Burke v. Aid Ins. Co.

• Decision Date: 18 January 1980
• Docket Number: Civ. A. No. 78-1327,78-1328.
• Citation: Burke v. Aid Ins. Co., 487 F.Supp. 831 (D. Kan. 1980)
• Court: U.S. District Court — District of Kansas
• Parties: Marie R. BURKE, Executor of the Estate of Leo V. Burke, deceased, and individually and on behalf of the heirs of Leo V. Burke, deceased, Plaintiff, v. AID INSURANCE COMPANY, Defendant. Mildred M. MEIER, Executor of the Estate of Meinard Meier, deceased, and individually and on behalf of the heirs of Meinard Meier, deceased, Plaintiff, v. AID INSURANCE COMPANY, Defendant.

487 F. Supp. 831

Marie R. BURKE, Executor of the Estate of Leo V. Burke, deceased, and individually and on behalf of the heirs of Leo V. Burke, deceased, Plaintiff, v.AID INSURANCE COMPANY, Defendant.

Mildred M. MEIER, Executor of the Estate of Meinard Meier, deceased, and individually and on behalf of the heirs of Meinard Meier, deceased, Plaintiff, v.AID INSURANCE COMPANY, Defendant.

Civ. A. Nos. 78-1327, 78-1328.

United States District Court, D. Kansas.

January 18, 1980.

COPYRIGHT MATERIAL OMITTED

Gerald W. Scott of Matlack, Foote, Scott, Joseph & Wilkinson, Wichita, Kan., for plaintiff.

Thomas J. Berscheidt of Ward & Berscheidt, Great Bend, Kan., for Aid Ins. Co.

Christopher Randall of Turner & Boisseau, Wichita, Kan., for Nat. Farmers Union Property & Cas. Co.

MEMORANDUM AND ORDER

THEIS, Chief Judge.

These cases come now for decision on plaintiffs' motions for partial summary judgment.The disputes underlying these cases stem from the same traffic accident and raise identical questions of law.

On May 24, 1975, Leo V. Burke, Meinard M. Meier and James Meier, Meinard Meier's minor son, were traveling in an automobile owned by Hodgeman County Highway Department, and insured by the defendant, Aid Insurance Company.Meinard Meier was driving.The automobile was struck by another vehicle.That accident was the sole fault of the second vehicle.That car was driven by a minor, and the minor's father was in the second car.There is no dispute that the accident was the result of the negligence of the minor driver or the negligence of the minor's father.Both of these individuals were admittedly uninsured motorists.

The car in which Leo V. Burke, Meinard M. Meier, and James Meier were traveling was one of a fleet of automobiles owned by Hodgeman County, Kansas, a governmental body, insured under a policy containing uninsured motorist coverage.The policy limits of this coverage was $15,000 per person, to a maximum of $30,000 per accident.A total of 44 vehicles were covered under this policy with similar coverage.

Leo V. Burke, Meinard M. Meier and James Meier were all severely injured as a result of that accident.Leo Burke incurred medical expenses in a sum in excess of $15,000.Meinard Meier incurred medical expenses in a sum exceeding $7,000.James Meier settled his claim based on the uninsured motorist coverage for $8,500, and is not of concern in this suit.

Mildred M. Meier and Marie R. Burke, as executors for the estates of Meinard Meier and Leo Burke, respectively, are suing to recover the sum of $750,000 for the damages for the injuries and wrongful death of each decedent, of which amount they claim $600,000 is due under the uninsured motorist insurance policy coverage.In this present motion the plaintiffs are seeking summary judgment on the issue of "stacking" the insurance policies so as to increase the policy limits, and are also seeking a determination as to the payment of the seemingly undisputed liability of the company and are seeking appropriate attorney fees and interest.

In considering a motion for summary judgment, the Court must examine all the evidence in the light most favorable to the non-moving party.Mogle v. Sevier County School District,540 F.2d 478, 482(10th Cir.1976), cert. denied, 429 U.S. 1121, 97 S.Ct. 1157, 51 L.Ed.2d 572(1977);Frey v. Frankel,361 F.2d 437, 442(10th Cir.1966).The burden is upon the moving party to prove his entitlement to summary judgment beyond a reasonable doubt.Madison v. Deseret Livestock Co.,574 F.2d 1027, 1037(10th Cir.1978);Mustang Fuel Corp. v. Youngstown Sheet & Tube Co.,516 F.2d 33, 36(10th Cir.1975).Where different inferences can be drawn, the case is not one for summary judgment.United States v. Diebold,369 U.S. 654, 655, 82 S.Ct. 993, 994, 8 L.Ed.2d 176(1962).Where a party has supported a sufficient summary judgment motion with evidence, the party opposing it must respond with specific facts showing the existence of genuine issues of material fact for trial.Perington Wholesale, Inc. v. Burger King Corp.,No. 77-1877(10th Cir.1979);Stevens v. Barnard,512 F.2d 876, 878(10th Cir.1975).Mere conclusory allegations do not serve to establish a genuine issue of material fact.Murphy v. Hallmark Cards, Inc.,No. 78-4138(D.Kan. filed 2-16-79)."A trial court need `not look with indulgence upon a party who has presented neither evidentiary material in opposition nor any reason for his failure to do so.'"Trustees of Kansas Building Trades Open End Health and Welfare Fund v. Kane, Bills & Bender Construction Company, Inc., No. 75-143-C5(D.Kan. filed 11-14-79), quoting6 Moore's Federal Practice¶ 65.23, p. 1391.

In support of plaintiffs' motion for summary judgment, plaintiffs have annexed to their motions a number of documents.These are drawn from a number of sources, including the defendant's files.The authenticity of these documents seems to have been stipulated.The defendant submitted no evidence in resisting the motions.This Court's role in these summary judgment motions is to determine if the plaintiffs have adequately supported by documentation their motions for summary judgment, and whether the arguments of the defendant in resisting the motions raise reasonable inferences from the evidence which would create a genuine issue of material fact.The major bone of contention which this Court must decide is not a factual issue, but rather is purely a legal issue.

I.STACKING OF INSURANCE POLICIES

The plaintiffs in these two suits are seeking to increase the maximum policy limits to a total of $660,000 per person, instead of the coverage of $15,000 per person which the defendant asserts is proper.The plaintiffs argue that the insurance policy covered forty-four cars.A separate consideration was paid for uninsured motorist coverage for each vehicle.In effect, forty-four separate insurance policies covered the forty-four vehicles.The plaintiffs then claim that the policy definition of "insured" is such that the plaintiffs' decedents were included in the coverage of all of these policies.The plaintiffs' claim that the coverage afforded by each of these policies should be aggregated to cover the plaintiffs' decedents for injuries, up to the extent of those injuries, or to the maximum of $600,000 (44 × 15,000) per person.

The defendant contends that this stacking should not be permitted.

The plaintiffs' position is not totally unjustified, in the light of precedential authority and an attorney's ever existent duty to apply the field of law and his ingenuity of thought to sustain his client's interest.Prior Kansas cases have allowed stacking in certain circumstances.The leading Kansas case in this area is Sturdy v. Allied Mutual Ins. Co.,203 Kan. 783, 457 P.2d 34(1969).In that casethe Court allowed the plaintiff to aggregate the uninsured motorist insurance coverage on his two personal cars so as to permit recovery for injuries sustained while driving a motorcycle.A single policy covered his two automobiles, yet a separate premium was collected for each car for the uninsured motorist coverage.The Kansas court analyzed the coverage afforded under the policy and concluded that those policy limits could be stacked.See also, Rossen v. Allied Mutual Ins. Co.,203 Kan. 795, 457 P.2d 42(1969).

Stacking was also allowed in Clayton v. Alliance Mutual Casualty Co.,212 Kan. 640, 512 P.2d 507(1973), andWelch v. Hartford Casualty Ins. Co.,221 Kan. 344, 559 P.2d 362(1977).Both of those cases involved plaintiffs who were guests in cars owned and insured by others at the time of the accident.The plaintiffs in those cases were allowed to stack uninsured motorist coverage which they personally had, on top of the host's uninsured motorist coverage, up to the extent of their injuries.

Based on these cases, the plaintiffs argue that stacking should be permitted.The defendant argues that these cases are all distinguishable.All of the Kansas cases dealt with attempts by policy holders to aggregate insurance they had purchased for themselves or insurance which was purchased for their benefit as family members.No case dealt with a "guest" attempting to aggregate his "host's" insurance.The defendant urges that various "classes" of insureds should be recognized.The defendant urges that individuals covered, whether or not riding in a specified car, should be treated differently than individuals who are covered solely because of their presence in a car.

This Court believes that the defendant's position is solidly based on Kansas law and is well supported by the reasoning underlying the Kansas cases allowing stacking.

The Kansas Supreme Court recognized the distinction between a named insured who is covered in all circumstances and individuals who are covered only while occupying that vehicle, in Sturdy v. Allied Mutual Ins. Co.,supra.In that case, the Kansas court closely examined the policy and sought to determine its intended meaning.In this regard, the Court noted:

"to be insured, the latter i. e. people insured by their presence in the vehicle must actually be occupants of an insured vehicle.Their coverage is tied to and limited to actual occupancy of a particular automobile.This is not true of the named insured.His coverage . . . is not tied to or limited by occupancy of an automobile."203 Kan. at 791, 457 P.2d at 480.

The Court noted that the named insured possesses a "broad reservoir of coverage" because that coverage is not tied to occupancy of the vehicle.By paying two premiums, the insured purchased two "broad reservoirs" of coverage.This overlapping protection allowed the insured to stack the policies.

Individuals who are covered only while they are occupying a vehicle do not have the same "broad reservoir of coverage."The payment of a premium to cover a second vehicle creates no new "broad reservoir" upon which guests in the first vehicle could draw.The reasoning which led the ...