Patrons Mut. Ins. Ass'n v. Norwood, 54134

• Decision Date: 16 July 1982
• Docket Number: No. 54134,54134
• Citation: 231 Kan. 709,647 P.2d 1335
• Parties: , 36 A.L.R.4th 738 PATRONS MUTUAL INSURANCE ASSOCIATION, Appellant, v. Charles NORWOOD, Appellee.
• Court: Kansas Supreme Court

Page 1335

647 P.2d 1335

231 Kan. 709, 36 A.L.R.4th 738

PATRONS MUTUAL INSURANCE ASSOCIATION, Appellant, v. Charles NORWOOD, Appellee.

No. 54134.

Supreme Court of Kansas.

July 16, 1982.

Syllabus by the Court

1. One who claims benefits under K.S.A. 40-284 must show he or she is "legally entitled to recover" damages from the uninsured motorist.

2. Following Winner v. Ratzlaff, 211 Kan. 59, 62, 505 P.2d 606 (1973), "legally entitled to recover" means a claimant must prove the uninsured motorist is legally liable to him or her for damages in spite of all substantive defenses.

3. In an action for damages by a claimant husband against his uninsured motorist wife, it is held : The doctrine of interspousal immunity prevents the husband from being "legally entitled to recover" damages against the wife.

Allen R. Slater of Haskin, Hinkle, Slater & Snowbarger, Olathe, argued the cause and was on the brief for appellant.

Donald W. Vasos of Vasos, Kugler and Dickerson, Kansas City, argued the cause and was on the brief for appellee.

Wayne T. Stratton of Goodell, Stratton, Edmonds, Palmer & Wright, Topeka, was on the brief amicus curiae for the Kansas Ass'n of Defense Counsel.

L. M. Cornish of Glenn, Cornish, Schulteis & Hanson, Chartered, Topeka, was on the brief amicus curiae for the Alliance of American Insurers and the Kansas Ass'n of Property and Cas. Insurers, Inc.

HERD, Justice:

This is an appeal from a declaratory judgment. The essential facts are undisputed. On December 9, 1979, Patrons Mutual Insurance Association issued a policy of automobile insurance to Maeola Norwood. On March 10, 1980, Maeola Norwood was driving her automobile on Parallel Parkway in Kansas City, Kansas, when she made a left turn in front of a car driven by Elmer Rainey. The two automobiles collided. Charles Norwood was a passenger in the automobile being driven by his wife, Maeola. He sustained personal injuries as a result of the collision.

Charles Norwood proceeded to file a claim for damages against his wife, Maeola, under the liability provisions of the policy issued to her. Patrons denied the claim on the grounds of interspousal tort immunity as outlined by this court in Sink v. Sink, 172 Kan. 217, 239 P.2d 933 (1952), and reaffirmed in Guffy v. Guffy, 230 Kan. 89, 631 P.2d 646 (1981). Charles Norwood then made a claim for uninsured motorist protection, arguing his wife, although insured, was uninsured as to him because of interspousal immunity. Patrons denied the claim on the grounds neither driver was uninsured.

In August of 1981 Charles Norwood filed a Demand for Arbitration with the American Arbitration Association, pursuant to the insurance policy issued to Maeola, claiming he was entitled to benefits under the policy's uninsured motorist provisions.

On October 2, 1981, Patrons filed a "Petition for Injunction and For Declaratory Judgment" asking the court to enjoin Charles Norwood's efforts to force arbitration of his claim and to determine the rights of the parties. On January 11, 1982, the district court filed its "Memorandum Decision." First, relying on Clayton v. Alliance Mutual Casualty Co., 212 Kan. 640, 512 P.2d 507 (1973), the court held Norwood could not force arbitration of his dispute with Patrons. Further, the court found Maeola Norwood was an uninsured operator of the automobile in which Charles Norwood was a passenger and that Charles Norwood was legally entitled to bring an action against Patrons pursuant to the uninsured motorist provisions of the policy.

Patrons has appealed.

The issue is whether the Kansas doctrine of interspousal immunity precludes recovery of damages by a husband for personal injuries suffered in an automobile accident caused by his wife's negligence where such recovery is sought under the uninsured motorist provisions of a liability policy issued to his wife.

It should first be noted this court is without jurisdiction to hear appellee's argument that the trial court erred in holding Charles Norwood could not force arbitration of his claim. That holding was not timely appealed and as such we are precluded from reviewing it. K.S.A. 60-2103(h); Chetopa State Bancshares, Inc. v. Fox, 6 Kan.App.2d 326, 334, 628 P.2d 249 (1981).

Let us now turn to Charles Norwood's claim against Patrons. The policy issued to Maeola Norwood defines "insured" as "the named insured (and) any relative." The uninsured motorist section of the policy requires the company:

"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 automobile because of bodily injury, sickness or disease ... sustained by the insured, caused by accident and arising out of the ownership, maintenance or use of such uninsured automobile...."

Under the policy an uninsured automobile includes "an automobile ... with respect to which there is a bodily injury liability bond or insurance policy applicable at the time of the accident but the company writing the same denies coverage thereunder...." Thus Charles Norwood claims he is an insured under the terms of his wife's policy, that his wife is an uninsured motorist because Patrons had denied coverage under the policy issued to Maeola and that pursuant to the uninsured motorist section of the policy Patrons should be required to pay all sums which he can show as damages resulting from the accident.

K.S.A. 40-284, the Kansas Uninsured Motorist Statute, provides in pertinent part:

"(a) No automobile liability insurance policy covering liability arising out of the ownership, maintenance, or use of any motor vehicle shall be delivered or issued for delivery in this state with respect to any motor vehicle registered or principally garaged in this state, unless the policy contains or has endorsed thereon, a provision with coverage limits equal to the limits of liability coverage for bodily injury or death in such automobile liability insurance policy sold to the named insured for payment of part or all sums which the insured or the insured's legal representative shall be legally entitled to recover as damages from the uninsured owner or operator of a motor vehicle because of bodily injury, sickness or disease, including death, resulting therefrom, sustained by the insured, caused by accident and arising out of ownership, maintenance or use of such motor vehicle, or providing for such payment irrespective of legal liability of the insured or any other person or organization." (Emphasis added.)

Initially, it is argued by appellee that because an insured's claim against the uninsured motorist insurance carrier is based on contract, and the interspousal immunity doctrine set forth in Guffy v. Guffy applies only to actions for tortious personal injury, the defense should not be available to Patrons. Judge Abbott spoke to this issue in Hammerman v. Southwestern Ins. Group, 1 Kan.App.2d 445, 448, 571 P.2d 1 (1977):

"It has been said uninsured motorist insurance is in the nature of a contract of indemnity as opposed to liability insurance. It does not protect the insured against liability but rather it insures him against loss by a limited group of tortfeasors. (Citation omitted.) Uninsured motorist coverage has been described as more closely resembling 'limited accident insurance.' (Citation omitted.)

"It must be kept in mind that we are dealing with a hybrid case in that the rights and duties as between the injured insured and his uninsured motorist insurance carrier are determined by contract law, and the liability of the uninsured motorist insurance carrier is determined by the legal liability of the uninsured motorist under tort law."

We agree with the Hammerman rationale. Appellee's argument provides no basis for denying Patrons the use of the interspousal immunity doctrine as a defense.

This case turns on the trial court's holding the insurance company could not use interspousal immunity to deny Charles Norwood's claim because "(t)he phrase 'legally entitled to recover' does not mean that the insurer stands in the tortfeasor's stead, but simply that the plaintiff must be able to establish fault on the part of the tortfeasor."

Both K.S.A. 40-284 and the insurance policy issued to Maeola Norwood contain the same requirement. Before an insured can recover under the uninsured motorist provisions of the insurance policy, that person must show he or she is "legally entitled to recover" damages from the uninsured motorist. Thus, in the case at bar Charles Norwood must show a legal right to obtain damages from his wife Maeola as a result of the automobile accident.

Although both parties cite numerous cases from other jurisdictions, let us first examine our treatment of the subject. Sturdy v. Allied Mutual Ins. Co., 203 Kan. 783, 457 P.2d 34 (1969), was this court's initial opportunity to discuss K.S.A. 40-284. In that opinion we defined "uninsured motorist coverage" as "protection afforded an insured by first party insurance against bodily injury inflicted by an uninsured motorist, after the liability of the uninsured motorist for the injury has been established." (Emphasis added.) 203 Kan. at 785, 457 P.2d 34.

Four years later in Winner v. Ratzlaff, 211 Kan. 59, 62, 505 P.2d 606 (1973), the issue was "whether it is requisite to recovery against an uninsured motorist liability carrier that judgment first be obtained against the uninsured motorist, that is to say, is the establishment of liability on the part of the uninsured motorist a condition precedent to recovery under an uninsured motorist policy?" There the court found no requirement the claimant must first sue and establish fault of the uninsured motorist before making a claim against the uninsured motorist insurance carrier. The court also construed the phrase "legally entitled to recover as damages" to mean:

"(T)he insured must be able to establish fault on the part of the uninsured motorist which gives rise to the damages...