In June of 2013, the Court of Appeals of Kentucky heard a case involving a Louisville personal injury reparations case where the issue was whether or not the lawsuit was filed within the two years after the last payment was made by a reparations obligor. (See Beaumont v Muluken, 2013 WL 3237216 (Ky. App. 2013)).
In this Louisville personal injury case the plaintiff was injured when the defendant ran a stop sign and struck her car on April 24, 2008. Id. She received personal injury protection “PIP” benefits. Id. The PIP benefits began on May 15, 2008 and continued for over one year. Id. Plaintiff’s Louisville personal injury lawyer wrote the PIP carrier a letter asking when the last payment was made. The PIP carrier responded that the last payment was made on September 25, 2009. Id.
Plaintiff’s Louisville personal injury lawyer filed the car accident lawsuit on September 21, 2011, within the two years of the last PIP payment. But, the defendant argued that the lawsuit was untimely filed because it had a letter from the PIP carrier dated August 13, 2009 that indicated that the PIP had been exhausted. It turns out that the check sent on September 25, 2009 to Kentucky Orthopedic Rehab Team, LLC was a reissue of a check originally sent on March 17, 209, to Springhurst Physical Therapy. The check was reissued after the new company informed the PIP carrier that the old check had been lost. Id.
The lower court granted the defendant’s motion for summary judgment on the statute of limitations grounds. Id. The pertinent part of the Kentucky Motor Vehicle Reparations Act that was cited was “an action for tort liability not abolished by KRS 304.39-060 may be commenced not later than two (2) years after the injury, or the death, or the last basic or added reparation payment made by an y reparation obligor, whichever later occurs.” (cites omitted). So, the court had to decide if the last payment made was the August 13, 2009 check or the reissued check on September 25, 2009.
Plaintiff’s Louisville personal injury lawyer argued that the two-year period should e calculated from the date the bank honors the insurer’s check. Id. The Louisville personal injury lawyer argues that the court should follow this UCC law. But, it is well established in Kentucky that for purposes of KRS 304.39-230(6), payment occurs when the insurer issues the check. Id.
So, plaintiff’s Louisville personal injury lawyer in the alternative argued that the last check “made” for purposes of calculating the limitations period was the September 21, 2009 check. But, this court, like the lower court, rejected that argument as well. That argument had been made before and was denied. This court citing another court held the second check to not count and the lawsuit to be untimely because, “the date a check is received or deposited has nothing to do with the date of final payment. Final payment is the date the last check is cut, dated, or “made.” That date was …. The …. Check was not a check “made” for additional services, but a replacement check between MRI and State Farm.” (cites omitted).
The court further stated that although we are not bound by the holding of this unpublished opinion, we see no reason to deviate from its reasoning. Although it is unfortunate that (the PIP carrier) provided the date of the reissued check as the date of final payment in responding to (plaintiff’s Louisville personal injury lawyer), inquiry, the PIP ledger shows a total amount paid of $10,400, which should have prompted further inquiry into the sequent of payments. Id.
If you have been the subject of a Louisville personal injury case, please call and speak to a Louisville personal injury lawyer at the Law Offices of Andrew Alitowski, P.A. at 888-ASK-ANDREW (888-275-2637) or contact us. We are available 24 hours a day, 7 days a week.
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