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Farmers Insurance Company11/1/2002
her than the policy's $300,000 per occurrence limit." 17 Kan. App. 2d at 471.
The Rosens claimed that the policy covered each of the three claims, subject to the $300,000 per occurrence limitation. In affirming the grant of summary judgment in favor of Farmers, the Rosen court held:
"We are persuaded and hold that the pertinent language of Farmers' automobile policy is unambiguous, that coverage under Farmers' automobile policy for James and Ginger Rosen's claims is subject to the policy's $100,000 per person liability limit applicable to April Rosen's claim, and that Farmers' exposure for the three Rosen's claims is limited to $100,000." 17 Kan. App. 2d at 474.
In the present case, Farmers acknowledges it will pay damages for which its insured is legally liable. However, those claims are subject to the $100,000 per person limitation set forth in the policy. The Jokans' derivative claims, just as the Rosens' claims, are subject to the per person limitation set forth in the policy.
The Jokans next argue that Farmers' policy is ambiguous.
"Regardless of the construction given a written contract by the trial court, an appellate court may construe a written contract and determine its legal effect. [Citation omitted]." Spivey v. Safeco Ins. Co., 254 Kan. 237, 240, 865 P.2d 182 (1993). "As a general rule, the interpretation or construction and meaning and legal effect of written instruments are matters of law exclusively for the court and not questions of fact." Federal Land Bank of Wichita v. Krug, 253 Kan. 307, 311, 856 P.2d 111 (1993).
"Ambiguity is not to be derived from or created by the fragmentation of an insurance contract. . . . Ambiguity arises from conflicting provisions not from the failure to include all the terms of a contract in each of its parts.
" mbiguities in the wording of insurance contracts are to be construed in favor of the insured [; however,] this rule has no application whatsoever to language that is clear in its meaning. [Citations omitted.] . . . Where an insurance contract is not ambiguous, a court's function is to enforce the contract made, not to make another contract for the parties. [Citations omitted.]" Scott v. Keever, 212 Kan. 719, 723-25, 512 P.2d 346 (1973).
The question presented is whether the language "loss of consortium or injury to the relationship" is specific enough for this court to decide if lost wages are included in the liability limitations. The Jokans contend that under the doctrines of expression unius est exclusion alterus and "reverse construction," Farmers' failure to specifically exclude economic losses means that in derivative actions, economic losses are not subject to the $100,000 per person cap. A Kansas appellate court has not decided this issue.
"Loss of consortium" and "injury to the relationship" are not defined within the policy. "Consortium has been defined as a right growing out of the marital relationship which includes the right of either spouse to the society, companionship, conjugal affection and assistance of the other." Hoffman v. Dautel, 192 Kan. 406, 411, 388 P.2d 615 (1964). By this definition loss of consortium is not applicable to the claim of lost income on behalf of the children.
Since "injury to the relationship" is not defined in the policy, it is helpful to look to a judicial interpretation of a similar phrase. In Fisher v. State Farm Mut. Auto. Ins. Co., 264 Kan. 111, 955 P.2d 622 (1998), the Kansas Supreme Court was asked to determine whether an award of workers compensation benefits, paid to an employee who was killed while in the scope of employment by an underinsured motorist, precluded the heirs from
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