Chance v. Farm Bureau Mut. Ins. Co., Inc.
| Decision Date | 03 January 1991 |
| Docket Number | No. 89-1599-C.,89-1599-C. |
| Citation | 756 F. Supp. 1440 |
| Parties | Danny CHANCE, Plaintiff, v. The FARM BUREAU MUTUAL INSURANCE COMPANY, INC., Defendant. |
| Court | U.S. District Court — District of Kansas |
Danny Chance, Oklahoma City, Okl., pro se.
Paul Hasty, Jr., Wallace, Saunders, Austin, Brown & Enochs, Overland Park, Kan., for defendant.
This matter comes before the court upon Farm Bureau Mutual Insurance Company, Inc.'s (Farm Bureau) (defendant) motions to dismiss and upon Danny Chance's (plaintiff) motion to dismiss without prejudice. The primary issue in this case is whether Kansas law would permit recovery by a plaintiff under the uninsured motorist provision of the insured's (co-employee's) policy, where the plaintiff was injured in a work-related motor vehicle accident and where the co-employee/vehicle operator had liability insurance, but where the exclusive remedy clause of the workers' compensation act bars the plaintiff's tort claim against the co-employee.
A brief chronology best explains the current posture of this case. On November 17, 1984, Chance was injured in an automobile accident while in the general vicinity of Liptom, Texas. At the time of the accident, Chance was traveling in an automobile owned and operated by Leonard Stover. Stover was a fellow employee of Chance's; at the time of the accident the two were acting within the course and scope of their jobs with the Unit Drilling Company. The accident was allegedly caused by the negligence of Leonard Stover.
At the time of the accident, Stover's automobile was covered by a policy of automobile liability insurance issued by Farm Bureau. The insurance policy provided for, among other things, liability coverage, medical expenses and uninsured motorist coverage. The policy provided coverage to any occupant of the auto.
Following the auto accident, Chance recovered workers' compensation benefits for injuries he sustained as a result of the auto accident. Under the law of Oklahoma, an injured worker cannot sue a fellow employee as the workers' compensation scheme is the injured worker's exclusive remedy.1
On November 17, 1989, Chance filed suit against Farm Bureau, basically alleging the facts described above. Chance alleges two causes of action. In Count I, Chance contends that Stover, because he is immune from suit due to his status as a fellow employee, was an uninsured motorist within the terms of the Farm Bureau policy. Chance therefore contends that he, as an "insured," should be allowed to access the uninsured motorist coverage. In Count II of the complaint, Chance seeks compensation for Farm Bureau's alleged bad faith denial of his uninsured motorist claim.
On February 8, 1990, Farm Bureau filed motions to dismiss both counts of Chance's complaint. On March 9, 1990, Chance filed a memorandum in response to Farm Bureau's motions to dismiss. Chance's memorandum did not address Farm Bureau's motion to dismiss Count II.
On September 13, 1990, Chance moved for dismissal without prejudice, pursuant to Fed.R.Civ.P. 41(a)(2) and K.S.A. 60-518, based upon his physical condition. On September 20, 1990, Farm Bureau responded in opposition to Chance's motion to dismiss without prejudice. Farm Bureau contends that, notwithstanding Chance's illness, the court should rule on Farm Bureau's February 8, 1990, motions to dismiss. Farm Bureau contends that the court should rule on the motions as they are, if granted, totally dispositive of plaintiff's claim.
The court concludes that it is appropriate to rule on the February 8, 1990, motions to dismiss as they are dispositive of the plaintiff's claims. "Under Rule 12(b)(6), dismissal is inappropriate unless plaintiff can prove no set of facts in support of his claim to entitle him to relief." Thatcher Enterprises v. Cache County Corp., 902 F.2d 1472 (10th Cir.1990). The issues presented by this case are purely questions of law; therefore the fact that Chance is apparently ill does not affect the court's ability to rule on the dispositive motions.
Chance contends that because the exclusive remedy of the workers' compensation scheme bars suit against Stover, Stover is, in essence, an "uninsured" motorist. According to Chance's analysis, this factual scenario should enable him to access Stover's uninsured motorist coverage. Farm Bureau contends that this argument is frivolous. The heart of Farm Bureau's argument centers on the fact that Stover's automobile is covered by liability insurance. Therefore, by the terms of the insurance policy, Chance cannot access the uninsured motorist coverage because the car in which he was injured was not "uninsured." Farm Bureau also contends that Chance is not "legally entitled to recover" from Stover, and thus by the terms of the policy it is not required to make uninsured motorist payments.
The parties suggest, and the court agrees, that the interpretation of this insurance contract and whether Stover is "uninsured" within the meaning of that contract is governed by Kansas law. See Prudential Ins. Co. of America v. Carlson, 126 F.2d 607 (10th Cir.1942). An insurance policy is a contract. Generally, ambiguous insurance contracts are to be construed in favor of the insured. Carriers Ins. Co. v. American Home Assur. Co., 512 F.2d 360, 362 (10th Cir.1975). However, plain and unambiguous policies must be given their plain meaning. Central Sec. Mut. Ins. Co. v. DePinto, 235 Kan. 331, 681 P.2d 15 (1984).
In relevant part, the policy which covered Stover's automobile provides:
Insuring Agreement
Kansas has not addressed the precise issue presented by this case. However, Kansas cases interpreting the phrase "legally entitled to recover" indicate that Kansas would not allow an individual in Chance's position to access uninsured motorist benefits. In addition, the great weight of authority from other jurisdictions, as well as treatises on the subject, deny an individual in Chance's position access to uninsured motorist coverage.
In Patrons Mutual Ass'n v. Norwood, 231 Kan. 709, 647 P.2d 1335 (1982), the Supreme Court of Kansas addressed the issue of whether the Kansas doctrine of interspousal immunity precludes recovery of damages by a husband for personal injuries suffered in an automobile accident caused by his wife's negligence where such recovery is sought under the uninsured motorist provisions of a liability policy issued to his wife.2 In order to recover uninsured motorist benefits under K.S.A. 40-284, one must show that he or she is "legally entitled to recover" damages from the uninsured motorist. 231 Kan. 709, Syl. ¶ 1, 647 P.2d 1335. After tracing the history of uninsured motorist insurance, the court concluded that "legally entitled to recover" means a claimant must prove the insured motorist is legally liable to him or her for damages in spite of all substantive defenses. The court held that the doctrine of interspousal immunity prevented the husband from being "legally entitled to recover" damages from his wife.
In Winner v. Ratzlaff, 211 Kan. 59, 505 P.2d 606 (1973), the issue was "whether it is requisite to recovery against an uninsured motorist liability carrier that judgment first be obtained against the uninsured motorist, that is to say, is the establishment of liability on the part of the uninsured motorist a condition precedent to recovery under an uninsured motorist policy?" The court found no requirement that the claimant must first sue and establish fault of the uninsured motorist before making a claim against the uninsured motorist insurance carrier.
The court construed the phrase "legally entitled to recover as damages" to mean:
If the insurance company can assert any defense that would have been available to the uninsured motorist (in the case at bar the exclusive remedy of the workers' compensation scheme), then an injured person cannot recover from the insurance company when it could not recover against the tortfeasor. The reasonable inference to be drawn from these cases is that the exclusive remedy of the workers' compensation scheme does not transform an otherwise "insured" motorist into an "uninsured" motorist and that the insurance company may raise the exclusive remedy bar as a defense to the payment of uninsured motorist benefits.
Other Kansas cases indicate that Kansas would not allow an individual in Chance's position to access uninsured motorist coverage. See Hilyard v. Estate of Clearwater, 240 Kan. 362, 729 P.2d 1195 (1986) (...
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