company. This publication does not guarantee or promise that your medical bills will be published or assigned to others for payment. Whether anyone chooses to pay your medical bills will be totally voluntary. This publication should never be considered as a substitute for an insurance policy. Whether you receive any payments for medical expenses, and whether or not this publication continues to operate, you will always remain liable for any unpaid bills.”

In denying Medi-Share the protection outlined in KRS 304.1-120(7), the majority makes much of sub-section (d), and particularly the fact that the subscribers of Medi-Share do not make payments directly to and from one another. The majority concludes that because the payments pass through an “intermediary” (Medi-Share), the payments fall short of being direct and thus finds the protections of KRS 304.1-120(7) undeserved. Common sense and the record before this Court demand that I recognize this procedure as a matter of fact. However, contrary to the holding of the majority, that procedure does not force the conclusion that the payments are not directly made from one subscriber to another.

I am of the opinion that the intermediary in this case (Medi-Share) acts in a similar fashion as a trustee, a bank, an attorney, or an agent. Had the subscribers mailed their payments or instructed an agent to make the payment on their behalf, would the Court reach the same conclusion because the payment passed through a third party before reaching the intended beneficiary? I think the answer is clearly no. Thus, my thoughts on the matter are that Medi-Share is a conduit rather than an intermediary. Certainly, this Court would not hold that simply because one acts through an agent or via a trustee that one has not acted in a direct manner. Indeed, under the law controlling the principles of agency in this Commonwealth, we impugn upon the principal the acts of its agents as “if they proceeded directly from the principal.” See Preferred Risk Fire Ins. Co. v. Neet, 262 Ky. 257, 90 S.W.2d 39, 42 (1935) (citing Union Mut. Ins. Co. v. Wilkinson, 80 U.S. 222, 13 Wall. 222, 20 L.Ed. 617 (1871)) (emphasis added). Medi-Share’s function is no different, and the subscriber’s payments are no less direct because they first pass through Medi-Share.

It bears repeating that the extent of control that Medi-Share exercises in this case might set it apart from what is contemplated in KRS 304.1-120(7). However, I again analogize the actions of Medi-Share to that of an agent to principal relationship, whereby the agent (Medi-Share) is given discretionary authority to act on behalf of its principal (the subscribers). That discretion, however, should not make the actions any less direct. Furthermore, I believe this delegation and discretion is expressly contemplated by KRS 304.1-120(7)(c) which recognizes and allows the administration of these type of cost-sharing organizations to “mateh[ ] subscribers with the present ability to pay with subscribers with a present financial or medical need.” It seems to me that is exactly what we have here.

I am of the opinion that Medi-Share is in substantial compliance with KRS 304.1-120(7) and the spirit of that rule. I would not strip that organization of the protections outlined in KRS 304.1-120(7) simply because payments are made at the direction of Medi-Share after subscribers have delegated this duty to Medi-Share, particularly when Medi-Share already statutorily possesses the authority to function in an administrative capacity.

For the foregoing reasons, I respectfully dissent from the majority’s opinion in this matter.

CUNNINGHAM, J., joins.

      . E. John Reinhold is the Chairman of the American Evangelistic Association and the Christian Share Ministry.

      . We note that an application form included in the record which predates the above quoted one used the following language:
      I understand that I will receive notice by the 20th of each month, identifying a fellow Christian who will be receiving my gift toward their medical need that month. I promise to pray for this person and may give him/her full encouragement by phone or mail. Because this fellow Believer-In-Christ is counting on me, [Christian Care Ministry] must get my Monthly Share by the first of each month.

      . The record reflects that according to the Medi-Share website the monthly "share” payments are not tax-deductible.

      . At the time of the Franklin Circuit Court trial, about 17 to 20 % of the monthly "share" payments were expended for administrative costs. However, the record reflects that percentage has been reduced since Medi-Share cancelled the stop-loss insurance protection it once held.

      . As noted by the majority, Medi-Share employs a type of disclaimer which attempts to negate any connotation that it is an insurance company. However, the majority discards this disclaimer under the guise that Medi-Share’s function overrides the contract language and the Court essentially finds that Medi-Share is an insurance company under a "substance” analysis if not by "form.” However, the General Assembly of Kentucky promulgated and requires this disclaimer when religious institutions attempt to create these cost-sharing organizations. See KRS 304.1-120(7)(f). And while I believe that an insurance company may not disclaim its insurance function simply by employing a disclaimer in its policies, I also recognize that the General Assembly, in passing this statute, considers the disclaimer more pertinent than a normal one used by a non-religious institution. Otherwise, subsection (f) becomes superfluous, and will be read as an irrelevant section of Kentucky law.


source: Caselaw Access Project

author: /s/ John D. Minton, Jr. Chief Justice

license: Public Domain

text:
    KENTUCKY BAR ASSOCIATION, Movant, v. Sandra Camille BROOKS, Respondent.
    No. 2010-SC-00000139-KB.
    Supreme Court of Kentucky.
    Sept. 23, 2010.
   OPINION AND ORDER

Upon motion of the Kentucky Bar Association (KBA), this Court entered an order directing Sandra Camille Brooks to show cause why this Court should not hold her in contempt for her continued unauthorized practice of law in violation of an August 25, 2005 Order of this Court. The 2005 order held Respondent in contempt for her failure to abide by a 1997 KBA directive to cease and desist engaging in the unauthorized practice of law and, again, ordered her to refrain from the unauthorized practice of law. Respondent failed to timely respond to this Court’s April 22, 2010 Show Cause Order. Nevertheless, a response was filed upon this Court’s granting of Respondent’s motion for an extension of time.

At the outset, we must address a challenge to this Court’s jurisdiction. Respondent filed a motion to dismiss this case, asserting that the KBA has failed to state a claim upon which relief can be granted and further asserting that this Court lacks subject matter jurisdiction. Although there is no accompanying explanation or argument, we surmise that Respondent is questioning this Court’s authority to discipline her, a non-lawyer, for the violation of a Supreme Court Rule governing the practice of law. First, Respondent’s assertion would have been better directed to the previous 2005 proceedings wherein this Court sanctioned her and enjoined her from the unauthorized practice of law. At this juncture, the proceedings are merely contempt proceedings for Respondent’s violation of our previous order. Clearly, there can be no legitimate challenge to this Court’s jurisdiction to enforce its own order and to impose contempt sanctions for violations of such order. Nevertheless, because of the significance of a jurisdictional challenge, we will address the underlying issue of this Court’s jurisdiction to enjoin and sanction non-lawyers for the unauthorized practice of law.

This Court has long exercised its jurisdiction to sanction and enjoin non-attorneys from practicing law without a license. See, e.g., Hargett v. Lake, 305 S.W.2d 528 (Ky.1957); Carter v. Brien, 309 S.W.2d 748 (Ky.1956); Hobson v. Kentucky Trust Co. of Louisville, 303 Ky. 493, 197 S.W.2d 454 (Ky.1946); Kentucky State Bar Ass’n v. First Fed. Sav. & Loan Ass’n of Covington, 342 S.W.2d 397 (Ky.1961); Frazee v. Citizens Fid. Bank & Trust Co., 393 S.W.2d 778 (Ky.1964); Kentucky State Bar Ass’n v. Kelly, 421 S.W.2d 829 (Ky.1967); Kentucky Bar Ass’n v. Fox, 536 S.W.2d 469 (Ky.1976); Kentucky State Bar Ass’n v. Bailey, 409 S.W.2d 530 (Ky.1966). Furthermore, the contention that this Court does not have jurisdiction to proceed against a nonmember of the legal profession for the unauthorized practice of law was expressly rejected in Kentucky State Bar Ass’n v. First Fed. Sav. & Loan Ass’n of Covington, 342 S.W.2d 397 (Ky.1960), a holding that was reaffirmed in Kentucky State Bar Ass’n v. Tussey, 476 S.W.2d 177 (Ky.1972).

Along with prior instances of sanctions and injunctions imposed by Kentucky’s highest Court against non-lawyers for the unauthorized practice of law, First Federal relied on In re Baker, 8 N.J. 321, 85 A.2d 505 (1951) for its exercise of jurisdiction over non-lawyers. Baker, a decision of New Jersey’s highest court, explained that jurisdiction was expressly granted by its Constitution, but even absent such express authority, inherent power existed in the Court to exercise jurisdiction over laymen who were practicing law without a license. Significantly, New Jersey’s constitutional provision, N.J. Const. Art. VI, § 2, is very similar to Ky. Const. § 116. Both provisions provide for the state’s supreme court to govern admission to the bar and to discipline members of the bar. Baker explained that this express authorization to regulate licensed attorneys necessarily carried with it an implied corollary power to sanction those who invade the province of the profession without obtaining admission to the bar. Baker eloquently stated the rationale as follows:

It is generally conceded throughout the country that the power to control admissions to the bar and to discipline members of the bar is inherent in the judiciary. Here these powers have been expressly conferred on the Supreme Court by art. VI, sec. II, par. 3 of the Constitution: “The Supreme Court shall have jurisdiction over the admission to the practice of law and the discipline of persons admitted.” But whether inherent or express, these powers over the admission and discipline of members of the bar would be meaningless and futile if laymen might practice .law with impunity.... The reason for prohibiting the unauthorized practice of law by laymen is not to aid the legal profession but to safeguard the public from the disastrous results that are bound to flow from the activities of untrained and incompetent individuals, assuming to practice a learned profession which entails years of preparation and without being bound by the high standards of professional conduct and integrity which are imposed on members of the bar by the Canons of Professional Ethics, which are zealously enforced by the courts for the public good.

Baker, 85 A.2d at 511-12.

Baker gleaned insight from the highest courts of Illinois and Vermont, which had already addressed the issue. In In re Morse, 98 Vt. 85, 126 A. 550, 553 (1924), the Supreme Court of Vermont said:

That the express legislative grant to this court of exclusive and full authority to determine who shall practice as attorneys before the courts of this state carries with it the implied power to do whatever may be reasonably necessary to make such grant effective, even to punishing for contempt those pretending to such office, cannot be doubted.

Similarly, in People ex rel. Ill. State Bar Ass’n v. Peoples Stock Yards State Bank, 344 Ill. 462, 176 N.E. 901, 906 (1931), the Supreme Court of Illinois stated:

Having inherent and plenary power and original jurisdiction to decide who shall be admitted to practice as attorneys in this state, this court also has all the power and jurisdiction necessary to protect and enforce its rules and decisions in that respect. Having power to determine who shall and who shall not practice law in this state, and to license those who may act as attorneys and forbid others who do not measure up to the standards or come within the provisions of its rules, it necessarily follows that this court has the power to enforce its rules and decisions against offenders, even though they have never been licensed by this court. Of what avail is the power to license in the absence of power to prevent one not licensed from practicing as an attorney? In the absence of power to control or punish unauthorized persons who presume to practice as attorneys and officers of this court the power to control admissions to the bar would be nugatory. And so it has been held that the court, which alone has authority to license attorneys, has a necessary corollary ample implied power to protect this function by punishing unauthorized persons for usurping the privilege of acting as attorneys.

A related concept was addressed in Hobson v. Kentucky Trust Co. of Louisville, supra, which explained that unauthorized practice of law proceedings could be initiated not only by the bar association but by any practicing attorney because “an acquired right to practice law vests the holder with a ‘property right’ which he or she may protect against an intruder into the profession who has not likewise acquired such a similar right.” 197 S.W.2d at 458.

We need not add to the explanations so amply set out in the foregoing authorities to justify our exercise of jurisdiction over Respondent in the first instance, wherein we sanctioned and enjoined her from the unauthorized practice of law. Moreover, as stated earlier, the current proceedings are not unauthorized practice proceedings, although that is the underlying infraction; rather, because this Court has previously entered an order enjoining Respondent from further engaging in the unauthorized practice of law, these proceedings are focused on whether Respondent should be held in contempt for violation of this Court’s August 25, 2005 order. The nature of these proceedings being contempt as opposed to unauthorized practice of law removes them from the purview of SCR 3.460, which provides for the appointment of a special commissioner. In these contempt proceedings, Respondent has been offered an adequate opportunity to show cause why she should not be held in contempt of this Court’s order. See Commonwealth v. Pace, 15 S.W.3d 393 (Ky.App., 2000). She has responded with a detailed explanation of the issues raised by her conduct and has submitted nine exhibits for the Court’s consideration. We now turn to whether Respondent has indeed shown sufficient cause that she should not be held in contempt of this Court’s 2005 Order.

Although Respondent is not admitted to practice law in this Commonwealth, Respondent has continuously operated a business, which she advertises as “Legal Self Help.” In 1994, the KBA received information indicating that Movant was selling legal forms, assisting customers in completion of the forms, and giving legal advice to customers, particularly concerning bankruptcy matters. This prompted an inquiry, followed by correspondence between the KBA and Respondent. The KBA obtained affidavits from two of Respondent’s customers, stating that Respondent had given them legal advice and had provided them with extensive assistance in completing bankruptcy forms. The end result of the KBA’s inquiry was a January 8, 1997 letter to Respondent. The letter noted, “You have also chosen to advertise in the Lexington Telephone Book under the ‘attorneys’ section, although you are not an attorney.” The letter directed Respondent to cease and desist the unauthorized practice of law.

Despite this directive, in 2004, the United States Bankruptcy Court in the Eastern District of Kentucky found Respondent and her “Legal Self Help” business guilty of engaging in the unauthorized practice of law, a decision affirmed on appeal. Consequently, upon the KBA’s motion, this Court ordered Respondent to show cause why she should not be held in contempt for violating the 1997 directive issued by the KBA. Respondent admitted that she had violated the 1997 directive. In an August 25, 2005 Order, this Court held Respondent in contempt and imposed a sanction of $1,500.00. Further, the Court, again, ordered Respondent to cease the unauthorized practice of law.

The current disciplinary proceeding arises from Respondent’s continued advertisement of her Legal Self Help business under the “Attorneys” section of the 2009-2010 edition of the Windstream Yellow Pages (Yellow Pages) for the Greater Lexington Metro Area. The ad proclaims “Low Cost Legal Self Help ... Over 22 years Helping Our Customers Save Costly Legal Fees ... Hundreds of Legal Forms.” Further, Respondent’s business was advertised under “Attorneys” on a refrigerator magnet attached to the front of the book. In August 2009, the Office of Bar Counsel (OBC) notified Respondent that this advertising contravened this Court’s 2005 Order. In her reply, Respondent attempted to shift the responsibility for the advertisement to Yellow Pages by attaching their advertising terms and conditions, which explain that they determine the listing headings and are authorized to refuse to publish an advertiser under a particular heading. Respondent asserted that her request for them to add other headings had not been approved.

The OBC requested documentation showing that Respondent had indeed asked that her business not be listed under the “Attorneys” heading and also requested that Respondent obtain an affidavit from a Yellow Pages employee, verifying that Respondent had no control over the placement of her advertisement in the phone book or on the cover magnet and further verifying that it was the Yellow Pages’ decision to list Respondent’s business under the “Attorneys” heading. Subsequently, Respondent stated that Yellow Pages was in the process of assigning a new representative to her area, who was supposed to contact her in mid-November 2009. She attached the same documentation as previously provided. In January 2010, OBC followed up with a phone call to Respondent, inquiring about the status of the requested affidavit. Her written response averred that Yellow Pages had advised her that the company was in the process of changing its name, that it was extending its publishing cycle for three months, and that a representative would contact her at that time. Respondent did not mention any efforts undertaken to obtain the previously requested affidavit.

Accordingly, on April 22, 2010 this Court ordered Respondent to show cause why she should not be held in contempt for violating this Court’s 2005 Order. In her response, Respondent seems to reason that a 2008 consent order and injunction issued by the United States Bankruptcy Court in the Eastern District of Kentucky proves that she is no longer engaged in the unauthorized practice of law. However, the 2008 Order appears to have been prompted by allegations of Respondent’s continued violation of the Order issued by the Bankruptcy Court in 2004. The 2004 Order found that Respondent had engaged in the unauthorized practice of law and, in addition to imposing fines, required Respondent to submit weekly reports of customers purchasing “bankruptcy kits,” essentially enabling the Bankruptcy Court to continually monitor her activities. This arrangement lasted until 2008 when yet another adversary proceeding was commenced, alleging further violations by Respondent; namely, that she was preparing bankruptcy petitions. The proceeding resulted in the aforementioned 2008 consent order and injunction wherein Respondent, without admitting any wrongdoing, agreed to cease selling bankruptcy forms and performing any acts constituting the practice of law in the area of bankruptcy. We fail to see how the 2008 Order provides a defense to Respondent’s violation of this Court’s 2005 Order.

Furthermore, the particular violation at issue here involves Respondent’s holding herself out as an attorney through Yellow Pages’ advertisements. On this issue, Respondent continues her attempt to shift responsibility for the advertisement to Yellow Pages. She attaches to her response an affidavit of a Yellow Pages employee representative. However, the affidavit does not comply with the information requested by the OBC. Rather, the affidavit, dated April 12, 2010, simply states that Respondent has requested that Yellow Pages add new headings but that Respondent understands that ‘Yellow Pages has full control over the Headings and Placement of the Advertisement and in no way promises that these new headings will be added.” Respondent avers that she was contacted by Yellow Pages about a month after the execution of this affidavit and she was informed that Yellow Pages would be adding the headings of “Attorney — Pro se, Attorney — Self Representation, Attorney-Self Help,” and that Respondent’s business would be listed under the new headings in the next publication in July 2010. Consequently, Respondent asks this Court to abate this matter until July 2010 when she can demonstrate compliance with this Court’s 2005 Order.

As already noted, however, the submitted affidavit does not indicate that Respondent had ever asked not to be listed under the “Attorneys” heading, the proof requested by the OBC. Moreover, other than Respondent’s vague statement that she had asked Yellow Pages in the past to add new headings, Respondent does not offer evidence of any past communication she had with Yellow Pages to prevent her ads from appearing under this inappropriate heading. In fact, there is no indication that Respondent even informed Yellow Pages that she was not an attorney. Instead, Respondent explains that her business has been listed under this heading for the past twenty-six (26) years and without complaint prior to the 2005 Order. However, Respondent was on notice as early as 1997 that advertising under this section was impermissible. In its 1997 directive, the KBA detailed the information that it had obtained of Respondent’s activities that constituted the unauthorized practice of law and explicitly noted ‘You have also chosen to advertise in the Lexington Telephone Book under the ‘attorneys’ section, although you are not an attorney.”

SCR 3.020 defines the practice of law as “any service rendered involving legal knowledge or legal advice, whether of representation, counsel or advocacy, in or out of court, rendered in respect to the rights, duties, obligations, liabilities, or business relations of one requiring the services.” This Court has recognized that “it is incumbent upon this Court to maintain the integrity of the profession by ensuring that those who hold themselves out to the public as attorneys are authorized to do so.” Hipwell v. Kentucky Bar Ass’n, 267 S.W.3d 682, 683 (Ky.2008).

In Kentucky Bar Ass’n v. Legal Alternatives, Inc., 792 S.W.2d 368 (Ky.1990), this Court found an Oregon corporation, which advertised and offered services in Kentucky, to be engaged in the unauthorized practice of law where no attorneys were employed by the corporation. Although it provided disclaimers in its literature, the corporation was assisting clients in filling out legal forms, particularly in bankruptcy filings, in exchange for a fee. The corporation ignored a cease and desist letter from the KBA and this Court held it in contempt for doing so and imposed a $5,000.00 sanction. Other jurisdictions have also concluded that holding oneself out as an attorney constitutes the unauthorized practice of law. In State ex rel. Indiana State Bar Ass’n v. Diaz, 838 N.E.2d 433 (Ind.2005), a non-lawyer who provided immigration services to clients promoted her services by identifying herself as a Notary Public. Significantly, the titles “Notario publico” or “Notario” refer to an elite class of lawyers in many Latin American countries. The Supreme Court of Indiana concluded that utilizing these titles on advertisements and business cards, absent a conspicuous disclaimer that she was not an attorney, was inherently misleading and constituted the unauthorized practice of law. See also In re Mittower, 693 N.E.2d 555 (Ind.1998) (holding that designations of “esquire,” “general counsel,” and “attorney-in-fact,” on business cards and letterhead by one who no longer held a license to practice law constituted the unauthorized practice of law).

In the instant matter, Respondent’s advertising of her Legal Self Help business under the “Attorneys” heading in the Yellow Pages and on the cover magnet, as well as the description of her services within the advertisements, create the misleading impression that she is providing legal services in the capacity of an attorney. Such actions directly contravene this Court’s August 25, 2005 Order. Further, Respondent’s purported defense is unpersuasive. Merely tendering a document that contains the Yellow Pages’ terms and conditions of advertising offers little support to Respondent’s defense. Although the tendered document confirms that Yellow Pages determines headings and has the right to refuse to publish an advertisement under a particular heading, Respondent failed to show that she made Yellow Pages aware of her true status or requested that her business not be listed under the “Attorneys” heading, or that the listing was, in any way, contrary to her own request. Furthermore, the affidavit of the Yellow Pages employee supports only that Respondent has attempted to rectify the violation after these proceedings were initiated; it offers no support that Respondent made any such efforts pursuant to the 1997 directive or the 2005 Order of this Court.

As such, we agree with the KBA that Respondent’s advertisements violate this Court’s 2005 Order to refrain from the unauthorized practice of law. Respondent was cautioned, as early as 1997, to refrain from advertising her business under the “Attorneys” section of the phone book. In light of Respondent’s extensive disciplinary history concerning the very matters at issue here, a sanction of $5,000.00 is imposed for Respondent’s continued contemptuous actions. Respondent is once again ordered to refrain from engaging in the unauthorized practice of law and we must also caution Respondent that each violation and sanction imposed for her unauthorized practice of law augments the disciplinary history that this Court will consider in imposing sanctions for future violations, if any, of the 2005 Order and this Order.

Accordingly, it is hereby ORDERED that:

1. Respondent is found to be in contempt of this Court for the unauthorized practice of law in violation of the August 25, 2005 Order of this Court.

2. Respondent is ordered not to engage in the unauthorized practice of law in the future.

3. Respondent is sanctioned for her contempt in the amount of Five Thousand Dollars ($5,000.00), to be paid to the Clerk of the Supreme Court for remittance to the General Fund of the Commonwealth within thirty (30) days of the date of the entry of this Order.

4. Respondent is responsible for costs or fees due or owing in connection with this action, if any, upon appropriate motion by the Kentucky Bar Association.

All sitting. All concur.

ENTERED: September 23, 2010.

/s/ John D. Minton, Jr. Chief Justice

      . Section 116 provides, in relevant part, that the Supreme Court "shall, by rule, govern admission to the bar and the discipline of members of the bar.”

      . The new heading proposed by Respondent, we note, still contains the word “attorney.”


author: Justice VENTERS.

text:
    HAZARD COAL CORPORATION; Whitaker Coal Corporation; Perry County Coal Corporation; Locust Grove, Inc.; and TECO Coal Corporation, Appellants, v. Larry J. KNIGHT and Eileen Knight, and, Larry E. Knight and Mary Knight, Appellees.
    No. 2008-SC-000735-DG.
    Supreme Court of Kentucky.
    Sept. 23, 2010.
    Rehearing Denied Dec. 16, 2010.

      Charles Justice Baird, Baird & Baird, P.S.C., Pikeville, KY, Paul Randall Collins, Hollon & Collins, Ronald Glenn Combs, Gullett, Combs & Bowling, Hazard, KY, Counsel for Appellants.
    Ronald Glen Polly, Polly & Smallwood, Whitesburg, KY, Counsel for Appellees.
   Opinion of the Court by

Justice VENTERS.

Appellants Hazard Coal Corporation, ■Whitaker Coal Corporation, Perry County Coal Corporation, Locust Grove, Inc., and TECO Coal Corporation appeal from a decision of the Court of Appeals that reversed a judgment of the Perry Circuit Court on the grounds that the Perry Circuit Court improperly conducted a bench trial in contravention of Appellees’ (Larry J. Knight, Eileen Knight, Larry E. Knight, and Mary Knight) demand for a jury trial in the proceedings. For the reasons explained below, we agree with the Court of Appeals’ conclusion that Appellees had not waived their right to a jury trial. However, we further determine that Appellants were entitled to summary judgment dismissing Appellees’ complaint. Accordingly, we reverse the Court of Appeals and remand the case to the Perry Circuit Court for entry of summary judgment in favor of Appellants, and dismissal of Ap-pellees’ claims.

I. FACTUAL AND PROCEDURAL BACKGROUND

Appellees are the owners of two contiguous tracts of surface property located on Fourseam Branch in Perry County. Appellants collectively are the owners of the minerals underlying the tracts and all of the rights and privileges thereunto granted by way of a severance deed filed in 1910 (hereinafter “Severance Deed”) which severed the coal, minerals, and mineral products from the surface property.

In connection with their coal mining operations in the area, Appellants use and maintain a three-mile long coal haul road, part of which runs across the surface property owned by Appellees. The road runs from Kentucky Highway 1096 to the Davidson Branch facility, which is a site used by Appellants for moving their coal through the distribution chain. This facility includes a tipple, coal processing machinery, and a unit train loading facility to load coal onto railroad cars. It is undisputed that, in order to transport coal into the facility, Appellants use the road to haul coal mined from other, non-adjacent mineral tracts in the area; to haul supplies into the facility; and to haul refuse out of the facility. It is the use of the road for these purposes, as opposed to its use to transport coal extracted from beneath Ap-pellees’ tracts or to remove coal as necessary from adjacent tracts that is the basis of this dispute.

Believing that Appellants were imper-missibly using the coal haul road, on September 30, 2002, Appellees filed a complaint in Perry Circuit Court alleging trespass by Appellants. More specifically, Appellees alleged that Appellants:

wrongfully entered upon and mined coal and hauled other coal across plaintiff[s]’ land, hauled rock, sludge, and waste from other land across plaintiffs’ land, and erected power lines upon and across plaintiffs’ land, otherwise used and utilized plaintiffs’ land, or caused others to do so, from plaintiffs’ land ... excavated the land and destroyed and removed timber there from, all owned by the plaintiffs, without right, title, claim, interest or authority, and without consent or permission from the plaintiffs, and thereby damaged, destroyed and wasted said land.

In addition, Appellants specifically demanded a jury trial upon all issues.

In their respective answers, Appellants denied trespassing upon Appellees’ surface property and asserted that they had the right to use the road in the manner complained of pursuant to the rights and privileges granted to them in the Severance Deed. Among other things, Appellants also pled as an affirmative defense an easement by prescription entitling them to employ the road as used. Like Appellees, all of Appellants except for Hazard Coal Corporation demanded a jury trial in their initial pleading.

The trial court denied the parties’ motions for summary judgment, and a jury trial was scheduled. However, at a pretrial conference a few days before the scheduled trial date, the trial court sua sponte announced that it would conduct a bench trial on all issues except damages because a jury would be unable to understand the case. Appellees did not thereafter challenge the trial court’s decision to have a bench trial. They appeared for the bench trial, announced ready, and fully participated in the proceeding.

Following the bench trial the trial court found “by a preponderance of evidence” that Hazard Coal had a prescriptive easement encompassing the coal haul road. Because of its ruling upon the prescriptive easement issue, the trial court found it unnecessary to address Appellants’ argument that the Severance Deed conferred them with the right to use the road. In their motion to alter, amend, or vacate, the Appellees argued, among other things, that the trial court denied them the jury trial upon all issues which they had demanded in their complaint. The motion was denied.

On appeal, the Court of Appeals determined that the trial court had improperly denied the Appellants’ right to trial by jury. Therefore it did not reach the merits of the prescriptive easement issue; nor, did it address the parties’ competing interpretations of the Severance Deed’s language.

We granted discretionary review to examine whether a party, after demanding a jury trial, may waive that right merely by failing to object to the trial court’s sua sponte declaration that it would hear the case by bench trial. Upon review, we agree with Appellees that the failure to conduct a jury trial was error. However, we further conclude that Appellants were entitled to summary judgment upon their claim that the Severance Deed entitles them to use the road to transport coal mined from non-adjacent tracts to the Davidson Branch facility and to transport refuse away from the facility.

II. APPELLEES DID NOT WAIVE THEIR RIGHT TO A JURY TRIAL

Appellants first contend that the Court of Appeals erred in its conclusion that Appellees did not waive their right to a jury trial after initially demanding one in their original complaint. They argue that waiver of that right occurred when Appel-lees did not object to the trial court’s announcement that it would cancel the jury trial and have a bench trial, and thereafter acquiesced to the bench trial by appearing, announcing ready, and fully participating in that proceeding. They contend that Appellees would have welcomed a favorable verdict at the bench trial, but only after losing at trial, did they object and seek a “second bite at the apple.”

A. The Trial Court’s Ruling

A jury trial was initially scheduled for February 24, 2006. However, during a pretrial conference on February 20, 2006, the trial court announced, sua sponte, that it would conduct a bench trial on all issues except damages. The court explained:

[Tjhere is no way that a jury can understand that part of it to even answer the questions, you all have not been able to even formulate the questions for them to answer. Therefore what I am going to do is this; I am going to have Friday a bench trial on the issue of whether or not that deed ... construction of the deed. I’m gonna hear all evidence on the use.... Then I’m gonna decide whether or not ... the actions of the company have ... violated ... the conditions of the deed.... I’ve got to hear all the facts and then I’ve got to apply the facts to my construction of the deed. I do not think a jury can do that. You all have convinced me of that.... Then if I decide one way then we will have a jury trial on damages; if I decide the other way we won’t....
I may be wrong, and I’m sorry if I’m not following the precedent of the Commonwealth of Kentucky, but you know, you got to realize I’m human, I’m trying to follow it_You know cite me something in the law that says I have to be right all the time.

The court further stated:

.... Do you all understand what I’ve done today and what we are going to do? Put on every bit of proof, like I say Mr. Polly [counsel for the Appellees]. I may decide against you, I may decide against them, but I’m going to hear every bit of the evidence.
.... We will resume at 9:00 o’clock Friday morning to have all your proof in. It will be a bench trial regarding the construction of the deed and usage.

Thus, the trial court left no doubt that the bench trial would be in lieu of a jury trial upon all issues, except upon the issue of damages if Appellees prevailed. Significantly, it is clear from the record that the trial court knew of the parties’ demands for a jury trial, but persisted with its decision.

B. Discussion

“The ancient mode of trial by jury shall be held sacred, and the right thereof remain inviolate, subject to such modifications as may be authorized by this Constitution.” Ky. Const. § 7. Our Constitution designates no other right as one which “shall be held sacred.” This right is incorporated into CR 38.01, which states as follows: “The right of trial by jury as declared by the Constitution of Kentucky or as given by a statute of Kentucky shall be preserved to the parties inviolate.” See also Meyers v. Chapman Printing Co., Inc., 840 S.W.2d 814, 819 (Ky.1992) (The Kentucky Constitution, Sec. 7, preserves “the ancient mode of trial by jury.” A “civil cause of action” for “damages sustained” is the classical textbook paradigm of an action at law wherein “[t]he constitution guarantees a trial by jury in cases of this character.”).

CR 38.04 provides that the failure to properly demand a jury trial acts as a waiver of the right, but also imposes, once the right is demanded, a significant restraint on the withdrawal of the demand. The rule states: “The failure of a party to serve a demand as required by this rule and to file it as required by Rule 5.05 constitutes a waiver by him of trial by jury. A demand for trial by jury made as herein provided may not be withdrawn without the consent of the parties (emphasis added).

Similarly, CR 39.01, imposes a strict, and unambiguous, procedural barrier to the waiver or withdrawal of a jury trial demand once having been made:

When trial by jury has been demanded as provided in Rule 38, the action shall be designated upon the docket as a jury action. The trial of all issues so demanded shall be by jury, unless (a) the parties or their attorneys of record, by written stipulation filed with the court or by an oral stipulation made in open court and entered in the record, consent to trial by the court sitting without a jury, or (b) the court upon motion or of its own initiative finds that a right of trial by jury of some or all of the issues does not exist under the Constitution or Statutes of Kentucky.

(emphasis added)

“The constitutional term ‘inviolate’ means that the right to trial by jury is unassailable. Henceforth, legislation and civil rules of practice shall be construed strictly and observed vigilantly in favor of the right and is not to be abrogated arbitrarily by the courts. The constitutional right to a jury trial cannot be annulled, obstructed, impaired, or restricted by legislative or judicial action.” Steelvest, Inc. v. Scansteel Service Center, Inc., 908 S.W.2d 104, 108 (Ky.1995). Moreover, as with statutes, we interpret the civil rules in accordance with their plain language. Lanham v. Commonwealth, 171 S.W.3d 14, 21 fn. 9 (Ky.2005).

The mandate of CR 39.01 is unmistakable in its clarity. Its plain and forthright language affords no other construction but that once a proper demand for a jury trial has been made, the trial shall be by jury unless there is either a written stipulation filed with the court, or an oral stipulation of waiver made in open court. “In common or ordinary parlance, and in its ordinary signification, the term ‘shall’ is a word of command and ... must be given a compulsory meaning.” Black’s Law Dictionary 1233 (5th ed.1979). “Shall means shall.” Vandertoll v. Commonwealth, 110 S.W.3d 789, 795-796 (Ky.2003).

Here, there is no dispute that Appellees properly demanded a jury trial in their complaint initiating the lawsuit; that they did not file a written stipulation with the court waiving their right to a jury trial; and that they did not orally stipulate in open court that they waived their right to a jury trial. As such, the result dictated by our civil rules could not be more certain — Appellees did not waive their right to a jury trial.

Appellants support their argument that the Appellees’ silence in the face of the trial court’s ruling waived the jury trial demand by directing our attention to Equitable Life Assurance Society of the United States v. Taylor, 637 S.W.2d 663 (Ky.App.1982) (overruled on other grounds by Louisville and Jefferson County Metropolitan Sewer Dist. v. Bischoff, 248 S.W.3d 533 (Ky.2007)). However, Taylor is distinguishable from this matter, because in that ease the plaintiff, L & M Oil and Gas Company (whose successor in interest, Equitable, was making the argument on appeal) had moved for a bench trial, and signed off on the order granting the motion. The relevant discussion from Taylor is as follows:

Constitutional rights are assurances given to each citizen of this Commonwealth that his interests will not be affected without specifically delineated safer guards. These rights are personal to each of us and cannot be circumvented or cast aside through the whims or caprices of others. However, this is not to say that should one wish not to avail himself of the protection which they offer, that he may not of his own volition choose affirmatively to deny their application. To state otherwise would be to reject the essence of freedom of choice upon which this nation was founded. Consideration, therefore, must be given to whether under the immediate facts there was an affirmative waiver of § 242’s mandate of jury determination of damages. The relevant Ohio Circuit Court Order states in its entirety: “On the Plaintiff’s Motion, these cases are set for trial before the Court on Monday, March 12, 1979. This the 2 day of March, 1979.” (Emphasis in original added.)
Appellant, the successor interest to Plaintiff below, suggests that the Order was prepared by Defendants (appellees herein) and that no motion in support of the Order from Plaintiff appears in the record. Indeed the Order does reflect preparation by Defendants, but it also clearly recites that it was upon Plaintiffs motion and bears the “Have Seen” signature of Plaintiffs counsel.
No challenge to the wording of the Order was heard. Furthermore, on March 12 Plaintiff participated without objection in the hearing before the Court on the damage matter. Allegiance must be given to the time-worn but still vital axiom that a Court speaks through its' records. There is not an iota of evidence in the record before this Court to indicate that such should not apply in this instance. The conclusion must be reached that Plaintiff below affirmatively waived its right to jury determination of damages.

Id. at 665.

Thus in Taylor, according to the wording of the order, the bench trial was effectively initiated by the party claiming a violation of its right to a jury trial, and counsel for opposing party physically signed off on the order setting a bench trial without objection. In this respect, there was a written stipulation in the record waiving the plaintiffs right to a trial by jury- Accordingly, we are unpersuaded that Taylor is controlling under the facts of this case.

Appellants also cite Jones v. Gardner, 262 Ky. 812, 91 S.W.2d 520, 528 (1936), for the principle that “a party taken by surprise during the trial must act promptly and will not be allowed to take a chance of getting a verdict, and then if he loses demand a new trial.” While this rule remains a vital and important principle, nevertheless, we again note that the error at issue here is of constitutional dimensions. We have previously stated “[tjhere is a presumption against the waiver of constitutional rights, and for a waiver to be effective it must be clearly established that there was ‘an intentional relinquishment or abandonment of a known right or privilege.’” Parson v. Commonwealth, 144 S.W.3d 775, 792 (Ky.2004). As demonstrated by our discussion, here, this constitutional standard for waiver is not met.

It is clear from the record that the trial court was aware of Appellees’ demand for a jury trial. There was no necessity to bring the issue to the trial court’s attention in order to preserve the argument. In this vein, we further note that our holding addresses the case where the trial court is, from the record, clearly aware of the jury demand, but chooses to proceed otherwise.

In summary, CR 38 and CR 39 require that once a jury trial has been demanded, there are only two ways the demand can be waived: by written stipulation appearing in the record; or by oral stipulation in open court. As proper waiver under neither method occurred in this case, the Court of Appeals properly held that Appel-lees did not waive their right to have all issues tried by a jury.

Ill THE RIGHTS AND PRIVILEGES GRANTED UNDER THE SEVERANCE DEED ENTITLED APPELLANTS TO SUMMARY JUDGMENT

Since we have affirmed the Court of Appeals upon the jury trial issue, Appellants ask us to address the argument that the trial court erred by failing to grant summary judgment dismissing Appellees’ claims of trespass, on the grounds that Appellants’ use of the road was authorized by, and in accordance with, the Severance Deed.

As further explained below, we conclude that there are no genuine issues of material fact concerning Appellants’ disputed use of the road in its coal operations, and that the sole issue remaining is therefore one of deed construction. The nature and extent of Appellants’ actual use of the road is not disputed. As further explained below, by our interpretation, Appellants’ use of the road is authorized by the rights and privileges granted to them under the Severance Deed. Pursuant to the language of the deed, Appellants are entitled to transport coal mined from non-adjacent tracts across the coal-haul road to the Davidson Branch facility; to move materials across the road to supply the facility; and to transport refuse from the facility. We therefore conclude that Appellants were entitled to summary judgment upon the issue, and remand for entry of an order dismissing Appellees’ claims with prejudice.

“The general rule under OR 56.03 is that a denial of a motion for summary judgment is, first, not appealable because of its interlocutory nature and, second, is not reviewable on appeal from a final judgment where the question is whether there exists a genuine issue of material fact.” Transportation Cabinet, Bureau of Highways, Com. of Ky. v. Leneave, 751 S.W.2d 36, 37 (Ky.App.1988). There is, however, an exception to this rule that applies where: “(1) the facts are not in dispute, (2) the only basis of the ruling is a matter of law, (3) there is a denial of the motion, and (4) there is an entry of a final judgment with an appeal therefrom.” Id. Because requirements for the foregoing exception to the general rule are met in this case, we choose to, as the parties have requested, review the trial court’s denial of Appellants’ motion for summary judgment.

In support of its position that it was entitled to summary judgment based upon construction of the Severance Deed, Appellants cite us to the following language from the deed:

[The grantor does hereby sell and convey unto the grantee ].... the exclusive rights-of-way for any and all Railroads and ways and pipelines that may hereafter be located on said property by the “Grantee,” its successors or assigns, under authority of said “Grantee,” or assigns, in, under, concerning or appurtenant to the hereinafter described tract of land, together with the right to enter upon said lands, use and operate the same, and surface thereof and to make use of and for this purpose divert water courses thereon in any and every manner that might be deemed necessary or convenient for mining and removing therefrom, or otherwise utilizing the product of said minerals, and for the transportation therefrom of said articles, and the right to use of such, as well as for the removal of the products taken out of any other land owned or hereafter acquired by the “Grantee.

(emphasis added).

We first note that, “[t]he construction and interpretation of a contract, including questions regarding ambiguity, are questions of law to be decided by the court.” First Commonwealth Bank of Prestonsburg v. West, 55 S.W.3d 829, 835 (Ky.App.2000). Accordingly, our review on appeal is de novo, without deference to the trial court’s legal conclusions. Id.; see also Spot-A-Pot, Inc. v. State Resources Corp., 278 S.W.3d 158, 161 (Ky.App.2009). “ ‘[I]n the absence of ambiguity a written instrument will be enforced strictly according to its terms,’ and a court will interpret the contract’s terms by assigning language its ordinary meaning and without resort to extrinsic evidence.” Frear v. P.T.A. Industries, Inc., 103 S.W.3d 99, 106 (Ky.2003) (citations omitted). “A contract is ambiguous if a reasonable person would find it susceptible to different or inconsistent interpretations.” Cantrell Supply, Inc. v. Liberty Mut. Ins. Co., 94 S.W.3d 381, 385 (Ky.App.2002) (citation omitted).

We further note these additional general principles that are applicable to the Severance Deed:

In the absence of further rights expressly conveyed or reserved, the surface rights of a mineral owner are limited to so much of the surface and such uses thereof as are reasonably necessary properly to mine and carry away the minerals. Where the grantee of minerals owns adjoining land through or over which it is practicable for the grantee to mine and remove the minerals granted, the grantee is not entitled to use the surface over the minerals for mining purposes because it is more convenient for the grantee.
A mineral owner may not use the surface owned by the grantor in producing, marketing, or in any way handling the mineral produced on other or adjacent lands, unless and except to the extent that such rights may be given by the grant. Thus, a mineral owner generally has no right to use the surface of one tract to aid in the mining of another tract, even though such owner owns the minerals under both.
Surface rights incident to mining may be expressly granted in the conveyance of the mineral rights. Where specified surface rights are expressly granted or reserved in connection with the mineral rights, the intention of the parties, as determined by the general rules of construction, govern in determining the extent of the mineral owner’s rights and liability for compensation for the use of the surface. Where certain surface rights are specifically granted, the court may not add to such enumerated rights other rights not specifically set forth in the conveyance.

58 C.J.S. Mines and Minerals § 214 (2009) (footnotes omitted).

Moreover, “[u]nder a deed such as this, the grantee may make a reasonable use of all of the rights conferred upon it by the terms of the deed without incurring liability for damages, but it may make no use of the surface that is unauthorized without being responsible therefor.” Pike-Floyd Coal Co. v. Nunnery, 232 Ky. 805, 24 S.W.2d 614, 615 (1929). Further, a severance deed “should be construed most strongly against grantors in such deeds, and in favor of the grantees. But the rule can be invoked only when there is an ambiguity in the deed.” Id. (citations omitted).

Upon examination of the applicable provisions of the deed, we conclude that Columbia Gas Transmission Corp. v. Consol of Kentucky, Inc., 15 S.W.3d 727 (Ky.2000), is dispositive. In Columbia Gas, we construed the following language contained in a 1903 coal severance deed:

[The grantor conveys to the grantee] the exclusive rights-of-way for any and all railroads, tram roads, haul roads and other ways, pipe lines, telephone and telegraph lines that may hereafter be located on said land by the parties of the first part, their heirs, representatives or assigns, or by the party of the second part, its successors or assigns, or by any person or corporation with or without the authority of either of said parties, their, or its, heirs, representatives, successors or assigns....

Id. at 729 (emphasis added).

In Columbia Gas, we noted that this language was typical of broad form deeds, commonly known as “Northern form” deeds, used at the time. The operative language of the Columbia Gas deed reads: “[The grantor conveys to the grantee] the exclusive rights-of-way for any and all railroads, tram roads, haul roads and other ways....” Comparison with the deed under present consideration discloses that the language is virtually identical: “[The grantor does hereby sell and convey unto the grantee] ... the exclusive rights-of-way for any and all Railroads and ways....” While there are slight wording differences between the two deeds, as relevant to our review, the important point is that both conveyed “exclusive rights-of-way for any and all ... ways.” Thus, the deed language analyzed in Columbia Gas is functionally indistinguishable from the language in the Severance Deed before us.

As explained in Columbia Gas, this broad form language grants the mineral holder full “easement-granting power with respect to the surface estate,” which is tantamount to “complete ownership of the surface as concerns right-of-way uses[.]” Id. at 729-730. Our full analysis upon the point was as follows:

Citing Harry Caudill, Theirs Be the Power: The Moguls of Eastern Kentucky (U. of Ill. Press 1983) and Carolyn Clay Turner and Carolyn Hay Traum, John C.C. Mayo Cumberland Capitalist (Pikeville College Press 1983), Appellant asserts that Northern Coal and Coke Company used its Northern form of deed to acquire mineral interests in hundreds of thousands of acres of land in eastern Kentucky. On three occasions, our predecessor court was called upon to interpret the meaning of the so-called “easement-granting” clause quoted above. On each occasion, the clause was held to convey to the grantee of the mineral estate the easement-granting power with respect to the surface estate. In Cornett v. Louisville & Nashville R. Co., 298 Ky. 95, 182 S.W.2d 230 (1944), the owner of the surface estate sought to enjoin the grantee of a Northern form deed from granting an easement to a railroad company for the construction of a commercial railroad line across the surface of the property. The surface owner asserted that the easement-granting clause only pertained to easements appurtenant to the mineral estate, i.e., those easements necessary for the mining and removal of coal or other minerals from beneath the surface of the property. The Court held that the easement-granting clause contained no such restriction and that the owner of the mineral estate possessed the sole power to grant a railroad right-of-way easement across the surface estate.
In Louisville & N.R. Co. v. Quillen, Ky., 242 S.W.2d 95 (1951), the railroad sought to condemn a right-of-way across property severed by a Northern form deed. The issue was whether the condemnation proceeds were payable to the surface owner or to the owner of the mineral estate. It was held that the owner of the mineral estate, as owner of the easement-granting power, was entitled to the proceeds. (During the pen-dency of the litigation, the railroad purchased the right-of-way from the holder of the mineral estate, so the upshot was that the railroad was entitled to repayment of the condemnation proceeds which it had previously paid into court.) In Elk Horn Coal Corp. v. Kentucky-West Virginia Gas Co., Ky., 317 S.W.2d 472 (1957), the issue was whether the owner of the mineral rights to forty-eight separate tracts of land could enjoin the construction of a pipeline across the surface of those tracts. The plaintiff had acquired its interest in some of the tracts by Northern form deeds and in others by deeds which did not contain an easement-granting clause. The plaintiff was held entitled to relief with respect to the tracts acquired by Northern form deeds, but not with respect to tracts acquired by other forms of deed. The opinion had this to say about the easement-granting clause in the Northern form deeds:
The Cornett and Quillen cases clearly uphold the claim of the coal corporation here that the mineral deeds gave it complete control over rights of way, and negative the contention of the gas company that the mineral deeds conveyed only appurtenant easements.
The simple answer to this argument is, that the deed did not purport to convey an easement, but rather ownership of the surface as concerned future grants of easements. The grantee did not receive a mere easement, but the easement-granting power.
As hereinbefore indicated in this opinion, we think the coal corporation had complete ownership of the surface as concerns right of way uses, and was not limited to appurtenant easements .... M at 475, 476 (emphasis in original).

Id. at 729-730.

As demonstrated by the above discussion, because the Severance Deed was a broad form, Northern deed, the grantee (Appellants’ predecessor in interest) was conveyed under the deed ownership of the easement-granting power with respect to the surface estate of the Appellees’ tracts.

This interpretation comports well with the Severance Deed’s plain language. A “right of way” is defined as “[t]he right to pass through property owned by another.” Blank’s Law Dictionary (8th ed.2004); 25 Am. Jur.2d., Easements and Licenses, § 5 (2010). See also Sprint Communications Co., L.P. v. Leggett, 307 S.W.3d 109, 115 (Ky.2010). The Severance Deed conveyed the original grantee “exclusive” rights of passage “for any and all” (which is self-defining) “ways.” A “way,” as used here, is defined as “1. A passage or path. 2. A right to travel over another’s property.” Black’s Law Dictionary (8th ed.2004). Thus, by its plain language, the deed conveyed to the original grantee the exclusive right to pass across the Knight tracts for “any and all” purposes.

The language of the deed conveying any and all rights of way must be construed to mean what it says: any and all rights of way. It follows that it was within the power of the successors in interest to that right, Appellants, to grant themselves an easement for the purpose of transporting coal mined from non-adjacent tracts across the surface to the tipple; transporting supplies to the tipple; and transporting refuse back out of the tipple.

In summary, based upon our interpretation of the Severance Deed as discussed above, Appellants were entitled to summary judgment upon their defense that the deed language granted them the right to use the coal haul road consistently with their past and current practices.

IV. CONCLUSION

For the foregoing reasons the judgment of the Court of Appeals is reversed, and the matter is remanded to the Perry Circuit Court for entry of judgment consistent with this opinion.

All sitting. MINTON, C.J., ABRAMSON, CUNNINGHAM and SCHRODER, JJ., concur. NOBLE, J., concurs in result only. SCOTT, J., concurs in result only, as, in his opinion, Appellees waived their right to a jury trial.

      . Only the claim relating to the coal haul road is before us.

      2. CR 5.05 addresses the general rules for the filing of a complaint and other pleadings and papers with the office of the clerk.

      . In using the plural "parties,” the rule mandates that if any of the parties demands a jury trial, then all parties must agree to a waiver of the demand. In this vein, we note that all parties to the proceeding, excepting Hazard Coal, demanded a jury trial. Thus, it is not only the Appellees’ demand that is at issue.

      .There is no allegation that section (b) of the rule applies under the facts of this case.

      . (quoting Johnson v. Zerhst, 304 U.S. 458, 464, 58 S.Ct. 1019, 82 L.Ed. 1461, (1938)). See also Barber v. Page, 390 U.S. 719, 725, 88 S.Ct. 1318, 20 L.Ed.2d 255 (1968) (also applying Zerbst's definition of a waiver); Illinois v. Allen, 397 U.S. 337, 343, 90 S.Ct. 1057, 25 L.Ed.2d 353 (1970) (citing Zerbst).

      . The parties do disagree on the length and continuity of the use. While this would be relevant to summary judgment upon the issue of whether the Appellants have a prescriptive easement, it is not relevant upon the issue of whether the deed authorizes the disputed use.

      . The Broad Form Deed Amendment, Ky. Const. § 19(2), which was approved in 1988, is not applicable to the present situation. "Section 19(2) was intended and should be applied herein only to prohibit strip mining operations conducted pursuant to broad form deeds in the absence of the surface owner’s consent.” Karst-Robbins Coal Company, Inc. v. Arch of Kentucky, Inc., 964 S.W.2d 419, 425 (Ky.App.1997).

      . In Elk Horn Coal Corp. v. Kentucky-West Virginia Gas Co., 317 S.W.2d 472, 474 (Ky.1958) the Northern form deed language is stated as follows: " ' * * * exclusive rights-of-way for any and all railroads, tram roads, haul roads and other ways, pipe lines, telephone and telegraph lines that may hereafter be located on said land by the parties of the first part, their heirs, representatives or assigns, or by the party of the second part, its successors or assigns, or by any person or corporation with or without the authority of either of said parties, their, or its heirs, representatives, successors or assigns, and also the right to maintain, keep in repair and operate the same and said railroads, tram roads, haul roads, ways, pipe lines, telephone and telegraph lines, * * *[.]’ ”