ANGELETE G. WILDER v. SHIRLEY JONES NOONCHESTER, AND EDWARD NOONCHESTER, JR.Annotate this Case
RENDERED: August 1, 2003; 2:00 p.m.
TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
ANGELETE G. WILDER
APPEAL FROM BELL CIRCUIT COURT
HONORABLE JAMES L. BOWLING, JR., JUDGE
ACTION NO. 00-CI-00238
SHIRLEY JONES NOONCHESTER,
AND EDWARD NOONCHESTER, JR.
** ** ** ** **
COMBS, McANULTY, AND SCHRODER, JUDGES.
Angelete G. Wilder appeals the circuit court’s
dismissal of her personal injury claims against Shirley Jones
Noonchester and Edward Noonchester, Jr. in an automobile
The court dismissed her claim against the
Noonchesters because she failed to amend her complaint to name
them as parties within the statute of limitations prescribed by
Kentucky Revised Statutes (KRS) 304.39-230(1).
The court found
that the statute of limitations began to run on the date of the
last PIP payment.
Wilder argues that the statute of limitations
began to run on the date that the medical service provider
deposited the check issued by the PIP provider.
error, we affirm.
Angelete G. Wilder (Wilder) sustained injuries when
her automobile struck one of two horses standing in a public
highway in Bell County, Kentucky on May 25, 1999.
The record in
the court below established that Kentucky Farm Bureau Insurance
Company made Wilder’s final Personal Injury Protection (PIP)
payment to the medical service provider, PT of Pineville, on
October 25, 1999.
Subsequently, Wilder filed a complaint on May
25, 2000, naming Stephen F. Jones, owner of the horses, as the
After initial discovery, Wilder sought to amend her
complaint to include Shirley Jones Noonchester and Edward
Noonchester, Jr. (Noonchesters), owners of the land where the
horses were maintained, as parties to the action.
29, 2001, the trial court granted Wilder’s motion to amend her
complaint, and Wilder filed an amended complaint the following
The Noonchesters moved to dismiss the amended
complaint alleging that it was barred by the limitations
provision of KRS 304.39-230.
Wilder did not file a response to
the Noonchester’s motion to dismiss.
The trial court found that
Wilder’s cause of action against the Noonchesters was barred by
the statute of limitations and issued an order of partial
dismissal with prejudice in favor of the Noonchesters.
The sole issue on appeal is whether the two-year
statute of limitations under KRS 304.39-230 had run.
alleges that the mere issuance of a draft by a PIP provider does
not represent payment of benefits under KRS 355.4A-401, and
therefore, she filed her amended complaint within the statutory
Notwithstanding the fact that Wilder did not properly
preserve her argument for our review because she failed to
respond to the Noonchester’s motion to dismiss, even if we now
consider her argument on the merits, her position is
See Barnard v. Stone, Ky., 933 S.W.2d
394, 396 (1996) (holding that question not raised at the trial
court level was not properly preserved for appellate review).
The applicable statute for determining the limitations period
for filing a lawsuit in this case is KRS 304.39-230.
Under KRS 304.39-230, a provision of the Motor
Vehicles Reparations Act, if reparation benefits, such as PIP
payments, have been paid, an action for further benefits “may be
commenced not later than two (2) years after the last payment of
Thus, KRS 304.39-230 extends the limitations period
from the one-year statute of limitations for personal injury
actions to “two years for actions ‘with respect to accidents
occurring in this Commonwealth and arising from the ownership,
maintenance or use of a motor vehicle,’ when not ‘abolished’ by
Bailey v. Reeves, Ky., 662 S.W.2d 832, 833 (1984)
(citing the Motor Vehicle Reparations Act, KRS Chapter 304,
Moreover, KRS 304.39-230 would be applicable to
Wilder’s cause of action against the Noonchesters even though,
as owners of the land, they are nonmotorists.
See id. at 835.
Accordingly, the date the PIP provider made the last payment to
the medical service provider begins the running of the two-year
statute of limitations.
See Lawson v. Helton Sanitation, Inc.,
Ky., 34 S.W.3d 52, 57 (2000).
In other words, the date the PIP
provider issued the check is the date the PIP provider “made”
See id. at 56-7.
In this case, the date that the PIP provider made the
payment was October 25, 1999.
Thus, the statute of limitations
ran on October 25, 2001; and, since Wilder did not amend her
complaint until October 30, 2001, it is time-barred.
Wilder directs us to KRS 355.4A-401 in support of her
proposition that the statute of limitations began to run on
November 2, 1999, the date the service provider deposited the
check issued by the PIP provider; however, Wilder’s reliance on
KRS 355.4A-401 in determining the date of payment is improper.
“Payment orders,” as defined in KRS Chapter 355 (Kentucky’s
Uniform Commercial Code), Article 4A, refer to direct funds
transfers, commonly known as “wire transfers,” between banking
institutions rather than payment of medical bills by drafts
issued by insurers.1
In determining the appropriate date as to the statute
of limitations, we may only consider evidence contained in the
record and introduced to the trial court for its review.
Barnard, 933 S.W.2d at 396.
In this case, Wilder attempted to
introduce evidence through her Civil Appeal Prehearing Statement
as well as in her January 25, 2002 brief suggesting that the
actual date of her final PIP payment was November 2, 1999,
rather than October 25, 1999, as established by the record
before the trial court.
We may only consider the PIP worksheet
filed below that establishes that Kentucky Farm Bureau’s last
date of payment to Wilder was October 25, 1999.
trial court properly concluded that Wilder’s amended complaint
was barred by KRS 304.39-230.
See generally David J. Leibson & Richard H. Nowka, The Uniform Commercial
Code of Kentucky § 5.1 (2d ed. 1992) (“In the funds transfer process, no such
tangible item [check] is involved, and no money of the paying party is
actually transferred. Rather, by means of payment orders, and acceptance of
such orders by the banks involved, the account of the obligor in its bank is
depleted by the amount of the obligation, and the account of the obligee is
enhanced by the same amount.”)
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Angelete G. Wilder, Pro se
Gerald L. Greene
Greene & Lewis