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Fisher v. State Farm Mutual Automobile Insurance Co.3/6/1998
Affirmed.
Insured was killed in an automobile accident with an underinsured vehicle while in the course and scope of employment. After a trial, decedent's heirs obtained a Judgement against the estate of the other vehicle's driver which exceeded the other driver's policy limits. Heirs moved to collect under the decedent's underinsured motorist policy provision. The district court awarded decedent's heirs $50,000 under the underinsured motorist coverage. Insurer appealed to the Court of Appeals, claiming that because the workers compensation benefits paid were in excess of damages awarded by the jury, the heirs had no claim against the underinsured motorist provision of the insurer's policy. The case was transferred to this court pursuant to K.S.A. 20-3018(c).
On February 23, 1994, Katherine Fisher was riding in a vehicle that collided with a vehicle driven by Ralph Horan. Both Fisher and Horan were killed. Fisher was acting in the course and scope of her employment at the time of the accident. Subsequently, her husband, James, and a minor son, Joshua, entered into a $204,779.40 lump sum settlement for indemnification and medical expenses under the Workers Compensation Act. The settlement included $3,300 in funeral benefits and $200,000 in death benefits for her husband and the minor child.
Subsequently, James, along with Katherine's daughter Terra (age 18, a partially dependent adult child) and Joshua, filed a civil action against the Kansas Department of Transportation (KDOT) and Horan's estate for wrongful death. At the time of her death, Fisher was insured by a State Farm Mutual Automobile Insurance Company (State Farm) policy which provided uninsured/underinsured motorist benefits of $100,000. Prior to trial, the heirs settled with Horan's estate for his policy limits of $50,000 and preserved all issues against the other parties. Since the policy covering the Horan vehicle had a limit of $50,000, Fisher's heirs asserted a claim for $50,000 underinsured motorist benefits against State Farm. State Farm was an active participant in all discovery and pretrial proceedings.
On October 28, 1994, the district court approved a settlement with the Horan estate. The Judge allowed fees and expenses and apportioned the $50,000 settlement one-half to the surviving spouse, one-fourth to the minor child, and one-fourth to the adult child. The district court ordered that $37,500 of the settlement be paid to the workers compensation carrier, United States Fidelity and Guaranty Company, and $12,500 be paid directly to the adult child.
On the morning of trial, State Farm moved for dismissal as a named party, declined to intervene in the proceedings, and agreed to be bound by the final judgment. Despite being dismissed from the case, State Farm attended the instruction conference at trial and suggested that the verdict form contain a separate calculation under economic loss for loss of services or wages suffered by the heirs as a result of Fisher's death. The verdict form prepared by the Judge and submitted to the jury did not contain the suggested change. At the Conclusion of the trial, the jury returned a verdict of $126,000 and found KDOT not at fault, Horan 90 percent at fault, and Fisher 10 percent at fault. The verdict set the damages as:
A. Past non-economic damages $3,500
B. Future non-economic damages $65,000
C. Past economic damages $7,500
D. Future economic damages $50,000
TOTAL: $126,000
The portion collectable against Horan based upon his 90 percent fault was:
A. Past non-economic damages: $3,150
B. Future non-economic damages: $58,500
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