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Stanley v. Star Community Taxi3/7/2003
he ownership, maintenance, or use of a motor vehicle is "abolished" for damages because of bodily injury, sickness or disease to the extent the basic reparation benefits provided in this subtitle are payable therefor,...
There is nothing in the record on appeal to indicate whether appellants collected basic reparation benefits for the injuries they sustained. Nevertheless, the statute excludes the statutory amount to the extent the benefits are"payable," and regardless of whether the injured party was insured. Stone v. Montgomery, Ky. App., 618 S.W.2d 595 (1981). Therefore, we agree with appellee that the first $10,000 of the damages for personal injury is excluded under the above statute. We discern no reason why this statutory provision would be inapplicable where a default judgment was entered and the claim was raised post-judgment. Therefore, the amount which may be set off shall be adjudged by the court upon remand.
For the foregoing reasons, we reverse the order of the Jefferson Circuit Court which set aside the default judgment in this case. We remand for further proceedings consistent with this opinion.
TACKETT, JUDGE, CONCURS.
BUCKINGHAM, JUDGE, CONCURS BY SEPARATE OPINION.
BUCKINGHAM, JUDGE, CONCURRING BY SEPARATE OPINION.
I agree with the majority opinion that the trial court erred in setting aside the default judgment against the appellee/cross-appellant. According to the Sunrise Turquoise case cited in the majority opinion, a party moving to set aside a default judgment must show a valid excuse for default, a meritorious defense to the claim, and the absence of prejudice to the non-defaulting party. Id. at 859. Furthermore, the court in that case held that " bsent a showing of all three elements, the default judgment will not be set aside." Id. In the case sub judice,it does not appear that the appellee/cross-appellant has attempted to offer any valid excuse for the default. Rather, contrary to the holding in Sunrise Turquoise, it argues that all three elements need not be shown in order to set aside a default judgment.
The appellee/cross-appellant argues that the Sixth Circuit has not required a showing of all three elements in order to set aside a default judgment under the corresponding federal rules of civil procedures. See Berthelsen v. Kane, 907 F.2d 617 (6th Cir. 1990). It seems to me that the approach by the Berthelsen case makes more sense than the approach in the Sunrise Turquoise case, particularly where the party moving to set aside the default judgment was in default due to mere negligence rather than willful action. Nevertheless, I will reluctantly follow the precedent that this court set in the Sunrise Turquoise case in 1995.
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