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Commonwealth5/13/2005
AFFIRMING
BEFORE: GUIDUGLI AND TAYLOR, JUDGES; EMBERTON, SENIOR JUDGE.
This is an appeal by the Commonwealth of Kentucky, Transportation Cabinet, Department of Highways, from a judgment of the Green Circuit Court affirming an order of the Board of Claims awarding $50,000 to Boyce Phillip Milby Jr., as executor of the estate of his deceased wife, Dorothy Milby. We find that the Board of Claims acted within the scope of its authority and that the award is supported by substantial evidence.
Dorothy Milby was killed on May 31, 1998, when she drove into a flooded area on Kentucky Highway 61 in Green County and her vehicle was swept into a creek. Boyce Milby, as executor of the estate, timely filed a claim with the Board of Claims alleging that the Department of Highways had actual or constructive notice of the flooding of Kentucky 61 and failed to give proper warning to motorists or to correct the problem.
On June 17, 1999, the Board dismissed the claim because the estate, Boyce, and Dorothy's daughter received life insurance and other private benefits totaling $110,610, an amount in excess of the then statutory maximum of $100,000. Specifically, Boyce directly, as Dorothy's husband, received the proceeds of a life insurance policy in the amount of $50,000; insurance benefits from Continental Casualty Company in the amount of $5,610; and life insurance from the Taylor County Bank in the amount of $5,000. Dorothy's daughter received directly $5,610 from a life insurance policy issued by Continental Casualty Company. As executor, Boyce received $40,000 from Benefit Management Services payable to the Estate of Dorothy Milby. The estate also recovered $10,000 in personal injury protection benefits from Kentucky Farm Bureau.
Boyce appealed and on January 5, 2000, the circuit court reversed and remanded the case to the Board for the taking of evidence and ultimately for a decision in the case. The Cabinet appealed from the January 5, 2000, order and this court dismissed the appeal because the circuit court's order was interlocutory and not a final order.
Following an evidentiary hearing, the Board dismissed Boyce's claim. Boyce appealed to the circuit court and again the case was reversed and remanded to the Board for the purpose of making additional findings on the issue of whether the Cabinet had actual or constructive notice of the flooding at the accident site; whether the flooding caused the highway to become dangerous; and whether adequate safeguards were taken or warnings given.
On December 19, 2002, the Board rendered a final order finding that the Cabinet had actual or constructive notice of the flooding, that the flooding caused the highway to become dangerous, and that no adequate safeguards were taken or warnings given. The Board then determined damages to the estate by reason of destruction of Dorothy's earning capacity to be $169,296. Boyce Milby, as executor of the estate, was awarded $50,000 the maximum recoverable after offsetting the $50,000 received by the estate from private sources.
The Cabinet appealed and the circuit court affirmed. We now consider the Cabinet's appeal to this court.
The Cabinet argues extensively that the January 5, 2000, interlocutory order contains three errors of law and seeks to have this court correct these alleged errors. In that order, the circuit court held that Boyce and Dorothy's daughter each could recover damages individually. The Cabinet points out that only one claim was filed, that by Boyce for the estate, and that collateral claims for loss to one other than the claimant are excluded under KRS 44.070(1).
Following the dismissa
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