Davis v. Allstate Insurance

143 P.3d 413, 36 Kan. App. 2d 717, 2006 Kan. App. LEXIS 1005
CourtCourt of Appeals of Kansas
DecidedOctober 6, 2006
DocketNo. 96,043
StatusPublished
Cited by3 cases

This text of 143 P.3d 413 (Davis v. Allstate Insurance) 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
Davis v. Allstate Insurance, 143 P.3d 413, 36 Kan. App. 2d 717, 2006 Kan. App. LEXIS 1005 (kanctapp 2006).

Opinion

McAnany, J.:

This is the first case heard to test our court’s new procedure for expediting appeals from orders granting summary judgment in civil cases. This new procedure is designed to reduce the time and expense in briefing appeals by relying primarily on the facts and arguments asserted by the parties in their summary judgment motions and briefs before the district court and not requiring the parties to rebrief for us those same facts and arguments.

[718]*718Jay and Jonell Davis, husband and wife, owned a 1995 Ford truck and a 2002 Ford Mustang which were insured by Allstate Insurance Company under a policy that provided liability coverage of $100,000 per person and $300,000 per accident. The policy also provided underinsured motorist (UIM) coverage. Jay also owned a 1993 Honda motorcycle which was insured by American Modem Home Insurance Company under a policy with a liability limit of $25,000 per person.

Jay and Jonell rode together on the motorcycle two or three times a month during good weather, with Jay driving and Jonell riding behind him. In the spring of 2003, Jay and Jonell were involved in an accident in Grand Teton National Park, Wyoming, when Jay s motorcycle struck an elk. Jay was driving and Jonell was his passenger. Both were thrown from the motorcycle and both suffered serious personal injuries. American Modern Home tendered, and Jonell accepted, $25,000 under Jay s liability policy. In consideration of this payment, she released Jay from further liability but reserved her claim against Allstate for UIM coverage under the auto liability policy on the other two vehicles which provided a higher coverage limit.

Jonell then demanded $75,000 from Allstate under the UIM provisions of the auto policy, $75,000 being the difference between the $25,000 available under the motorcycle policy and the $100,000 liability limit of the Allstate policy. When Allstate denied coverage for Jonell’s UIM claim, she commenced this action for breach of the contract of insurance. The parties filed competing summary judgment motions. At the close of discovery the court denied Jonell’s motion and entered summary judgment in favor of Allstate. Jonell appeals these adverse rulings.

Issues

Jonell argues two points of error. First, she claims the court erred in relying upon an exclusion in tire Allstate policy which was broader than allowed by K.S.A. 40-284(e)(l). Second, she claims the court erred in entering summary judgment in favor of Allstate on the theory that the policy did not cover damages sustained while she was riding on Jay’s motorcycle since it was provided for her [719]*719regular use. She argues that she and Jay testified by deposition and submitted affidavits that the motorcycle was not provided for her regular use and she had never driven it.

The standards the district court must apply in considering a motion for summary judgment are well known to the parties and will not be repeated here. On appeal, we apply these same standards to determine whether the district court erred in its rulings. See State ex rel. Stovall v. Reliance Ins. Co., 278 Kan. 777, 788, 107 P.3d 1219 (2005).

1. The Breadth of the Allstate Exclusion

K.S.A. 40-284(e)(l) states: “Any insurer may provide for the exclusion or limitation of coverage: (1) When the insured is occupying or struck by an uninsured automobile or trailer owned or provided for the insured’s regular use.”

The Allstate policy provided, inter alia:

“Allstate will not pay any damages an insured person is legally entitled to recover because of . . . bodily injury sustained while in, on, getting into or out of or when struck by an uninsured or underinsured motor vehicle which is owned by you or a resident relative or provided for the insured person’s regular use.”

Jonell contends the addition of the exclusion to include a vehicle owned by a “resident relative” voids this entire provision in the policy. Without dwelling on the various reasons this is not so, it suffices to note that Allstate did not argue, and the district court did not rule, that the fact that Jonell’s husband owned the motorcycle excluded her from coverage. The policy provision Jonell challenges was immaterial to the court’s ruling. The court entered summary judgment in favor of Allstate based upon the conclusion that the motorcycle was provided for Jonell’s regular use. This leads to Jonell’s second issue: whether the court erred in its determination that the motorcycle was provided for Jonell’s regular use so as to bar her UIM claim.

2. Whether the Motorcycle was Provided for JonelPs Regular Use so as to Bar Her UIM Claim

JonelPs second point of error requires a two-step analysis. First, we must determine whether there was a fact dispute over Jonell’s [720]*720use that would preclude the district court from entering judgment summarily. Second, if there was no issue of fact that required a trial, we must determine whether Allstate was entitled to judgment as a matter of law based upon its policy exclusion.

Regarding the first step, Jonell argues that the district court violated the requirement that the court view the facts in the light most favoring her on this issue. She points to the deposition testimony and affidavits she and Jay provided in which they asserted that the motorcycle was not provided to her for her regular use. From this she concludes that there remained a disputed issue of material fact requiring a trial for resolution.

Jonell rode on the motorcycle with her husband two or three times a month. This is not a disputed fact. The question is whether this fact leads to the conclusion that the motorcycle was provided to Jonell for her regular use so as to bar her UIM claim. This is an issue of law for the court. The interpretation of an insurance contract is a question of law. Exploration Place, Inc. v. Midwest Drywall Co., 277 Kan. 898, 901, 89 P.3d 536 (2004).

Had we been confronted with competing affidavits, one saying that Jonell regularly rode the motorcycle with her husband and another saying she was never on the motorcycle, there would be a fact issue which, if meeting the test of materiality, would preclude summary judgment. But that is not the case. The underlying facts are not disputed. The issue then becomes the legal significance of the undisputed facts, i.e., whether Jonell riding with her husband has the legal effect of maldng the motorcycle a vehicle that was provided to her for her regular use. This is an issue of law for the court which, if the underlying facts are not disputed, the court may resolve summarily. See Roy v. Young, 278 Kan. 244, 247, 93 P.3d 712 (2004). The issue was ripe for summary disposition, and the district court did not err in the manner in which it considered the affidavits and deposition testimony of Jonell and Jay.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Liberty Mutual Fire Insurance Co. v. Clemens Coal Co.
250 F. Supp. 3d 825 (D. Kansas, 2017)
Wells Fargo Bank, N.A. v. Eastham
241 P.3d 1027 (Court of Appeals of Kansas, 2010)

Cite This Page — Counsel Stack

Bluebook (online)
143 P.3d 413, 36 Kan. App. 2d 717, 2006 Kan. App. LEXIS 1005, Counsel Stack Legal Research, https://law.counselstack.com/opinion/davis-v-allstate-insurance-kanctapp-2006.