Legal News

Kansas requires insurance coverage for all vehicles operated on the road.    This is to account for damages caused in accidents and to allow at least some form of protection to those injured in an accident.   Some coverage is no fault such Personal Injury Protection in which your own insurance company will pay for medical treatment up to the limits of coverage in that policy.     Coverage is a key to recovery in most any auto injury claim.

            The main basic and required forms of coverages in the State of Kansas are as follows:

• Bodily Injury Liability:   This coverage pays medical expenses, rehabilitation, funeral costs, pain and suffering, duress, mental anguish, lost wages from an injury, future medical, future loss wages, and other covered forms of damages from auto tort claim.    This coverage is used to pay for a lawsuit filed against the party who is at fault in an auto accident and is required for every driver so that driver can pay when they are at fault and cause injury to your body which results in these types of damages.    This is coverage is the insurance of the party who hit you.   Thus, if you are suing another driver for injury in auto accident, it is that driver’s bodily injury coverage that covers their liability for the claim.   The limit of this coverage is very important to your recovery as that limit is the most their insurance will have to pay.    (But see Underinsured or UIM coverage below)

 

• Property Damage Liability:   This coverage pays for repair, replacement, or cash value of damaged property.    This coverage is used to pay for a lawsuit filed against the party who is at fault in an auto accident and is required for every driver so that driver can pay when they are at fault and cause property damage.    This is coverage is the insurance of the party who hit you.   This coverage is relevant in your lawsuit because if you are attempting to receive damages for your property this coverage is the limit that their insurance will have to pay on claim for property damage.

 

• Personal Injury Protection (PIP or No-fault):   This coverage pays for medical expenses, rehabilitation, funeral expenses, lost wages, and in-home assistance for you and your passengers injured in an accident, regardless of who is at fault.   This coverage is part of your policy and a contractual right mixed in with tort requirements such as when to file a claim.   Passengers who own their own cars collect under their policy which in part why it is no fault.    You can purchase your own limits to protect yourself from accident with this type of coverage.

 

• Uninsured/Underinsured Motorist Protection:     This coverage pays you or your passengers for medical, rehabilitation, and funeral costs.   It does not pay for property damage.   It covers above only the bodily injury liability coverage.   It also pays settlements of lawsuits resulting from an accident caused by an uninsured, underinsured or hit-and-run motorist. You and your family are covered as pedestrians or when riding your bike.    This coverage is very important as while it is in your own policy and is mixture of both contract and tort law, it covers you when the person who hit you either did not have enough insurance coverage or had no insurance to cover you for the full amount of your damages for personal injury (not property damage).

Kansas law mandates that every automobile insurance policy sold in the state must have these very small minimum coverages:

• Liability coverage

• $25,000/person for bodily injury

• $50,000/accident for bodily injury
• $25,000/accident for property damage
• Personal injury protection (PIP or No Fault)
• Minimum amount required by law:
• $4,500/person for medical expenses
• $900/month for one year for disability/loss of income
• $25/day for in-home services
• $2,000 for funeral, burial or cremation expense
• $4,500 for rehabilitation expense
• Survivor Benefits: Disability/loss of income up to $900/month for one year
• In-home services up to $25/day for one year
• Uninsured/Underinsured
• $25,000/person
• $50,000/accident

The minimal limits are not very helpful in most accidents.    Fortunately, most agents correctly urge their clients to purchase more coverage.    We believe here at our office that it is important to have proper Underinsured coverage.    It is equally important to have adequate uninsured coverage, but the issue we see more often is not have enough insurance which is why it is important to have proper underinsurance coverage.    This often referred to as UIM coverage.

For example, if you are hit by someone who only has the minimal amounts of coverage, their insurance company only has to pay $25,000 for the personal injury.   It is unlikely that a person with minimal coverage has money to pay the claim (which is why they had minimum coverage).   Such coverage will not compensate for a large accident.    Even you had $50,000 in medical bills, that insurance company would only have to pay $25,000.

This situation can be fixed with underinsurance or UIM coverage.   If you have $100,000 in UIM coverage, then you could claim against your policy $75,000 more in monies to cover the damage above the $25,000 liability coverage.    You can purchase as much UIM coverage as you can afford or want to pay for in coverage.    In our example above, a person with $50,000 in medical bills, likely has a claim above $100,000.    We believe that your policy should have at least $500,000 in coverage.    That is above the minimum requirements, but insurance companies will provide it for an increased premium.   That way if you are in bad accident, you should have coverage to compensate you for medical bills, lost wages, and the pain and anguish from the injury.  

This UIM coverage is in your own policy and completely in your control to protect yourself.    

As mentioned above, UIM does not cover property damage.   However, you can protect yourself in this regard by purchasing Collusion insurance.   This will cover your vehicle for damage in accident regardless of fault.   Thus, if the other party is not fault or does not have enough coverage, this type of insurance in your own policy can cover your damage subject to the terms of your policy.   Also, you can purchase Comprehensive coverage.   This coverage will protect you from damage from storms, fires or other forms natural disaster as defined in your policy.    Again, these types of two coverages are within your control when you purchase your insurance.    

Last month (June), in Hilburn v. Enterpipe, LTD, the Kansas Supreme Court ruled favorably to protect the citizens of  the State of Kansas by again applying the Quid Pro Quo rule to strike the pain and suffering cap in Kansas.   Many people do not realize that many states put a cap on how much can be claimed in pain suffering.    Many courts are now finding such caps unfair and a violation of due process or an inadiquate remedy.   In Kansas, the cap on pain and suffering was found in K.S.A. 60-19a02.    This statute caped pain and suffering at $250,000 and only recently was amended to give somewhat trivial increases with inflation up to capping again at 350,000 starting in 2020.   Claims for 2019 had been increased to $325,000.    We assume it was the legislatures intention to leave the cap indefinitely at $350,000 regardless how horrific the injury would be.

The caps on pain and suffering were at the push of tort reform by insurance companies to put limits on what they would pay on claims.     The idea being that the caps would stop the so called frivolous claim.   But, in reality, what the caps did was take away the ability of seriously injured person to claim pain and suffering that many juries would give them for certain injuries.    In other words, a person who had a leg painfully torn from their body in auto accident and lived to see and endure said pain were not able to receive damages from jury in excess of what is stated in K.S.A. 60-19a02.    Another cruel aspect of the statute was that the jury was not told their verdict was limited by K.S.A. 60-19a02.   

In other words, since a jury was not told, a jury could give a verdict to the example in preceding paragraph of a million dollars in pain and suffering caused by the trauma of living through an accident where their leg is ripped from their body.    Such a verdict would also consider the rehab of the severed leg and all that the trauma involved of overcoming it.    One can easily see we think why a jury would award a million dollars for such pain, such suffering, and such anguish.    In short, who would want to endure such an injury?    A million dollars would not replace the leg or the memories of the accident.     Herein lies the problem with K.S.A. 60-19a02.    The statute does not stop frivolous claims.     All it does is punish people with really bad injuries.   It stops juries a from awarding what people with such injuries are entitled to receive.

That seems to be the gist of the holding of Hilburn v. Enterpipe.     In short, a jury should determine what is frivolous, not the legislature.   The jury of peers should decide what case is worth with a judge correctly instructing the law to said jury.    Further, in reality, all the cap did was protect the insurance companies and allowed them to avoid paying paining damages that would otherwise be owed.   It was simply cost saving tool and did little to provide any tort reform. We believe the Kansas Supreme Court saw through the fake guise of K.S.A. 60-19a02 and was right to give control back to the juries.    This is a power to the people type of decision.    We agree whole heartedly that juries exist to award damages when they are warranted and to deny damages when they are not warranted.    The decision is correct.

 The case of Johnson v. US Foods is currently before the Kansas Supreme Court.   This case could have dramatic consequence to injured workers in the State of Kansas.    The  Kansas Court of Appeals declared unconstitutional the provisions of K.S.A. 44-510d and K.S.A. 44-510e requiring the use of the American Medical Association Guidelines 6^th Edition.   The Appeals Court reinstated the old language of the statute which required the use of the 4^th Edition.   The analysis was based upon whether the 6^th Edition constituted an adequate substation of remedies to workers to give up their tort rights bared by rule of exclusivity.  

The rule of exclusivity is codified in K.S.A. 44-501b (d) and prevents the injured worker from bringing negligence claims for injuries that occur at work.   Those claims are replaced with benefits within the workers compensation act.   In Kansas, these benefits include medical treatment, disability such as TTD when off work, TPD when taken off work partially, and PPD and PTD for permanent injury.  The problem with constitutionally is that for worker or employee to give up his/her negligence claim, the work injury claims under workers compensation law taken as whole must be an adequate substitute remedy.   Without workers compensation laws being a valid substitute remedy for giving up a tort claim, the state legislature cannot eliminate the tort claim or negligence claims for injuries or accidents occurring at work.  This concept of due process is sometimes called the Quid Pro Quo.

In Kansas, in Johnson v. US Foods, with work accidents and work injury, the Court of Appeals held that the 6^th Edition eroded the workers compensation benefit to such a degree that it simply was no longer a valid injury benefit.    The Court considered striking the rule of exclusivity.   If that had happened, a worker could have sued his/her employer directly for negligence.   Such a claim would not be subject to limits of Kansas work injury law.   There would have no limits to scheduled injury, general permanent partial injury, or any caps on total disability.    Such ruling would have allowed claims for punitive damages, wage loss and pain and suffering.    But, the Court indicated that would have been too extreme of a result.   

Instead, the court took less drastic action of simply voiding the statutory language on disability benefits related to the 6^th Edition.    They left the rest of the workers compensation benefit law and caps in place.   They replaced the 6^th Edition language with the language that predated the 2011 changes to the law.   Or, in other words, they voided the unconstitutional part of the statute, and allowed the old clause that existed before 2011 to become law again.   By doing so, the AMA Guidelines 4^th Edition would become the law again.

This case was appealed by the Kansas Attorney General who has authority to do so as a statute was questioned constitutionally.   By appealing, the bar on the 6^th Edition is on hold until the Kansas Supreme Court rules on the issue.    This means that the courts and lawyers must now present their evidence to include both sets of ratings.    The reason being that the current law by statute requires the use of the 6^th Edition.    However, if the Supreme Court affirms, the 4^th Edition would then control.    Thus, a pending claim without a 4^th Edition ruling would potentially be void. 

            In short, the 4^th Edition is fairer to injured workers.    If worker is subject to the rule of exclusivity, and the workers only claim to injury is the workers compensation act, it is indeed true that the disability benefits should reflect fair compensation for the injury.   The Sixth Edition falls way short of doing so.     We agree strongly with the Kansas Court of Appeals and applaud the ruling as protecting the fairness, the constitutionality, and the substitute remedy of the Kansas Workers Compensation Act.

Hopefully, the Supreme Court will protect the fairness of the Kansas Workers Compensation Act and affirm the Court of Appeals.   

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