Winner v. Ratzlaff

• Decision Date: 20 January 1973
• Docket Number: No. 46504,46504
• Citation: 211 Kan. 59,505 P.2d 606
• Parties: , 73 A.L.R.3d 623 Cliff WINNER, Appellant, v. Lowell RATZLAFF and Employers Mutual Casualty Company, Appellees.
• Court: Kansas Supreme Court

Page 606

505 P.2d 606

211 Kan. 59, 73 A.L.R.3d 623

Cliff WINNER, Appellant, v. Lowell RATZLAFF and Employers Mutual Casualty Company, Appellees.

No. 46504.

Supreme Court of Kansas.

Jan. 20, 1973.

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.

2. As remedial legislation statutes mandating the offer of uninsured motorist coverage should be liberally construed to provide the intended protection.

3. The words 'legally entitled to recover as damages', contained in K.S.A.1972 1972 Supp. 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.

4. Multiple litigation is never desirable and there is a public interest economically in avoiding it wherever possible to do so in a fair and workable manner.

5. It is not requisite to recovery against an uninsured motorist liability carrier that judgment first be obtained against the uninsured motorist.

6. An insured who has a claim against an uninsured motorist has three options open to him, complying in each with policy provisos consonant with the statute: He may file an action directly against his uninsured motorist liability carrier without joining the uninsured motorist as a party defendant; he may file an action joining both the insurer and the uninsured motorist as party defendants; or, he may file an action against the uninsured motorist alone without joining the insurer as a party defendant. In each of these options he may litigate all the issues of liability and damages.

7. Plaintiff initially commenced an action for the wrongful death of his wife who was struck and killed by the defendant motorist. When it was ascertained the alleged tortfeasor had no liability insurance available to him, plaintiff joined his uninsured motorist coverage carrier as an additional party defendant. Later plaintiff sought, unsuccessfully, to dismiss his tort action against the uninsured motorist and to proceed on contract against his insurer. In a jury trial on the separate issue of the liability of the uninsured motorist wherein plaintiff was prohibited from mentioning the fact that the insurer was a party defendant or that plaintiff was seeking recovery only from his insurer, the jury by special verdicts absolved the motorist from liability for the death of plaintiff's decedent. In an appeal from a judgment rendered in favor of defendants, it is held: The procedure employed, set out more fully in the opinion, was prejudicially erroneous to plaintiff and further proceedings are directed.

Evart Mills, of Mills & Mills, McPherson, argued the cause and was on the brief for appellant.

Raymond Dahlberg, of Turner & Balloun, Chartered, Great Bend, argued the cause, and H. Lee Turner and Thomas C. Kelley, Great Bend, were with him on the brief for appellees.

HARMAN, Commissioner:

This action was commenced initially as one for damages for the wrongful death of plaintiff's wife, who was struck and killed while walking across a street. Plaintiff later joined as a party defendant the insurance carrier providing him and his wife with uninsured motorist coverage. In a jury trial ordered over plaintiff's objection on the separate issue of liability, the jury returned special verdicts that the uninsured motorist was not negligent and that plaintiff's decedent was contributorily negligent at the time she was struck. Pursuant to pretrial order the fact that the insurance company was a party to the litigation or the existence of uninsured motorst coverage was not disclosed to the jury. Plaintiff has appealed from the the adverse judgment rendered on the jury's special verdicts.

We first recite the facts of the collision. On February 17, 1969, at about 6:55 p. m., Mary Ellen Winner, age sixty-six, was driven by her husband to her home at 206 Main street, Inman, Kansas. The Winner home was on the east side of the block. The Winner automobile had been driven southward down this block and had been stopped near the west curb across from the Winner home. Mrs. Winner, who was wearing dark clothing, got out of the Winner vehicle and plaintiff drove southward on Main street in order to park the car in the alley behind the Winner house. During this time defendant Lowell Ratzlaff, age seventeen, was driving his vehicle north on Main street toward the 200 block thereof at a speed of about thirty miles per hour. He observed the Winner car parked on the west side of Main street and saw it drive toward him. Apparently defendant was the only eyewitness to the fatal incident. He testified that the lights on plaintiff's vehicle glared into his eyes and after it had been driven away Mrs. Winner emerged from behind; she was in the middle of the street looking toward her house; she was about six or eight feet in front of defendant's car when he first saw her; he applied his brakes but did not have sufficient time to avoid striking her after first seeing her. There was a mercury vapor light across the street from the Winner house. Main street was forty feet in width. Mrs. Winner was struck about thirteen feet from the east side of the street. She was hit by the right side of the hood of defendant's automobile and died of injuries sustained thereby.

On February 27, 1969, plaintiff filed suit for damages in the sum of $35,900 for wrongful death against defendant Lowell Ratzlaff. A guardian ad litem for him was promptly named. Plaintiff then took Ratzlaff's deposition during the course of which it was ascertained Ratzlaff had no liability insurance coverage available to him. Plaintiff then procured an order permitting him to make Employers Mutual Casualty Company an additional party defendant and to file an amended petition. In this petition plaintiff alleged additionally that Employers had issued its policy to plaintiff and his wife providing them with uninsured motorist coverage in the sum of $10,000, and defendant Ratzlaff was an uninsured motorist and further that Employers had negotiated with defendant Ratzlaff and his guardian ad litem and had by contract obtained the right to conduct the defense of Ratzlaff, which facts were admitted by Employers. It appears that, in consideration of the right to defend Ratzlaff, Employers agreed to waive its subrogation rights against Ratzlaff and to pay its own expenses incurred in defense of the suit. Judgment against Employers in the sum of $10,000 was demanded in the amended petition.

Thereafter at pretrial conference plaintiff sought unsuccessfully to dismiss his tort action against Ratzlaff and to proceed only against Employers on its insurance contract. Upon Employers' application the trial court ordered separate trial on the issue of liability of defendant Ratzlaff for the death of Mrs. Winner and further ordered 'that plaintiff be prohibited from mentioning to the jury during such trial that Employers Mutual Casualty Company was a party defendant herein or that plaintiff was seeking recovery only from such defendant'. Meanwhile plaintiff offered to try separately his action for $10,000 against Employers and to agree in such event that he would accept payment of whatever verdict might be rendered by the jury against Employers as full settlement of his claim against Ratzlaff. Nothing was done in acceptance of this offer.

As indicated, jury trial was had, no mention was made to the jury of Employers' presence in the litigation and the issue of liability was tried as an ordinary tort action between two individuals without mention of insurance. By special verdicts the jury absolved Ratzlaff of negligence, found Mrs. Winner guilty of contributory negligence and further found Ratzlaff did not have a last clear chance to avoid the collision. Judgment was entered for both defendants and plaintiff brings the matter here for review.

As presented and argued here the question essentially is 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 establishment of liability on the part of the uninsured motorist a condition precedent to recovery under an uninsured motorist policy? If this be answered negatively, the further issue arises whether plaintiff was prejudiced by the procedure employed here.

We should note that none of the provisions of the policy in question are asserted by the parties as pertinent to decision and consequently none are contained in the record before us.

Our statute on uninsured motorist coverage, enacted in 1968 and now appearing as K.S.A.1972 Supp. 40-284, provides in pertinent 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.1967 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 the ownership, maintenance or use of such motor vehicle. . . .'

The first issue is to be determined pursuant to this requirement.

We have not had...