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ALLIED MUT. INS. CO. v. GORDON5/24/1991
The opinion of the court was delivered by
This is an appeal by the defendant, State Farm Mutual Automobile Insurance Company (State Farm Mutual), from a judgment awarding $99,621.55 in underinsured motorist benefits to Robert Harding (defendant/cross-claim plaintiff. Robert Harding cross-appeals from the judgment of the district court denying attorney fees as not appropriate in an underinsured motorist action.
UNDERLYING AUTOMOBILE ACCIDENT
The underlying facts were not disputed by the parties. Kevin Gordon, a 16-year-old, ran a stop sign and collided with a truck driven by Orville West. West's wife, Willa West, was a passenger in his vehicle and received personal injuries. West's truck collided with a vehicle driven by Harding. As a result of the collision, Harding received serious injuries to his right ankle and left hip, causing permanent disability. In the future, he will probably need to have a fusion of his ankle and a hip replacement. At the time of the accident, Harding was acting within the scope of his employment as a laborer with a roofing crew and, therefore, received workers compensation benefits through State Farm Fire & Casualty (State Farm Casualty).
DISTRICT COURT PROCEEDINGS
Gordon's insurer, Allied Mutual Insurance Company (Allied), filed an interpleader action against all the parties who might have claims against Gordon and tendered the policy liability limit of $60,000 into court for apportionment among the parties. Harding answered the interpleader petition and cross-claimed against Gordon and West, alleging their negligence. Harding also filed a cross-claim against his automobile insurer, State Farm Mutual, alleging that under his policy he was entitled to receive underinsured motorist benefits "in an amount equal to $100,000 less the amount of personal injury damages he received from Kevin Gordon."
State Farm Mutual answered the interpleader, alleging that State Farm Casualty had a subrogation interest because it provided workers compensation benefits and, therefore, "is subrogated to all or part of any recovery which Mr. Harding may have
as a result of this accident." An amended petition was filed in the interpleader action, joining State Farm Casualty under its subrogation lien. State Farm Casualty filed a cross-claim against Gordon and West, claiming a subrogation lien on all recovery by Harding from Allied or any defendant pursuant to K.S.A. 1990 Supp. 44-504(b). This statute provides that if an injured worker who has received workers compensation benefits recovers
"by judgment, settlement or otherwise, the employer shall be subrogated to the extent of the compensation and medical aid provided by the employer to the date of such recovery and shall have a lien therefor against such recovery and the employer may intervene in any action to protect and enforce such lien." K.S.A. 1990 Supp. 44-504(b).
Section III of Harding's policy with State Farm Mutual concerning uninsured motorist coverage provides: "We will pay damages for bodily injury an insured is legally entitled to collect from the owner or driver of an uninsured motor vehicle." The definition of uninsured motor vehicle includes an "underinsured" vehicle, which is a motor vehicle that is insured for bodily injury liability at the time of the accident, but has a liability limit of less than the limit the insured carries for uninsured motor vehicle coverage under this State Farm Mutual policy. Because Harding's policy provided a $100,000 uninsured motor vehicle liability limit for each person, while Gordon's policy had a liability limit of $60,000, Gordon is an underinsured motorist.
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