Kirtland v. Tri-State Ins. Co.

• Court: Kansas Supreme Court
• Writing for the Court: OWSLEY
• Citation: Kirtland v. Tri-State Ins. Co., 220 Kan. 631, 556 P.2d 199 (Kan. 1976)
• Decision Date: 06 November 1976
• Docket Number: TRI-STATE,No. 47999,47999
• Parties: Clara J. KIRTLAND, Appellant, v.INSURANCE COMPANY, Appellee.

Page 199

556 P.2d 199

220 Kan. 631

Clara J. KIRTLAND, Appellant, v. TRI-STATE INSURANCE COMPANY, Appellee.

No. 47999.

Supreme Court of Kansas.

Nov. 6, 1976.

Syllabus by the Court

Under K.S.A. 66-1,128 a party injured by the insured motor carrier has a direct cause of action in tort against the insurer and, because the statute is remedial and not substantive, the two-year statute of limitations (K.S.A.1975 Supp. 60-513) applies.

Philip Shaffer, Salina, argued the cause, and Frank C. Norton, Salina, was on the brief for the appellant.

Aubrey G. Linville, of Clark, Mize & Linville, Chartered, Salina, argued the cause and was on the brief for the appellee.

OWSLEY, Justice:

On March 25, 1973, a vehicle driven by plaintiff Clara J. Kirtland collided with a vehicle driven by George F. Bowers. Prior to this accident, Bowers had filed with the Kansas Corporation Commission a policy of liability insurance issued by defendant Tri-State Insurance Company, and had received a certificate of convenience and necessity to operate as a motor carrier in this state, all in conformity with K.S.A. 66-1,128 (now K.S.A.1975 Supp. 66-1,128).

On February 13, 1975, plaintiff filed her original petition naming only Bowers as defendant. Subsequently, the sheriff returned the summons non est, indicating that after a diligent search and inquiry he was unable to find the named defendant. Thereafter, on April 11, 1975, more than two years after the accident, plaintiff filed an amended petition suing Tri-State, insurer of Bowers.

Defendant Tri-State filed a motion to dismiss, claiming the action against it was barred by the two-year statute of limitations of K.S.A.1975 Supp. 60-513(4). The trial court sustained the motion and entered an order dismissing Tri-State as a party defendant. From the order plaintiff appeals.

Plaintiff contends the right to sue Tri-State directly is one created by statute, thus the three-year limitation period of K.S.A. 60-512(2) should apply. Defendant counters that the cause of action is one in tort, thus plaintiff has only two years to file suit under K.S.A.1975 Supp. 60-513(4).

Because the two-year statute of limitations did not toll against Tri-State before it was named as defendant, plaintiff's cause of action must come under the three-year statute or it will be barred. (Schmidt v. Nauman, 202 Kan. 131, 446 P.2d 828.)

K.S.A. 60-512 reads:

'The following actions shall be brought within three (3) years: . . . (2) An action upon a liability created by a statute other than a penalty or forfeiture.'

K.S.A.1975 Supp. 60-513 reads:

'The following actions shall be brought within two (2) years: . . . (4) An action for injury to the rights of another, not arising on contract, and not herein enumerated.'

Plaintiff's argument that the three-year statute of limitations applies is based on her interpretation of K.S.A. 66-1,128. This statute requires all motor carriers to obtain mainimum liability insurance before they can lawfully operate in this state. In addition, as interpreted by this court, the statute gives the plaintiff injured by a motor carrier the option of suing the motor carrier's insurer directly though the carrier is not made a party to the action. (Sterling v. Hartenstein, 185 Kan. 50, 341 P.2d 90; Burks v. Aldridge, 154 Kan. 731, 121 P.2d 276; Dunn v. Jones, 143 Kan. 218, 53 P.2d 918.) Plaintiff argues the right to sue is a liability of the insurer created by statute, which would not exist but for the creation of the statute (Baldwin v. Fenimore, 149 Kan. 825, 89 P.2d 883; Hollinger v. Dickinson County, 115 Kan. 92, 222 P. 136; Pretzel v. Fiss, 84 Kan. 720, 115 P. 536), and therefore subject to the statute of limitations for statutorily created rights (K.S.A. 60-512(2)).

As a general rule the nature of the cause of action determines the applicable statute of limitations. In addition, statutes of limitations are to be applied to all proceedings emanating from a cause of action in the same manner as they apply to the basic cause of action. The purpose of this rule is to make the right to be enforced, not the procedure, the test as to which statute of limitations applies. (51 Am.Jur.2d, Limitations of Actions, § 62, pp. 640-641.) This court recognized the rule in the case of Hollinger v. Dickinson County, supra. There the plaintiff sued Dickson County for damages resulting from a defective bridge. The trial court dismissed the action as being barred by the two-year statute of limitations, relying on the case of A. T. & S. F. Rld. Co. v. King, 31 Kan. 708, 3 P. 565. This court reversed, modifying the King decision in the following language:

'. . . Perhaps the decision might better have been justified upon the theory that the statute merely effected a procedural change, eliminating a defense to which the plaintiff's claim for injuries due to the defendant's negligence would otherwise have been open. It has been held that the invoking of a statutory provisional remedy by the plaintiff does not make the action one upon a liability created by statute (Pare v. Mahone, 32 Ga. 253) . . .

'The present action is one upon a liability created by statute. Without the statute there would be no basis whatever for the plaintiff's claim. (Wagner v. Edwards County, 103 Kan. 719, 176 P. 140, 665.) The statute giving the right of action is not one relating to remedy or procedure; it concerns and imposes an tive rights of the parties and imposes an obligation where none before existed. . . .' (115 Kan. pp. 94, 95, 222 P. p. 137, 138.)

In the instant case we hold the two-year statute of limitations applies for three reasons.

First, the nature of the present action is one of tort, as this court has previously held in Fitzgerald v. Thompson, 167 Kan. 87, 204 P.2d 756. There the court characterized the cause of action against an insurance company as being a tort liability. The court said:

'The rule deducible from the above authorities is that the liability assumed by the insurer is neither a contract liability nor a statutory liability. It is a tort liability-the liability in tort which the insured has 'from the negligent operation' of his business under the permit. The fact that this tort liability is determined by the statute and by the insurance policy does not keep it from being a tort liability.' (pp. 90, 91, 204 P.2d p. 758.)

(See also, Sterling v. Hartenstein, supra; Streebin v. Capitol Truck Lines, 182 Kan. 527, 322 P.2d 776; ...