United States Fidelity & Guaranty Co. v. Preston ( 2000 )

JOHNSTONE, Justice,

Dissenting.

The majority interprets the phrase “legally entitled to recover” to mean that an insured must only prove: (1) the fault of the uninsured motorist; and (2) the extent of damages caused by the uninsured motorist. I have no quarrel with this interpretation in general. As pointed out by the majority, a number of jurisdictions interpret the phrase this way. Further, the interpretation does not appear to be inconsistent with Kentucky law. However, as applied to the facts of this specific case, the majority’s interpretation of the phrase is Orwellian. It can only be described as an exercise in obfuscation to reach a desired result that is contrary to the very words of the contractual provision it purports to interpret. That provision provides:

We will pay all sums the insured is legally entitled to recover as compensatory damages from the owner or driver of an uninsured motor vehicle.

Pursuant to the Georgia judgment — a valid, legal judgment — Preston is entitled to recover no compensatory damages against West, the uninsured motorist. Preston did not have to bring the lawsuit against West in Georgia in order to recover uninsured motorist benefits from USF & G. Puckett v. Liberty Mutital Insurance Co., Ky., 477 S.W.2d 811, 814 (1972). However, once she did bring suit and that lawsuit was reduced to judgment, the damages she was legally entitled to recover from West were necessarily determined by that judgment. To say otherwise is to say that water is not wet. To hold otherwise is to ignore our duty to uphold the rule of law.

Therefore, I dissent.

COOPER and KELLER, JJ., join this dissent.