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KILNER v. STATE FARM MUT. AUTO. INS. CO.3/5/1993
The opinion of the court was delivered by
Plaintiff Wayne Kilner, who was injured by an underinsured motorist, appeals the district court's grant of summary judgment to his insurer, State Farm Mutual Automobile Insurance Company (State Farm). The order allows plaintiff's insurer, pursuant to K.S.A. 1992 Supp. 40-284(e)(4), to offset against its underinsured motorist coverage liability nonduplicative workers compensation benefits paid by the plaintiff's employer's insurer.
The appeal is on an agreed statement pursuant to Supreme Court Rule 3.05 (1992 Kan. Ct. R. Annot. 17). Facts set out in the statement are summarized.
Wayne Kilner was injured in an automobile accident when the vehicle he was driving was struck by a pickup truck being driven by Robert Owen, Jr. At the time of this accident, Kilner was driving a pickup truck owned by his employer, Dick Edwards Ford, and was acting in the scope of his employment. The employer's pickup was insured through Federated Mutual Insurance Company (Federated) with a $50,000 single limit for liability of uninsured/underinsured motorist coverage. Kilner insured his personal vehicles with State Farm. His uninsured/underinsured motorist coverage limits with State Farm were $100,000 per person and $300,000 per occurrence. Owen's pickup was insured by Dairyland Insurance Company (Dairyland) with a $25,000 liability limit.
Kilner filed a workers compensation claim against Dick Edwards Ford and its workers compensation insurance carrier, Federated. As of December 4, 1990, Kilner had received workers compensation benefits of $89,872.45. Of this amount, $62,224.45 was paid for medical expenses. Kilner has continued to receive payments for permanent partial disability at the rate of $256 per week. State Farm has paid personal injury protection (PIP) benefits to the plaintiff in the amount of $14,721 for lost wages and interest on lost wages.
Due to the multiple claimants in the accident, Dairyland filed an interpleader action requesting that its liability limits of $25,000/$50,000
be equitably distributed by the court among the claimants. The district court apportioned the sum of $25,000 to Kilner from the Dairyland policy. The $25,000 was paid to Federated, Kilner's subrogated workers compensation carrier.
The parties agree that Wayne Kilner's claim for damages against Robert Owen, Jr. exceeds by more than $75,000 the aggregate of PIP benefits paid and workers compensation benefits paid and payable. The parties also agree that Robert Owen, Jr. was 100% at fault in causing the accident and that the plaintiff would be entitled to recover $75,000 underinsured motorist coverage from State Farm if duplicative workers compensation benefits are excluded.
Prior to the district court's decision, two pertinent cases were filed. On August 2, 1991, United States District Judge Patrick F. Kelly issued a memorandum and order in the case of Bockwinkel v. American Economy Insurance Company, 1991 WL 171968 (D. Kan.), determining that uninsured or underinsured motorist coverage was not an issue in that case. On January 17, 1992, this court issued its decision in Rich v. Farm Bur. Mut. Ins. Co., 250 Kan. 209, 824 P.2d 955 (1992), construing 40-284(e)(6) with regard to permissible offsets for PIP benefits paid from an automobile insurer's underinsured motorist coverage.
The district court granted State Farm's motion for summary judgment, finding Rich inapplicable to the interpretation of 40-284(e)(4) because the insured paid a separate premium for PIP benefits coverage but did not pay a premium for workers compensation benefits coverage. The district judge adopted the analysis of
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