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STEWART v. CAPPS

March 30, 1990.

DARLENE E. STEWART, Appellant,
v.
VAYDA CAPPS, Defendant, and AMERICAN STATES INSURANCE CO., Appellee.



Plaintiff Darlene Stewart appeals from the summary judgment granted American States Insurance Company (ASIC) regarding uninsured motorist benefits. The trial court validated ASIC's policy provision which provided that any amounts otherwise payable under uninsured motorist coverage would be

[14 Kan. App. 2d 357]

      reduced by all sums paid under the liability coverage of the policy.

We reverse and remand for further proceedings.

The facts are relatively simple and essentially uncontroverted. Plaintiff Stewart was a passenger in a car owned and driven by ASIC's insured, Vayda Capps. The car was forced off the road by a vehicle which was neither identified nor located. Plaintiff Stewart was injured in the accident.

  Stewart sued Capps and ASIC as Capps' uninsured motorist carrier, alleging negligence on the part of the drivers of both vehicles and claiming damages in excess of $10,000. The policy defined "uninsured motor vehicle" to include a hit and run vehicle whose owner/operator cannot be identified and which hits "your covered auto." Stewart is a "covered person" under ASIC's uninsured motorist coverage as a person occupying the covered auto.

  Stewart settled with Capps for the $25,000 policy limits under the liability coverage of the policy and proceeded against ASIC under the uninsured motorist coverage for an additional $25,000.

  We note that our reading of the record does not reveal any determination of the extent of Stewart's damages.

  The trial court granted ASIC's summary judgment motion and Stewart appeals. Our review of the trial court's conclusion of law is, of course, unlimited. Hutchinson Nat'l Bank & Tr. Co. v. Brown, 12 Kan. App. 2d 673, 674, 753 P.2d 1299, rev. denied 243 Kan. 778 (1988).

  K.S.A. 40-284 mandates that all automobile liability policies provide uninsured motorist coverage in an amount equal to the liability coverage in the policy. The purpose of uninsured motorist coverage is to compensate the innocent victim who is injured by an uninsured motorist. Patrons Mutual Ins. Ass'n v. Norwood, 231 Kan. 709, 715-16, 647 P.2d 1335 (1982). In addition, the uninsured motorist statute should be liberally construed to fulfill its intended purpose. Van Hoozer v. Farmers Insurance Exchange, 219 Kan. 595, Syl. ΒΆ 2, 549 P.2d 1354 (1976).

  K.S.A. 40-284(e) lists permitted exclusions and limitations to the mandated uninsured motorist coverage; the list does not contain the offsetting clause present in the ASIC policy.

  The specific question here presented has not been decided in Kansas, so we must look elsewhere for analogous case law. And,

[14 Kan. App. 2d 358]

      we recognize the legislature is capable of responding to our holding in the present case.

  For example, our Supreme Court in Van Hoozer v. Farmers Insurance Exchange, 219 Kan. 595, voided a policy provision which reduced uninsured motorist coverage by the amount of workers compensation benefits received. In response, the legislature amended ...


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