RICKY WALLACE, A MINOR BY AND THROUGH HIS MOTHER, JOYCE BOGGS v. COMMONWEALTH OF KENTUCKY, TRANSPORTATION CABINET; DEPARTMENT OF HIGHWAYS; AND KENTUCKY BOARD OF CLAIMS
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RENDERED:
AUGUST 30, 2002; 10:00 a.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
2001-CA-001469-MR
RICKY WALLACE, A MINOR
BY AND THROUGH HIS MOTHER,
JOYCE BOGGS
APPELLANT
APPEAL FROM LETCHER CIRCUIT COURT
HONORABLE SAMUEL T. WRIGHT, JUDGE
ACTION NO. 01-CI-00007
v.
COMMONWEALTH OF KENTUCKY,
TRANSPORTATION CABINET;
DEPARTMENT OF HIGHWAYS; AND
KENTUCKY BOARD OF CLAIMS
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
BARBER, COMBS, AND JOHNSON, JUDGES.
BARBER, JUDGE:
We are asked to overturn the decision of the
Kentucky Supreme Court in Haney v. Transportation Cabinet, Ky.,
958 S.W.2d 310 (1997), which holds that KRS 44.070(1) requires a
Board of Claims award to be reduced by Social Security disability
benefits.
Being bound by this precedent, we must affirm.
The appellant is Ricky Wallace (“appellant”), a minor,
by and through his mother, Joyce Boggs.
On May 8, 1993,
appellant was severely injured in a motor vehicle accident on
Kentucky Highway 805 in Letcher County.
On May 4, 1994,
appellant filed a claim with the Board of Claims against the
Transportation Cabinet, Department of Highways, alleging that the
“claimant was a passenger in an automobile being operated by
Richard Wallace, which skidded when coming into contact with
gravel and debris left upon the highway by the agents of the
Commonwealth of Kentucky . . . .”
On December 21, 2000, an
”Agreed Facts, Stipulation and Judgment Dismissing Claim,” was
entered in the Board of Claims action.
The parties agreed that
under Haney, ”the right to receive social security payments, even
though not received at the present time, operates as a collateral
set-off, . . . .”
The parties further agreed that the claimant
would not receive any money from the Transportation Cabinet under
current law, despite any finding of liability.
The parties
agreed to a dismissal and that in the event of appellate review
and reversal, the issue of liability and any defenses thereto,
could be fully and finally determined without any waiver.
On January 5, 2001, appellant filed a “Petition for
Review/Appeal from Judgment Dismissing Claim,” in the Letcher
Circuit Court.
On July 6, 2001, the circuit court entered a
judgment affirming.
On July 11, 2001, appellant filed a notice
of appeal to this Court.
On appeal, appellant urges us to overturn Haney, a 4-3
decision.
In Haney, the Supreme Court, citing its earlier
decision in Commonwealth of Kentucky, Transportation Cabinet,
Bureau of Highways v. Roof, Ky., 913 S.W.2d 322 (1996),
reiterated that the Commonwealth is not obligated to make payment
-2-
to injured parties because of the protections provided by the
doctrine of sovereign immunity.
Ky. Const. § 231.
The General
Assembly may waive immunity, if at all, to the extent it sees
fit.
At the time Haney was decided, the maximum award available
in the Board of Claims was $100,000.00,1 regardless of actual
loss.
KRS 44.070(1): provides, in pertinent part, that:
“[A]ny damage claim awarded shall be reduced by the amount of
payments received or right to receive payment from . . . social
security programs . . . .”
The Supreme Court explained that:
In Roof, we held that the clear language of
KRS 44.070(1) required reduction from the
maximum [Board of Claims] award available
($100,000) for basic reparation benefits and
sums received from private insurance. This
Court now holds that the clear language of
the statute ("payments received or right to
receive payment from ... social security
programs") requires reduction from the
maximum award available for Social Security
disability payments.
Id. at 311.
The dissent stated that “[i]nterpreting this statute to
require a reduction in an award when there is no double recovery,
leads to an unjust result that is neither necessary or in accord
with legislative intent.
compound our error here.”
We wrongly decided Roof, and we
Id. at 312.
1
KRS 44.070(5) was amended effective 7-14-2000, and now provides
that “a single claim for the recovery of money or a single award of
money shall not exceed two hundred thousand dollars ($200,000)
. . . .”
-3-
On appeal, appellant argues that the set off for Social
Security benefits should apply to the total amount of damages
sustained; any remaining damages should be paid by the Board of
Claims, not to exceed the $100,000.00 statutory cap (in effect at
the time).
We are bound to follow Haney, under SCR 1.030(8)(a)
which provides that “[t]he Court of Appeals is bound by and shall
follow applicable precedents established in the opinions of the
Supreme Court and its predecessor court.”
Thus, we affirm.
We affirm the Letcher Circuit Court’s judgment.
JOHNSON, JUDGE, CONCURS.
COMBS, JUDGE, CONCURS BY SEPARATE OPINION IN WHICH
JOHNSON, JUDGE JOINS.
COMBS, JUDGE, CONCURRING: Sadly, I am compelled to
concur due to the mandate of SCR 1.030 (8)(a), which allows this
court no option to deviate from the Haney precedent.
It is my
fervent hope that the Supreme Court will re-visit this issue and
abandon the harsh reality inevitably flowing from Haney and that
it will reverse the Haney reasoning.
JOHNSON, JUDGE, CONCURS IN THIS OPINION.
BRIEF FOR APPELLANT:
NO BRIEF FILED FOR APPELLEE.
Lawrence R. Webster
Pikeville, Kentucky
-4-
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