Evans v. Provident Life & Acc. Ins. Co.

• Decision Date: 28 December 1990
• Docket Number: No. 64689,64689
• Citation: 15 Kan.App.2d 97,803 P.2d 1033
• Parties: Arlene EVANS, Appellee/Cross-Appellant, v. PROVIDENT LIFE & ACCIDENT INSURANCE COMPANY, Appellant/Cross-Appellee.
• Court: Kansas Court of Appeals

Page 1033

803 P.2d 1033

15 Kan.App.2d 97

Arlene EVANS, Appellee/Cross-Appellant, v. PROVIDENT LIFE & ACCIDENT INSURANCE COMPANY, Appellant/Cross-Appellee.

No. 64689.

Court of Appeals of Kansas.

Dec. 28, 1990.

Review Granted March 13, 1991.

Syllabus by the Court

1. The rule announced in Snodgrass v. State Farm Mut. Auto. Ins. Co., 246 Kan. 371, 789 P.2d 211 (1990), that a decision is final for the purposes of appeal even if attorney fee issues are not yet decided, should not be applied retroactively.

2. When an insurer seeks to avoid liability on the ground that an accident or injury for which compensation is demanded is not covered due to some specific exception to the general terms of the policy, the burden of proof rests upon the insurer to prove the facts which bring the case within such specified exception.

3. The qualifications of an expert witness and the admissibility of his testimony are within the sound discretion of the trial judge.

4. The issue of whether an insurer has refused to pay a claim without just cause or excuse, so as to justify the award of attorney fees under K.S.A. 40-256, is within the sound discretion of the trial judge.

5. The trial court itself is an expert in the area of attorney fees and can draw on and apply its own knowledge and expertise in evaluating their reasonableness.

6. K.S.A. 40-256 requires that the total fee charged be "reasonable." A plaintiff may employ more than one attorney as long as the total fee is reasonable for the work required. Conversely, an unreasonable fee is not rendered reasonable for the purpose of K.S.A. 40-256 simply because a plaintiff employs more than one attorney.

7. The control of discovery is entrusted to the sound discretion of the trial court and orders concerning discovery will not be disturbed on appeal in the absence of a clear abuse of discretion.

8. Under the facts of this case, the trial court did not abuse its discretion (1) in instructing the jury on the presumption against suicide; (2) in refusing to instruct the jury on the defendant's theory as to the decedent's mental infirmity; (3) in refusing to allow defendant's expert witness to testify that, based on a "psychological autopsy," he believed that the decedent committed suicide; and (4) in refusing to compel discovery by the plaintiff of time spent and fees charged by the defendant's attorneys.

Kenneth M. Clark, Young, Bogle, McCausland, Wells & Clark, P.A., Wichita, for appellant, cross-appellee.

Timothy J. King and Gerald D. Lasswell, Stinson, Lasswell & Wilson, and Cecil E. Merkel, Merkel Chartered, Wichita, for appellee, cross-appellant.

Before BRAZIL, P.J., LEWIS, J., and GARY L. NAFZIGER, District Judge, Assigned.

BRAZIL, Presiding Judge.

Provident Life & Accident Insurance Company (Provident) appeals a jury verdict awarding Arlene Evans the proceeds of an accidental death insurance policy issued by Provident and an award of attorney fees for Evans in the case. Evans cross-appeals the amount of attorney fees awarded, the interest rate applied to the award, and the question of whether Evans should have been allowed to discover Provident's attorney fee costs.

Dr. Grant Evans was insured under a group policy of accidental death and dismemberment insurance issued by Provident. Dr. Evans worked for many years as an obstetrician/gynecologist but was forced to retire in 1986 because of his numerous health problems. In March 1987, he was admitted into the hospital with a diagnosis of major depression with melancholy. On April 11, 1987, a nurse found Dr. Evans in his bathroom lying in the bathtub with all his clothing in flames. He died several hours later.

After an investigation, Provident denied Dr. Evans' widow's claim based on an exclusion in the policy for suicide or intentionally self-inflicted injuries. Subsequently, a jury returned a special verdict finding that the death of Dr. Evans was accidental.

1. Jurisdiction.

Evans argues that this court does not have jurisdiction to hear this appeal because Provident's notice of appeal was not timely.

The journal entry of judgment in the case was entered on April 21, 1989, corrected by an order nunc pro tunc entered on May 8, 1989, and the order denying Provident's motion for judgment notwithstanding the verdict was entered on July 7, 1989. The journal entry determining the award of attorney fees to Evans was not entered until November 28, 1989. Provident filed its notice of appeal on December 27, 1989. The notice of appeal was within the thirty-day limit set forth by K.S.A.1989 Supp. 60-2103(a) if the "entry of the judgment" is determined to be November 28, 1989.

On March 23, 1990, the Kansas Supreme Court filed its opinion in the case of Snodgrass v. State Farm Mut. Auto. Ins. Co., 246 Kan. 371, 789 P.2d 211 (1990). In Snodgrass, the court said: "We adopt the rationale of Budinich v. Becton Dickinson & Co., 486 U.S. 196, 108 S.Ct. 1717, 100 L.Ed.2d 178 (1988). A decision on the merits is final for purposes of appeal even if a request or motion for attorney fees attributable to the case has not yet been determined." 246 Kan. at 374, 789 P.2d 211. "We find the reasoning of Budinich persuasive. We believe a bright-line rule that a decision on the merits is a final judgment for appeal purposes despite any remaining question as to attorney fees is necessary and appropriate." 246 Kan. at 377, 789 P.2d 211.

Under the Snodgrass decision, Provident's notice of appeal would not be timely. However, Snodgrass was not filed until nine months after the final order from which Provident arguably should have appealed. The unfairness of applying new procedural rules retroactively so as to strip this court of jurisdiction, when the parties proceeded properly under the old rule, is obvious. Evans cites no authority for such a retroactive application of new procedural rules and, indeed, such an application would seem to be at odds with the spirit of K.S.A. 60-102, which states that the provisions of the civil procedure code "shall be liberally construed to secure the just, speedy and inexpensive determination of every action." The ruling in Snodgrass allowed the court to retain jurisdiction in that appeal. Retroactive application of the new rule in Snodgrass would deny us jurisdiction in this appeal.

We conclude that Provident's notice of appeal was timely under the rules then existing and that this court has jurisdiction over this appeal.

2. Provident's motions for directed verdict and for judgment notwithstanding the verdict.

Provident argues that its motions for directed verdict and for judgment notwithstanding the verdict should have been granted by the trial judge.

"In ruling on a motion for a directed verdict, the court is required to resolve all facts and inferences reasonably to be drawn from the evidence in favor of the party against whom the ruling is sought and where reasonable minds could reach different conclusions based on the evidence the motion must be denied and the matter submitted to the jury. This rule is also applicable when appellate review is sought on a motion for directed verdict. Further, the same test is applicable to a motion for judgment notwithstanding the verdict." Holley v. Allen Drilling Co., 241 Kan. 707, 710, 740 P.2d 1077 (1987).

Evans was required to prove that "the insured, Grant E. Evans, suffered accidental bodily injury resulting in the loss of his life as provided in the group policy issued by the defendant." There was clearly enough evidence to sustain Evans' case against the motions for direct verdict and judgment notwithstanding the verdict. Evans provided testimony by the chief investigator for the Wichita Fire Department that Dr. Evans' death was accidental. She further presented evidence that Dr. Evans was a heavy smoker, that he was careless in his smoking habits, that he had repeatedly burned clothing and objects with his smoking, and that he had access to cigarettes and matches in his room. Evans further presented evidence that Dr. Evans also used matches to dispel odoriferous body gases, that a pack of matches was found among the debris from the fire, and that the fire started in Dr. Evans' crotch area while he was sitting on the toilet. Resolving all inferences in favor of Evans the trial judge was correct in denying the motions and submitting the case to the jury.

3. Burden of proof.

Provident claims that the trial court's instructions erroneously placed the burden of proof on it. Instruction No. 9 set forth the burden of proof:

"Plaintiff claims that on April 11, 1987, the insured, Grant E. Evans, suffered accidental bodily injury resulting in the loss of his life as provided in the group policy issued by defendant.

"Plaintiff has the burden to prove that her claim is more probably true than not true.

"Defendant claims that Grant E. Evans died as the result of suicide or intentionally self-inflicted injury.

"Defendant has the burden to prove that its claims are more probably true than not true."

Provident notes in its brief that one of the "limitations and exclusions" included in the policy denies coverage for suicide or intentionally self-inflicted injuries. Provident argues at some length in its brief, using quotations from treatises on insurance, a Tenth Circuit case from 1963, and a line of cases from New York decided in the 1930's, that Evans was required to prove that Dr. Evans' death was not suicide. Provident overlooks more recent Kansas case law that is clearly applicable.

"When an insurer seeks to avoid liability on the ground that the accident or injury for which compensation is demanded is covered by some specific exception to the general terms of the policy, the burden of proof rests upon the insurer to prove the facts which bring the case within such specified exception." Baugher v. Hartford Fire Ins. Co., 214 Kan. 891, Syl. p 4, 522 P.2d 401 (1974).

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