Whether the district court has authority to award attorney
fees is a question of law over which an appellate court has
Interpretation of a statute is a question of law over which
an appellate court has unlimited review. In examining a
statute courts look for the intent of the legislature in
enacting it. The intent of the legislature governs if that
intent can be determined. Courts look for legislative intent
by examining the words used by the legislature, giving common
words their ordinary meaning. When the words are clear and
the statute is unambiguous, courts do not speculate about the
legislative intent behind the statute's clear language,
nor do courts read something into the statute that is not
readily found in its words.
Interpretation of an insurance policy presents a question of
law over which an appellate court has unlimited review. In
doing so courts consider the policy as a whole and endeavor
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. Insurance policy language is tested by what a
reasonably prudent insured would understand the language to
mean. If an insurance policy is ambiguous, the ambiguity is
construed against the insurer.
Kansas applies the traditional American rule for attorney
fees: our courts will not assess attorney fees absent a
statute authorizing an award of fees or an agreement between
Kansas Declaratory Judgments Act, K.S.A. 60-1711 in
particular, provides that in proceedings under the Act courts
may make such award of costs as may seem equitable and just.
But "costs" under the Act do not include attorney
Attorney fees are not a part of costs, absent express
statutory authority. The plain language of the Uniform
Declaratory Judgments Act does not authorize a district court
to award fees to parties to a declaratory judgment action.
When the legislature uses the word "costs, " it
means the fees and charges of the court such as filing fees,
fees for service of process, and the like. If the legislature
intends to provide for the recovery of attorney fees, it
knows very well what language to use in the statute to
achieve that end.
K.S.A. 40-908, which provides for attorney fees in certain
instances to a prevailing plaintiff in an action against an
insurance company on a policy that insures property against
loss by fire, tornado, lightning, or hail, does not apply
when the insured fails to obtain a judgment for a loss
covered by the policy in excess of the amount tendered by the
insurance company before commencement of the action.
Upland Mutual Insurance, Inc. v. Noel, 214 Kan. 145,
519 P.2d 737 (1974), is discussed and distinguished.
Under the facts presented, there is no agreement between an
insurer and its insured for the payment of attorney fees in
connection with a first-party claim for uninsured motorist
benefits because the uninsured motorist provisions of the
policy make no provision for the payment of such fees.
from Johnson District Court; Paul C. Gurney, judge. Affirmed.
Michael S. Mogenson, of Mogenson & Branson, LLC, of
Mission, for appellants.
B. Schaffer, of Frischer & Schaffer, Chtd., of Overland
Park, for appellee. Before Arnold-Burger, C.J., Green and
appeal William and Cherity Kerns challenge the district
court's denial of attorney fees they incurred in
connection with a declaratory judgment action brought by
Alliance Indemnity Co. (Alliance) to determine coverage under
the Kernses' auto insurance policy.
coverage issue was precipitated by an auto accident in July
2011 when Cherity and her minor son were involved in a
head-on collision in Coffey County with a vehicle driven by
Matthew Tucker. Cherity was driving an Enterprise rental
vehicle which was rented for her by her employer. Cherity and
her son were injured and Tucker was killed. Tucker was
driving a vehicle owned by Brandon Anderson.
Kernses were insured under an auto policy issued by Alliance.
Cherity's employer also carried a policy issued by
Federal Insurance Company, and Cherity claimed she was
covered by that policy as well. Tucker and Anderson were
Kernses sued Tucker's estate and Anderson in Johnson
County for negligently causing Cherity's personal
injuries. (The Kernses apparently settled for their son's
injuries so his claim is no longer at issue.) The Kernses
obtained default judgments in excess of $1.4 million against
Tucker's estate and against Anderson. Because both Tucker
and Anderson were uninsured at the time of the collision,
Alliance paid uninsured motorist (UM) benefits of $100, 000
to Cherity, the per-person policy limit under the Alliance
in May 2013, the Kernses filed suit in the Circuit Court of
Jackson County, Missouri, for breach of contract and various
theories of indemnification. They claimed Cherity was covered
under the policies issued by Federal Insurance and Alliance.
They also claimed Cherity was entitled to UM benefits from
Enterprise, the owner of the rental car Cherity was driving.
It is unclear whether Enterprise was insured or was
self-insured. The Kernses asked the Missouri court to
determine, among other things, that they were entitled to
stack the UM benefits in the Alliance policy based on the
number of vehicles insured under the policy and the number of
tortfeasors involved in the accident.
August 2014, while the Missouri case was still pending,
Alliance filed a petition for a declaratory judgment in
Johnson County, seeking a determination of its applicable
coverage under the policy and under the Kansas anti-stacking
Kernses moved to dismiss Alliance's declaratory judgment
action. They contended that this declaratory judgment action
was not the appropriate vehicle for deciding issues presently
being litigated in Missouri. On that same day, Alliance moved
for summary judgment on the coverage issue raised by the
October 2014, the district court denied the Kernses'
motion to dismiss.
November 2014, the district court granted Alliance's
motion for summary judgment, finding that with respect to the
auto accident, Alliance owed the Kernses nothing under the
policy beyond the $100, 000 already paid. The Kernses
appealed to our court.
2015, before our court decided the Kernses' appeal, the
circuit court in Missouri granted Alliance's motion for
summary judgment and found that (1) Kansas law governed the
interpretation of the insurance policy and (2) K.S.A.
40-284(d) prohibits stacking of UM coverage.
the circuit court's ruling, our court concluded in
November 2015 that the issue presented in the appeal of the
district court's ruling in the declaratory judgment
action had become moot because of the Missouri court's
May 2015 ruling on the same issue. We vacated the district
court's decision granting Alliance's motion for
summary judgment and remanded with directions that the
district court dismiss the action without prejudice.
Alliance Indemnity Co. v. Kerns, No. 112, 871, 2015
WL 7434692, at *2 (Kan. App. 2015) (unpublished opinion).
point we note in passing that the Kernses did not request
attorney fees in accordance with Supreme Court Rule 7.07
(2017 Kan. S.Ct. R. 50) for this first appeal. Although the
Kernses briefly address this matter in their reply brief in
our present case, they did not raise the matter in their
opening brief, so we need ...