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

• Citation: 249 Kan. 248,815 P.2d 550
• Decision Date: 16 July 1991
• Docket Number: No. 64689,64689
• Parties: Arlene EVANS, Appellee/Cross-Appellant, v. PROVIDENT LIFE & ACCIDENT INSURANCE COMPANY, Appellant/Cross-Appellee.
• Court: United States State Supreme Court of Kansas

Page 550

815 P.2d 550

249 Kan. 248

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

No. 64689.

Supreme Court of Kansas.

July 16, 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 remain to be determined will not be applied retroactively to bar an appeal timely filed under the then existing law.

2. One claiming under an accidental death policy has the burden of proof that the death was accidental. When an insurer seeks to avoid liability on such a policy on the ground that the death was the result of suicide or intentionally self-inflicted injury, the burden of proof is on the insurer to prove such exception to coverage under the policy.

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

4. The trial court has broad discretion to control the examination of witnesses, and reviewing courts will not interfere unless discretion has been abused.

5. K.S.A.1990 Supp. 40-447 is discussed and held not to apply to post judgment interest.

6. 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 court.

7. 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.

8. 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 9. 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.

purpose of K.S.A. 40-256 simply because a plaintiff employs more than one attorney.

10. Where an award of attorney fees pursuant to K.S.A. 40-256 is sought for appellate services, Rule 7.07 (1990 Kan.Ct.R.Annot. 37) requires that the appellate court in which said services were rendered determine the matter.

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

Kenneth M. Clark of Young, Bogle, McCausland, Wells & Clark, P.A., Wichita, argued the cause, and Paul S. McCausland, of the same firm, was with him on the briefs for appellant/cross-appellee.

Timothy J. King of Stinson, Lasswell & Wilson, Wichita, argued the cause, and Gerald D. Lasswell, of the same firm, and Cecil E. Merkel of Merkel Chartered, Wichita, were with him on the briefs for appellee/cross-appellant.

McFARLAND, Justice:

Provident Life & Accident Insurance Company (Provident) appeals a jury verdict awarding Arlene Evans the proceeds of a $300,000 accidental death policy issued by Provident insuring Dr. Grant Evans, husband of Arlene. Provident also appeals from the award of attorney fees. Arlene Evans cross-appeals from the amount of attorney fees awarded, the interest rate applied to the award, and the question of whether she should have been allowed to discover Provident's attorney fee costs.

Dr. Evans practiced in the medical specialty of obstetrics/gynecology for many years prior to his retirement in 1986. His retirement resulted from numerous health problems. On April 11, 1987, he received fatal burns in the bathroom of his hospital room in the psychiatric unit of Wesley Medical Center, Wichita. He was 65 years old and was being treated for major depression with melancholia.

Arlene Evans made claim under the policy. Provident denied the claim on the basis the death was the result of an intentionally self-inflicted injury, a suicide, and, accordingly, was not within the coverage afforded by the policy. This action was filed, and the jury found the death was accidental. The Court of Appeals affirmed the district court on all issues except the post-judgment interest question. Evans v. Provident Life & Accident Ins. Co., 15 Kan.App.2d 97, 803 P.2d 1033 (1990). This case is before us on petition for review. Additional facts will be stated as pertinent to particular issues.

JURISDICTION

For her first issue, cross-appellant Evans contends this court lacks jurisdiction to hear Provident's appeal.

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 30-day limit set forth by K.S.A.1990 Supp. 60- 2103(a) if the "entry of the judgment" is determined to be November 28, 1989.

On March 23, 1990, we filed our opinion in Snodgrass v. State Farm Mut. Auto. Ins. Co., 246 Kan. 371, 789 P.2d 211 (1990), wherein we held:

"A final decision under K.S.A.1989 Supp. 60-2102(a)(4), for appeal purposes, is a decision on the merits which does not require resolution of a motion or request for attorney fees before filing a timely notice of appeal." Syl. p 1.

"Under the facts of the case, the entry of judgment by the district court was a final decision appealable as of right under K.S.A.1989 Supp. 60-2102(a)(4) regardless of any unresolved question of attorney fees. Following Budinich v. Becton Dickinson & Co., 486 U.S. 196, 100 L.Ed.2d 178, 108 S.Ct. 1717 (1988)." Syl. p 2.

"A K.S.A. 40-256 motion or request for attorney fees is not a part of the merits of the underlying action, even though alleged in the petition, because attorney fees are not part of the compensation for a plaintiff's injury. Attorney fees traditionally have been regarded by the legislature as costs awarded to the prevailing party." Syl. p 3.

Under the Snodgrass rule, Provident's notice of appeal should have been taken within 30 days of July 7, 1989. However, Snodgrass constituted a departure from our prior rulings and was not filed until several months after Provident's time for appeal would have expired. We believe the retroactive application of Snodgrass to bar the appeal herein would be unfair and inappropriate.

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

For its first three issues, Provident challenges certain jury instructions. These issues are interrelated and must be considered in context with each other. The claimed instructional errors concern:

1. failure to place the burden of establishing accidental death upon claimant, Arlene Evans;

2. giving improper instructions on the presumption against suicide; and

3. failure to instruct the jury on Provident's mental infirmity defense.

BURDEN OF PROOF

The policy in question provided coverage for accidental death. Death by suicide or intentionally self-inflicted injury was excluded. Accordingly, in addition to the requirements of proof on an ordinary life insurance policy, claimant had to prove the accidental cause of death.

The Court of Appeals adequately disposed of this issue as follows:

"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).

"In Alliance Life Ins. Co. v. Ulysses Volunteer Fireman's Relief Assn., 215 Kan. 937, 529 P.2d 171 (1974), the court considered a case in which a decedent was killed in an aircraft owned by a flying club of which he was a member. The decedent was covered by an insurance policy which excluded ' "[i]njuries sustained by the Insured while piloting or serving as a crew member of an airplane." ' 215 Kan. at 943 . Both men aboard the plane were killed and there was no way to tell who was piloting the plane at the time it crashed. 215 Kan....