Lara v. Vasquez

98 P.3d 660, 33 Kan. App. 2d 128, 2004 Kan. App. LEXIS 1095
CourtCourt of Appeals of Kansas
DecidedOctober 8, 2004
DocketNo. 91,126
StatusPublished
Cited by4 cases

This text of 98 P.3d 660 (Lara v. Vasquez) 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
Lara v. Vasquez, 98 P.3d 660, 33 Kan. App. 2d 128, 2004 Kan. App. LEXIS 1095 (kanctapp 2004).

Opinion

Marquardt, J.:

Christina Lara appeals the trial court’s award of attorney fees to AIU Insurance Company (AIU), pursuant to the Kansas Automobile Injury Reparations Act, K.S.A. 40-3101 et seq. We reverse in part, dismiss in part, and remand with directions.

In January 2000, Lara was involved in a three-vehicle accident with Gabriel Vasquez. Vasquez was arrested for driving while under the influence of alcohol at the time of the accident. Lara suffered injuries to her cervical and thoracic spine and continues to suffer from numbness and pain in her back and neck.

In November 2000, Lara filed suit against Vasquez and AIU. The suit alleged that AIU breached its contract because it failed to pay Lara’s personal injury protection (PIP) benefits after the accident.

Dr. Michael Hermann, Lara’s chiropractor, had a PPO agreement with Preferred Chiropractic Care. The PPO agreement provided that Dr. Hermann would receive reduced compensation for some of his services.

Dr. Hermann filed suit against AIU to recover the unpaid balance of his charges for Lara’s care. After meeting with Lara, Dr. Hermann consolidated his case with hers. The trial court bifurcated Lara’s action against Vasquez from her action against AIU. Lara’s action against Vasquez is not part of this appeal.

At the time of the accident, Lara owned an uninsured vehicle. Under Kansas law, the owner of an uninsured vehicle may not claim PIP benefits as a third-party beneficiaiy under another’s PIP contract. Dreiling v. State Farm Mut. Auto. Ins. Co., 227 Kan. 851, Syl. ¶ 2, 610 P.2d 611 (1980). At the time of the accident, Lara was driving her father’s car.

Lara and Dr. Hermann filed a joint motion to dismiss their suit against AIU in December 2001. It was Lara’s understanding that the case would be dismissed, there would be no more discovery, and no additional expenses would accrue. However, in January 2002, AIU filed a notice of claim for attorney fees pursuant to K.S.A. 40-3111(b).

AIU’s attorney prepared a journal entry which included a statement that Lara was contesting the issue of attorney fees. AIU also attempted to establish a discovery schedule to take Dr. Hermann’s [130]*130deposition and determine the appropriateness of an award of attorney fees. On January 14, 2002, Lara’s counsel responded by indicating that he had forwarded the proposed journal entry to Dr. Hermann’s counsel. However, Dr. Hermann failed to respond to the proposed journal entiy.

When AIU did not receive a timely response to its interrogatories from Lara, AIU sent her a letter on February 4, 2002, stating that her interrogatory responses were out of time and requesting the answers be furnished within 10 days. Lara responded 7 days later, refusing to answer the interrogatories until after an April 5, 2002, hearing to settle the journal entiy of dismissal.

In response to the deposition notice, Dr. Hermann sent a letter to AIU on March 13, 2002, stating that he would not be available at the scheduled time. Lara sent a notice to AIU stating that she did not believe further discovery was necessary given the proposed dismissal of the case.

In March 2002, AIU filed motions for default judgment as to Lara and Dr. Hermann on the issue of attorney fees, alleging that they had failed to respond to discovery. The trial court granted default judgment and stated that the amount of fees would be determined at a later date. However, no journal entiy of dismissal had been signed or filed due to the disagreement over the terms.

Lara filed a motion to reconsider, which was denied. In July 2003, the trial court ordered Lara to pay $16,848 for AIU’s attorney fees. Lara timely appeals.

Discovery Sanction

Lara argues that the testimony provided at tire hearing to determine attorney fees was not sufficient to justify the award. Lara specifically challenges the testimony from AIU’s counsel that he billed approximately 4,000 hours per year, which averages 12 hours per day, 7 days per week.

The reasonableness of attorney fees rests within the sound discretion of the trial court, and it can draw on its own knowledge and expertise in determining a reasonable amount. On appeal, the trial court’s award will not be disturbed absent a showing of abuse [131]*131of discretion. Johnson v. Westhoff Sand Co., Inc., 31 Kan. App. 2d 259, 274-75, 62 P.3d 685 (2003).

The trial court’s grant of default judgment for attorney fees was, in essence, a discovery sanction. In general, an appellate court reviews a default judgment on an abuse of discretion standard. See Binyon v. Nesseth, 231 Kan. 381, 383, 646 P.2d 1043 (1982).

Default judgment for failure to comply with discovery orders is the ultimate sanction and should only be granted in the most extreme cases. In considering whether to grant a default judgment for failure to comply with discovery orders, the court must be extremely cautious in exercising its discretion. Wenger v. Wenger, 239 Kan. 56, 60, 716 P.2d 550 (1986).

K.S.A. 2003 Supp. 60-237(b)(2)(C) authorizes the trial court to grant a default judgment against a disobedient party. K.S.A. 2003 Supp. 60-237(d) governs die failure of a parly to serve answers to interrogatories.

Where there is evidence that a party has acted in deliberate disregard of a reasonable and necessary order of the court, and where such party is afforded a hearing and an opportunity to offer evidence of excusable neglect, the imposition of a stringent sanction will not be disturbed. The sanction should be designed to accomplish the objects of discovery rather than for the purpose of punishment. Shay v. Kansas Dept. of Transportation, 265 Kan. 191, 194, 959 P.2d 849 (1998).

The questions this court considers when determining whether the trial court abused its discretion when granting default judgment for failure to comply with discovery orders are: (1) Does the discoverable material go to a dispositive issue in the case? (2) Are alternative sanctions sufficient to protect the parly seeking discovery available? and (3) Is the requested information merely cumulative or corroborative? Canaan v. Bartee, 272 Kan. 720, 727, 35 P.3d 841 (2001). In the instant case, tire trial court did not consider these questions. In addition, most of the cases in which a dismissal or a default judgment has been held to be a proper sanction involve parties who refuse or fail to follow a discovery order. See Canaan, 272 Kan. at 728.

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Bluebook (online)
98 P.3d 660, 33 Kan. App. 2d 128, 2004 Kan. App. LEXIS 1095, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lara-v-vasquez-kanctapp-2004.