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FARMERS INS. CO. v. GILBERT5/4/1990
This is a declaratory judgment action brought by Farmers Insurance Company, Inc., to determine whether Stephen Gilbert, its insured, is entitled to underinsured motorist benefits for injuries he received while riding his motorcycle. Gilbert contends that he is entitled to benefits under the uninsured motorist coverage provided by his automobile liability policies. Farmers contends that Gilbert's motorcycle policy is the only applicable policy and that no benefits are due thereunder. The trial court granted summary judgment for Farmers. Gilbert appeals. We reverse.
The parties submitted the issue on stipulated facts. Stephen Gilbert was injured when his motorcycle was struck by an automobile driven by Debra Onofrio. Onofrio's negligence was the sole cause of the collision, and Farmers Insurance Company, which was also her liability insurer, paid Gilbert $25,000, representing the limits of her policy. Gilbert's actual damages and expenses, however, were in excess of $50,000.
Gilbert was insured by Farmers under separate liability policies for his motorcycle, his van, and his automobile. The liability limits on the policies for the van and automobile were $50,000. The liability limit on the motorcycle policy, however, was only $25,000. Each policy also provided coverage against losses caused by uninsured or underinsured motorists. The exact language of the "underinsured motorist protection" will be quoted later. For now, it may be summarized as follows: If Gilbert were to be injured by a motorist whose liability limits were less than his own, Farmers would provide coverage for that portion of his loss falling between his own liability limits and the liability limits of the other motorist.
The issue is whether Gilbert may recover underinsured motorist benefits under either of his two automobile policies. If either of his two automobile policies applies, he is entitled to $25,000 in underinsured motorist benefits. If, however, his motorcycle policy is the only policy that applies, Gilbert is not entitled to any underinsured motorist benefits.
Because the facts were submitted by stipulation, and because the construction of a written instrument is a question of law, our standard of review is de novo. American States Ins. Co. v. Hartford
Accident & Indemnity Co., 218 Kan. 563, Syl. 4, 545 P.2d 399 (1976); Kansas Gas & Electric Co. v. Kansas Power & Light Co., 12 Kan. App. 2d 546, 551, 751 P.2d 146, rev. denied 243 Kan. 779 (1988).
Before taking up the issue raised by this appeal, a brief review of uninsured and underinsured motorist coverage in Kansas would be helpful.
As the automobile grew in popularity, a significant problem developed as motorists without insurance caused injuries for which they could not provide compensation . The Kansas Legislature responded to this problem in 1968 by requiring insurers to offer uninsured motorist coverage to all persons purchasing automobile liability policies. Under this coverage, an insured motorist who was injured by an uninsured motorist could collect the amount of damages to which he was entitled from his own insurer up to his policy limits. L. 1968, ch. 273, § 1 (codified as K.S.A. 40-284 [Weeks]); see Widiss, Uninsured Motorist Coverage, 40 J.K.B.A. 199 (1971). See generally 1 Widiss, Uninsured and Underinsured Motorist Insurance § 1.1 et seq. (2d ed. 1990).
The Supreme Court recognized the remedial purpose of this statute, and construed it liberally to provide coverage, holding:
"The purpose of legislation mandating the offer of uninsured motorist coverage is to fill the gap inherent in motor vehicle financial responsibility and compulsory
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