*1 444 48,469
No. Betty al., Appellees. William F. et v. Appellant, Jones, Jaremko, J.
(560 136) P. 2d 22, Opinion January filed 1977. cause, argued Vasos, Scott, Daily Vasos, City, of of Donald W. & Kansas the appellant. on for
and was the brief the Enochs, Jr., Wallace, Saunders, Austin, of Hasty, Brown & Overland of Paul appellees. Park, argued cause, on the brief for the and was the a trial order in from the court’s This an appeal Per Curiam: is claim, injury of a personal case after settlement “no-fault” insurance was of insured plaintiff an carrier the holding insurance that injury the full extent of personal to reimbursement to entitled a deduction of to without protection plaintiff benefits the paid in incurred attorneys’ expenses share the and of fees proportionate made. was effecting recovery out of which such reimbursement the awarding in basic is the court The contention trial erred appellant’s benefits injury (PIP) full reimbursement of personal protection in The is deducting presented without fees. same issue attorneys’ 117, Co., 415, v. Farmers 221 560 P. 2d Easom Insurance Kan. 441, 221 Kan. 560 Davis Western Insurance Companies, and v. P. 133. 2d 1974, 5,
On of May (plaintiff- the automobile Betty J. Jaremko as to enter Inter- attempted was struck from it appellant) behind Benskin, 70 a Benskin by by state bus owned Kenneth R. d/b/a William F. by Bus Service and driven (defendant-appellee), carrier, insurance Betty (defendant-appellee). Jones EMCASCO Jaremko’s to as Mutual Company (referred Employers Insurance $5,315 her in PIP benefits. medical and Companies) paid ($2,000 $3,315 wage benefits.) 4, 1974,
On December the who plaintiff, had contracted with Scott, the law firm of & Vasos for Daily legal on a representation contingency recovery, basis on of the filed (Ji) against one-third suit $50,000 13, 1976, and sought the defendants On damages. May tried, $35,315 before the was case the settled for which was parties in of deposited County the the clerk of registry Wyandotte district
445 17, 1976, On May $30,000 court. the court ordered distributed to and her Betty $5,315 attorneys. The was re- remaining Jaremko *2 tained the by clerk of the court. The plaintiff’s attorneys claimed a lien attorneys’ for and $5,315, fees of one-third of expenses this (&) $1,771.67. or a lien on EMCASCO Insurance Company, through its agent, intervened and that denied it was required pay to attorneys’ fees citing of the interpretation Insurance Commissioner Fletcher Bell. 6, 1976,
On July the trial court the S. language examined of K. A. 1975 Supp. 40-3113 and held EMCASCO Insurance Company was $5,315 entitled to the full reimbursement of the PIP it benefits paid Thus, $35,315 of Betty the recovery, the plaintiff’s attor- Jaremko. neys got $11,771.67, one-third (Já) or EMCASCO Insurance Com- $5,315, pany got and Mrs. $18,228.33. got the of balance Jaremko from, Appeal duly has been the trial perfected court’s order denying plaintiff’s claim for fees and attorneys’ in the sum of expenses $1,771.67.
The decision on appeal herein is controlled the court’s by in Co., Easom v. opinion Farmers Insurance supra. The court there held where an injured a tort- plaintiff damages against recovered feasor, which were in of excess personal injury protection (PIP) benefits to the the paid plaintiff by plaintiffs insurance carrier to pursuant 40-3101, the no-fault insurance law S. A. 1975 (K. Supp. plus attorney’s fees the etseq.), expenses, reasonable and plaintiffs was insurer entitled to full PIP reimbursement of benefits to paid of damages the out of the plaintiff plaintiff’s recovery without of the and attorney deduction a share of fees proportionate expenses in the recovery. incurred effecting of lower court
Accordingly, judgment the the is affirmed. I dissent for the J., respectfully must dissenting: Schroeder, Easom v. dissenting in and in concurring opinion my stated reasons 415, Co., 117. 221 560 P. 2d Insurance Kan. Farmers C. J., Fatzer, dissenting opinion. in the joins foregoing foregoing dissenting opinion. in the J., concurs Miller,