Probus v. Safeco Insurance Company of America

Filing 55

MEMORANDUM AND ORDER denying 48 Motion for Partial Summary Judgment. Signed by District Judge Monti L. Belot on 8/6/2013. (aa)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

TERRI PROBUS,
Plaintiff,
v.
SAFECO INSURANCE,
Defendant.

)
)
)
)
)
)
)
)
)
)

CIVIL ACTION
No.

12-1142-MLB

MEMORANDUM AND ORDER
This case comes before the court on defendant’s motion for
partial summary judgment.

(Doc. 48).

briefed and is ripe for decision.

The motion has been fully

(Docs. 49, 54).1

Defendant’s

motion is denied for the reasons herein.
I.

Facts
This case arises from a car accident involving plaintiff and

Alexzander Willard which occurred on May 25, 2011, in Sedgwick County,
Kansas. As a result of the accident, plaintiff was transported to the
emergency room and received treatment. Willard’s automobile insurance
policy through Farmer’s provided $25,000 in coverage for plaintiff’s
claim.

Defendant Safeco issued plaintiff an automobile insurance

policy which provided $50,000 for underinsured motorist coverage.
On June 24, 2011, plaintiff’s counsel notified defendant that
she was attempting to resolve her claims against Willard and that she
might pursue an underinsured motorist claim against defendant.

On

February 16, 2012, plaintiff informed defendant that she had obtained
1

Defendant did not file a reply and the time for doing so has
now passed.

an agreement to release her claim against Willard in exchange for the
$25,000 policy limit and requested defendant pay her $25,000, which
was the amount available under her policy for underinsured motorists.
Attached to plaintiff’s letter were signed medical releases and a 183page settlement package including various records, bills and police
reports.
would

On March 6, defendant notified plaintiff’s counsel that it

agree

to

allow

a

settlement

subrogation action against him.

with

Willard

and

waive

its

Defendant requested plaintiff’s

medical records, a recorded statement from plaintiff and a signed
medical authorization.

Plaintiff did not respond to the additional

requests for records because she had already provided records on
February 16.

Defendant did not formally respond to the request for

coverage under plaintiff’s policy.
Plaintiff filed this action on April 18, 2012, seeking damages
pursuant to the insurance policy.

In addition, plaintiff seeks

attorney fees pursuant to K.S.A. 40-256 and 40-908.

Defendant moves

for partial summary judgment on plaintiff’s claim for attorney’s fees.
II.

Summary Judgment Standard
The rules applicable to the resolution of this case, now at the

summary judgment stage, are well-known and are only briefly outlined
here.

Federal Rule of Civil Procedure 56(c) directs the entry of

summary judgment in favor of a party who "show[s] that there is no
genuine issue as to any material fact and that the moving party is
entitled to a judgment as a matter of law."

Fed. R. Civ. P. 56(c).

An issue is “genuine” if sufficient evidence exists so that a rational
trier of fact could resolve the issue either way and an issue is
“material” if under the substantive law it is essential to the proper
-2-

disposition of the claim.

Adamson v. Multi Community Diversified

Svcs., Inc., 514 F.3d 1136, 1145 (10th Cir. 2008).

When confronted

with a fully briefed motion for summary judgment, the court must
ultimately determine "whether there is the need for a trial–whether,
in other words, there are any genuine factual issues that properly can
be resolved only by a finder of fact because they may reasonably be
resolved in favor of either party."
477 U.S. 242, 250 (1986).
judgment.
III.

Anderson v. Liberty Lobby, Inc.,

If so, the court cannot grant summary

Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986).

Analysis
A.

Attorney’s Fees Pursuant to K.S.A. 40-256

K.S.A. 40-256 provides as follows:
That in all actions hereafter commenced, in which
judgment is rendered against any insurance company as
defined in K.S.A. 40-201, and including in addition thereto
any fraternal benefit society and any reciprocal or
interinsurance exchange on any policy or certificate of any
type or kind of insurance, if it appear from the evidence
that such company, society or exchange has refused without
just cause or excuse to pay the full amount of such loss,
the court in rendering such judgment shall allow the
plaintiff a reasonable sum as an attorney's fee for
services in such action, including proceeding upon appeal,
to be recovered and collected as a part of the costs:
Provided, however, That when a tender is made by such
insurance company, society or exchange before the
commencement of the action in which judgment is rendered
and the amount recovered is not in excess of such tender no
such costs shall be allowed.
Defendant contends that plaintiff is not entitled to attorney’s
fees under section 40-256 because defendant did not refuse payment
without just cause or excuse.

Defendant asserts that plaintiff’s

refusal to provide additional documentation was a bona fide and
reasonable basis to deny her claim.

(Doc. 49 at 8).

The undisputed

facts, however, show that plaintiff provided her medical records,
-3-

bills, police reports and a signed medical release to defendant.

At

this time, it is not clear exactly what information was needed by
defendant and not provided by plaintiff in order for defendant to
complete its investigation.
Therefore, the court finds that there is a genuine issue of
material fact as to whether defendant denied plaintiff’s claim without
just cause or excuse.

Defendant’s motion for summary judgment on

plaintiff’s claim for attorney’s fees under K.S.A. 40-256 is denied.
B.

Attorney’s Fees Pursuant to K.S.A. 40-908

Plaintiff also seeks attorney’s fees pursuant to section 40-908.
Recently, in Bussman v. Safeco Ins. Co. of Am., No. 103,020, 2010 WL
5185785 (Kan. Ct. App. Dec. 17, 2011), rev. granted Jan. 20, 2012, the
Kansas Court of Appeals determined that this statute provided the
recovery of attorney’s fees by a plaintiff in an action against an
insurer to recover damages pursuant to the underinsured motorist
policy coverage.

The decision by the Kansas Court of Appeals is

presently before the Kansas Supreme Court.
In light of the court’s decision that there is a fact issue as
to the availability of fees under section 40-256 and that the issue
of fees under section 40-908 is currently pending before the Kansas
Supreme Court, the court will take defendant’s motion under advisement
and render a decision on this issue after trial, if necessary.
IV.

Conclusion
Defendant’s motion for partial summary judgment (Doc. 48) is

denied.
A motion for reconsideration of this order is not encouraged.
Any such motion shall not exceed 3 double-spaced pages and shall
-4-

strictly comply with the standards enunciated by this court in Comeau
v. Rupp, 810 F. Supp. 1172, 1174 (1992).

The response to any motion

for reconsideration shall not exceed 3 double-spaced pages.

No reply

shall be filed.

IT IS SO ORDERED.
Dated this

6th

day of August 2013, at Wichita, Kansas.

s/ Monti Belot
Monti L. Belot
UNITED STATES DISTRICT JUDGE

-5-