Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Becker v. The Bar Plan Mutual Insurance Co.

Supreme Court of Kansas

October 26, 2018

Daniel Becker, Appellant,
v.
The Bar Plan Mutual Insurance Company, Appellee.

         SYLLABUS BY THE COURT

         1. An insurer who undertakes a defense without an adequate reservation of rights may thereafter be estopped from disclaiming coverage.

         2. An adequate reservation of rights will bar claims of estoppel based upon the insurance company's assumption of the insured's defense.

         3. Generally, whether estoppel is appropriate in a given situation is a question of fact, and disputed questions of fact make summary judgment inappropriate.

         4. The determination of adequacy, e.g., timeliness, of the reservation of rights is a particular question of fact making the issue unsuitable for summary judgment.

         Review of the judgment of the Court of Appeals in an unpublished opinion filed December 23, 2015.

          Appeal from Johnson District Court; James Charles Droege, judge.

          Keynen 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.

          James 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.

          OPINION

          PER CURIAM.

         The 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 contract's terms.

         We hold 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 further proceedings.

         Factual and Procedural Background

         Between 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.

         Becker 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.

         In 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 failure.

         Finally, 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 assets.
. . . .
"I found and [sic] amazing lack of concern, diligence, prudence and ability to think outside the box in the performance of your services."

         Becker concluded his email with a request that Seck inquire of her insurance carrier:

"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 what ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.