Dinesen v. Towle
| Decision Date | 13 July 1979 |
| Docket Number | No. 50000,50000 |
| Citation | 597 P.2d 264,3 Kan.App.2d 505 |
| Parties | Catherine M. DINESEN, Appellant, v. Maurice D. TOWLE, Appellee. |
| Court | Kansas Court of Appeals |
Syllabus by the Court
In an action for personal injuries when the injured party's medical expenses did not exceed the threshold level of $500 set by K.S.A.1978 Supp. 40-3117 until some thirty-one months after the accident that produced the injury, the record is examined and it is Held that the trial court did not err in determining that (a) plaintiff was the real party in interest; (b) the cause of action accrued as of the date of the accident (when the injury first manifested itself) and not on the date the statutory threshold of $500 was reached; (c) this action is barred by the statute of limitations (K.S.A. 60-513(A )(4)).
Barry W. McCormick and J. Eugene Balloun of Payne & Jones, Chartered, Olathe, for appellee.
David R. Hills and Robert W. Harris of Harris & Hills, Kansas City, for appellant.
Before PARKS, P. J., and ABBOTT and SWINEHART, JJ.
The trial court in this case dismissed plaintiff's cause of action on the basis that this action is barred by the statute of limitations, K.S.A. 60-513. We affirm.
The facts in this case are not in dispute. The cause of action arose out of an automobile collision that occurred on February 3, 1975. The plaintiff, Catherine M. Dinesen, was injured when she struck the left side of her head against the steering wheel of her car, and she received medical attention following the accident. The point of controversy of this case arises because the plaintiff's medical expenses did not exceed the threshold level of $500 set by K.S.A.1978 Supp. 40-3117 of the Kansas Automobile Injury Reparations Act until September 2, 1977, some thirty-one months after the accident that produced the injury. Plaintiff did not employ counsel until November of 1977 and suit was immediately filed. Prior to discovery, a motion to dismiss was sustained on the grounds that the action was barred by K.S.A. 60-513(A )(4), and plaintiff appeals.
K.S.A.1978 Supp. 40-3117 provides in pertinent part:
No contention is made by either party that the injury consisted in whole or in part of permanent disfigurement, a fracture to a weight-bearing bone, a compound, comminuted, displaced or compressed fracture, loss of a body member, permanent injury within reasonable medical probability or permanent loss of a body function, and plaintiff relies solely on the fact she did not meet the threshold requirements of 40-3117 until over two years after the accident as grounds for error. She presents a number of legal theories, none of which we consider persuasive enough to adopt.
Plaintiff's main argument deals with the point in time at which her cause of action accrued which she maintains was not until September 2, 1977, the day when the $500 medical expense level was reached. She puts forth three separate arguments to support this contention.
First, she argues that her cause of action did not accrue until she met the threshold on September 2, 1977, since 40-3117 prevented her from filing suit to recover damages for pain and suffering and other nonpecuniary losses until she required medical treatment having a reasonable value of $500. We cannot agree. The statute does not require the attainment of the $500 threshold as a condition precedent to filing suit thereunder. What the statute does is restrict the type of damages which may be recovered, not the time when suit may be filed. Manzanares v. Bell, 214 Kan. 589, 522 P.2d 1291 (1974). The Supreme Court held in Yeager v. National Cooperative Refinery Ass'n, 205 Kan. 504, Syl. P 7, 470 P.2d 797 (1970) that:
"In general, a cause of action accrues, so as to start the running of the statute of limitations, as soon as the right to maintain a legal action arises, the true test being at what point in time the plaintiff could first have filed and prosecuted his action to a successful conclusion."
The Yeager case has since been cited with approval and applied in Johnston v. Farmers Alliance Mutual Ins. Co., 218 Kan 543, 548, 545 P.2d 312 (1976), wherein the plaintiff's cause of action in tort was held to be barred by the same two-year statute for tort actions (60-513(A )(4)) applicable to this case. The plaintiff in this case was aware of the injury and we are not concerned with a latent or hidden injury. The injury first manifested itself on the day of the accident and plaintiff has a right under 40-3117 to maintain a legal action from that date, although her remedies were somewhat restricted by the statute until such time as she met the $500 threshold or one of the exceptions to the monetary threshold contained therein. To hold otherwise would be contrary to the intent of the Automobile Injury Reparations Act, which has as one of its purposes the limitation of certain actions.
Plaintiff's second argument in support of her theory that the cause of action did not accrue until September 1977 is that K.S.A. 60-513(B ) provides that a cause of action shall not be deemed to have accrued until the negligent act has caused "substantial injury" or until "the fact of injury becomes reasonably ascertainable." Plaintiff further contends that "substantial injury" has been specifically defined by the threshold provisions of 40-3117, in that it enumerates the dollar amount of medical expenses that must be paid or the specific injuries that must be suffered before recovery for pain and suffering may be had.
We have no quarrel with the cases plaintiff cites. They deal however, with statutory construction and not the issue before us. The legislature enacted no-fault as a means of providing compensation for injured persons in lieu of their filing lawsuits for damages in cases involving small sums of money and minor injuries. Smith v. Marshall, 225 Kan. 70, 587 P.2d 320 (1978); Manzanares v. Bell, 214 Kan. 589, 522 P.2d 1291; K.S.A.1978 Supp. 40-3102; McCormick and Taylor, No-Fault Automobile Insurance, 23 Kan.L.Rev. 141 (1974).
The presence of an injury in this case became reasonably ascertainable on the date of the accident, although the nature and extent of the...
To continue reading
Request your trial
-
Gagliardi v. Flack
...775, 435 N.Y.S.2d 551 (1980), Carter v. Cross, 373 So.2d 81 (Fla.App., 1979), cert. den. 385 So.2d 755 (Fla., 1980), Dinesen v. Towle, 3 Kan.App.2d 505, 597 P.2d 264 (1979), rev. den. 226 Kan. 792 (1979), and Cappadona v. Eckelmann, 159 N.J.Super. 352, 388 A.2d 239 (1978). Contra Bond v. Ga......
-
Bond v. Gallen
...N.Y.S.2d 551 (1980); Carter v. Cross, 373 So.2d 81 (Fla.Dist.Ct.App. 1979), cert. denied 385 So.2d 755 (Fla.1980); Dinesen v. Towle, 3 Kan.App.2d 505, 597 P.2d 264 (1979), rev. denied, 226 Kan. 792 (1979); Cappadona v. Eckelmann, 159 N.J.Super. 352, 388 A.2d 239 (Super.Ct.App.Div. Each of t......
-
87 Hawai'i 297, Del Rio v. Crake
...for accident victims and keeping insurance premiums affordable." Id. at 704 (citation omitted); see also Dinesen v. Towle, 3 Kan.App.2d 505, 597 P.2d 264, 268 (1979) (holding that "the threshold concept in general and the ... medical expense standard in particular" are Similarly, in the ins......
-
Cansler v. Harrington
...hundred dollars ($500) or more ...." K.S.A. 40-3117. See Manzanares v. Bell, 214 Kan. 589, 599, 522 P.2d 1291 (1974); Dinesen v. Towle, 3 Kan.App.2d 505, 507, 597 P.2d 264, rev. denied 226 Kan. 792 (1979). Key accomplishes that purpose. We so hold. Appellant's first issue is without Next ap......