BY THE COURT
insurer who undertakes a defense without an adequate
reservation of rights may thereafter be estopped from
adequate reservation of rights will bar claims of estoppel
based upon the insurance company's assumption of the
Generally, whether estoppel is appropriate in a given
situation is a question of fact, and disputed questions of
fact make summary judgment inappropriate.
determination of adequacy, e.g., timeliness, of the
reservation of rights is a particular question of fact making
the issue unsuitable for summary judgment.
of the judgment of the Court of Appeals in an unpublished
opinion filed December 23, 2015.
from Johnson District Court; James Charles Droege, judge.
J. Wall, of Forbes Law Group, LLC, of Overland Park, argued
the cause, and Matthew T. Geiger and Benjamin R. Prell, of
Geiger Prell, LLC, of Overland Park, and Daniel J. Langin, of
Langin Law Firm, LLC, of Overland Park, were with him on the
briefs for appellant.
C. Morrow, of Morrow Willnauer Klosterman Church, LLC, of
Kansas City, Missouri, argued the cause, and M. Todd Moulder
and Marshall W. Woody, of the same firm, were with him on the
briefs for appellee.
district court granted summary judgment to The Bar Plan
Mutual Insurance Company (The Bar Plan) on Daniel
Becker's insurance coverage dispute with the company. A
Court of Appeals panel affirmed the district court's
decision. Both lower courts essentially concluded that
contrary to Court of Appeals caselaw, Becker was asking for
the coverage to be expanded beyond the insurance
that both lower courts erred. Stated simply, they were wrong
to rely upon "expansion of coverage" caselaw-and
under the correct caselaw, questions of fact remain which are
inappropriate for summary judgment. So we reverse both lower
courts' decisions and remand to the district court for
and Procedural Background
March 2010 and March 2012, Becker made a series of loans
totaling $5, 569, 000 to Professional Cleaning and Innovative
Services, Inc. (PCI). The business was owned by Brenda Wood.
hired Sheila Seck and her law firm, Seck and Associates, LLC,
to represent him in these loan transactions. But Seck failed
to perform a UCC search on the collateral that Wood provided
to secure Becker's loans. Consequently, Becker did not
know Wood's collateral was already subject to a properly
filed security interest of lender Farmers Bank. Becker would
not have made the loans had he known of the bank's
superior position. The PCI business eventually soured, and
Wood's shaky financial situation was exposed. But Becker
continued to make loans in a last-ditch effort to help Wood
save the business.
December 2011 Becker finally discovered the Farmers Bank UCC
security interest filing, which dated back to 2007. Becker
and Seck traded emails, with Becker asking why she had not
found the prior filing and expressing his displeasure at her
in Becker's February 6, 2012 email he fired Seck as
counsel. He pointed out the errors that Seck had made:
"I have found and been advised of two monumental errors
on your part. The first is an error in the UCC filing, where
Brenda [Wood] pledged 900 shares and you filed 500. The
second is the lack of diligence and attention in bothering to
check to see if someone else had a lien on Brenda's
. . . .
"I found and [sic] amazing lack of concern,
diligence, prudence and ability to think outside the box in
the performance of your services."
concluded his email with a request that Seck inquire of her
"Pls [sic] forward my file or bring it over
when you get the chance. I would also appreciate your inquiry
with your Insurance carrier, as I have yet not quantified