Rawlins v. Stanley

• Decision Date: 12 June 1971
• Docket Number: No. 46030,46030
• Parties: Josephine M. RAWLINS et al., Appellees, v. Charles W. STANLEY, a minor by and through his mother and next friend, Mary Stanley, Defendant, Farmers Underwriters Association, Intervenor-Appellant.
• Court: Kansas Supreme Court

Page 840

486 P.2d 840

207 Kan. 564

Josephine M. RAWLINS et al., Appellees, v. Charles W. STANLEY, a minor by and through his mother and next friend, Mary Stanley, Defendant Farmers Underwriters Association, Intervenor-Appellant.

No. 46030.

Supreme Court of Kansas.

June 12, 1971.

Syllabus by the Court

1. An insurance carrier which has issued an uninsured motorist policy has such an interest in an action brought by its insured against an uninsured motorist that it may intervene as a matter of right under K.S.A. 1970 Supp. 60-224(a), where its application is timely and its interests are not being adequeately represented.

2. Actual notice of the pendency of an action by an insured against an uninsured motorist is required before such an insurance carrier is required to take steps to intervene in such an action.

John J. Jurcyk, Jr., of McAnany, Van Cleave & Phillips, Kansas City, argued the cause, and Robert D. Benham, Kansas City, was with him on the brief for intervenor-appellant.

Charles D. Kugler, of Carson, Mahoney & Fields, Kansas City, argued the cause, and J. W. Mahoney, Kansas City, was with him on the brief for appellees.

FOTH, Commissioner.

The basic issue presented in this appeal is whether an insurance carrier which has issued a policy containing an uninsured motorist clause may, by timely motion, intervene as of right as a party defendant in an action brought bt its insured against an uninsured motorist. There are other issues the parties seek to have determined, but for reasons to be discussed we do not deem them ripe for decision on this record.

The details of the automobile collision out of which this action arose are not important to the decision in this case. Suffice it to say that on February 19, 1969, the plaintiffs-appellees, Josephine M. Rawlins and her two minor children, were passengers in a car driven by Mrs. Rawlins' husband, Edward G. Rawlins, on Reynolds Avenue in Kansas City, Kansas, when the Rawlins car was involved in a collision with a car driven by the seventeen-year-old defendant below, Charles W. Stanley.

Although the record is not clear, apparently Mary Stanley, mother of Charles W. Stanley, thereafter brought an action in the magistrate court of Wyandotte County against Edward G. Rawlins for damage to the Stanley car. The intervenor-appellant, Farmers Underwriters Association (herein-after 'Farmers') apparently defended that action pursuant to its liability policy issued to Rawlins. The nature of the defense is not clear from the record, but apparently it was successful.

On May 2, 1969, counsel for plaintiffs addressed a letter to a claim agent for Farmers advising him in substance that the Rawlins' intended to bring an action against Charles Stanley for the plaintiffs' personal injuries; that he was informed that Stanley was uninsured; and that Rawlins intended to make a claim against Farmers under its uninsured motorist policy.

A copy of this letter was sent to counsel who had defended the prior magistrate court action, together with a request that he furnish plaintiffs' counsel with any available information concerning the accident.

So far as the record reveals, there was no further communication among any of these persons until plaintiffs' counsel received a letter from the trial court dated September 16, 1969, advising that the case was set for trial at 1:30 p. m. on September 30, 1969, whereupon, on September 17, 1969, plaintiffs' attorney wrote Farmers' claim agent advising him on the trial setting.

There is no indication in the record that Farmers was ever notified that the petition in this case had actually been filed on May 5, 1969, or that the defendant had, through counsel, filed an answer consisting of a general denial on May 27, 1969.

On September 24, 1969, Farmers filed a motion to intervene as a party defendant, and for a continuance of the trial in order to permit it to investigate plaintiffs' claims and prepare for trial. Attached to the motion was Farmers' proposed answer setting out that it ahd issued a policy to Rawlins with an uninsured motorist clause under which it might be liable to plaintiffs under certain crcumstances if Stanley was uninsured; that plaintiffs had failed to comply with one of the terms of the policy requiring the insured to forward to Farmers a copy of the summons and petition in any action by the insured against a third party; that its policy provided that it would not be bound as to liability or amount of damages by any judgment obtained by the insured against an uninsured motorist; and that it generally contravened the plaintiffs' allegations of negligence and injury.

The motion to intervene was heard by the trial court on September 30, 1969, before the trial was to commence. Plaintiffs strongly resisted the motion before the trial court, as they do here, on the ground that it was not timely. Although the proceedings on the motion do not appear in the record, each party includes a transcript of the court's findings from the bench as an appendix to its brief. The court's pertinent remarks were:

'All right. Apparently, it's an open question in Kansas how these matters should be handled. I'm on the side of making these two separate proceedings-one where the plaintiff proceeds against the alleged tort-feasor, and then if he prevails, he can proceed against his insurance company on the uninsured motorist clause. I think this is a lot better way to handle it. I'm not going to go on the basis of the delay in coming in, but I'm going to put it straight out that I think this is the way it ought to be handled-by separate proceedings. I doubt that anything I would say on whether the company is ultimately bound by a judgment which the plaintiff might get would be dicta only because as has been pointed out, the insurance company isn't in the case. It would be my guess that the insurance company would not be bound by the amount as determined by the Court in this proceeding; in view of the terms of the policy, but I don't think I am going to make a ruling one way or the other on that.'

Intervention was accordingly denied, and this appeal followed.

The motion was made pursuant to that portion of K.S.A. 60-224(a) which, prior to its amendment, read:

'(a) Intervention of right. Upon timely application anyone shall be permitted to intervene in an action: * * * (2) when the representation of the applicant's interest by existing parties is or may be inadequate and the applicant is or may be bound by a judgment in the action;. * * *'

By subsequent amendment by this court, part (2) of what now appears as K.S.A. 1970 Supp. 60-224(a) now reads:

'Upon timely application anyone shall be permitted to intervene in an action: * * * (2) when the applicant claims an interest relating to the property or transaction which is the subject of the action and he is so situated that the disposition of the action may as a practical matter substantially impair or impede his ability to protect that interest, unless the applicant's interest is adequately represented by existing parties.'

The effect of the amendment is to broaden the right of intervention. The showing now required is whether 'as a practical matter' the disposition of the case will 'substantially impair or impede' the would-be intervenor's ability to protect his interests. He no longer must show that he is or may be 'bound' by the judgment.

Under either version of the statute it appears that the right to intervene depends on the concurrence of three factors: (1) timely application; (2) a substantial interest in the subject matter; and (3) lack of adequate representation of the intervenor's interests.

In this case there is no question raised by either party as to the third element. Indeed, an examination of the trial proceedings shows the defense of the uninsured motorist Stanley to have been nominal at best. Plaintiffs' only two witnesses, Mr. and Mrs. Pawlins, were not cross examined either as to liability or injuries, and no medical evidence was adduced. The defense consisted of a brief narration by the minor defendant as to the circumstances of the collision. On this meager evidence the court awarded...