Farmers Ins. Co., Inc. v. Rosen by Rosen, 67356
| Decision Date | 02 October 1992 |
| Docket Number | No. 67356,67356 |
| Citation | 839 P.2d 71,17 Kan.App.2d 468 |
| Parties | FARMERS INSURANCE CO., INC., Appellee, v. April ROSEN, by her natural parent, Jim ROSEN; James Edward Rosen, Jr.; and Ginger Lee Rosen, Appellants, and Christopher Lind, by his natural parent, Lanny Lind; Lanny L. Lind; and Linda R. Lind, Defendants. |
| Court | Kansas Court of Appeals |
Syllabus by the Court
In a case where an automobile liability insurance policy unambiguously provides that its per occurrence limit is subject to its per person limit, claims for loss of consortium and medical bills and expenses incurred by the accident victim's parents are held to be subject to the policy's per person limit.
Gerald A. King, of Armstrong, Teasdale, Schlafly & Davis, Overland Park, for appellants.
Arthur S. Chalmers and Sidney R. Thomas, of Kahrs, Nelson, Fanning, Hite & Kellogg, Wichita, for appellee.
Before REES, P.J., LEWIS, J., and PAUL E. MILLER, District Judge, assigned.
This is a declaratory judgment action in which defendants April Rosen, James Rosen, Jr., and Ginger Lee Rosen appeal from the summary judgment entered in favor of plaintiff Farmers Insurance Company, Inc. (Farmers). We affirm.
The primary subject here involved is a determination of the limits of Farmers' exposure under an automobile liability insurance policy issued by it.
On February 9, 1989, 17-year-old defendant Christopher Lind, while driving a 1982 Dodge Rampage pickup truck, struck a pedestrian, defendant April Rosen, a daughter of defendants James and Ginger Rosen. April sustained serious physical injuries. The pickup was owned by Christopher's parents, defendants Lanny and Linda Lind.
At the time of the accident, there was in full force and effect an automobile liability insurance policy issued by Farmers to Lanny and Linda. Under the policy, Lanny and Linda were the named insureds; the pickup was the designated vehicle. As a family member, Christopher was an insured person under the policy.
There also was in full force and effect at the time of the accident a homeowners policy issued by Farmers to Lanny and Linda.
The automobile policy fixed Farmers' limits of liability at $100,000 per person and $300,000 per occurrence. By prosecuting this action, Farmers has sought a determination that its liability exposure for all claims asserted by the three Rosens is limited to the automobile policy's $100,000 per person limit and does not extend to that policy's $300,000 per occurrence limit as claimed by the Rosens. Farmers has also sought a determination that it has no liability under the homeowners policy. The trial court's decision in favor of Farmers on both contentions has brought about this appeal.
Farmers' automobile policy recites:
"[Farmers agrees] ... to insure you subject to all the terms of this policy. [Farmers] will insure you for the coverages and the limits of liability shown in the Declarations of this policy [$100,000 per person; $300,000 per occurrence].
....
"[Farmers] will pay damages for which any insured person is legally liable because of bodily injury to any person ... arising out of the ownership, maintenance or use of a [motor vehicle].
....
Farmers' homeowners policy provides:
....
....
5. Arising out of ownership, maintenance, use, loading or unloading of:
....
b. a motor vehicle owned or operated by ... an insured.
....
Farmers' automobile policy is free of the ambiguity existing in the policy at issue in Farm Bureau Mut. Ins. Co. v. Winters, 14 Kan.App.2d 623, 797 P.2d 885 (1990), aff'd 248 Kan. 295, 806 P.2d 993 (1991). In Winters, it was held that the per person/per occurrence liability limits provisions of Farm Bureau's automobile policy were ambiguous. The Farmers' automobile policy now before us subjects the per occurrence limit to the per person limit, a provision missing from the automobile policy in Winters. The ambiguity problem found and resolved in Winters does not exist here.
The Rosens assert that "because of" April's physical injury, James and Ginger each have a claim for "loss of consortium, and medical bills and expenses." On this appeal, Farmers concedes that (1) under its automobile policy it has promised to pay damages for which any insured person is legally liable because of bodily injury to any person and (2) "since loss of consortium and the payment of medical expenses are damages for which Farmers' insured may be legally liable 'because of' bodily injuries to April Rosen, those damages come within the coverage provision of Farmers' policy." Farmers and the Rosens refer to James and Ginger Rosen's claims as claims "for loss of care and loss of services."
The real question as argued by Farmers and the Rosens is whether James and Ginger Rosen's claims for loss of care and loss of services, here admittedly covered damages under Farmers' automobile policy, come within the operation of the automobile policy's per person limitation, with the result being that Farmers' exposure under the automobile policy is limited to the policy's $100,000 per person limit rather than the policy's $300,000 per occurrence limit.
Resolution of this case requires insurance contract interpretation. The construction and effect of insurance contracts are questions of law to be judicially determined. None of the material facts here are disputed by the parties. Where the facts are admitted, it is for the court to decide whether they come within the terms of the insurance contract, and our function is the same as the trial court. Farm Bureau Mut. Ins. Co. v. Horinek, 233 Kan. 175, 177, 660 P.2d 1374 (1983).
"Insurance is a matter of contract. The parties to a contract of insurance may choose whatever terms they wish, and courts will enforce the policy as written so long as the terms do not conflict with pertinent statutes or with public policy. [Citations omitted.]
....
"... Penalosa Co-op Exchange v. Farmland Mut. Ins. Co., 14 Kan.App.2d 321, 323-24, 789 P.2d 1196, rev. denied 246 Kan. 768 (1990).
It is the Rosens' contention that Farmers' automobile policy covers all three Rosens' claims up to the $300,000 per occurrence limit of liability, not the $100,000 per person limit, because James, Ginger, and April Rosen have each suffered "bodily injury." They argue that James and Ginger Rosen's claims for loss of care and loss of services because of April Rosen's injuries are bodily injuries to James and Ginger. The Rosens assert there is ambiguity in the definition of bodily injury in the automobile policy: "Bodily injury means bodily injury to or sickness, disease or death of any person."
The Rosens argue that the policy definition of bodily injury, by using the same two words to define the term, makes the policy ambiguous; therefore, an interpretation of the policy most favorable to the insured must prevail. See Anderson v. Nationwide Life Ins. Co., 6 Kan.App.2d 163, 167, 627...
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