Merritt v. Farmers Ins. Co., Inc., 53332

• Decision Date: 15 July 1982
• Docket Number: No. 53332,53332
• Citation: 647 P.2d 1355,7 Kan.App.2d 705
• Court: Kansas Court of Appeals
• Parties: Florence Alberta MERRITT, Appellant, v. FARMERS INSURANCE CO., INC., Appellee.

Page 1355

647 P.2d 1355

7 Kan.App.2d 705

Florence Alberta MERRITT, Appellant, v. FARMERS INSURANCE CO., INC., Appellee.

No. 53332.

Court of Appeals of Kansas.

July 15, 1982.

Syllabus by the Court

1. As a general rule, the construction and effect of a written contract of insurance is a matter of law to be determined by the court. If the facts upon which a beneficiary relies to recover on the policy are admitted, then it is for the court to decide whether they come within the terms of the policy.

2. In issuing a policy of insurance, a company has a right of contract which permits the company to predetermine who is to be "the insured."

3. Where an insurance contract is not ambiguous, the court may not make a contract for the parties. Its function is to enforce the contract as made.

4. Insurance policies are ordinarily not invalidated by the violation of statutes intended to protect the insured or which do not directly affect the policy.

5. An uninsured motorist, as defined by K.S.A. 40-3101, may claim benefits under the uninsured motorist provisions of another person's policy under coverage afforded the other person pursuant to K.S.A. 40-284, where the uninsured motorist is an "insured" as defined by the policy.

6. In such situations, the function of the court is not, under the guise of public policy, to create another contract for the parties so as to relieve the insurer of a burden it clearly and voluntarily assumed.

B. David Roselli and Michael L. Hodges, of Hodges & Roselli, and Lloyd Burke Bronston, Overland Park, for appellant.

Jeanne Gorman and Bill E. Fabian of McAnany, Van Cleave & Phillips, P. A., Kansas City, for appellee.

Before SPENCER, P. J., PARKS, J., and RONALD D. INNES, District Judge, Assigned.

RONALD D. INNES, District Judge, Assigned:

The plaintiff-appellant Florence Alberta Merritt was found by the trial court not to be an insured under the uninsured motorist provisions of a policy of insurance issued by the defendant-appellee Farmers Insurance Company, Inc., to plaintiff Yvonne JoAnne Simpson, who was the driver of an uninsured vehicle owned by appellant Merritt and in which Merritt was riding as a passenger. Appellant's petition was dismissed for failure to state a claim for which relief could be granted, and this appeal followed.

This action was originally filed by Yvonne JoAnne Simpson against the defendant for injuries sustained as the result of the negligence of an uninsured motorist. This same case was reported earlier in Simpson v. Farmers Ins. Co., 225 Kan. 508, 592 P.2d 445 (1979). There, the Supreme Court held that actual physical contact between motor vehicles was not a prerequisite to bringing a suit for personal injuries under the uninsured motorist provisions of an automobile liability policy. Upon remand to the district court, Simpson was granted leave to amend her petition to include a count by a passenger, namely, appellant Merritt. Merritt then filed a motion for partial summary judgment pursuant to K.S.A. 60-256 on the issue of whether she was insured within the meaning of the defendant's policy on the date of the accident. That motion was submitted to the court based on the following stipulated facts:

"This action arises out of an automobile accident which occurred on December 12, 1976. The accident occurred when the car in which the plaintiff Merritt was riding as a passenger was forced into a ditch by an unidentified 'ghost' driver. Plaintiff Merritt was riding in an automobile owned by herself and her husband Robert Merritt. They owned no policy of liability insurance.

"Yvonne JoAnne Simpson was driving said vehicle with the permission of its owner. Yvonne JoAnne Simpson owned a policy of automobile insurance with Farmers Insurance Group. Said insurance policy provided benefits for injuries caused by the fault of an uninsured driver.

"The relevant portions of the Farmers Insurance policy are as follows:

'To pay all sums which the insured or his legal representative shall be legally entitled to recover as damages from the owner or operator of an uninsured motor vehicle because of bodily injury sustained by the insured, caused by accident and arising out of the ownership, maintenance or use of such uninsured motor vehicle .... (Part 2, Coverage C, Benefits for Bodily Injury Caused by Uninsured Motorist, page 2.)

' "Insured " means (1) the named insured or a relative, (2) any other person while occupying an insured motor vehicle, and (3) any person, with respect to damages he is entitled to recover because of bodily injury to which Part 11 applies sustained by an insured under (1) or (2) above. (Part 2, Coverage C, Benefits for Bodily Injury Caused by Uninsured Motorist, definitions, page 2.)

' "Insured motor vehicle " means (1) the described automobile provided the actual use thereof is by the named insured or by any other person with the permission of the named insured ..., (2) a non-owned automobile with permission of owner. (Part 2, Coverage C, Benefit for Bodily Injury Caused by Uninsured Motorist, definitions, page 2.)

' "Non-owned automobile " means an automobile not owned by or regularly or frequently used by the named insured or any resident of the same household, other than a substitute automobile. (Part 1, Coverages A & B, Liability Insurance, additional definitions, page 1.)

' "Named Insured " If the insured named in item 1 of the Declarations is an individual, the term "named insured" includes his spouse if a resident of the same household. (Part 1, Coverages A & B, Liability Insurance, Definition of Named Insured, page 1.)' "

On November 12, 1980, the trial court denied Merritt's motion for partial summary judgment, finding as follows:

"1. The controlling facts are uncontroverted and need not be repeated here.

"2. The issue is whether the uninsured motorist provisions of Yvonne Joanne Simpson's policy should apply to protect plaintiff, a passenger/owner of a non-owned and uninsured automobile from damages caused by the act of an uninsured motor vehicle operator.

"3. Ordinarily the uninsured motorist statutes cover any occupant or passenger of an insured automobile and policies which attempt to exclude passengers have been held invalid. But the purpose of the uninsured motorist law is to protect innocent persons who are damaged through the wrongful act of uninsured motorists who are not financially responsible.

"4. Here plaintiff, Florence Alberta Merritt violated K.S.A. 1979 Supp. 40-3104 of the Kansas Automobile Reparations Act which requires that:

'Every owner shall provide motor vehicle liability insurance coverage in accordance with the provisions of this act for every motor vehicle owned by him or her ....'

"Throughout the act sanctions are imposed for non-compliance with those standards.

"5. Plaintiff Merritt cannot be said to be an innocent person damaged by an uninsured motorist when she was in violation of the statute under which she claims.

"6. In (Dreiling v. State Farm Mut. Auto. Ins. Co., 227 Kan. 851, 610 P.2d 611 (1980) ) the Supreme Court refused to require the insurer of a motor vehicle to pay PIP benefits to an injured permissive user when said user was himself the owner of a motor vehicle in which liability was required to be maintained. There the issue was personal injury protection benefits but the rationale used by the court is applicable here.

"7. Plaintiff's motion for partial summary judgment should be and it hereby is overruled."

Thereafter, on November 21, 1980, plaintiff Merritt filed a motion requesting additional findings of fact pursuant to K.S.A. 60-252(b ). In that motion, Merritt requested that the court make findings pursuant to K.S.A. 60-2102(b ) so as to allow an immediate interlocutory appeal. The motion was denied by the court on March 23, 1981, and the case was set for pretrial conference.

At the pretrial conference it was announced to the court that the case of Yvonne JoAnne Simpson had been settled. This was reflected by a stipulation for dismissal filed with the court on May 19, 1981. On that same day the journal entry of the court's decision dismissing the action of Florence Alberta Merritt was filed with the court. The court therein concluded that the denial of the motion for partial summary judgment acted to invalidate Merritt's cause of action and therefore, said action should be dismissed for failure to state a claim for which relief could be granted. On June 1, 1981, Merritt filed her notice of appeal.

It should be noted that at no time did the defendant Farmers Insurance Company, Inc., file a cross motion for summary judgment.

The scope of review for this action was stated in Goforth v. Franklin Life Ins. Co., 202 Kan. 413, Syl. P 1, 449 P.2d 477 (1969):

"As a general rule, the construction and effect of a written contract of insurance is a matter of law to be determined by the court. If the facts upon which a beneficiary relies to recover on the policy are admitted, then it is for the court to decide whether they come within the terms of the policy ...."

Here, the facts are undisputed and the question of coverage is one of law for this court.

The policy in question defines "insured" to include "any other person while occupying an insured motor vehicle." "Insured motor vehicle" is in turn defined to include "a non-owned automobile with permission of owner." The policy was issued to Simpson. It is undisputed that Simpson was driving the Merritt car (a "non-owned automobile") with the permission of Merritt, the owner. It is also undisputed that Merritt was occupying the car at the time of the accident. Defendant does not contend the language is ambiguous. The conclusion is unavoidable that Merritt was an "insured."

In issuing a policy of insurance, a company has a right of contract which permits the company to predetermine who is to be "the insured." Farmers Ins. Co. v. Schiller, 226 Kan. 155, 161-62, 597 P.2d 238 (1979); Forrester v. State Farm Mutual...