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STEWART v. CAPPS12/7/1990
REPORTER'S NOTE: TERRY L. BULLOCK, District Judge, was appointed to hear case No. 63,864 vice Justice Abbott pursuant to the authority vested in the Supreme Court by Article 3, ยง 6(f) of the Kansas Constitution.
The opinion of the court was delivered by
Plaintiff Darlene Stewart appealed the district court's grant of summary judgment after it determined that the
American States Insurance Company (ASIC) policy provision which provided that any amounts otherwise payable under uninsured motorist coverage would be reduced by all sums paid under the liability coverage of its policy. The Court of Appeals reversed. Subsequently, the Court of Appeals revised its original opinion and eliminated language which prohibited Stewart from receiving duplicate damages under the policy. 14 Kan. App. 2d 356, 789 P.2d 563 (1990). We granted ASIC's petition for review.
The facts are not in dispute. Stewart, a passenger in the automobile owned and operated by Vayda Capps, was injured in an automobile accident on November 7, 1987. Capps was insured under a policy issued by ASIC. The insurance policy had limitations of $25,000 per person with $50,000 per accident under the bodily injury coverage, and similar limits of $25,000 per person with $50,000 per accident policy limits for the uninsured motorist coverage.
Stewart claimed the accident was caused by the negligence of Capps and an unidentified driver who forced Capps' vehicle off the road. Stewart brought this action against Capps and ASIC. Stewart's negligence claim against Capps was settled by ASIC within the policy's $25,000 liability coverage. After Stewart filed the action, ASIC filed a motion for summary judgment, claiming under the terms of its insurance contract with Capps that payment for Capps' liability should be set off against the amount of compensation due for the negligence of the uninsured motorist. After determining that there was no factual dispute, the trial court found that (1) the language of the insurance contract was clear and unambiguous and (2) the policy provisions allowing the setoff were valid and enforceable and granted summary judgment. Stewart appealed.
On appeal, the Court of Appeals, in reversing the district court, found that the setoff provision in the liability and the uninsured motorist sections of the policy was void and unenforceable as it violated K.S.A. 40-284 and was against public policy. In addition, when remanding the matter back to the district court the Court of Appeals instructed the district court that (1) if Stewart's damages are established at no more than $25,000, she takes nothing under the uninsured motorist coverage, because she will have been fully indemnified by the liability coverage of Capps' and (2)
if Stewart's damages are in excess of $25,000, Stewart may recover up to the $25,000 limit under the uninsured motorist coverage.
Because the instructional language in the Court of Appeals' opinion appeared to reinstate joint and several liability law, Stewart filed a motion for reconsideration. The Court of Appeals granted the motion for reconsideration and without oral argument deleted the instructional language in the opinion as unnecessary surplus. ASIC seeks review, claiming (1) the Court of Appeals improperly reversed the district court and (2) its elimination of the language in its original opinion allows Stewart to receive duplicate payments.
Since the facts are undisputed and the trial court's decision was a question of law, this court's review is unlimited. U.S.D. No. 352 v. NEA-Goodland, 246 Kan. 137, 140, 785 P.2d 993 (1990). To determine the answer, it is necessary to review the legislati
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