Pestock v. State Farm Auto. Ins. Co., 55155
| Decision Date | 19 January 1984 |
| Docket Number | No. 55155,55155 |
| Citation | 9 Kan.App.2d 188,674 P.2d 1062 |
| Parties | Josephine L. PESTOCK, Appellant, v. STATE FARM AUTOMOBILE INSURANCE COMPANY, Appellee. |
| Court | Kansas Court of Appeals |
Syllabus by the Court
1. The phrase "arising out of the ... use of" a vehicle imparts a more liberal concept of causation than does the phrase "proximate cause."
2. K.S.A. 40-3107(f ) requires that one not an occupant of a motor vehicle be "struck by" a motor vehicle to receive personal injury protection benefits.
3. When this court is faced with the construction of a statute, its function is to interpret such statute and not to rewrite legislation.
John H. Fields of Carson, Fields, Boal, Jeserich and Asner, Kansas City, for appellant.
Gerald L. Rushfelt of Rushfelt, Mueller, Druten & Moran, Overland Park, for appellee.
Before ABBOTT, P.J., PARKS, J., and HARRY G. MILLER, District Judge Retired, Assigned.
This is an action brought by plaintiff to recover no-fault benefits from the defendant insurance company. The plaintiff has appealed from an order of the court sustaining the defendant's motion to dismiss.
The lawsuit arises out of an incident that occurred in front of plaintiff's house in which plaintiff's minor daughter was struck and fatally injured by a car being driven by George Mitchell. Plaintiff neither observed nor heard the accident, but was told of its occurrence and arrived at the scene a few minutes later. Plaintiff subsequently required psychiatric care. There is now pending in the District Court of Wyandotte County a lawsuit brought by plaintiff against George Mitchell seeking to recover for her own emotional and physical injuries and the expenses of her injuries which she claims were caused by the negligence or "fault" of George Mitchell in hitting her daughter with his car.
The present suit before this court is a separate action brought by plaintiff against the driver's insurance carrier in which she seeks to recover only for the expenses of her injuries (PIP benefits) on a "no-fault basis."
Plaintiff contends that the purpose of the Kansas Automobile Injury Reparations Act, K.S.A. 40-3101 et seq., is to make no-fault benefits available to compensate persons for accidental bodily injury "arising out of the ... use of" a motor vehicle. K.S.A. 40-3102.
The phrase "arising out of the ... use of" imparts a more liberal concept of causation than "proximate cause." Farm Bureau Mut. Ins. Co. v. Evans, 7 Kan.App.2d 60, 63, 637 P.2d 491 (1981), rev. denied 231 Kan. 800 (1982). Thus it is not necessary to find that the injury was directly and proximately caused by the use of a vehicle to impart liability under the no-fault statute.
Plaintiff argues that regardless of whether or not she may have a cause of action against Mitchell for her injuries, there is sufficient causal connection or relation between his use of his vehicle and her injuries to allow her to recover PIP benefits if she is not required to allege actual physical contact between her person and the insured motor vehicle.
The term "arising out of the ... use of" is a threshold requirement for recovery under the Kansas no-fault...
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