Welch v. Hartford Cas. Ins. Co.

• Court: Kansas Supreme Court
• Writing for the Court: FROMME
• Citation: Welch v. Hartford Cas. Ins. Co., 221 Kan. 344, 559 P.2d 362 (Kan. 1977)
• Decision Date: 22 January 1977
• Docket Number: No. 48122,48122
• Parties: Darlene E. WELCH, formerly known as Darlene E. Lambert, Appellant, v. HARTFORD CASUALTY INSURANCE COMPANY, formerly known as Citizens Insurance Company of New Jersey, an Insurance Corporation, Appellee, and Doris A. Majette, Appellee.

Page 362

559 P.2d 362

221 Kan. 344

Darlene E. WELCH, formerly known as Darlene E. Lambert, Appellant, v. HARTFORD CASUALTY INSURANCE COMPANY, formerly known as Citizens Insurance Company of New Jersey, an Insurance Corporation, Appellee and Doris A. Majette, Appellee.

No. 48122.

Supreme Court of Kansas.

Jan. 22, 1977.

Syllabus by the Court

1. The purpose of legislation mandating the offer of uninsured motorist coverage is to fill the gap inherent in motor vehicle financial responsibility and compulsory insurance legislation and this coverage is intended to provide recompense to innocent persons who are damaged through the wrongful conduct of motorists who, because they are uninsured and not financially responsible, cannot be made to respond in damages. (Following Winner v. Ratzlaff, 211 Kan. 59, Syl. 1, 505 P.2d 606.)

2. The intent of the legislature in requiring the mandatory offering of uninsured motorist coverage was to insure that those insured under the contract of insurance would be protected generally against injuries caused by motorists who are uninsured and that such protection would complement the liability coverage. (Following Forrester v. State Farm Mutual Automobile Ins. Co., 213 Kan. 442, Syl. 3, 517 P.2d 173.)

3. The words 'legally entitled to recover as damages', contained in K.S.A. 1972 Supp. 40-284 (now K.S.A. 40-284), are construed to mean 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. (Following Winner v. Ratzlaff, 211 Kan. 59, Syl. 3, 505 P.2d 606.)

4. Where more than one insurance policy provides uninsured motorist coverage with respect to damages sustained in a single accident caused by fault on the part of an uninsured motorist the insured injured party may 'stack' coverages up to but not more than the full amount of the damages sustained.

5. An insured injured party covered by one or more policies providing uninsured motorist coverage mandated by K.S.A. 40-284 is entitled to recover the same amount he or she would have recovered if the offending uninsured motorist had maintained adequate liability insurance, provided the collective coverages available are equal to or exceed the full amount of the damages.

Jan W. Leuenberger, of Glenn, Cornish & Leuenberger, Topeka, argued the cause, and Henry J. Schulteis, Topeka, was with him on the brief for the appellant.

Donald Patterson, of Fisher, Patterson, Sayler & Smith, Topeka, argued the cause and was on the brief for appellee Hartford Casualty Insurance Co., formerly known as Citizens Insurance Company of New Jersey.

L. Patricia Casey, Topeka, was on the brief for appellee Doris A. Majette.

FROMME, Justice:

This appeal is on the question of whether an insured injured party covered by two insurance policies, each providing uninsured motorist coverage mandated by K.S.A. 40-284, is entitled to receive a total of $30,000.00 on the two policies when the actual damages cause by the fault of the uninsured motorist were only $20,000.00. The question is purely one of law for the findings of fact made by the trial court were accepted by the parties.

In the interest of brevity we summarize the court's findings in order to present the facts necessary to examine the question.

At all times material defendant, Hartford Casualty Insurance Company (Hartford), had in force a policy of insurance with Darlene E. Lambert, who now is Darlene E. Welch, by marriage. The vehicle insured was a 1964 Chevrolet automobile. The maximum coverage of $20,000.00 was provided under an uninsured motorist provision in the policy covering bodily injury. The premiums for said policy were fully paid by Darlene E. Welch.

On or about January 1, 1972, at or near the 3800 block on South Topeka Blvd., Topeka, Kansas, plaintiff Darlene E. Welch was injured while riding as a passenger in a 1970 Ford LTD automobile operated by Dean L. Welch. This vehicle was owned by Dale Sharp Motors, Inc., and the vehicle was insured under a policy issued by Trinity Universal Insurance Company (Trinity) which policy afforded a maximum of $10,000.00 uninsured motorist coverage. Dale Sharp had paid all premiums due on said policy.

While the Dale Sharp car was proceeding in a northerly direction on Topeka Blvd., an uninsured motor vehicle driven by Doris A. Majette negligently turned in front of the vehicle in which plaintiff was riding and as a result plaintiff was injured and damaged. The sole proximate cause of the collision which brought about plaintiff's injuries and damages was the negligence of Doris A. Majette, who was at said time and place as uninsured motorist within the meaning of that term in both the Hartford and the Trinity policies. As a proximate result of the collision Darlene E. Welch is legally entitled to damages from Doris A. Majette in the sum of $20,000.00, which amount covers all injuries received by Darlene E. Welch.

By reason of medical coverages provided in the two policies plaintiff was paid $1,000.00 by Hartford, and $2,829.20 by Trinity. No question is raised in this case concerning medical payments.

Prior to bringing the present action, plaintiff made claim against and collected from Trinity the sum of $10,000.00 under the uninsured motorist coverage in the Trinity policy for damages suffered by her in the accident of January 1, 1972. The damages for which plaintiff made claim against Trinity and for which she makes claim against the defendant Hartford in this case arose from the same accident and were caused by the same uninsured motorist, Doris A. Majette.

Proper service was had in the action and jurisdiction of the court attached to both defendants, Hartford and Doris A. Majette.

The trial court determined that the amount of plaintiff's damages was $20,000.00, that she had already collected $10,000.00 on her claim against Trinity and that she was entitled to $10,000.00 and costs on her claim against Hartford. The court further determined that Hartford, on its third-party petition, was entitled to a judgment of indemnity against Doris A. Majette upon payment of the $10,000.00 judgment in favor of plaintiff, Darlene E. Welch.

Plaintiff appeals and claims as a matter of law that she is entitled to recover the full amount of her damages, $20,000.00, under the uninsured motorist coverage provided by Hartford and for which she has paid a premium, regardless of any amount previously received from Trinity. If appellant is correct in her position she will receive $20,000.00 from Hartford in addition to the $10,000.00 received from Trinity, or a total of $30,000.00 when her actual damages amounted to only $20,000.00.

Appellant argues that uninsured motorist coverage under K.S.A. 40-284 is a contract benefit to be paid. When two separate coverages are contracted for and two premiums are paid the insured is entitled to receive the benefits for which separate premiums were paid. Appellant contends she is entitled to receive up to $20,000.00, the amount of her damages, on each of the policies.

On the other hand, appellee Hartford contends the purpose of the uninsured motorist coverage is to fill a gap in compulsory motor vehicle responsibility coverage and is intended to provide recompense to innocent persons for injuries they receive through the wrongful conduct of an uninsured motorist. Hartford maintains a person injured by an uninsured motorist may not recover more than her total damages, regardless of the number of policies issued.

Accordingly it becomes necessary for us to examine provisions of K.S.A. 40-284 which mandate uninsured motorist coverage.

The statute provides in part:

'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 not less than the limits for bodily injury or death set forth in K.S.A. 1971 Supp. 8-729, providing for payment of part or all sums which the insured or his legal representative shall be legally entitled to recover as damages from the uninsured owner or operator of the 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...