Van Hoozer v. Farmers Ins. Exchange
| Decision Date | 08 May 1976 |
| Docket Number | No. 47911,47911 |
| Citation | 549 P.2d 1354,219 Kan. 595 |
| Parties | Vivian C. VAN HOOZER, Plaintiff-Appellee, v. FARMERS INSURANCE EXCHANGE, Defendant-Appellant. |
| Court | Kansas Supreme Court |
Syllabus by the Court
1. Where a policyholder receives endorsements and notice of uninsured motorist coverage from an insurer, making changes in his policy in accordance with the provisions of a new statute which makes an offer of uninsured motorist coverage mandatory, the terms of such coverage shall be construed to be consistent with the mandate of the statute, notwithstanding the accident giving rise to the claim occurred prior to the effective date of the statute.
2. A mandatory uninsured motorist statute is remedial in nature and it should be liberally construed to fulfill its intended purpose.
3. Insurance policy provisions which purport to condition, limit, or dilute the unqualified uninsured motorist coverage mandated by K.S.A. 40-284, are void and unenforceable.
4. Although an insurer has the right to predetermine who is to be an 'insured' under uninsured motorist coverage, a definition in a policy cannot be so confining that a 'named insured' can be eliminated as an insured contrary to the intended coverage of the mandatory statute.
5. In an action to recover damages under an uninsured motorist endorsement, an insurance policy clause purporting to limit an insurer's liability to the amount of recovery under one policy is held to be void and of no effect as an attempt to condition, limit, or dilute the statutory mandate of uninsured motorist coverage.
6. Where an insured payed for uninsured motorist coverage in separate policies and the named insured is killed in a collision with an uninsured motorist while driving one of the insured vehicles, the insured's representative may recover under the uninsured motorist coverage of both policies.
7. The phrase 'legally entitled to recover' as applied to uninsured motorist coverage means that the insured must be able to establish fault on the part of the uninsured motorist which gives rise to the damages and to prove the extent of those damages.
8. It is not a prerequisite to recovery against an uninsured motorist liability carrier that judgment first be obtained against the uninsured motorist. .)
9. The burden of proving a motorist was uninsured is on the claimant; but because of the difficulty of proving a negative, the quantum of proof need only be such as will satisfy the trier of facts that a 'reasonable effort' has been made to ascertain the existence of an applicable policy and that such effort has proven fruitless.
10. Relevant evidence is statutorily defined as evidence having any tendency in reason to prove any material fact. (K.S.A. 1975 Supp. 60-401(b).)
11. A trial judge has the discretion to exclude relevant evidence if he finds its probative value is sobstantially outweighed by its prejudicial nature.
12. Error cannot be predicated on the refusal to give an instruction when its substance is adequately covered in other instructions. The purpose of instructions is to inform the jury of the law governing all issues joined by the pleadings on which evidence is adduced and to advise the jury as to the verdict it may render. When testing the sufficiency of an instruction the instructions must be considered in their entirety.
13. Whether attorneys' fees are to be allowed under K.S.A. 40-256 in an action on insurance policies depends on the facts and circumstances of each particular case.
John T. Flannagan of Payne & Jones, Chartered, Olathe, argued the cause, and Robert P. Anderson, Olathe, was with him on the brief for defendant-appellant.
Marion W. Chipman, Olathe, argued the cause, and Roger D. Stanton and David K. Fromme of Weeks, Thomas, Lysaught, Bingham & Mustain, Chartered, Overland Park, were with him on the brief for plaintiff-appellee.
This is an action brought by the surviving spouse of Thomas H. Van Hoozer to recover from the defendant insurance company under two automobile insurance policies, each providing uninsured motorist coverage. The insurance company appeals from the findings, preliminary rulings, and final judgment of the trial court. Plaintiff cross-appeals from the trial court's denial of her motion for the assessment of attorneys' fees.
On February 21, 1967, Thomas H. Van Hoozer made application to the defendant, Farmers Insurance Exchange (hereinafter referred to as Farmers or defendant), through its agent, Leon Archer, for a policy of insurance on a 1963 Volkswagen. At the same time, Van Hoozer applied to Farmers for a policy of insurance to cover a 1965 Volkswagen. The later vehicle was titled in the name of his wife, the plaintiff herein, Vivian Van Hoozer. A policy was issued by Farmers on each vehicle. As originally issued, neither policy was written to cover the risk of uninsured motorists. Both policies were identical standard form insurance contracts set out in a twelve-page booklet. The policies provided that coverage would extend for the standard six-month period at which time they had to be renewed. In accordance with this provision, both policies were subsequently renewed until February, 1968.
On November 15, 1967, Van Hoozer made written application with Farmers to change the 1963 Volkswagen policy to provide coverage for a 1963 Jaguar. The change was duly recorded by Farmers.
When the six-month period ended in February, 1968, Van Hoozer decided to renew each policy for a period of three months, i. e., until May 21, 1968. Two weeks before the policies were to expire, Farmers mailed an 'Avoid Cancellation' notice to Van Hoozer, reminding him that a premium would be due on May 21, 1968, and failure to renew his policies would result in their cancellation.
In the month of March, 1968, Van Hoozer learned from his physician that he had leukemia.
On May 15, 1968, at approximately 9:00 a. m., Van Hoozer went to the office of the Farmers agent for the purpose of extending the coverage of the two policies. In addition to renewing the policy on the 1963 Jaguar for the period from May 15 to August 21, 1968, Van Hoozer acquired additional medical coverage of $1,000 per person, a $15,000 accidental death endorsement, and uninsured motorist coverage. He also added uninsured motorist coverage to the 1965 Volkswagen policy and extended its term of coverage. He was charged additional premiums for the uninsured motorist coverage on the policies and was given a receipt after paying the agent. He was also given an endorsement relating to the uninsured motorist coverage.
After having completed the foregoing policy changes, Van Hoozer returned to his home where he placed on his dresser the receipt, the 'Avoid Cancellation' notice, and the endorsement increasing limits. Later that morning, while driving his Jaguar to Ottawa, Kansas, on a business trip, he was killed on the highway in a head-on collision with another vehicle. Subsequent investigation disclosed that the driver of the other vehicle, Sammy J Downey, was intoxicated at the time of the accident and that he had been driving north in the southbound lanes of the four-lane interstate highway. Downey was also killed in the accident. A car driven by a third person, Vera Clark, barely escaped being hit a few seconds before the collision by pulling off the highway when she saw the Downey vehicle approaching. There was no evidence of any evasive action taken by Van Hoozer, nor were there any skid marks left by his vehicle.
Van Hoozer's applications for changes in the two insurance policies were subsequently sent by the Farmers agent to the regional office in the usual course of business. As was customary, the regional office processed the policies and mailed declaration sheets and an invoice to the deceased on or after May 27, 1968.
Following the death of her husband, plaintiff, Vivian Van Hoozer received payment from Farmers in the amount of $15,000 under the provisions of the accidental death endorsement coverage on the Jaguar. In addition, Mrs. Van Hoozer collected workmen's compensation death benefits in the amount of $14,000 from St. Paul Fire and Marine Insurance Company, the workmen's compensation insurance carrier for Van Hoozer's employer.
On August 12, 1968, Mrs. Van Hoozer Wrote to the claims department of the defendant insurance company, demanding payment in the amount of $10,000 under the uninsured motorist coverage added to the Jaguar policy. The letter claimed the driver of the other vehicle, Downey, was an uninsured motorist. One week later an attorney for Farmers responded to her claim, denying coverage because of the payment of workmen's compensation benefits. Reliance was placed upon Part II, subsection (c) of the policy and exclusion (4) under Part II, which directed that the 'loss payable' shall be reduced by any workmen's compensation benefits received.
A further demand for payment of the uninsured motorist benefits was made by Mrs. Van Hoozer on August 25, 1968, at which time she called defendant's attention to the newly adopted uninsured motorist statute. (K.S.A. 40-284.) Mrs. Van Hoozer indicated it was her understanding that under the new act it would not make any difference whether she received workmen's compensation benefits. Once again, Farmers refused to make payment, claiming the new uninsured motorist statute did not affect the policy provisions.
Mrs. Van Hoozer then took her claim to the office of the commissioner of Insurance and further correspondence was had concerning the validity of her claim. On November 14, 1968, the Commissioner's office wrote to Farmers giving its interpretation of the effect of the new statute and advising Farmers that in its opinion the plaintiff had a valid claim. Farmers nonetheless...
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