E.H., a minor, by and through Melissa J. Hemenway, her mother and natural guardian, Appellee,
Automobile Club Inter-Insurance Exchange, Appellant.
BY THE COURT
interpretation of the clear language of an insurance policy
raises a question of law subject to de novo review.
purpose of K.S.A. 40-284, which mandates the offer of
uninsured and underinsured motorist coverage, is to fill the
gap inherent in motor vehicle financial responsibility and
compulsory insurance legislation. This coverage is intended
to provide recompense to innocent persons who are damaged
through the wrongful conduct of motorists who, because they
are uninsured or underinsured and not financially
responsible, cannot be made to respond in damages.
uninsured and underinsured motorist statutes are remedial in
nature. They should be liberally construed to provide a broad
protection to the insured against all damages resulting from
bodily injuries sustained by the insured that are caused by
an automobile accident and arise out of the ownership,
maintenance, or use of the insured motor vehicle where those
damages are caused by the acts of an uninsured or
reviewing a claim of underinsured motorist coverage under
K.S.A. 40-284(b), a court must first determine whether UIM
coverage exists. When determining whether underinsured
motorist coverage is available under the provisions of K.S.A.
40-284(b) in a given case, (1) the tortfeasor's liability
coverage must be below the claimant's liability coverage
and (2) the claimant must have damages in excess of the
tortfeasor's liability coverage.
calculating the amount of underinsured motorist benefits
where the damages recovered from the tortfeasor are less than
the total amount of actual damages because of multiple claims
against the tortfeasor's liability insurance limits, the
underinsured motorist provider is responsible for paying the
difference between the insured's pro rata share of the
settlement with the tortfeasor and the insured's total
amount of damages up to the insured's underinsured
provisions of K.S.A. 40-284 are mandatory insofar as they
stipulate what insurance policies in this state must contain.
The provisions of the statute are to be considered a part of
every automobile policy in this state, and an automobile
policy is controlling only to the extent that it does not
conflict with or attempt to diminish or omit the statutorily
mandated coverage. Thus, unless authorized by statute,
provisions of an insurance policy which purport to condition,
limit, or dilute the broad, unqualified uninsured motorist
coverage mandated by K.S.A. 40-284 are void and
from Johnson District Court; Rhonda K. Mason, judge.
J. Luder and Lesley Renfro Willson, of Luder & Weist,
LLC, of Overland Park, for appellant.
B. Diehl, of Ralston, Pope & Diehl, LLC, of Topeka, for
Schroeder, P.J., Green and Powell, JJ.
minor, was a passenger in her parents' automobile when it
was involved in a three-car accident. E.H., her mother and
father, and her two siblings all filed claims against the
tortfeasor's (at-fault driver's) insurance. Because
the tortfeasor's insurance was insufficient to cover
their injuries, E.H. and her father sought underinsured
motorist (UIM) coverage from their insurance carrier,
Automobile Club Inter-Insurance Exchange (ACIIE). A dispute
arose between E.H. and ACIIE as to the amount of UIM coverage
available to E.H.; E.H. filed suit, and the district court
declared the maximum amount of UIM coverage available to E.H.
was the $50, 000 per person limit minus the $12, 000 she
received from the tortfeasor for a total of $38, 000. ACIIE
now seeks interlocutory review of this ruling, arguing the
district court erred because under its policy and K.S.A.
40-284(b), only $10, 000 in UIM coverage remains available
reasons we more fully explain below, we find that the
district court erred in its calculation of the amount of UIM
coverage to which E.H. is entitled and hold that E.H. is
entitled to up to $35, 000 in UIM insurance coverage. We
therefore reverse the district court and remand.
and Procedural Background
to the uncontroverted facts, on January 8, 2016, E.H.'s
father, Paul, was driving the family's van with his wife,
Melissa, and their minor children-E.H., J.H., and I.H.-as
passengers. The accident occurred when Raphael Sherman drove
his vehicle through a red light and collided with a truck
driven by Mario Madero. Sherman's collision caused
Madero's truck to slide across the lanes of the highway
and into the driver's side of Paul's van.
undisputed that Sherman was primarily at fault for the
collision and the resulting bodily injuries to E.H. and her
family. A passenger in Madero's truck, Denisse Lopez,
died from her injuries, and all the occupants of E.H.'s
family's van suffered bodily injuries to some extent.
Sherman's insurance policy with GEICO provided bodily
injury coverage limits of $25, 000 per person and $50, 000
and Melissa had an insurance policy with ACIIE. Under the
policy, Paul and Melissa were named insureds and E.H. was an
"'insured person.'" The policy had bodily
injury coverage with limits of $50, 000 per person and $100,
000 per accident. The UIM coverage had limits of $50, 000 per
person and $100, 000 per accident. It is not disputed by the
parties that E.H. is entitled to some UIM coverage under the
ACIIE policy and Kansas law.
the filing of multiple claims, the injured parties in the
accident agreed to a settlement with GEICO that divided
Sherman's per accident limit of $50, 000 between the
claimants as follows. The Lopez heirs-at-law received $25,
000. Paul received $10, 000; Melissa received $500; I.H.
received $200; J.H. received $2, 300; and E.H. received $12,
000. E.H. provided ACIIE with notice of the settlement under
Paul filed a claim with ACIIE for UIM benefits, and ACIIE
paid Paul $40, 000 on his claim. E.H. then filed a demand on
ACIIE, claiming that she was entitled to $38, 000 in UIM
benefits. Melissa, I.H., and J.H. did not file claims for UIM
benefits. ACIIE disputed the amount of UIM coverage available
to E.H., which eventually resulted in E.H. filing a petition
in the district court, claiming that ACIIE was in breach of
contract and owed her $38, 000 under the policy, plus
interest, damages, and attorney fees. ACIIE answered and
filed a counterclaim seeking declaratory judgment from the
district court setting forth E.H.'s rights and its
obligations under the policy.
the parties filed cross-motions for summary judgment on
ACIIE's counterclaim. E.H. claimed she was entitled to
$38, 000 in UIM coverage based on the difference between her
$12, 000 pro rata share from the GEICO settlement and the
$50, 000 per person UIM limit. In response, ACIIE claimed the
policy actually only had a total of $50, 000 ...