Opinion: Is it Time to Statutorily Expand Kansas Uim Coverage?

• Publication year: 2018
• Pages: 15

Opinion: Is it Time to Statutorily Expand Kansas UIM Coverage? No. 87 J. Kan. Bar Assn 7, 15 (2018) Kansas Bar Journal August, 2018

July 2018

Opinion:

Is It Time to Statutorily Expand Kansas UIM Coverage?

By Arthur Rhodes

NOTE: Opinions and positions expressed herein are those of the author(s) and not necessarily those of the Kansas Bar Association, the Journal, or its Board of Editors. The material within this publication is presented as information for attorneys to use and consider, in conjunction with other research they deem necessary, in the exercise of their independent judgment. The Board of Editors does not independently research the content of submitted articles approved .

I. INTRODUCTION

Kansas law requires that all drivers possess Uninsured/Underinsured Motorist (UM/UIM) coverage with minimum limits of $25,000 per person/ $50,000 per accident. In theory, this mitigates losses caused by drivers with no insurance or insufficient coverage. In practice, Kansas drivers often learn after an accident that the UIM coverage they purchased does not apply based on a strict "limits-to-limits" test, whereby UIM coverage is only available if the insured's UIM limits are greater than the tortfeasor's liability limits.^[1] Subsection (b) of K.S.A. 40-284 states:

Any uninsured motorist coverage shall include an underinsured motorist provision which enables the insured or the insured's legal representative to recover from the insurer the amount of damages for bodily injury or death to which the insured is legally entitled from the owner or operator of another motor vehicle with coverage limits equal to the limits of the liability provided by such uninsured motorist coverage to the extent such coverage exceeds the limits of the bodily injury coverage carried by the owner or operator of the other motor vehicle. ^[2]

This provision has been interpreted to mean:

In those cases where the UIM coverage exceeds the limits of the bodily injury coverage carried by the owner or operator of the other motor vehicle, UIM coverage exists. However, in those cases, . . . where the UIM coverage equals or does not exceed the limits of the bodily injury coverage carried by the owner or operator of the other motor vehicle, there is no UIM coverage.^[3]

This restrictive test places Kansas within a small minority of states with similar UIM statutes that thwart the purpose of UIM damages, which is to make the insured whole. Contrarily, the vast majority of states have adopted UIM schemes that enlarge coverage to fill the void resulting from a tortfeasor's inadequate insurance. Notwithstanding, as our Kansas Supreme Court has stated, the wording of K.S.A. 40-284(b) unavoidably requires a restrictive interpretation of UIM coverage.^[4]

II. PREDOMINANT UIM STATUTORY APPROACHES

States generally utilize three statutory schemes to determine when UIM benefits become available: (1) "add-on" UIM coverage, (2) "supplementation" UIM coverage (of proceeds actually...