comparing Kansas no-fault statute to Florida no-fault statute which explicitly permitted equitable apportionment of insured's recovery between insured and PIP carrier, and holding that "an apportionment or equitable distribution theory” should not be injected into the Kansas no-fault law in part because the Kansas statute contained no explicit provision for equitable distribution
How later courts described this case
- comparing Kansas no-fault statute to Florida no-fault statute which explicitly permitted equitable apportionment of insured's recovery between insured and PIP carrier, and holding that "an apportionment or equitable distribution theory” should not be injected into the Kansas no-fault law in part because the Kansas statute contained no explicit provision for equitable distribution
- interpreting subsection (d) of K.S.A. 40-3113 as providing the insurer who does not bring suit against the third party tortfeasor the alternative of "arbitration of reimbursement between the injured party's insurer and the insurer of the tort-feasor, if insured”
- interpreting K.S.A. 1975 Supp. 40-3113
- "The several provisions of an act, in pari materia, must be construed together with a view of reconciling and bringing them into workable harmony . . . .”
Written by the judges who cited it.
The opinion
Miller, J.,
concurring and dissenting: I concur with paragraph No. 5 of the syllabus and with corresponding portions of the majority opinion. Two lawsuits should not be made out of one cause of action. The claims for medical expense and loss of wages should not be severed from claims for pain and suffering, property damage, and other loss, when all claims arise out of the same occurrence. Thus an injured person who has received PIP payments from an insurance carrier, and who opts to bring suit against a third party in an attempt to recover damages, should make claim for all damages he or she has sustained, and which have a common origin. Any “duplicative” recovery is held in trust for the insurance carrier.
I respectfully disagree, however, with paragraph No. 10 of the syllabus and corresponding portions of the opinion. The effect of the court’s construction of K. S. A. 1975 Supp. 40-3113 (a) is to require an injured insured, who seeks to recover damages against a third person, to bear all of the costs of the litigation — while giving the injured person’s PIP insurance carrier total reimbursement without effort or cost. To be sure, the insurance carrier is entitled to reimbursement, but where, as here, the insured has fought the battle with the carrier’s knowledge and acquiescence, and without its help, the carrier should in all equity be required to bear a proportionate share of the expense.
The policyholder pays a premium for PIP coverage. If the policyholder sustains injury and receives PIP benefits, he or she must — under the majority’s holding — assume all of the costs and *434 expenses of any litigation undertaken in order to recover against the third person who caused the loss. When premium, lawyer’s fees, and expenses of suit are deducted, the insured realizes less than would have been the case without PIP insurance. I do not so read the statute, and respectfully suggest that such a construction was not intended by the legislature and is neither required nor warranted.
Fatzer, C. J., joins in the foregoing concurring and dissenting opinion.