holding that without “actual compensatory damages, punitive recoveries cannot be sustained”
How later courts described this case
- holding that without “actual compensatory damages, punitive recoveries cannot be sustained”
- sustaining punitive damage award if plaintiff suffered injury for which compensatory damages might be awarded
Written by the judges who cited it.
The opinion
VANCE, Judge,
dissenting.
I believe there are issues of fact which preclude entry of a summary judgment. The majority opinion states that in seeking a summary judgment the movant shifts the burden to the opposing party to submit supportive information that material factual issues exist. I believe the duty to “go forward” arises only when the moving party has made a prima facie case that no factual issue exists by affidavit or other evidence. The motion for summary judgment does not, in itself, require the party opposing the motion to do anything.
In this case it is admitted that the father of the injured infant had not rejected no-fault insurance provisions. The issue is whether this bars an action on behalf of the infant to recover for his injuries. The majority opinion holds that because no rejection of no-fault was made on behalf of the infant the action is barred as a matter of law. That position would be correct if KRS 304.39-060(2)(a) is applicable to this infant. That section abolishes tort liability to the extent basic reparations are payable, but KRS 304.39-060(2)(a) preserves the right to maintain an action for one who is not an owner, operator, maintainer or user of a motor vehicle.
The majority holds that the issue of whether the parents of the infant were uninsured motorists was raised in a memorandum in support of the summary judgment and appellant’s failure to respond to the issue by establishing that the infant was a nonuser is sufficient to sustain the summary judgment. In my opinion the appellants had no duty to establish that the infant was a nonuser until appellee presented at least a prima facie case that no question of fact existed but that he was a user. Simply raising this point in a memorandum does not rise to the dignity of a prima facie showing.
If the infant was a user then the question arises as to when he became a user because under KRS 304.39-060(4) the parent had the right to reject no-fault at any time within six months of the date that the act became applicable to the infant; to-wit, when he became a user.
Finally an issue is raised as to the constitutionality of the act as it applies to this infant. Fann v. McGuffey, Ky., 534 S.W.2d 770 (1975), sustained the constitutionality of the act insofar as it related to the right of a parent to subject an infant to the provisions of the act by a failure to reject no-fault, but *477 in doing so it clearly based its decision upon the fact that it was the infant’s use of the highway, not the waiver by the parent, which brought the child within the provisions of the act. The Court stated:
The argument that a parent waives his child’s right to sue by failing to exercise the right of rejection for him misses the point that it is the child’s act in using an automobile, or the parent’s act in causing or permitting him to do so, that subjects him to the limitations imposed by the no-fault law. . . . Fann v. McGuffey, supra, at 778 .
The provisions of the act are deemed to have been accepted not by use of the highways as a pedestrian, but by the registration, operation, maintenance or use of a “motor vehicle” upon the highways. I do not find that appellee made a prima facie case that the infant had ever used a “motor vehicle” upon the highways of this state, or registered, operated or maintained one. Until that fact is established prima facie, I do not see how appellee could be entitled to summary judgment.