Farm Bureau Mutual Insurance Company, Inc., (Farm Bureau)
brings an interlocutory appeal from the trial court's ruling that
plaintiff Roger Shumaker (Shumaker) was entitled to uninsured
motorist and personal injury protection (PIP) benefits for
injuries sustained while a passenger in an uninsured dune buggy.
Plaintiff was injured while a passenger in a dune buggy owned
and operated by Keith Weckworth; the accident occurred "off road"
on private property. The dune buggy had no doors, sides, or top,
but was equipped with roll bars, head and tail lights, brakes,
seat belts, and ordinary street tires. It did not have brake
lights, turn signals, a windshield, an odometer, a speedometer, a
horn, a hood, or a gas gauge. The dune buggy was neither licensed
nor registered as an automobile or highway vehicle. And, of
course, Weckworth had no insurance on the dune buggy.
On the day of the accident, Weckworth drove the dune buggy from
his house to a private, off-road pasture. To get there, he drove
a short distance (about three blocks) on a public roadway. He had
followed this route before. Weckworth never drove the
buggy to work and never used it for any purpose other than
Initially, plaintiff wanted Weckworth to say the accident
occurred on his own land so a claim could be made against
Weckworth's homeowner's policy. The idea was rejected, and,
instead, plaintiff filed the present claim against his own
With respect to PIP benefits, plaintiff's policy covered bodily
injury resulting from the use of a motor vehicle, defined as a
land motor vehicle of a kind required to be registered. The
uninsured motorist portion of plaintiffs policy defined uninsured
vehicle to exclude any vehicle "designed mainly for use off
public roads while not upon public roads."
On cross-motions for summary judgment, the trial court ruled
that the dune buggy was a "motor vehicle" and that plaintiff was
entitled to PIP benefits and uninsured motorist coverage under
his Farm Bureau policy.
The present appeal squarely presents the question left
unanswered in Kresyman v. State Farm Mut. Auto. Ins. Co.,
5 Kan. App. 2d 666, 623 P.2d 524, rev. denied 229 Kan. 670 (1981),
where we held that a "mini-bike," while being operated on a
public highway, was a vehicle with respect to which insurance was
required. 5 Kan. App. 2d at 669.
We also stated:
"We caution that our decision must not be read too
broadly. In this case, the accident occurred at a
time when the mini-bike was operated on a public
highway and the extent of our holding is that at that
time it was a motor vehicle with respect to
which a motor vehicle liability insurance policy was
statutorily required." 5 Kan. App. 2d at 669.
Farm Bureau relies heavily on Kansas Farm Bureau Ins. Co. v.
Cool, 205 Kan. 567
, 471 P.2d 352 (1970), which is factually very
similar to the present case, but which was decided prior to the
adoption of the Kansas Automobile Injury Reparations Act, K.S.A.
40-3101 et seq.
Plaintiff Shumaker, on the other hand, argues that the dune
buggy is a motor vehicle because K.S.A. 8-126 defines a vehicle
as any device in which a person is or may be transported on a
public roadway. And, goes plaintiffs argument, because a person
namely plaintiff may be transported on a public roadway in
Weckworth's dune buggy (and in fact, was for a short distance),
the dune buggy is a motor vehicle requiring PIP and uninsured
motorist coverage for the off-road accident.
The Kansas statute, 8-126, defining vehicle as a device in
which a person is or may be transported on a public highway, is
similar to the Arizona statute defining vehicle. See Ariz. Rev.
Stat. Annot. § 28-101(59) (1989). And, Arizona has faced a
question similar to the one we now resolve there, an off-road
accident involving a golf cart. Chase v. State Farm Mut. Auto.
Ins. Co., 131 Ariz. 461, 641 P.2d 1305 (Ariz. App. 1982). In
Chase, as here, the policy defined uninsured motor vehicle to
exclude a vehicle designed for use primarily off public roads
except while actually being used on public roads. 131 Ariz. at
462. The Arizona court held that automobile insurance does not
cover injuries caused by equipment designed primarily for
off-road use while actually being operated off road. Because
coverage for operation of a golf cart resulting in an accident
off the public highway was neither required nor prohibited ...