Citizens State Bank v. Seaboard System Railroad , 1991 Ky. App. LEXIS 13 ( 1991 )

MILLER, Judge,

concurring in part and dissenting in part.

I concur with the majority on the issues relating to trial. I dissent as to diminishing the award. I would order each tort-fea-sor to pay the entire award to the personal representative for literal distribution under Kentucky Revised Statutes (KRS) 411.130.

I agree that Bays v. Cox’ Adm’r, 312 Ky. 827, 229 S.W.2d 737 (1950), is based upon the premise that one should not benefit from his intentional (criminal) act, and that the court erred in extending the rule to negligence cases. However, in my opinion, Bays is no longer authority for the issue at hand. At the time it was decided, the doctrine of joint and several liability was entrenched. The jury in Bays apportioned damages, but not fault. The judgment fixed the responsibility as between the defendants but did not attempt to alter the rights of the plaintiff as against the defendants as joint tort-feasors. As to the plaintiff, each defendant was therefore liable for the whole. We have now come to the point where the jury apportions both damages and fault, not only fixing the rights of the plaintiff against all defendants, but also the rights of the defendants among themselves. See Dix & Associates Pipeline Contractors, Inc. v. Key, Ky., 799 S.W.2d 24 (1990), and Prudential Life Ins. Co. v. Moody, Ky., 696 S.W.2d 503 (1985). If one overlooks Bays as resting upon an improper premise, the case may nevertheless have had some merit in the days of joint and several liability, but it has none now. Theoretically, the rule would have prevented a joint wrong-doer from benefit-ting by collecting the totality of damages, which he helped bring about, from his co-tort-feasor(s). Today, such is improbable.

In holding that each tort-feasor should pay the personal representative the amount of the award for literal distribution under KRS 411.130, I see no offense to public policy. Certainly, if Mr. Anderson had maintained an accident policy on his wife, he would have been entitled proceeds, to collect the