Jones v. Smith, 48282

• Decision Date: 20 May 1977
• Docket Number: No. 48282,48282
• Citation: 564 P.2d 574,1 Kan.App.2d 331
• Parties: Allis M. JONES, Appellee, v. David J. SMITH, Defendant, and Western Casualty and Surety Company, Garnishee-Appellant.
• Court: Kansas Court of Appeals

Page 574

564 P.2d 574

1 Kan.App.2d 331

Allis M. JONES, Appellee, v. David J. SMITH, Defendant and Western Casualty and Surety Company, Garnishee-Appellant.

No. 48282.

Court of Appeals of Kansas.

May 20, 1977.

Syllabus by the Court

1. The doctrine of election of remedies does not apply to prevent an injured party from bringing suit against an insured tort-feasor when that injured party has previously received uninsured motorist benefits from her own insurance company.

2. That permission referred to in the omnibus clause of an automobile liability insurance policy may be express or implied.

3. Implied permission may be found to exist when the named insured has expressly prohibited the first permittee from allowing a third person to use the insured vehicle, if the named insured has failed to take those steps necessary to preclude the first permittee from disobeying said prohibition.

John F. Hayes, of Gilliland, Hayes & Goering, Hutchinson, and Richard C. Hite, of Kahrs, Nelson, Fanning, Hite & Kellogg, Wichita, for appellant.

Michael R. O'Neal and Kenneth E. Peirce, of Hodge, Reynolds, Smith, Peirce & Forker, Hutchinson, for appellee.

Before HARMAN, C. J., and REES and SWINEHART, JJ.

SWINEHART, Judge:

This appeal is taken from a garnishment proceeding wherein judgment was rendered against the garnishee insurance company for $50,000 and costs. The garnishee appeals.

The principal characters of this case are:

(a) Allis M. Jones, appellee, plaintiff, injured party;

(b) David J. Smith, defendant, tort-feasor;

(c) Western Casualty and Surety Company (Western), garnishee, appellant, insurer;

(d) Sandra Sue Keller, girl friend of Smith, daughter of V. E. Keller, cotitle owner of vehicle; and

(e) V. E. Keller, father of Sandra, co-title owner of vehicle, the insured.

Suit was originally commenced by Allis M. Jones against David J. Smith, driver of an automobile which struck Jones. A default judgment was entered against the defendant, Smith, for actual damages in the amount of $50,000. (This default judgment was rendered one day after settlement of plaintiff's uninsured motorist claim against her own insurance company.) Eventually, and after plaintiff was unable to obtain satisfaction on the judgment from Smith, garnishment proceedings were instituted against Western.

Plaintiff contends that the defendant Smith was entitled to the coverage of a policy of automobile liability insurance issued by Western to V. E. Keller as named insured. Western denied coverage on the basis that Smith did not have permission of the named insured to use the automobile in question at the time of the accident. The trial court found that Smith had the implied permission of the named insured to use the automobile, and, accordingly, entered judgment against Western.

Western appeals on two grounds: (1) that the evidence is insufficient to support a finding that the defendant Smith had implied permission of the named insured to use the automobile, and (2) that the doctrine of election of remedies barred the appellee from basing this action on the theory that Smith was insured when appellee had previously accepted uninsured motorist benefits from her own insurer.

The accident which injured appellee occurred on April 15, 1972, at the intersection of First and Main Streets in Hutchinson, Kansas. The defendant Smith was driving a 1971 Chevelle automobile which was titled in the name of Sandra Keller and V. E. Keller, her father. Western had issued a policy of automobile liability insurance on the subject car to V. E. Keller on January 29, 1969.

The evidence indicated that Sandra Keller, 20 years of age at the time of the accident, was dating the defendant Smith, and had dated him for several months prior to the date of the accident. Her father, V. E. Keller, was aware that Sandra was dating defendant Smith, but was not aware that Sandra was permitting Smith to use the automobile, except for two prior occasions. The evidence also indicated that Mr. Keller had told Sandra not to let anyone else drive the car, and after discovering that Sandra had permitted Smith to use the vehicle on two prior occasions, had particularly instructed Sandra not to permit the defendant Smith to drive the car. The facts further indicated that Sandra had the exclusive use of the subject automobile; that she paid for the automobile; that she paid for the insurance on the automobile; and that, though she lived at home with her parents, she basically exercised the rights of majority.

Testimony from Mr. Keller indicated that he had discussed with Reuben Miller, his insurance agent, how the insurance on said automobile should be obtained, and it was decided between them that it would be less expensive to carry said automobile on the policy of V. E. Keller than to have Sandra purchase an individual insurance policy on said automobile in her own name.

As previously indicated, this accident occurred April 15, 1972. On the 9th day of December, 1973, appellee made a proof of claim to the Farm Bureau Insurance Company, Inc., her insurance company, for recovery of her losses under the uninsured motorist endorsement coverage of her policy of insurance. Under the provisions of that policy, she recovered the sum of approximately $2,000.

On May 10, 1973, appellee filed suit against the defendant Smith, and a default judgment was obtained against him on December 10, 1973, in the amount of $50,000. Garnishment proceedings were commenced in February of 1974, against Western and Western answered the same month. Evidence was presented and judgment entered in favor of appellee against Western on October 13, 1975, 'for the amount of its indebtedness under policy No. H-3464052 and costs.'

We will first consider Western's contention that appellee is barred in her garnishment action against Western by reason of the doctrine of election of remedies.

It is appellant's contention that the two methods of recovery by appellee are inconsistent, and therefore, by reason of the fact that she recovered through her own policy of insurance under the uninsured motorist provision, that she is now barred from proceeding to recover from appellant on a theory that Smith was insured.

Appellant has cited several Kansas cases dealing with the doctrine of election of remedies: Ondrasek v. Ondrasek, 172 Kan. 100, 238 P.2d 535; Taylor v. Robertson Petroleum Co., 156 Kan. 822, 137 P.2d 150; and Lehigh, Inc. v. Stevens, 205 Kan. 103, 468 P.2d 177. We have reviewed these cases and are in complete accord with the rulings of law set forth therein. However, said cases do not have an application to the case at hand. The actions taken by appellee are not inconsistent, and therefore, are not subject to the doctrine of election of remedies. Appellee made a claim on her insurance carrier under the contractual provisions of said policy for uninsured motorist coverage. She gave subrogation rights to said insurer for the monies she received under the provisions of her policy. Also, at the time she filed her uninsured motorist claim, appellee was without absolute knowledge as to whether defendant Smith was in fact an insured or an uninsured motorist.

The Supreme Court of Kansas has previously addressed itself to the resent situation in the case of Southard v. Lira, 212 Kan. 763, 512 P.2d 409, where the court laid down the following rule:

'The fact that an insured, for a stated consideration, executes to his insurance carrier a release of liability for bodily injury under the terms of the uninsured motorist provision of his policy does not preclude the insured from maintaining an action against the party negligently causing his injuries. Nor are payments made by an insurance carrier under uninsured motorist coverage, payments which a tort-feasor can utilize to diminish the amount of his liability to the injured party.' (Syl. 6)

We find this language controlling. The mere fact thal appellee obtained uninsured benefits from her own insurance company does not prevent her from maintaining a cause of action against the tortfeasor. The doctrine of election of remedies has absolutely no application in such a situation. The...