Appellate Decisions
| Publication year | 2009 |
| Pages | 27 |
| Citation | Vol. 78 No. 3 Pg. 27 |
Supreme Court
Civil
ADMINISTRATIVE LAW AND PROCEDURE
FRIEDMAN V.
KANSAS STATE BOARD OF HEALING ARTS
SHAWNEE DISTRICT COURT - APPEAL DISMISSED
NO. 100,564 - JANUARY16, 2009
FACTS: Kansas Board of Healing Arts filed formal disciplinary action against Friedman. Friedman filed motion to dismiss, alleging the board did not have subject mater jurisdiction because his medical license had expired prior to commencement of the discipline. When administrative law judge denied Friedman's motion, Friedman filed petition for judicial review and injunctive relief. District court dismissed the action, finding Friedman had not exhausted administrative remedies, and to the extent Friedman asserted an independent action for injunctive relief it should be denied because board had jurisdiction to take action. Friedman appealed, claiming exhaustion of administrative remedies was not required for judicial review of an administrative agency's interlocutory order concerning the agency's jurisdiction and claiming the board did not have jurisdiction over a physician whose license has expired unless that physician is then practicing medicine unlawfully.
ISSUES: (1) Exhaustion of administrative remedies and (2) injunctive relief
HELD: District court correctly dismissed Friedman's attempt to obtain interlocutory review of a nonfinal agency action without establishing his entitlement to do so under K.S.A. 77-608(b). District court had no jurisdiction to consider the merits of the attempted judicial review. Appeal dismissed for lack of appellate jurisdiction.
No jurisdiction to consider independent request for injunctive relief. Board had authority to grant this relief, thus a request for such relief must be construed as a petition for judicial review subject to Kansas Act for Judicial Review and Civil Enforcement of Agency Actions notwithstanding petitioner's attempt to label it as a separate action. District court should have dismissed petition in its entirety.
STATUTES: K.S.A. 2007 Supp. 65-2809(a), -2809(d), 77-527; and K.S.A. 65-2801 et seq., -2851a(b), 77-601 et seq., -606, -607, -607(a), -607(b)(2), -608, -622
AUTOMOBILE INSURANCE AND SURVIVOR
POLSON V FARMERS INSURANCE
JOHNSON DISTRICT COURT - AFFIRMED
NO. 99,908 - JANUARY 30, 2009
FACTS: Timothy and Michelle Polson were found dead at the scene of a Kansas automobile accident. Timothy and Michelle, who were married and did not have children, were insured at the time of their deaths by an auto insurance policy issued by Farmers. The policy provided personal injury protection (PIP) benefits as required by the Kansas Automobile Injury Reparations Act (KAIRA), K.S.A. 40-3101 et seq., which included coverage for disability, funeral expenses, medical and rehabilitation expenses, as well as substitution and survivors' benefits. John Polson (Polson), father of Timothy and representative of Timothy's heirs-at-law, and Pauline Fallis (Fallis), mother of Michelle and representative of Michelle's heirs-at-law, made separate written demands upon Farmers for survivors' benefits in the identical amount of $10,800. Farmers denied the demands of both Polson and Fallis, finding that the definition of "survivor" was not met in either claim. After considering the uncontroverted facts and hearing the arguments of counsel, the district court found Timothy and Michelle were not survivors of each other under the provisions of the KAIRA. In addition, the district court determined the provisions of the KAIRA provide specific statutory guidance for the award of survivors' benefits and, therefore, the KAIRA controls in the event of a conflict with the more general provisions of the Kansas Uniform Simultaneous Death Act (KUSDA). Consequently, the court concluded that Polson and Fallis were not entitled to such benefits.
ISSUES: (1) Automobile insurance and (2) survivor
HELD: Court held that neither Polson nor Fallis advanced any evidence that either Timothy or Michelle outlived the other. Therefore, there was no evidence to support a finding that either Timothy or Michelle was a survivor of his or her spouse. Court applied the same analysis under the KUSDA. Court also rejected Polson and Fallis' argument that as parents of the decedents and representatives of the heirs of the decedents, they should be entitled to receive survivors' benefits, even though they were not survivors. Court held the district court did not err in rejecting the plaintiffs' claim for attorney fees.
STATUTES: K.S.A. 20-3018(c); K.S.A. 40-256, -3101, -3103, -3104, -3107; and K.S.A. 58-708, -709
INSURANCE AND DUTY TO DEFEND
MILLER ET AL. V WESTPORT INSURANCE CORP.
SHAWNEE DISTRICT COURT
REVERSED AND REMANDED WITH DIRECTIONS
COURT OF APPEALS – REVERSED
NO. 95,768 - JANUARY 30, 2009
FACTS: Miller, Zeller, and Kohn are licensed life, accident, and health insurance agents who referred several of their clients to John F. Usher and Associated Financial Solutions Inc. (Associated), a company offering debt adjustment services. Usher, the owner of Associated, absconded with the clients' funds, approximately $55,000, while he was under investigation by the Kansas Attorney General's Office. Miller, Zeller, and Kohn made claims under their professional errors and omissions insurance policies with defendants Westport Insurance Corp. (Westport) and Employers Reinsurance Corp. (Employers). Coverage was denied. The agents settled with their clients and again sought coverage. Again, they were unsuccessful, and they then filed this action. The district court granted the insurers' motion for summary judgment, and the Court of Appeals affirmed.
ISSUES: (1) Insurance and (2) duty to defend
HELD: Court stated this is not a negligence action; it is not an action to establish the existence or absence of the agents' liability to their clients. This is a straightforward contract dispute, brought by the agents against their insurers. The agents argue they have a colorable claim under their errors and omissions policy and that the insurers breached their contract by failing to investigate or defend on the agents' behalf. When their clients' money was stolen, the agents did everything they were required to do to invoke coverage under their policy for their potential liability. They notified the administrator of their insurers and then made a formal claim for coverage, including the losses sustained by all 12 clients. Because the agents ultimately settled with those clients, liability will never be determined. That question was not at issue in this case, and it and the concepts of foreseeability and proximate cause were inappropriate bases for its disposition. The district court and the Court of Appeals panel erred in ruling on the possibility of negligence when faced with dueling summary judgment motions; their actual charge was to determine whether, on the facts established by the pleadings, depositions, answers to interrogatories, affidavits, and admissions on file, there was a possibility of coverage under the language of the policy. Court held that Westport had a duty to defend the agents and that this duty was not relieved through any of the exceptions in the errors and omissions policy. Court reversed and remanded to the district court to vacate its previous order of summary judgment, to enter summary judgment in favor of plaintiffs in the amounts prayed for in their petition, and for such other orders as the district court deems necessary and consistent with the opinion.
STATUTE: K.S.A. 50-623, -1101
WARRANTY OF MERCHANTABILITY
HODGES V. JOHNSON
SALINE DISTRICT COURT - AFFIRMED IN PART,
REVERSED IN PART, AND
REMANDED WITH DIRECTIONS
COURT OF APPEALS - REVERSED
NO. 97,062 - JANUARY 30, 2009
FACTS: The Hodgeses purchased a 1995 Mercedes from Johnson, a used car dealer, for $17,020. Three months later the Hodgeses said the air conditioner did not work and the car smelled funny. Hodges sued Johnson in small claims court for the air conditioner repairs in the amount of $3,474 and was awarded the amount of his claim plus interest. Johnson appealed to district court. The court affirmed the award finding there was an implied warranty of merchantability and that although the court did not find a specific breach of the warranty, it was implied in the judgment. However, the court did not allow the Hodgeses' claim for attorney fees. The Hodgeses appealed the denial of attorney fees and Johnson cross-appealed the finding of an implied warranty of merchantability. Court of Appeals reversed holding the air conditioner was not a major component of a 10-year-old car and it did not fall within the implied warranty of merchantability. Court of Appeals also held it was not material that Johnson claimed he sold the car at a steep discount. Since the Hodgeses were not entitled to judgment, he was not entitled to attorney fees.
ISSUE: Warranty of merchantability
HELD: Court held under the facts of this case, there is substantial competent evidence to support the district court's conclusion that the sale of a 1995 Mercedes with a defective air conditioner by a merchant in 2005 breached the implied warranty of merchantability. Court also stated there is substantial competent evidence to support the district court's conclusion that the implied warranty of merchantability in this transaction was not limited to only the Mercedes' major components affecting transportation, but rather extended at a minimum to the vehicle's air conditioning unit. Court stated there was substantial competent evidence to demonstrate that the air conditioning unit was defective at the time of sale and that the required repairs would cost $3,474. Court reversed the Court of Appeals' reversal of the district court's...
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