The opinion of the court was delivered by
On March 25, 1973, a vehicle driven by plaintiff Clara J. Kirtland collided with a vehicle driven by George F. Bowers. Prior to this accident, Bowers hаd filed with the Kansas Corporation Commission a policy of liability insurance issued by defendant Tri-State Insurance Company, and had received a certificate of convenience and necessity to operate as a motor сarrier in this state, all in conformity with K. S. A. 66-1,128 (now K. S. A. 1975 Supp. 66-1,128).
On February 13, 1975, plaintiff filed her original petition naming only Bowers as defendant. Subsequently, the sheriff returned the summons non est, indicating that after a diligent search and inquiry he was unable to find the named defendant. Thereafter, on Aрril 11, 1975, more than two years after the accident, plaintiff filed an amended petition suing Tri-State, insurer of Bowers.
Defendant Tri-Stаte filed a motion to dismiss, claiming the action against it was barred by the two-year statute of limitations of K. S. A. 1975 Supp. 60-513 (4). The trial cоurt sustained the motion and entered an order dismissing Tri-State as a party defendant. From this order plaintiff appeals.
Plaintiff contends the right to sue Tri-State directly is one created by statute, thus the three-year limitation period of K. S. A. 60-512 (2) should apply. Defendant counters that the cause of action *632 is one in tort, thus plaintiff has only two years to file suit under K. S. A. 1975 Supp. 60-513 (4).
Because the two-year statute of limitations did not toll against Tri-State before it was named as defendant, plaintiff’s cause of action must come under the three-year statute or it will be barred.
(Schmidt v. Nauman,
K. S. A. 60-512 reads:
“The following actions shall be brought within three (3) years: . . . (2) An action upon a liability created by a statute other than a penalty or forfeiture.”
K. S. A. 1975 Supp. 60-513 reads:
“The following actions shall be brought within two (2) years: . . . (4) An action for injury to the rights of another, not arising on contract, and not herein enumerated.”
Plaintiff’s argument that the three-year statute of limitations applies is based on her interpretation of K. S. A. 66-1,128. This statute requires all motor carriers to obtain minimum liability insurance before they can lawfully operate in this state. In addition, as interpreted by this court, the statute gives the рlaintiff injured by a motor carrier the option of suing the motor carrier’s insurer directly though the carrier is not made a party to the action.
(Sterling v. Hartenstein,
As a general rule the nature of the cause of action determines the applicable statute of limitations. In addition, statutes of limitations are to be applied to all proceedings emanating from a cause of action in the same manner as they aрply to the basic cause of action. The purpose of this rule is to make the right to be enforced, not the procedure, the test as to which statute of limitations applies. (51 Am. Jur. 2d, Limitations of Actions, §62, pp. 640-641.) This court recognized the rule in the case of
Hollinger v. Dickinson County,
supra. There the plaintiff sued Dickinson County for damages resulting from a defective bridge. The trial court dismissed thе action as being barred by the two-year statute of limi
*633
tations, relying on the case of A.
T. & S. F. Rld. Co. v. King,
“. . . Perhaps the decision might better have been justified upon the theоry that the statute merely effected a procedural change, eliminating a defense to which the plaintiff’s claim for injuries due to the defendant’s negligence would otherwise have been open. It has been held that the invoking of a statutоry provisional remedy by the plaintiff does not make the action one upon a liability created by statute (Pare v. Mahone,32 Ga. 253 ) . . .
“The prеsent action is one upon a liability created by statute. Without the statute there would be no basis whatever for the plаintiff’s claim. (Wagner v. Edwards County,103 Kan. 719 ,176 Pac. 140 , 665.) The statute giving the right of action is not one relating to remedy or procedure; it concerns the substantivе rights of the parties and imposes an obligation where none before existed. . . .” (pp. 94, 95.)
In the instant case we hold the twо-year statute of limitations applies for three reasons.
First, the nature of the present action is one of tort, аs this court has previously held in
Fitzgerald v. Thompson,
“The rule deducible from the above authorities is that the liability assumed by the insurer is neither a contract liability nor a statutory liability. It is a tort liability — the liability in tort which the insured has ‘from the negligent operation’ of his businеss under the permit. The fact that this tort liability is determined by the statute and by the insurance policy does not keep it from being a tort liability.” (pp. 90, 91.)
(See, also,
Sterling v. Hartenstein,
supra;
Streebin v. Capitol Truck Lines,
Second, the statute under discussion is not substantive, but is remedial in nature. It does not give the injured party any new rights or a new cause of action. The injured party in a motor carrier accident has always had the right to file a damage action for his injuries and losses. The power to sue the insurance company directly is only a statutory remedy designed tо assist the injured party in effectuating a successful recovery when liability is established. In Dunn v. Jones, supra, the court stated:
“. . . The purpose of the insurance is adequate protection to members of the public from negligent conduct of the motor-vehicle operator, not simply protection to the negligent operator against judgments rendered *634 against him, and what the policy must assure is recoverable compensation to a member of the public for injury to person and loss of or injury to propеrty.” (p. 223.)
Our characterization of the direct action against the insurance company as being procedural аnd not substantive has support from other jurisdictions.
(Noe v. United States Fidelity and Guaranty Company,
If plaintiffs position is аdopted by this court, she would have two years in which to sue the original tortfeasor and three years to sue his insurer. The insurer wоuld be exposed to a greater period of liability than the original tortfeasor. It is the obligation of this court to interpret statutes to express the intent of the legislature
(Manzanares v. Bell,
The judgment of the lower court is affirmed.