Kansas Farm Bureau Ins. Co., Inc. v. Reynolds
Decision Date | 20 December 1991 |
Docket Number | No. 66291,66291 |
Citation | 16 Kan.App.2d 326,823 P.2d 216 |
Parties | KANSAS FARM BUREAU INSURANCE COMPANY, INC., Plaintiff, and The Farm Bureau Mutual Insurance Company, Inc., Involuntary Plaintiff, v. Cynthia A. REYNOLDS, et al., Defendants/Appellants, and Farmers Insurance Company, Intervenor/Appellee. |
Court | Kansas Court of Appeals |
Syllabus by the Court
The burden of proof falls upon an insured to prove an injured family member was a resident of the insured's household in order for an uninsured motorist claim to be covered under the insured's motor vehicle insurance policy.
Michael K. Schmitt of Finley, Miller, Cashman, Weingart & Schmitt, Hiawatha, for appellant.
N. Jack Brown of Boddington & Brown, Chtd., Kansas City, for appellee.
Before LARSON, P.J., RULON, J., and ROBERT C. HELSEL, District Judge Retired, assigned.
Cynthia Reynolds appeals, alleging an erroneous jury instruction as to the burden of proving residency under an insurance policy.
Cynthia's daughter, Sheila Reynolds, died as the result of a two-vehicle accident. The liability limits on the vehicle that collided with Sheila's car were appreciably lower than the underinsured motorist coverage limits on two separate cars owned by Cynthia and insured with Farmers Insurance Company (Farmers).
Cynthia, as conservator of Sheila's daughter and sole heir, Ashleigh Nichole Reynolds, alleged her Farmers policy covered Sheila because insureds included "family members." A family member was defined in the insurance policy as "a person related to you by blood ... who is a resident of your household."
The critical issue was Cynthia's claim and Farmers' denial that Sheila was a resident of Cynthia's household at 611 North Third Street, Hiawatha, Kansas, at the time of her death.
This case began as an interpleader action in which Cynthia was a defendant. Farmers was permitted to intervene. The issue of residency was decided by a jury trial in which Cynthia made the opening statement, went forward with her evidence first, and presented opening and closing jury arguments.
After completion of all evidence, the trial court proposed and gave, over Cynthia's objection, the following instruction:
Cynthia argued that once she had shown that Sheila had established a residency at her house, the burden shifted to Farmers to prove Sheila had changed her residence. Cynthia's proposed instruction so stating was not given.
The jury verdict, rendered by a unanimous vote, was that, "at the time of her death, Sheila Reynolds was not a resident of the household of her mother."
The sufficiency of the evidence to justify the verdict is not an issue on appeal. The evidence was contradictory, which gives credence to Cynthia's contention that if the burden of proof was shifted to Farmers a different result would have been reached by the jury.
Cynthia concludes the issue is whether Sheila had changed her residence and cites an estate case, In re Estate of Phillips, 4 Kan.App.2d 256, 604 P.2d 747, rev. denied 227 Kan. 927 (1980), and a divorce case, Perry v. Perry, 5 Kan.App.2d 636, 623 P.2d 513 (1981), in support of her position. Both cases held the burden of proving a change in residence is on the party who asserts the change, but this is not the determinative issue herein.
The critical issue, simply stated, is:
Was the jury properly instructed as to the burden of proof in determining if Sheila was a member of Cynthia's household at the time of Sheila's death?
Our standard of review on appeal of the alleged erroneous jury instruction was set forth in Trout v. Koss Constr. Co., 240 Kan. 86, 88, 727 P.2d 450 (1986):
Counsel have not cited to us nor has our research located any Kansas case directly on point regarding the issue of the burden to prove residency sufficient to make a family member an insured under underinsured motorist coverage.
It is the general rule that the insured has the burden of proving the loss sustained was one that comes within the coverage of the policy. 19 Couch on Insurance 2d § 79:345 (rev. ed. 1983) (citing U.S.D. No. 285 v. St. Paul Fire and Marine Ins. Co., 6 Kan.App.2d 244, 245-46, 627 P.2d 1147, rev. denied 229 Kan. 671 [1981]. 21 Appleman, Insurance Law and Practice § 12274 n. 13 (rev. ed. 1980), cites Southern Farm Bur. Cas. Ins. Co. v. Fields, 262 Ark. 144, 553 S.W.2d 278 (1977), in stating the burden rests on an injured person to show she was an insured within the uninsured motorist coverage. Arellano v. Maryland Casualty Company, 312 S.W.2d 701 (Tex.Civ.App.1958), was also cited in Appleman § 12275 n. 14 for the rule that the burden rested on the named insured to prove that her daughter, who was injured in an automobile accident while riding in an automobile owned by a third party, was a resident of the same household as the named insured.
U.S.D. No. 285 v. St. Paul Fire and Marine Ins. Co., 6 Kan.App.2d 244, 627 P.2d 1147, involved damage to school buildings from a tornado. In ruling on the issue of who had the burden of proving the extent of the loss, our court stated:
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