Every v. Jefferson Ins. Co. of New York

• Decision Date: 09 May 1980
• Docket Number: No. 50900,50900
• Citation: 4 Kan.App.2d 715,610 P.2d 645
• Parties: Randolph M. EVERY, Appellant, v. JEFFERSON INSURANCE COMPANY OF NEW YORK and American Family Mutual Insurance Company, Appellees.
• Court: Kansas Court of Appeals

Page 645

610 P.2d 645

4 Kan.App.2d 715

Randolph M. EVERY, Appellant, v. JEFFERSON INSURANCE COMPANY OF NEW YORK and American Family

Mutual Insurance Company, Appellees.

No. 50900.

Court of Appeals of Kansas.

May 9, 1980.

Syllabus by the Court

1. K.S.A. 8-1524 does not prohibit a vehicle from turning left across a solid double yellow line absent some type of physical barrier or dividing section constructed to impede vehicular traffic.

2. Rules governing summary judgment are stated and applied.

3. In a personal injury action, the record is examined and it is held that the trial court correctly entered summary judgment in favor of the defendant insurance companies.

Robert V. Wells, Kansas City, for appellant.

Jerome V. Bales of Wallace, Saunders, Austin, Brown & Enochs, Overland Park and Kenneth J. Reilly of Boddington & Brown, Kansas City, for appellees.

Before ABBOTT, P. J., and SPENCER and PARKS, JJ.

ABBOTT, Judge:

This is an appeal in a personal injury accident arising out of a multi-vehicle collision from an order sustaining defendants' motions for summary judgment and entry of judgment pursuant to K.S.A. 60-254(b ).

The accident in question occurred on Metcalf Avenue in Overland Park. Metcalf is a four-lane highway (two lanes north, two lanes south) and is divided at the site of the accident by a solid double yellow line. The four vehicles involved were all traveling in the center, northbound lane at the time of the accident. All witnesses described the traffic as heavy that morning.

Plaintiff was operating a motorcycle. Directly in front of him was a car driven by defendant Gray who is not involved in this appeal. In front of Gray's car was a vehicle operated by Dick Peugeot who was not named as a defendant in the lower court and is not a party to this appeal. In front of Peugeot's car was another vehicle which has never been identified and which will be referred to as the uninsured motorist. Basically stated, the accident occurred when the uninsured motorist stopped and made a left turn across the southbound lanes into a bank driveway located on the west side of Metcalf. Peugeot had stopped behind the uninsured motorist and had started forward when he was struck from the rear by Gray's vehicle. Plaintiff was unable to stop his motorcycle and, in turn, collided with Gray's vehicle, sustaining serious injury. None of the vehicles came into contact with the uninsured motorist. Plaintiff filed suit against the two insurance companies that provided him with uninsured motorist coverage and against the defendant Gray. The action against Gray is still pending in the district court.

The two insurance companies moved for summary judgment on the basis that: (1) the uninsured motorist provisions of the respective policies did not extend to provide coverage in the instant case since the policies required contact between the insured's motor vehicle and the uninsured motorist's vehicle and it was stipulated that no such contact occurred; and (2) as a matter of law, the documents, depositions and pleadings on file conclusively showed that the uninsured motorist was not negligent in any respect.

The trial court sustained the motions on both grounds. On appeal, plaintiff contends the court erred in both respects. As to the "physical contact" provision issue, plaintiff correctly argues that in view of a decision handed down by the Supreme Court after the trial court's decision the physical contact provision of the insurance policies is void and unenforceable. Simpson v. Farmers Ins. Co., 225 Kan. 508, 515, 592 P.2d 445 (1979). Defendants concede Simpson is controlling, but maintain that the judgment should be upheld on the basis that the trial court properly entered summary judgment in that plaintiff failed to establish a prima facie case of negligence on the part of the uninsured motorist.

The rules governing summary judgment are well-established. Summary judgment is authorized if the pleadings, depositions, answers to interrogatories and affidavits, if any, show that no genuine issue of material facts remains, and a party is entitled to judgment as a matter of law. Nordstrom v. Miller, 227 Kan. 59, Syl. P 3, 605 P.2d 545 (1980). In considering a motion for summary judgment, a trial court must give to the party against whom judgment is sought the benefit of all inferences that may be drawn from the admitted facts under consideration. Steere v. Cupp, 226 Kan. 566, 575, 602 P.2d 1267 (1979). Although plaintiff's pleadings in this case are to be given a liberal construction (Citizens State Bank v. Gilmore, 226 Kan. 662, 664, 603 P.2d 605 (1979)), allegations made in the pleadings and briefs will not sustain a genuine issue of fact when opposed by uncontradicted affidavits or depositions supporting a motion for summary judgment. Farmers Ins. Co. v. Schiller, 226 Kan. 155, 158, 597 P.2d 238 (1979). An appellate court will read the record in the light most favorable to the party who defended against the motion for summary judgment. Fredricks v. Foltz, 225 Kan. 663, 666, 594 P.2d 665 (1979). Normally, the presence or absence of negligence in any degree is not subject to determination by the court on summary judgment, for such determination should be left to the trier of facts. It is only when it can be said that reasonable men cannot reach differing conclusions from the same evidence that the issue may be decided as a question of law. Welch v. Young, 225 Kan. 189, 192, 589 P.2d 567 (1979); Pedi Bares, Inc. v. First National Bank, 223 Kan. 477, Syl. P 3, 575 P.2d 507 (1978).

Depositions were taken of plaintiff, Peugeot and Gray. Plaintiff did not see the uninsured motorist; he admitted that his pleadings were based on statements made to him by others after the accident. Gray did observe the uninsured vehicle prior to impact. She, however, could not say whether the uninsured vehicle had its brake lights or its turn signals on; neither could she say whether it was stopped or only slightly moving when she first noticed it, nor was she aware of the manner in which the uninsured motorist came to a stop or near stop. She did see it complete its left turn into a bank driveway after impact. Peugeot testified the uninsured motorist came to a "normal" stop before making the left turn and that the uninsured motorist was not involved in the accident in any way. Peugeot testified he made a normal stop some six to eight feet behind the uninsured motorist and he did not have to brake hard in order to do so. Peugeot stated he did not specifically remember any turn signals, but "I knew the car was turning. So there must have been a signal." Peugeot indicated that he had no difficulty either in ascertaining the uninsured motorist's intent to stop and turn left or in stopping behind the uninsured motorist. Peugeot, according to his testimony, had stopped behind the uninsured motorist for at least a few seconds and possibly considerably longer before traffic cleared in the southbound lanes and the uninsured motorist started his left turn. Peugeot apparently did not turn on his vehicle's blinkers and had taken his foot off the brake when the impact occurred, so his brake lights were not activated immediately prior to the collision. As the uninsured motorist began to turn, Peugeot's vehicle began to move forward and was struck from the rear by Gray's car. Peugeot's vehicle was knocked forward some sixty feet, but the uninsured vehicle was not involved as it had already moved out of the northbound lanes.

Plaintiff relied on seven acts of negligence on the part of the uninsured motorist that he placed in issue in the pretrial order: (1) improper stop, (2) improper and illegal turn under the conditions existing, (3) failure to signal the turn as required by law, (4) driving at an unsafe speed for the conditions then and there existing, (5) failure to obey traffic signal (yellow lines on street), (6) driving across a divided highway where prohibited, and (7) failure to signal for a...