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Ponds v. Hertz Corp.

May 25, 2007

JASMINE PONDS, BY AND THROUGH HER NATURAL MOTHER AND NEXT FRIEND, CLARESSA POOLE, ON BEHALF OF THE HEIRS OF FRED PONDS, DECEASED, APPELLANTS,
v.
THE HERTZ CORPORATION, HERTZ VEHICLES, L.L.C., AND FARMERS INSURANCE COMPANY, INC., APPELLEES, AND BUCKEYE STATE MUTUAL INSURANCE CO., AND AMERICAN STANDARD INSURANCE COMPANY OF WISCONSIN, DEFENDANTS.



Appeal from Sedgwick District Court; TIMOTHY G. LAHEY, judge.

SYLLABUS BY THE COURT

1. Summary judgment is appropriate when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. A trial court is required to resolve all facts and inferences which may reasonably be drawn from the evidence in favor of the party against whom the ruling is sought.

2. When opposing a motion for summary judgment, an adverse party must come forward with evidence to establish a dispute as to a material fact. In order to preclude summary judgment, the facts subject to the dispute must be material to the conclusive issues in the case.

3. On appeal, where we find reasonable minds could differ as to the conclusions drawn from the evidence, summary judgment must be denied.

4. The construction of a written instrument is a question of law, and the instrument may be construed and its legal effect determined by an appellate court.

5. Whether a contract is ambiguous is a matter of law, and this court's review of questions of law is unlimited.

6. In construing a policy of insurance, a court should consider the instrument as a whole to ascertain the intention of the parties from the language used, taking into account the situation of the parties, the nature of the subject matter, and the purpose to be accomplished.

7. If the insurer intends to restrict or limit coverage under the policy, it must use clear and unambiguous language; otherwise, the policy will be liberally construed in favor of the insured.

8. If the language in an insurance policy is clear and unambiguous, it must be construed in its plain and ordinary meaning of the terms used. An insurance policy is ambiguous when it contains language of doubtful or conflicting meaning based on a reasonable construction of the policy's language. An ambiguity does not exist merely because the parties disagree on the interpretation of the language. To determine whether an insurance contract is ambiguous, the court must not consider what the insurer intends the language to mean. Instead, the court must view the language as to what a reasonably prudent insured would understand the language to mean.

9. Generally, in the absence of evidence that the word "replacement" had a meaning peculiar to the insurance field, or that the parties intended a different meaning in the automobile liability policy, the usual and ordinary meaning of the term replacement--to provide or produce a substitute or equivalent in place of a thing--would govern. A clear case of replacement occurs when disposition has been made of a vehicle described in the policy and a new vehicle of equivalent use is substituted.

10. A vehicle cannot be a replacement vehicle under a policy of automobile insurance if the insured retains ownership of the replaced vehicle and if it remains operable. A clause providing for coverage of a replacement vehicle assumes that there must be an actual replacement.

11. In Kansas, self-insurers are not required to provide UM coverage.

The opinion of the court was delivered by: Marquardt, J.

Affirmed.

Before HILL, P.J., MARQUARDT, J., and KNUDSON, S.J.

Jasmine Ponds, by and through Claressa Poole, on behalf of Fred Ponds' legal heirs, appeals the trial court's grant of summary judgment in favor of Farmers Insurance Company, Inc. (Farmers), and The Hertz ...


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