Burt v. Schrubba

967 P.2d 344, 25 Kan. App. 2d 614, 1998 Kan. App. LEXIS 125, 1998 WL 771705
CourtCourt of Appeals of Kansas
DecidedNovember 6, 1998
DocketNo. 78,554
StatusPublished

This text of 967 P.2d 344 (Burt v. Schrubba) is published on Counsel Stack Legal Research, covering Court of Appeals of Kansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Burt v. Schrubba, 967 P.2d 344, 25 Kan. App. 2d 614, 1998 Kan. App. LEXIS 125, 1998 WL 771705 (kanctapp 1998).

Opinion

Green, J.:

Dorothy Burt appeals from a judgment of the trial court denying her partial summary judgment motion against garnishees Continental Insurance Company (Continental) and its insured, Alamo Rent-A-Car, Inc. (Alamo). Burt maintains that Continental was required to pay not only the statutory minimum liability coverage of $25,000 but also the amount of her judgment in excess of the minimum liability coverage. Burt contends that the trial court erred in determining that Alamo’s self-insurance certificate required it to pay, instead of Continental, the minimum coverage of $25,000 and in granting summary judgment in favor of Continental. We disagree and affirm.

Burt sued Gerhard Schrubba, a German national; Alamo; and her own insurer, General Casualty Company of Wisconsin (General Casualty), claiming that Schrubba negligently injured her with a car he had rented from Alamo. Schrubba rented the car in Colorado and was driving it in Great Bend, Kansas, when the accident occurred. Burt later dismissed her suit against Alamo and General Casualty, maintaining only her suit against Schrubba. In July 1995, Schrubba confessed judgment in the amount of $100,000. Schrubba and Burt entered into an agreement by which Burt promised not to execute on the personal assets of Schrubba, and Schrubba assigned to Burt any rights he had against Continental. Later, Burt garnished both Continental and Alamo.

Burt argues that the trial court improperly granted summary judgment in favor of Continental. Summaiy judgment is appropriate when there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Mitzner v. State Dept. of SRS, 257 Kan. 258, 260, 891 P.2d 435 (1995). Whether the trial court erred in granting Continental summary judgment depends upon the construction given the language of the policy. Our Supreme Court has frequently observed that “ '[a]s a general rule, the construction and effect of a contract of insurance is a matter of law to be determined by the court. If the facts are admitted, then it is for the court to decide whether they come [616]*616within the terms of the policy.’ Farm Bureau Mut. Ins. Co. v. Horinek, 233 Kan. 175, Syl. ¶ 1, 660 P.2d 1374 (1983).” Harris v. Richards, 254 Kan. 549, 552, 867 P.2d 325 (1994). Here, the facts are essentially undisputed.

Alamo’s Rental Agreement

Under the rental agreement, Alamo agreed to furnish Schrubba with minimum liability coverage required by the state where the accident occurred. The rental agreement stated:

“Liability insurance: You [Alamo] provide me [Schrubba] with liability insurance or protection that will cover bodily injury, death, or property damage only up to the minimum financial responsibility required by State law. I [Schrubba] agree that any amounts over this minimum will be covered by me or by my liability policy and I will indemnify you for any losses that exceed the minimum limits. I can see a copy of your policy or self-insurance certificate at your rental office.”

Alamo’s Self-Insurance Certificate

When Schrubba rented the Colorado-licensed car, Alamo had qualified for and received a certificate of self-insurance under the Colorado Motor Vehicle Financial Responsibility Law. The self-insurance certificate indicates Alamo is self-insured for up to $25,000 for bodily injury or death resulting from an automobile accident involving an Alamo vehicle.

Continental’s Policy

Alamo also carried a Continental insurance policy. The Continental policy provided coverage as follows: “[Continental] will pay all sums an ‘insured’ legally must pay as damages because of‘bodily injury’ or ‘property damage’ to which this insurance applies, caused by an ‘accident’ and resulting from the ownership, maintenance or use of a covered ‘auto.’ ” An endorsement to the policy further stated that liability coverage for leased automobiles was subject to the following provision: “The insurance provided by this endorsement is excess over any other collectible insurance, whether primary, excess or contingent, unless such insurance is specifically written to apply in excess of this policy.”

Because Alamo’s rental agreement provided Schrubba protection up to the minimum amount required by the state in which [617]*617Schrubba had an accident, the trial court concluded that the Continental policy furnished only excess coverage for the car accident in question. The trial court further concluded that Alamo was self-insured up to $25,000 and that Continental would provide coverage only if an accident occurred in a state where the minimum financial responsibility exceeded $25,000. However, because the minimum financial responsibility in Kansas is $25,000 under K.S.A. 40-3107(e), the trial court concluded that the Continental policy did not provide coverage for the accident.

Burt, however, argues that the Colorado self-insurance certificate does not cover the Kansas accident because K.S.A. 40-3106(b) of the Kansas Automobile Injury Reparations Act (KAIRA), K.S.A. 40-3101 et seq., requires a nonresident self-insurer to certify its compliance by filing a form with the Kansas Insurance Department. Although Alamo did not file the K.S.A. 40-3106(b) form, the trial court determined that K.S.A. 40-3106(b) did not mandate this action but instead made it permissive. “Interpretation of a statute is a question of law, and this court’s review is unlimited. [Citation omitted.]” Hamilton v. State Farm Fire & Cas. Co., 263 Kan. 875, 879, 953 P.2d 1027 (1998). K.S.A. 40-3106(b) states:

“Every insurance company authorized to transact the business of motor vehicle liability insurance in this state shall file with the commissioner as a condition of its continued transaction of such business within this state a form approved by the commissioner declaring that its motor vehicle liability policies, wherever issued, shall be deemed to provide the insurance required by K.S.A. 40-3107, and amendments thereto, when the vehicle is operated in this state. Any nonadmittedinsurer may file such a form. A qualified self-insurer, approved by an agency of the state in which the vehicles are registered, may certify its compliance with KS.A. 40-3107, and amendments thereto, on a form prescribed by the commissioner.” (Emphasis added.)

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Related

Tucker v. Hugoton Energy Corp.
855 P.2d 929 (Supreme Court of Kansas, 1993)
Farm Bureau Mutual Insurance v. Horinek
660 P.2d 1374 (Supreme Court of Kansas, 1983)
Overbaugh v. Strange
867 P.2d 1016 (Supreme Court of Kansas, 1994)
Harris v. Richards
867 P.2d 325 (Supreme Court of Kansas, 1994)
Hamilton v. State Farm Fire & Casualty Co.
953 P.2d 1027 (Supreme Court of Kansas, 1998)
McCubbin Ex Rel. McCubbin v. Walker
886 P.2d 790 (Supreme Court of Kansas, 1994)

Cite This Page — Counsel Stack

Bluebook (online)
967 P.2d 344, 25 Kan. App. 2d 614, 1998 Kan. App. LEXIS 125, 1998 WL 771705, Counsel Stack Legal Research, https://law.counselstack.com/opinion/burt-v-schrubba-kanctapp-1998.