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Farmers Insurance Company11/1/2002
Fam Bur. Mut. Ins. Co. v. Winters, 248 Kan. 295, 300-01, 806 P.2d 993 (1991).
The statute does not require insurers to provide coverage for derivative claimants in excess of the "per person" policy limitation. Derivative claims are the consequence of injury suffered by another; they depend upon rights of the injured party to recover and are subject to the same defenses available to the underlying personal injury claim. See Kinsella v. Farmers Ins. Exchange, 826 P.2d 433, 435 (Colo. App. 1992); T. Copeland & Sons v. Kansa General Ins. Co., 171 Vt, 189, 195-96, 762 A.2d 471 (2000).
The Farmers' policy at issue here allows recovery of a maximum of $100,000 by the injured person, up to a maximum of $300,000 per accident, regardless of the number of persons injured. Since the only injured person covered under the policy was Ranol, recovery is limited to a maximum of $100,000. If two of the Jokans had been injured, then their recovery would have been limited to a total of $200,000 because of the per person limitation of $100,000. If all four of the Jokans had been injured, the recovery would have been limited to $300,000.
K.S.A. 60-1902 provides that a wrongful death action may be brought by any one of the heirs at law of the deceased who has sustained a loss by reason of the death. The Jokans correctly argue that under the wrongful death statutes, the Jokan children have a derivative claim for the loss of Ranol's income. However, this right does not equate to a right to compensation from Farmers.
As stated above, under 40-3107(e) and the limitation of liability section of the policy, Farmers is required to provide liability compensation up to $100,000 in the event that one person is injured in one accident. The definition of damages in the policy (the cost of compensating those who suffer bodily injury) is consistent with the statute. Farmers is required to provide compensation of up to $100,000 because of the injuries to one person, Ranol. Compensation is due to either the injured person or the injured person's representative, in the event of death or incapacity. See Farmers Ins. Co. v Rosen, 17 Kan. App. 2d 468, 839 P.2d 71, rev. denied 252 Kan. 1091 (1992). Farmers tendered the required compensation to the Jokans.
The Jokans rely on Rosen in an attempt to establish that derivative damages are covered by the policy. We disagree with their reading of Rosen.
In Rosen, April Rosen was struck by a pickup truck driven by an insured of Farmers. April was a minor at the time of the accident, so her parents, James and Ginger Rosen, filed suit against Farmers for loss of consortium, medical bills, and expenses.
Farmers conceded, under a policy containing the same language as the policy in the present case, that it was required to pay for damages that any insured person would be legally liable for because of bodily injury to any person. Since the loss of consortium and the payment of medical expenses were damages for which the Farmers' insured may have been legally liable because of bodily injuries to April, Farmers agreed those damages came within the coverage provisions of the policy. However, this stipulation did not lead to recovery by the Rosens.
In framing the issue presented, the Rosen court stated:
"The real question as argued by Farmers and the Rosens is whether James and Ginger Rosen's claims for loss of care and loss of services, here admittedly covered damages under Farmers' automobile policy, come within the operation of the automobile policy's per person limitation, with the result being that Farmers' exposure under the automobile policy is limited to the policy's $100,000 per person limit rat
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