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JACKSON v. BROWNING12/22/1995
Shane C. Browning's insurer, Shelter Insurance Company (Shelter), paid Machelle Lynn Jackson personal injury protection (PIP) medical benefits and, later, a negligence judgment. PIP benefits were reimbursed to Shelter from the judgment it paid Jackson. The district court granted Jackson a portion of her attorney fees from the PIP benefits reimbursed to Shelter. Shelter appealed this ruling. We affirm.
The facts relevant to this appeal are not disputed. On May 17, 1991, Machelle Lynn Jackson was a passenger on a motorcycle driven by Brad O. Helberg when it collided with a car driven by Shane C. Browning. Jackson sustained injuries, including a broken leg and lacerations. Jackson, born on December 13, 1976, was a minor at the time of the accident.
Helberg did not have PIP insurance coverage for medical benefits. Jackson's mother applied to Shelter, Browning's insurance carrier, for PIP benefits. Shelter paid Jackson $4,500 in PIP benefits.
On August 31, 1992, Jackson filed a negligence suit against Browning. Later, Jackson added Helberg as a defendant. Shelter's attorney defended on behalf of Browning.
The jury found Browning 95 percent at fault and Helberg 5 percent at fault. The jury awarded damages in the amount of
$58,312.11, which included past medical expenses of $9,812.11 and future medical expenses of $10,000.
On August 4, 1994, Shelter paid Browning's share of the judgment, interest, and costs totalling $56,747.74 to the clerk of the district court. On the same day, Shelter filed a motion and a lien pursuant to K.S.A. 40-3101 et seq., claiming that Shelter was owed "reimbursement" from Jackson for the $4,500 of PIP benefits paid by Shelter to Jackson.
Jackson's attorneys agreed that Shelter was entitled to recover the PIP benefits but requested that attorney fees be subtracted from the $4,500 based on a 40 percent contingent fee contract they had with Jackson.
The district court applied K.S.A. 40-3113a(b) and (e) to these claims, holding that Shelter was entitled to recovery of the PIP benefits and Jackson should recover 40 percent of the $4,500 for her attorney fees.
The sole question on appeal is whether K.S.A. 40-3113a(e) authorizes a district court to apportion an injured party's attorney fees from PIP benefits that have been paid by the tortfeasor's insurer.
Shelter maintains that it is entitled to "reimbursement" of the PIP benefits paid for the benefit of Jackson; however, it argues that the right of subrogation created by K.S.A. 40-3113a(b) and the accompanying apportionment of attorney fees created by K.S.A. 40-3113a(e) do not apply.
Jackson maintains that Shelter had a right of subrogation under K.S.A. 40-3113a(b), and because of the subrogation is liable for a portion of Jackson's attorney fees under K.S.A. 40-3113a(e). This precise issue has not been addressed previously by any reported decision of the Kansas appellate courts>.
A. Standard of Review
Interpretation of a statute is a question of law which is reviewed de novo. Foulk v. Colonial Terrace, 20 Kan. App. 2d 277, 283, 887 P.2d 140 (1994), rev. denied 257 Kan. 1091 (1995); see Foveaux v. Smith, 17 Kan. App. 2d 685, 689, 843 P.2d 283 (1992) (construing 40-3113a ). The parties agree that this appeal raises a question
of law and this court is not bound by the decision of the district court. See Memorial Hospital Ass'n, Inc. v. Knutson, 239 Kan. 663, 668, 722 P.2d 1093 (1986).
This court has noted, however, that under K.S.A. 40-3113a(e), " etting the amount of attorney fees is a matter addressed to the trial court's discret
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