Casebeer v. Alliance Mut. Cas. Co.
| Decision Date | 17 May 1969 |
| Docket Number | No. 45338,45338 |
| Parties | Charles H. CASEBEER, Plaintiff-Appellant, v. ALLIANCE MUTUAL CASUALTY COMPANY, Defendant-Appellee. |
| Court | Kansas Supreme Court |
Syllabus by the Court
The record in an action filed pursuant to K.S.A. 44-512a is examined, and, as fully set forth in the opinion, it is held: The district court erred in sustaining the insurance carrier's motion for summary judgment and in dismissing the plaintiff's action. It is further held that district court erred in overruling the plaintiff's motion for summary judgment and in failing to enter judgment in favor of the plaintiff.
Jack O. Bowker, McPherson, argued the cause and was on the brief, for plaintiff-appellant.
Evart Mills, McPherson, argued the cause, and Michael T. Mills and William S. Mills, McPherson, were with him on the brief, for defendant-appellee.
This was an action by Chares H. Casebeer to recover the entire amount of compensation awarded to him by the judgment of the McPherson district court on March 24, 1967, by reason of the failure of his employer's insurance carrier to pay all compensation due within twenty days after demand on May 13, 1967, as provided in K.S.A. 44-512a. The appeal arises out of the following:
On April 12, 1965, Charles H. Casebeer, hereafter referred to as the plaintiff, sustained an accidental injury in the course of his employment. On August 5, 1965, he commenced a proceeding before the Workmen's Compensation Director to recover compensation from his employer-brother, J. W. Casebeer, d/b/a Casebber Oil Operations, and his insurance carrier, Alliance Mutual Casualty Company, hereafter referred to as Alliance. The application was heard by a workmen's compensation examiner, and on May 9, 1966, an award of compensation was made in favor of the plaintiff and against the employer and Alliance for 22 weeks of temporary total disability at the rate of $42 per per week totaling in the sum of $924 which was ordered paid in one lump sum, and fifteen percent permanent partial general disability for 393 weeks at the rate of $7.18 per week, together with various medical expenses.
Thereafter, the plaintiff made timely written request to the Director of Workmen's Compensation to review the award pursuant to K.S.A. 44-551. Upon review, and on July 16, 1966, the Director modified the award by increasing the weekly compensation to $12.93 per week. Based upon his findings, the Director awarded compensation for 22 weeks of temporary total disability at the rate of $42 per week, or the sum of $924, and 393 weeks of permanent partial disability at the rate of $12.93 per week based upon a fifteen percent disability to the body as a whole. The Director found that as of July 17, 1966, there was due and owing the plaintiff for temporary total disability the sum of $924 plus 45 weeks of permanent partial disability at the rate of $12.93 per week in the amount of $581.85, or a total sum of $1,503.93, all of which was ordered paid in a lump sum less any amount previously paid by the employer and Alliance. The remaining 348 weeks were ordered paid at the rate of $12.93 per week until fully paid or until the further order of the Director. In addition, the Director ordered the payment of the plaintiff's medical expenses in the amount of $2,988.08, which amount was not in dispute if the plaintiff was entitled to compensation.
The employer and Alliance timely perfected an appeal from the award of the Director to the McPherson district court, case No. 13,813, and Alliance made weekly payments to the plaintiff of $12.93 per week pursuant to K.S.A. 44-556, for a total of $308.20 during the pendency of the appeal.
On March 24, 1967, the appeal was heard and the district court made no separate findings of its own, but adopted the Director's findings and award in all respects, and entered judgment in favor of the plaintiff accordingly.
On the same day, March 24, 1967, the employer and Alliance filed notice of appeal to the supreme court, appealing from the district court's judgment in favor of the plaintiff. However, they failed to comply with the provisions of 44-556 by paying compensation awarded by the district court and no compensation, including medical expenses, was paid during the pendency of the appeal.
On the following day, March 25, the plaintiff served upon Alliance his statutory demand pursuant to 44-512a for all compensation then due and unpaid.
Three days later, March 28, 1967, the plaintiff served notice of his cross-appeal upon the employer and Alliance that he was cross- appealing from the order overruling his motion to dismiss their appeal from the award of the Director to the district court, and for failure of the district court to increase the amount of compensation to be awarded him in accordance with the evidence.
The employer and Alliance failed to pay compensation within twenty days in accordance with the plaintiff's written demand of March 25, or as required by 44-556, and on May 13, 1967, the plaintiff served a second statutory demand upon Alliance pursuant to 44-512a for all compensation then due and unpaid, and demanded payment within twenty days of the entire amount awarded by the judgment of the district court, and for failure to pay the same, an action would be commenced for the collection of the entire amount awarded to said judgment in like manner as for the collection of a debt.
On August 2, 1967, the employer and Alliance having again refused to comply with the plaintiff's written demand, he commenced this 44-512a action against Alliance in the district court, case No. 13,976. His petition sought recovery of the entire amount of compensation awarded by the judgment of the district court, including temporary total disability and permanent partial disability in the amount of $6,005.49, and medical expenses in the sum of $2,988.08. Paragraph 5 of the plaintiff's petition alleged that Alliance, as the employer's insurance carrier, had assumed all obligations of the employer under the Workmen's Compensation Act and that the action was brought by reason of the unjust refusal of Alliance to pay the compensation awarded, and sought recovery of attorney's fee under K.S.A. 40-256 in the amount of $2,799.59. The prayer was that the plaintiff recover judgment against Alliance in the amount of $5,410.71, together with medical expenses in the amount of $2,988.08, and for attorney's fee in the sum of $2,799.59, or a total amount of $11,198.39, for costs of the action, and for such other relief as just and proper.
On September 13, 1967, Alliance filed its answer to the plaintiff's petition and admitted that on March 24, 1967, the district court entered an award of workmen's compensation in favor of the plaintiff; that plaintiff had made proper demand upon it for payment of the same under 44-512a; that no weekly compensation had been paid subsequent to March 24, 1967, and that none of the medical expenses had been paid. Alliance alleged the award of compensation had been appealed to the supreme court, and that the appeal was set for hearing on October 3, 1967. Alliance denied all other allegations not specifically admitted.
On a date not disclosed by the record, but following the filing of Alliance's answer, the plaintiff filed a motion for summary judgment on the grounds that the answer stated no defense to the plaintiff's cause of action, and that there was no genuine issue as to any material fact existing between the parties.
On October 6, 1967, a pretrial conference was had. Upon consideration of the arguments and stipulations of counsel, the pleadings, affidavits, depositions, and interrogatories submitted, the court made the following order.
'A Whether by reason of K.S.A. 44-512a and K.S.A. 44-556 the total amount of the judgment in Case No. 13,813 is due from the defendant to the plaintiff in the present case, which is Case No. 13,976, whether or not Case No. 13,813 is reversed.
'The Court further allowed the plaintiff to amend the figure shown in the last line of the first paragraph of his motion for summary judgment from $9,399.80 to $8,399.80.
'It is by the Court further ordered that further pretrial of this matter be continued to November 17, 1967.' (Emphasis supplied.)
On October 30, 1967, and in accordance with paragraph 4 A of the court's pretrial order, the plaintiff filed his amended petition and eliminated paragraph 5 thereof relating to the recovery of attorney's fee (see Walker v. Davis Van & Storage Co., 198 Kan. [203 Kan. 429] 452, 424 P.2d 473...
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