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Farmers Insurance Company11/1/2002
The plaintiff filed a declaratory action, and both sides filed motions for summary judgment. The trial court found the policy unambiguously limited the amount of recovery of uninsured motorist benefits to $100,000 and the plaintiff's derivative claim failed because the policy limits had been exhausted by payment on the son's personal injury claim.
On appeal, the Kinsella court recognized that derivative claims are dependent upon the right of the injured party to recover and are subject to the same defenses available to the underlying personal injury claim. 826 P.2d at 435. The court found that the claim for medical expenses was not based upon separate injury to the plaintiff and, absent a showing that plaintiff sustained separate bodily injury, the $100,000 per person limitation applied. 826 P.2d at 435.
Additionally, the Kinsella court found the policy was not ambiguous because it plainly placed the limit of liability for bodily injury sustained by one person at $100,000 maximum. 826 P.2d at 435. The court rejected the plaintiff's argument that because his claim was a derivative claim for medical expenses, it was excepted out of the limitation clause because it was not a claim for loss of consortium or injury to the relationship. The court viewed the limiting language of loss of consortium and injury to the relationship as being surplusage at best, since the sentence immediately preceding the limitations specifically limited recovery to $100,000 when only one person sustained bodily injury. 826 P.2d at 435-36.
The Jokans' argument that injury to the relationship refers to intangible aspects of the relationship between an injured person and his or her family, not pecuniary damages, such as loss of income, is persuasive. Since loss of consortium clearly involves a marital relationship, then it is logical to conclude the injury to the relationship exception was intended to cover non-marital relationships. Further, the argument that Farmers could have easily and clearly excepted out all economic losses is also persuasive.
However, " mbiguity arises from conflicting provisions not from the failure to include all the terms of a contract in each of its parts." Scott, 212 Kan. at 723. Here, the policy does not contain conflicting parts. It clearly limits recovery under the liability section to $100,000 when one person is injured or killed in an accident. Farmers' failure to specifically list each conceivable exception does not create ambiguity. As the Kinsella court held, the "loss of consortium/loss of relationship" language is surplusage. 826 P. 2d at 436. The limiting language is clear and unambiguous.
We conclude that the policy language here unambiguously limits recovery for bodily injury sustained by one person to $100,000 and that this limitation encompasses all derivative claims, including loss of income.
Affirmed.
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