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
reduced by all sums paid under the liability coverage of the
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
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. ¶ 2, 549 P.2d 1354
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,
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 ...