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May 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

[14 Kan. App. 2d 397]

      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 insurance legislation and this coverage is intended to provide recompense to innocent persons who are damaged through the wrongful conduct of motorists who, because they are uninsured and not financially responsible, cannot be made to respond in damages. [Citation omitted.] As remedial legislation it should be liberally construed to provide the intended protection." Winner v. Ratzlaff, 211 Kan. 59, 63-64, 505 P.2d 606 (1973).
See Forrester v. State Farm Mutual Automobile Ins. Co., 213 Kan. 442, Syl. ¶¶ 1-3, 517 P.2d 173 (1973); Stewart v. Capps, 14 Kan. App. 2d 356, Syl. ¶ 1, 789 P.2d 563 (1990).

  Despite the legislature's action and the liberal construction followed by the courts>, two problems remained. First, a motorist could reject uninsured motorist coverage and be left without compensation if he were injured by an uninsured motorist. Second, a motorist with a high level of coverage could be injured by a motorist insured only to the legal minimum. If the damages to the injured motorist exceeded the legal minimum, the injured

[14 Kan. App. 2d 398]

      motorist would be unable to collect, either from the other motorist or from his own insurer. In such a case, the injured motorist would have been better off if the other motorist had been entirely uninsured so that he would be able to collect under his own uninsured motorist coverage. See 2 Widiss, Uninsured and Underinsured Motorist Coverage § 31.1 et seq. (2d ed. 1990).

  The legislature dealt with both of these problems in 1981, when it amended K.S.A. 40-284 for the first time. Uninsured motorist coverage became mandatory, although coverage above the statutory minimum for liability coverage could still be rejected. Uninsured motorist coverage was also required to contain "underinsured" motorist coverage. Under this new coverage, if the other motorist had liability insurance but the limits of liability were less than the insured's damages and less than the insured's uninsured motorist coverage, the insured could recover his excess damages from his own insurer up to his policy limits. L. 1981, ch. 191, § 1; Jerry, New Developments in Kansas Insurance Law, 37 Kan. L. Rev. 841, 878 (1989); Jerry, Recent Developments in Kansas Insurance Law: A Survey, Some Analysis, and Some Suggestions, 32 Kan. L. Rev. 287, 343-44 (1984).

  Although the 1981 amendments generally broadened coverage, the legislature also authorized several new exclusions and limitations. L. 1981, ch. 191, § 1. Many of these exclusions were in apparent response to decisions finding coverage and had the effect of overruling those decisions, at least in part. See Jerry, 32 Kan. L. Rev. at 343-44. Two of these new exclusions or limitations are applicable to this case and will be discussed in detail later in our opinion.

  The statute has since been amended in 1984, 1986, and 1988. None of these amendments is material here.


  Gilbert argues that underinsured motorist coverage is "portable" in nature, not limited to the vehicle for which the underlying liability policy is purchased; it applies to an insured wherever he may be. Farmers argues that the automobile policies do not provide underinsured motorist coverage when the insured is operating a motorcycle; that coverage under his van or auto policy is excluded when the insured is occupying an owned vehicle not insured under those policies.

[14 Kan. App. 2d 399]


  Farmers argues that the underinsured motorist coverage in the two automobile policies does not protect Gilbert while he is riding his motorcycle because a motorcycle is not a car. The express provisions of the two automobile policies undermine Farmers' argument. Coverage exists, subject to applicable exclusions and limitations, under the unambiguous terms of the policies. Farmers' argument to the contrary ignores the plain language of the coverage provisions and confuses underinsured motorist coverage with liability coverage.

  The terms of the coverage provision are specified by statute. At the time Gilbert's policies were issued and at the time of Gilbert's accident, the statute read as follows:
"(a) No automobile liability insurance policy covering liability arising out of the ownership, maintenance, or use of any motor vehicle shall be delivered or issued for delivery in this state . . . unless the policy contains or has endorsed thereon, a provision with coverage limits equal to the limits of liability coverage for bodily injury or death in such automobile liability policy sold to the named insured for payment of part or all sums which the insured or the insured's legal representative shall be legally entitled to recover as damages from the uninsured owner or operator of a motor vehicle because of bodily injury, sickness or disease, including death, resulting therefrom, sustained by the insured, caused by accident and arising out of the ownership, maintenance or use of such motor vehicle. . . .
"(b) Any uninsured motorist coverage shall include an underinsured motorist provision which enables the insured or the insured's legal representative to recover from the insurer the amount of damages for bodily injury or death to which the insured is legally entitled from the owner or operator of another motor vehicle with coverage limits equal to the limits of liability provided by such uninsured motorist coverage to the extent such coverage exceeds the limits of the bodily injury coverage carried by the owner or operator of the other motor vehicle." K.S.A. 40-284.
  The language of subsections (a) and (b) appears in the two automobile policies, which provide:


"Coverage C — Uninsured Motorist Coverage (Including Underinsured Motorists Protection)
  "We will pay all sums which an insured person is legally entitled to recover as damages from the owner or operator of an uninsured motor vehicle because of bodily injury sustained by the insured person. The bodily injury must be caused by ...

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