Bussman v. Safeco Insurance Co. of America
298 Kan. 700
Kan.2014Background
- On Aug. 1, 2005, CNB employee Connie Bussman was injured in a work-related vehicle collision; the other driver (Barth) was insured by Safeco and tendered $50,000, which Bussman accepted.
- Bussman pursued workers’ compensation (ALJ awarded disability and reserved future medicals) and sued for underinsured motorist (UIM) benefits under CNB’s commercial package policy, naming Safeco as defendant.
- At trial, Safeco first asserted the named defendant was wrong (policy might be issued by American States/American Economy), but the court reserved that issue until after the jury verdict.
- The jury found Barth 100% at fault and awarded $115,505.96, including $20,000 for future medical expenses; posttrial, the court denied Safeco’s JMOL and disallowed credit for the $20,000 future-medical award but granted credit for prior workers’ comp payments.
- The district court denied fee requests under K.S.A. 40-256 and declined to consider K.S.A. 40-908 fees for lack of pretrial notice; the Court of Appeals affirmed on waiver/identity, reversed on K.S.A. 40-908 entitlement; the Kansas Supreme Court granted review.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| 1) Whether plaintiff sued the correct insurer | Bussman argued Safeco had acted as the insurer and could be sued; policy and corporate indicia showed Safeco’s involvement | Safeco argued another Safeco-related subsidiary actually issued the policy and identity was waived if not in pretrial order | Court affirmed denial of JMOL (no directed verdict) and held ambiguities construed for insured; Safeco not entitled to judgment as matter of law |
| 2) Whether future medical expenses awarded by jury duplicate workers’ compensation remedies | Bussman sought future medicals in UIM action despite workers’ comp reservation | Safeco argued K.S.A. 40-284(e)(4) permits exclusion of UIM coverage to extent workers’ comp benefits apply and ALJ reserved future medicals | Court held UIM recovery for future medicals is precluded where plaintiff is entitled to receive those same medicals under workers’ comp; reversed to vacate $20,000 future-medical award |
| 3) Sufficiency of evidence / entitlement to jury instruction on future medicals | Bussman presented evidence supporting likelihood of future medical needs and requested instruction | Safeco argued insufficient evidence and that future-medical award was duplicative | Court did not reach a separate insufficiency reversal because it resolved duplication issue under statute and policy—future-medical award vacated |
| 4) Whether plaintiff may recover attorney fees under K.S.A. 40-908 and whether notice was required | Bussman argued attorney fees under K.S.A. 40-908 are part of costs and need not be separately pleaded in pretrial order; the commercial package policy fell within statute’s scope | Safeco argued K.S.A. 40-908 applies only to property-damage claims or that plaintiff failed to preserve the claim by not pleading it pretrial | Court held K.S.A. 40-908 applies (policy-based test), notice by a request for costs sufficed to preserve the fee claim, and plaintiff is entitled to seek K.S.A. 40-908 fees as costs; remanded for fee determination |
Key Cases Cited
- Smith v. Kansas Gas Service Co., 285 Kan. 33 (standard for JMOL/directed verdict review)
- Anderson v. Liberty Lobby, 477 U.S. 242 (standard for when evidence requires submission to jury)
- Tyler v. Employers Mut. Cas. Co., 274 Kan. 227 (discusses limits on UIM exclusions where workers’ comp applies)
- Fisher v. State Farm Mut. Auto. Ins. Co., 264 Kan. 111 (K.S.A. 40-284 remedial purpose and construction)
- Lee Builders, Inc. v. Farm Bureau Mut. Ins. Co., 281 Kan. 844 (construing insurance ambiguity against insurer; applying K.S.A. 40-908 to liability claims)
- Hamilton v. State Farm Fire & Cas. Co., 263 Kan. 875 (statute-based test: policy coverage controls K.S.A. 40-908 applicability, not type of loss)
- State Farm Fire & Cas. Co. v. Liggett, 236 Kan. 120 (K.S.A. 40-908 is part of insurance contract; insurer’s good faith contest not a defense to K.S.A. 40-908 fee award)