Beaumont vs. Zeru Muluken, COA, NPO, 6/28/2013 (pending motion for discretionary review before the Kentucky Supreme Court) produces a horrendous result with the clear and succinct analysis found in the dissent rather than the majority opinion. To follow the status of the MDR, click here for the case information page at the Court of Appeals.
Basically, the Court of Appeals held that a claimant receiving personal injury protection benefits cannot rely upon the assertion, even if mistaken, by the reparations obligor aka PIP insurer for the last date of PIP payment upon which to calculate the statute of limitations. In this case, the PIP carrier notified the insured’s attorney by letter (not ledger) that the last pip payment was a certain date, and suit was timely filed based upon that date. But, and this is a big but, it later turns out that the date the reparations obligor stated in their letter was not the last date of PIP payment but rather the date a check was RE-issued to a provider (the assumed name of a provider). The same entity but a different name.
My practice has been typically to write the reparations obligor to confirm in writing the last date of the PIP payment and letting them know that I am relying upon that date for statute of limitations (SOL) purposes. If one cannot rely upon anything from the insurer after the two year anniversary of the car collision, then the rule is simple – file before the two year anniversary and kick the cases to a litigious posture.
I also write for confirmation because not every insurer provides a complete and understandable PIP ledger delineating the date of payments, whether PIP or med-pay, or even a ledger at all!
COMBS, JUDGE, DISSENTING: The reasoning of the majority opinion is persuasive in its reliance on Wehner v. Gore – albeit an unpublished opinion. Nonetheless, I must dissent because there is an additional factor in the case before us that distinguishes it from all other pertinent precedent. That element is the affirmative representation by letter dated July 29, 2010, by Cincinnati Insurance that the last PIP payment had been made by the issuance of the check of September 25, 2009, to Kentucky Orthopedic Rehab Team, LLC.
Beaumont timely filed her lawsuit in legitimate reliance on the date that could only be provided by Cincinnati Insurance. Date of payment is not involved (and need not be) since the question posed and answered was date of issuance of the final check. That is the sole question before us.
Sound and time-honored principles of estoppel should apply to prevent Cincinnati Insurance from denying this critical representation. The case should be permitted to proceed.
And now a word from the majority:
MOORE , JUDGE: Bonita Beaumont appeals the Jefferson Circuit Court’s dismissal of her personal injury claims against Muluken Zeru in this automobile accident case. At issue is whether Beaumont’s complaint was timely filed under Kentucky Revised Statutes (KRS) 304.39-230(6), which specifies in pertinent part that a tort action must be filed within two years after the last payment made by a reparations obligor.
The pertinent provision of the Kentucky Motor Vehicle Reparations Act, (KMVRA) provides that “[a]n action for tort liability not abolished by KRS 304.39-060 may be commenced not later than two (2) years after the injury, or the death, or the last basic or added reparation payment made by any reparation obligor, whichever later occurs.” KRS 304.39-230(6). Thus, if the last payment made was the August 13, 2009, check to Jewish Hospital, Beaumont’s action is barred as untimely; if it was the reissue of the check on September 25, 2009, her action may proceed.
An almost-identical argument was addressed and rejected by a panel of this Court in an unpublished opinion, Wehner v. Gore, 2006 WL 2033894 (Ky. App. 2006) (2005-CA-000689-MR). In that case, the claimant Wehner’s reparations obligor, State Farm Insurance Company, paid the last PIP payment to Nicholasville Road MRI on December 13, 2000. This last payment exhausted Wehner’s PIP benefits. The check to MRI was either not received or lost, and MRI asked State Farm to reissue the check. State Farm issued a new check on August 13, 2001. Wehner filed her complaint on July 14, 2003, more than two years after the first check to MRI was issued.
In reliance on Wilder, the opinion held that her suit was untimely, because the date a check is received or deposited has nothing to do with the date of final payment. Final payment is the date the last check is cut, dated, or “made.” That date was December 13, 2000. The August 13, 2001, check was not a check “made” for additional services, but a replacement check between MRI and State Farm.
Although we are not bound by the holding of this unpublished opinion, we see no reason to deviate from its reasoning. Although it is unfortunate that Cincinnati Insurance provided the date of the reissued check as the date of final payment in responding to Beaumont’s attorney’s inquiry, the PIP ledger shows a total amount paid of $10,400, which should have prompted further inquiry into the sequence of payments.
The order of dismissal is therefore affirmed. TAYLOR, JUDGE, CONCURS.