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Anderson v. Employers Mutual Casualty Insurance Company6/9/2000
Appeal from Butler District Court; JOHN M. JAWORKSY and MIKE E. WARD, judges.
Affirmed.
Defendant Employers Mutual Casualty Insurance Company appeals the district court's denial of its motion for a directed verdict on the issues of fault and release. The defendant additionally appeals the district court's calculation of the offsets from the jury's damage award. We affirm.
On January 2, 1996, the plaintiff, Steven E. Anderson, was returning home from some work-related errands, driving eastbound on 101st Street in Sedgwick County. As the plaintiff approached a small rise in the road, the headlights of an oncoming car, driven by Joya Willits, appeared over the crest of the hill. Willits' car did not fishtail or swerve but directly entered the plaintiff's lane of traffic. As the plaintiff attempted to avoid an accident, he noticed the road conditions were slippery. Plaintiff managed to steer his vehicle to the right and onto the shoulder of the road but was unable to avoid a collision with the oncoming vehicle.
Due to the impact, the plaintiff's head went through the driver's side window, inflicting a concussion and splitting the plaintiff's earlobe, and his right hand was injured. The impact caused minor spinal injury to the plaintiff's lower back. The plaintiff broke his right kneecap and both of his ankles. Plaintiff's right ankle is permanently damaged. Although most of the plaintiff's injuries have healed, he can no longer stand for long periods of time due to the pain in his right ankle.
Because the plaintiff was bedridden for several weeks and due to his disability arising from his ankle injury, he decided that he could no longer maintain his engineering business and began to convert his business into a surveying firm. The plaintiff purchased some new equipment that would enable him to remain competitive with other surveyors despite his inability to stand for long periods of time.
Eventually, the plaintiff entered discussions about liability with Willits' insurance carrier. On March 14, 1996, Willits' insurance carrier tendered the policy limit of $50,000 on Willits' insurance policy in exchange for the plaintiff's waiver of uninsured subrogation rights from the plaintiff's uninsured motorist insurance policy.
The plaintiff, on March 19, 1996, wrote to the defendant, informing the defendant of the settlement offer and requesting the defendant to substitute payment within 60 days. Otherwise, the plaintiff expressed his intent to accept the settlement and execute a release.
When the defendant failed to respond by May 20, 1996, the plaintiff wrote a letter to Willits' insurance carrier to notify it of the plaintiff's intention to proceed with the settlement. On the same date, the plaintiff notified the defendant that he was proceeding with the settlement offer.
Willits' insurance carrier tendered the plaintiff a check for $50,000 and a release form, which was signed on June 7, 1996.
On October 1, 1997, the plaintiff obtained a workers compensation award of $56,589.10, which was applied to medical costs incurred by the plaintiff, and an award of $14,856.60 for lost wages. After the Workers Compensation Board affirmed the administrative law judge's decision, the plaintiff turned over the proceeds of his settlement award to his workers compensation carrier to reimburse that insurer for medical disbursements made to cover the plaintiff's medical bills.
On October 6, 1997, the plaintiff filed the present action against the defendant for refusing to compensate the plaintiff for the remainder of the costs associated with the accident under plaintiff's underinsured motoris
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