Newton v. Nicholas
| Decision Date | 06 January 1995 |
| Docket Number | No. 70676,70676 |
| Citation | 887 P.2d 1158,20 Kan.App.2d 335 |
| Parties | Ryan NEWTON, Plaintiff/Appellee, v. Doyle D. NICHOLAS, Defendant/Appellee, Ohio Casualty Insurance Company, Intervenor/Appellant, Susan M. Gordon, Defendant/Intervenor/Appellee, and Christy Sheehan, Intervenor/Appellee. |
| Court | Kansas Court of Appeals |
Syllabus by the Court
1. Summary judgment is proper where the only question or questions presented are questions of law.
2. It is the general rule that exceptions, limitations, and exclusions to insuring agreements require a narrow construction on the theory that the insurer, having affirmatively expressed coverage through broad promises, assumes a duty to define any limitations on that coverage in clear and explicit terms.
3. The language of an exclusionary provision in an insurance policy must be afforded its plain, ordinary meaning. Courts should not strain to create an ambiguity where, in common sense, there is none.
4. Under the insurance policy provision at issue, coverage is properly excluded only when the use of a motor vehicle is causally connected with the liability-producing event. Therefore, before the doctrine of concurrent negligence can be applied, the nonvehicle-related negligence must exist separately and independently from any vehicle-related negligence.
Keith K. Couch and Katherine C. Opie, of Couch, Strausbaugh, Pierce & King, Chartered, Overland Park, for appellant.
Stephen G. Dickerson, of Kugler & Dickerson, Kansas City, for appellee Ryan Newton.
Louis A. Silks, Jr., Merriam, for appellee Doyle D. Nicholas.
Richard N. Roe, of Lowe, Farmer, Bacon & Roe, Olathe, for appellee Susan M. Gordon.
Larry E. Benson, Kansas City, for appellee Christy Sheehan.
Before BRISCOE, C.J., and GERNON, J., and RICHARD A. MEDLEY, District Judge, assigned.
Ohio Casualty Insurance Company (Ohio) appeals from the district court's grant of summary judgment in favor of Ryan Newton, Susan Gordon, and Christy Sheehan. The court found that Ohio was liable for injuries sustained by Newton, Gordon, and Sheehan in their underlying personal injury claim. They were injured when the vehicle they were in struck a 500-gallon water tank that had fallen from a flatbed truck driven and owned by Doyle Nicholas.
The injuries occurred when the car driven by Gordon and owned by her father struck the water tank. Gordon's automobile was insured against liability under a policy issued by Metropolitan Property and Liability Insurance Company (Metropolitan) containing a bodily injury limit of liability of $300,000 per occurrence and underinsured motorist coverage with a limit of liability of $300,000 per person/per accident.
Nicholas' truck was insured by Shelter Insurance Company (Shelter) and contained bodily injury limits of liability of $25,000 per person and $50,000 per accident. Nicholas was also insured against personal liability under a policy of homeowners insurance issued by Ohio containing a bodily injury limit of liability in the amount of $100,000 per occurrence.
Newton filed suit against Nicholas and Metropolitan, alleging the accident occurred as a result of Nicholas' negligence in both vehicle- and nonvehicle-related acts and that Metropolitan was liable to the extent Nicholas was underinsured. A series of settlements followed in which Shelter's $50,000 policy limit and Metropolitan's effective underinsured motorist policy limit of $250,000 were divided among Newton, Gordon, and Sheehan.
Newton then filed an amended petition, asserting a cause of action against Nicholas and claiming the collision was caused solely by Nicholas' nonvehicle-related acts of negligence and carelessness in failing to tie down or secure the water tank. Ohio initially denied coverage and refused to defend Nicholas, but, later, Newton, Nicholas, and Ohio agreed that Ohio should intervene in the lawsuit in order to seek a declaratory judgment as to whether it was liable under the homeowners policy issued to Nicholas.
Ohio was allowed to intervene and filed a petition for declaratory relief, claiming that any injuries sustained by Newton, Gordon, and Sheehan as a result of Nicholas' conduct were specifically excluded by the terms and provisions of its homeowner's policy. The parties agreed that should the dispute be resolved in favor of coverage, Ohio's $100,000 policy limit would be paid to and divided by the three claimants in the same manner as the previous settlement amounts had been divided. The parties also agreed that, whether or not the court found in favor of coverage, there would be no further claim against Nicholas personally.
Newton then filed a second amended petition, reiterating his claim against Nicholas and adding a claim against Gordon. Newton alleged that Gordon failed to keep her vehicle under proper control, failed to keep a proper lookout, and drove her vehicle at a speed greater than was reasonable under the existing conditions. Newton and Gordon later agreed to a partial dismissal with prejudice of the claim by Newton against Gordon.
With regard to the declaratory judgment action, the parties filed a joint stipulation of the facts relevant to the dispute. Ohio then filed a motion for summary judgment, as did Newton, Gordon, and Sheehan. The trial court ruled in favor of Newton, Gordon, and Sheehan, finding that Ohio had not sustained its burden of demonstrating that Nicholas' conduct was excluded from coverage under the homeowners policy.
"Summary judgment is proper where the only question or questions presented are questions of law." Fletcher v. Nelson, 253 Kan. 389, 391, 855 P.2d 940 (1993). In the present case, none of the material facts are in dispute; suggesting that the matter was ripe for summary judgment.
With regard to the water tank on Nicholas' truck, the parties stipulated as follows.
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...afforded its plain, ordinary meaning. Courts should not strain to create an ambiguity where, in common sense, there is none." Newton v. Nicholas, 20 Kan.App.2d 335, Syl. p 3, 887 P.2d 1158, rev. denied 257 Kan. 1093 The district court also held First Financial's policy was ambiguous because......
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Crist v. Hunan Palace, Inc., 89,326.
...insured causally connected to use of car, automobile exclusion of homeowner's policy applies, Upland not mentioned); Newton v. Nicholas, 20 Kan. App. 2d 335, 887 P.2d 1158,rev. denied 257 Kan. 1093 (1995) (Upland not mentioned, negligent acts were failure to inspect and secure water tank on......
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CHAPTER 4 First-Party Insurance
...9, 2013). Tenth Circuit: Estate of Pennington v. Wolfe, 262 F. Supp.2d 1254 (D. Kan. 2003). State Courts: Kansas: Newton v. Nicholas, 887 P.2d 1158 (Kan. App. 1995). Mississippi: Corban v. United Services Automobile Association, 20 So.3d 601 (Miss. 2009). New York: Continental Casualty Co. ......
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Chapter 4
...9, 2013). Tenth Circuit: Estate of Pennington v. Wolfe, 262 F. Supp.2d 1254 (D. Kan. 2003). State Courts: Kansas: Newton v. Nicholas, 887 P.2d 1158 (Kan. App. 1995). Mississippi: Corban v. United Services Automobile Association, 20 So.3d 601 (Miss. 2009). New York: Continental Casualty Co. ......