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Hemenway v. Vehicle Membership Inter-Insurance coverage Alternate – jj
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Hemenway v. Vehicle Membership Inter-Insurance coverage Alternate

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                                       No. 120,358

             IN THE COURT OF APPEALS OF THE STATE OF KANSAS

                                      E.H., a minor,
                          by and through Melissa J. Hemenway,
                             her mother and natural guardian,
                                        Appellee,

                                             v.

                   AUTOMOBILE CLUB INTER-INSURANCE EXCHANGE,
                                   Appellant.


                              SYLLABUS BY THE COURT


1.
       The interpretation of the clear language of an insurance policy raises a question of
law subject to de novo review.


2.
       The purpose of K.S.A. 40-284, which mandates the offer of uninsured and
underinsured motorist coverage, is to fill the gap inherent in motor vehicle financial
responsibility and compulsory insurance legislation. This coverage is intended to provide
recompense to innocent persons who are damaged through the wrongful conduct of
motorists who, because they are uninsured or underinsured and not financially
responsible, cannot be made to respond in damages.


3.
       The uninsured and underinsured motorist statutes are remedial in nature. They
should be liberally construed to provide a broad protection to the insured against all
damages resulting from bodily injuries sustained by the insured that are caused by an
automobile accident and arise out of the ownership, maintenance, or use of the insured


                                             1
motor vehicle where those damages are caused by the acts of an uninsured or
underinsured motorist.


4.
       When reviewing a claim of underinsured motorist coverage under K.S.A. 40-
284(b), a court must first determine whether UIM coverage exists. When determining
whether underinsured motorist coverage is available under the provisions of K.S.A. 40-
284(b) in a given case, (1) the tortfeasor's liability coverage must be below the claimant's
liability coverage and (2) the claimant must have damages in excess of the tortfeasor's
liability coverage.


5.
       In calculating the amount of underinsured motorist benefits where the damages
recovered from the tortfeasor are less than the total amount of actual damages because of
multiple claims against the tortfeasor's liability insurance limits, the underinsured
motorist provider is responsible for paying the difference between the insured's pro rata
share of the settlement with the tortfeasor and the insured's total amount of damages up to
the insured's underinsured motorist limits.


6.
       The provisions of K.S.A. 40-284 are mandatory insofar as they stipulate what
insurance policies in this state must contain. The provisions of the statute are to be
considered a part of every automobile policy in this state, and an automobile policy is
controlling only to the extent that it does not conflict with or attempt to diminish or omit
the statutorily mandated coverage. Thus, unless authorized by statute, provisions of an
insurance policy which purport to condition, limit, or dilute the broad, unqualified
uninsured motorist coverage mandated by K.S.A. 40-284 are void and unenforceable.




                                              2
        Appeal from Johnson District Court; RHONDA K. MASON, judge. Opinion filed July 26, 2019.
Reversed and remanded with directions.


        Robert J. Luder and Lesley Renfro Willson, of Luder & Weist, LLC, of Overland Park, for
appellant.


        Thomas B. Diehl, of Ralston, Pope & Diehl, LLC, of Topeka, for appellee.


Before SCHROEDER, P.J., GREEN and POWELL, JJ.


        POWELL, J.: E.H., a minor, was a passenger in her parents' automobile when it
was involved in a three-car accident. E.H., her mother and father, and her two siblings all
filed claims against the tortfeasor's (at-fault driver's) insurance. Because the tortfeasor's
insurance was insufficient to cover their injuries, E.H. and her father sought underinsured
motorist (UIM) coverage from their insurance carrier, Automobile Club Inter-Insurance
Exchange (ACIIE). A dispute arose between E.H. and ACIIE as to the amount of UIM
coverage available to E.H.; E.H. filed suit, and the district court declared the maximum
amount of UIM coverage available to E.H. was the $50,000 per person limit minus the
$12,000 she received from the tortfeasor for a total of $38,000. ACIIE now seeks
interlocutory review of this ruling, arguing the district court erred because under its
policy and K.S.A. 40-284(b), only $10,000 in UIM coverage remains available for E.H.


        For the reasons we more fully explain below, we find that the district court erred
in its calculation of the amount of UIM coverage to which E.H. is entitled and hold that
E.H. is entitled to up to $35,000 in UIM insurance coverage. We therefore reverse the
district court and remand.




                                                  3
                        FACTUAL AND PROCEDURAL BACKGROUND


       According to the uncontroverted facts, on January 8, 2016, E.H.'s father, Paul, was
driving the family's van with his wife, Melissa, and their minor children—E.H., J.H., and
I.H.—as passengers. The accident occurred when Raphael Sherman drove his vehicle
through a red light and collided with a truck driven by Mario Madero. Sherman's
collision caused Madero's truck to slide across the lanes of the highway and into the
driver's side of Paul's van.


       It is undisputed that Sherman was primarily at fault for the collision and the
resulting bodily injuries to E.H. and her family. A passenger in Madero's truck, Denisse
Lopez, died from her injuries, and all the occupants of E.H.'s family's van suffered bodily
injuries to some extent. Sherman's insurance policy with GEICO provided bodily injury
coverage limits of $25,000 per person and $50,000 per accident.


       Paul and Melissa had an insurance policy with ACIIE. Under the policy, Paul and
Melissa were named insureds and E.H. was an "'insured person.'" The policy had bodily
injury coverage with limits of $50,000 per person and $100,000 per accident. The UIM
coverage had limits of $50,000 per person and $100,000 per accident. It is not disputed
by the parties that E.H. is entitled to some UIM coverage under the ACIIE policy and
Kansas law.


       After the filing of multiple claims, the injured parties in the accident agreed to a
settlement with GEICO that divided Sherman's per accident limit of $50,000 between the
claimants as follows. The Lopez heirs-at-law received $25,000. Paul received $10,000;
Melissa received $500; I.H. received $200; J.H. received $2,300; and E.H. received
$12,000. E.H. provided ACIIE with notice of the settlement under K.S.A. 40-284(f).




                                              4
       Later, Paul filed a claim with ACIIE for UIM benefits, and ACIIE paid Paul
$40,000 on his claim. E.H. then filed a demand on ACIIE, claiming that she was entitled
to $38,000 in UIM benefits. Melissa, I.H., and J.H. did not file claims for UIM benefits.
ACIIE disputed the amount of UIM coverage available to E.H., which eventually resulted
in E.H. filing a petition in the district court, claiming that ACIIE was in breach of
contract and owed her $38,000 under the policy, plus interest, damages, and attorney
fees. ACIIE answered and filed a counterclaim seeking declaratory judgment from the
district court setting forth E.H.'s rights and its obligations under the policy.


       Subsequently, the parties filed cross-motions for summary judgment on ACIIE's
counterclaim. E.H. claimed she was entitled to $38,000 in UIM coverage based on the
difference between her $12,000 pro rata share from the GEICO settlement and the
$50,000 per person UIM limit. In response, ACIIE claimed the policy actually only had a
total of $50,000 per accident UIM coverage available to all insureds. ACIIE relied on the
following policy language:


       "COVERAGE E—UNINSURED/UNDERINSURED MOTORISTS COVERAGE


       INSURING AGREEMENT—PART III


                "Subject to the Exclusions, we will pay damages which an insured is legally
       entitled to recover from the owner or operator of an uninsured motor vehicle or
       underinsured motor vehicle, to the extent that the owner or operator is liable, because of
       bodily injury . . . .


                ....




                                                   5
"ADDITIONAL DEFINITIONS—PART III


         "Underinsured motor vehicle means a land motor vehicle or trailer of any type to
which a bodily injury liability bond or policy applies at the time of the auto accident but
its limits for bodily injury liability is less than the limit of liability for this coverage. . . .


         ....


"LIMITS OF LIABILITY—PART III


         ....


         "The limit of liability shown in the declarations page for each auto accident for
Uninsured Motorists Coverage, including Underinsured Motorists Coverage, is our
maximum limit of liability for all damages arising out of and due to bodily injury to any
number of persons, resulting from any one auto accident. . . . This is the most we will
pay regardless of the number of:


         "1.      insureds or persons involved . . . .


         ....


         "With respect to damages caused by an auto accident with an underinsured
motor vehicle, the limit of liability shall be reduced by all sums paid because of bodily
injury by or on behalf of persons or organizations who may be legally responsible. . . .


         "With respect to damages caused by an auto accident with an underinsured
motor vehicle, the maximum we will pay is the difference between the limit of liability
shown in the declarations page for each auto accident and the limit of liability for each
auto accident of any applicable bodily injury liability bonds or policies available to the
owner or operator of an underinsured motor vehicle."




                                                 6
       According to ACIIE, the policy provided its insureds with a maximum $50,000
UIM per accident limit based on subtracting GEICO's $50,000 per accident liability limit
from its $100,000 UIM per accident limit. ACIIE argued that because Paul had already
received $40,000 of UIM benefits, E.H. was entitled to only $10,000 in remaining UIM
coverage. In response, E.H. argued ACIIE's limitation was void and unenforceable under
K.S.A. 40-284(e).


       After hearing argument, the district court granted E.H.'s motion and denied
ACIIE's motion for summary judgment on the counterclaim. Relying on O'Donoghue v.
Farm Bureau Mut. Ins. Co., 

275 Kan. 430

, 

66 P.3d 822

 (2003), the district court held
E.H. was entitled to recover "the difference between her pro rata share of the primary
liability [from GEICO] settlement and her total amount of damages up to the $50,000 per
person UIM limit." Subject to E.H.'s ability to prove actual damages, the district court
concluded she was entitled to receive up to $38,000 in available UIM coverage.


       ACIIE timely appeals.


                                         ANALYSIS


       ACIIE's interlocutory appeal is properly before us pursuant to the district court's
certification in accordance with K.S.A. 2018 Supp. 60-254(b).


A.     Standard of Review.


       It is undisputed by the parties that the interpretation of the clear language of an
insurance policy raises a question of law subject to de novo review. See Nationwide
Mutual Ins. Co. v. Briggs, 

298 Kan. 873

, 876, 

317 P.3d 770

 (2014). Additionally, "[a] de
novo standard applies to an appellate court's review of a summary judgment order when



                                              7
judgment is based upon uncontroverted facts and depends upon statutory interpretation."
Polson v. Farmers Ins. Co., 

288 Kan. 165

, Syl. ¶ 1, 

200 P.3d 1266

 (2009).


      "The fundamental rule of statutory interpretation to which all other rules are subordinate
      is that the intent of the legislature governs if that intent can be ascertained. Its intent is to
      be derived in the first place from the words used. When statutory language is plain and
      unambiguous, there is no need to resort to statutory construction. An appellate court
      merely interprets the language as it appears; it is not free to speculate and cannot read
      into the statute language not readily found there. [Citations omitted.]" State ex rel.
      Schmidt v. City of Wichita, 

303 Kan. 650

, 659, 

367 P.3d 282

 (2016).


B.    Statutory Requirements for UIM Insurance Coverage.


      K.S.A. 40-284(b) requires Kansas motorists to have UIM insurance coverage:


              "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 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."


      In O'Donoghue, our Supreme Court found:


              "'The purpose of the legislation mandating the offer of uninsured and
      underinsured motorist coverage [in K.S.A. 40-284] is to fill the gap inherent in motor
      vehicle financial responsibility and compulsory insurance legislation. This coverage is
      intended to provide recompense to innocent persons who are damaged through the
      wrongful conduct of motorist who because they are uninsured or underinsured and not
      financially responsible, cannot be made to respond in damages. [Citation omitted.]




                                                      8
               "'The uninsured and underinsured motorist statutes are remedial in nature. They
       should be liberally construed to provide a broad protection to the insured against all
       damages resulting from bodily injuries sustained by the insured that are caused by an
       automobile accident and arise out of the ownership, maintenance, or use of the insured
       motor vehicle, where those damages are caused by the acts of an uninsured or
       underinsured motorist. . . . Other states have similarly found their uninsured and
       underinsured motorist statutes are remedial in nature and should be liberally construed to
       provide broad protection. [Citations omitted.]'" 275 Kan. at 437.


       When reviewing a claim of underinsured motorist coverage under K.S.A. 40-
284(b), a court must first determine whether UIM coverage exists. See Halsey v. Farm
Bureau Mut. Ins. Co., 

275 Kan. 129

, 143, 

61 P.3d 691

 (2003); O'Donoghue, 275 Kan. at
433-36. "When determining whether underinsured motorist coverage is available under
the provisions of K.S.A. 40-284(b) in a given case, (1) the tortfeasor's liability coverage
must be below the claimant's liability coverage, and (2) the claimant must have damages
in excess of the tortfeasor's liability coverage." 

275 Kan. 430

, Syl. ¶ 3. Although E.H.'s
actual damages have not yet been determined, the parties do not dispute that UIM
coverage exists for E.H.


C.     How Much UIM Coverage Exists?


       Under O'Donoghue, where UIM coverage exists, the next step requires a
calculation of the insured's amount of available UIM coverage from the insurer.


               "In calculating the amount of underinsured motorist benefits where the damages
       recovered from the tortfeasor are less than the total amount of actual damages because of
       multiple claims against the tortfeasor's liability insurance limits, the underinsured
       motorist provider is responsible for paying the difference between the insured's pro rata
       share of the settlement with the tortfeasor and the insured's total amount of damages up to
       the insured's underinsured motorist limits." 

275 Kan. 430

, Syl. ¶ 6.




                                                     9
       In summary, O'Donoghue received a $25,000 pro rata share under a settlement
with multiple parties from the tortfeasor's liability policy that had bodily injury limits of
$50,000 per person and $100,000 per occurrence. The district court granted O'Donoghue
partial summary judgment, finding she could receive $75,000 in UIM coverage from her
insurer, Farm Bureau, based on the difference between her $100,000 per person UIM
limit and her $25,000 pro rata share from the settlement. O'Donoghue's UIM limits under
the Farm Bureau policy were $100,000 per person and $300,000 per occurrence.


       Relying on Halsey, Farm Bureau argued on appeal that O'Donoghue was entitled
only to a maximum UIM coverage of $50,000, based on the difference of her $100,000
per person UIM limit and the driver's $50,000 per person liability limit. The O'Donoghue
court rejected Farm Bureau's contention, finding that the Halsey court's limits-to-limits
comparison dealt with the first question of whether coverage existed, not the issue of
determining the amount of the UIM recovery available where UIM coverage exists. See
275 Kan. at 434. Applying the above holding, our Supreme Court held that "Farm Bureau
is responsible for paying O'Donoghue $75,000; that is, the difference between
O'Donoghue's pro rata share of the settlement from the tortfeasor ($25,000) and her total
amount of damages up to her UIM limits ($100,000)." 275 Kan. at 441.


       Despite our Supreme Court's holding in O'Donoghue, ACIIE argues we should
look to Halsey and Tilley v. Allied Property & Cas. Ins. Co., 

33 Kan. App. 2d 923

, 

111
P.3d 188

, rev. denied 

280 Kan. 992

 (2005), to apply a limits-to-limits analysis for
determining the amount of available UIM coverage. But the O'Donoghue court
specifically found that Halsey dealt with a different issue—determining whether coverage
existed. "Unlike Halsey, the question involved in this case involves the amount of UIM
coverage where that coverage exists. This question is one of first impression in this state,
although two Kansas appellate decisions have touched on the amount of coverage in
cases where it has been determined coverage exists." O'Donoghue, 275 Kan. at 434.
More specifically, these decisions only address the first step—whether UIM coverage


                                              10
exists—and do not move past that step to determine the amount of available UIM
coverage. See Halsey, 275 Kan. at 143; Tilley, 33 Kan. App. 2d at 930. Thus, ACIIE's
argument is unpersuasive.


       ACIIE also argues that O'Donoghue is distinguishable from this case because (1)
the district court's ruling puts the whole family—not just E.H.—in a better position and
(2) this case involves two UIM claimants—Paul and E.H.—while O'Donoghue filed the
sole UIM claim.


       First, with regard to ACIIE's second point, the fact that two insureds have filed
claims under ACIIE's UIM coverage does not distinguish this case from O'Donoghue. In
fact, the O'Donoghue court expressly rejected a similar argument involving multiple
claims against a single UIM policy in Taylor v. Allstate Indemnity Co., 

30 Kan. App. 2d
595

, 

43 P.3d 260

 (2002). O'Donoghue, 275 Kan. at 441. Taylor was one of three
passengers in William Ziegler's car, which collided with a car driven by Michael Stanturf.
Stanturf had insurance through Progressive; Ziegler was insured through Allstate. The
district court ordered multiple parties to divide the tortfeasor's $50,000 per accident
liability limit for bodily injuries caused in automobile accident. Taylor then sued Allstate
for UIM benefits. The Allstate policy had UIM limits of $50,000 per person and
$100,000 per accident. Before Taylor filed his UIM claim, two other parties had already
received claims that totaled $50,000 under the UIM coverage.


       On appeal, the panel reviewed K.S.A. 40-284(b) and held that the amount of UIM
coverage available to all claimants under the policy was calculated by subtracting the
tortfeasor's total $50,000 per accident liability limit from the insured's $100,000 per
accident UIM limit. The panel affirmed the district court's summary judgment for the
UIM insurer that denied Taylor's claim upon finding that the two previous UIM $50,000
claims had exhausted the UIM coverage. Taylor, 30 Kan. App. 2d at 597. As the



                                             11
O'Donoghue court expressly rejected the Taylor holding, we reject ACIIE's similar
argument.


       ACIIE's first argument—that the district court erred by finding that E.H. is entitled
to claim up to $38,000 in UIM coverage because it permits the family to ultimately obtain
a greater recovery than that allowed by the $100,000 UIM per occurrence limit—has
some merit. ACIIE claims we should calculate the available UIM coverage for E.H. by
adding together the family's total recovery from the tortfeasor and Paul's recovery from
ACIIE of UIM benefits. According to this calculation, like the per person limit discussed
in O'Donoghue, the $100,000 per occurrence limit of the UIM coverage must be reduced
by the recovery for all those covered by the ACIIE UIM policy. This means that the
family's total recovery from the tortfeasor—E.H.'s recovery of $12,000, Paul's $10,000,
and E.H.'s mother's and siblings' recovery of $3,000—must be subtracted from the UIM
coverage limit of $100,000, leaving only $75,000 of per occurrence UIM coverage
available. When subtracting Paul's recovery of $40,000 from ACIIE as the UIM insurer,
that leaves $35,000 available to E.H., less than the $38,000 that would otherwise be
available when only considering ACIIE's $50,000 per person UIM limit applicable to
E.H.


       E.H. counters that the district court was correct in holding that she was entitled to
coverage of up to $38,000. Admitting that Paul has collected $40,000 in UIM benefits,
she argues that still leaves $60,000 in the per occurrence limit available for other insured
persons to file UIM claims under the policy. As E.H.'s sole claim of $38,000 is well
within this per occurrence limit and is also within her per person limit of $50,000, she
argues that $38,000 is the correct calculation.


       Unfortunately, we have no caselaw on this particular point to guide us. None of
the cases cited or referred to us by the parties specifically address the situation we face
here, namely the correct amount of UIM coverage available when the per person limit


                                             12
conflicts with the per occurrence limit. Logically, ACIIE's approach—that we should
apply the same rule with respect to the per occurrence UIM coverage limit as the per
person UIM coverage limit—is consistent with O'Donoghue's holding.


       Our reading of the tea leaves in our Supreme Court's O'Donoghue opinion
suggests that it would agree with ACIIE's position. First, the court emphasized that
application of the limits-to-limits rule was incorrect for the very reason that K.S.A. 40-
284 was designed to be liberally construed to make injured parties whole when claiming
UIM benefits and that the amount of coverage available should be considered in light of
the possibility that the tortfeasor had no coverage. See 275 Kan. at 440. Second, the court
also discussed the problem of UIM claimants' damages exceeding the per occurrence
coverage. It stated that, hypothetically speaking, applying a pro-rata share to multiple
UIM claimants would be appropriate where the number of claimants with actual damages
would exceed the per occurrence cap on UIM coverage. 275 Kan. at 435-36. However,
the court also noted "'that UIM is first party coverage and, ordinarily, not all persons
claiming against the tortfeasor will be claiming UIM benefits under the same policy.'"
275 Kan. at 436 (quoting O'Donoghue v. Farm Bureau Mut. Ins. Co., 

30 Kan. App. 2d
626

, 633, 

49 P.3d 22

 [2002]).


       Giving us pause is the fact that neither E.H.'s mother nor her siblings have made
UIM claims. If they had, it would be easy to conclude that their $3,000 recovery from the
tortfeasor would have to be subtracted from the per occurrence UIM coverage limit of
$100,000. This would then force a pro-rata distribution as discussed in O'Donoghue. But
there is nothing in the record that shows they made UIM claims. Nevertheless, the
O'Donoghue court counsels us that we are to examine the amounts of UIM benefits
available as if the tortfeasor had no coverage, and we are also required to deduct from the
available UIM coverage amounts awarded by the tortfeasor. See 275 Kan. at 440.




                                             13
       Applying these rules to the present case, if we were to assume that the tortfeasor
here had no coverage, then the family's only avenue of relief would have been to seek
recovery through UIM coverage from ACIIE. Accordingly, Paul's $10,000 recovery,
E.H.'s $12,000 recovery, and E.H.'s mother's and siblings' $3,000 recovery would have
come from UIM coverage instead. When adding in Paul's $40,000 recovery of UIM
benefits, E.H. would have up to $35,000 in available UIM coverage given the $100,000
per occurrence limit.


       Additionally, if we take the O'Donoghue rule of subtracting the amount a claimant
receives from the tortfeasor from the total amount of per person UIM coverage available
and also apply it to the per occurrence UIM coverage limit, the total amount of UIM
coverage available to E.H. would also be $35,000. As Paul has collected $10,000 from
the tortfeasor and $40,000 in UIM benefits, E.H. has collected $12,000 from the
tortfeasor, and E.H.'s mother and siblings have collected $3,000 from the tortfeasor, that
leaves only $35,000 left under the UIM per occurrence limit despite the fact that E.H.
would have $38,000 left under her per person UIM coverage limit. E.H.'s position
wrongly applies only the per person UIM coverage limit without applying the per
occurrence UIM coverage limit, potentially allowing the family to collect in excess of the
UIM policy limits.


       Applying O'Donoghue here, the district court's ruling improperly determined that
the maximum amount of E.H.'s available UIM coverage is $38,000—subject to her
ability to prove actual damages—as the difference between the total amount of her pro
rata share of the settlement under the tortfeasor's policy ($12,000) from her total amount
of damages up to the UIM per person limits ($50,000) because it ignores the UIM per
occurrence limit of $100,000. When totaling all the claims paid to those covered by
ACIIE's UIM coverage plus Paul's recovery of $40,000 under the UIM policy, only
$35,000 remains available. The district court erred in holding otherwise.



                                            14
D.    ACIIE's UIM Policy Must Be Consistent with State Law.


      Finally, ACIIE argues that its policy and K.S.A. 40-284 allow it to reduce the
maximum per accident limit of $100,000 by the tortfeasor's per accident limit of $50,000,
making the maximum per accident limit in UIM coverage available for all insureds
$50,000. Because ACIIE argues that K.S.A. 40-284 permits a reduction in UIM coverage,
we examine the impact of K.S.A. 40-284(e) on the policy.


      In general, K.S.A. 40-284(e) lists the permissible exclusions and limitations on
uninsured motorist and underinsured motorist coverage. See, e.g., Allied Mut. Ins. Co. v.
Gordon, 

248 Kan. 715

, 730, 

811 P.2d 1121

 (1991) (uninsured); Bardwell v. Kester, 

15
Kan. App. 2d 679

, 681, 

815 P.2d 120

 (1991) (underinsured). The provisions of K.S.A.
40-284


      "'are mandatory insofar as they stipulate what insurance policies in this state must
      contain. The provisions of the statute are to be considered a part of every automobile
      policy in this state. [Citation omitted.]' State Farm Mut. Auto. Ins. Co. v. Cummings, 

13
Kan. App. 2d 630

, 632-33, 

778 P.2d 370

, rev. denied 

245 Kan. 786

 (1989)[, abrogated on
      other grounds by Cashman v. Cherry, 

270 Kan. 295

, 

13 P.3d 1265

 (2000)]. An
      automobile policy is controlling only 'to the extent that it does not conflict with or
      attempt to diminish or omit the statutorily mandated coverage.' 13 Kan. App. 2d at 633."
      Russell v. Farmers Ins. Co., 

38 Kan. App. 2d 290

, 294, 

163 P.3d 1266

 (2007).


Thus, "[u]nless authorized by statute, provisions of an insurance policy which purport to
condition, limit, or dilute the broad, unqualified uninsured motorist coverage mandated
by K.S.A. 1990 Supp. 40-284 are void and unenforceable." Allied, 

248 Kan. 715

, Syl. ¶ 1.


      ACIIE relies on the following policy provision:




                                                   15
               "With respect to damages caused by an auto accident with an underinsured
       motor vehicle, the maximum we will pay is the difference between the limit of liability
       shown in the declarations page for each auto accident [$100,000] and the limit of
       liability for each auto accident of any applicable bodily injury liability bonds or policies
       available to the owner or operator of an underinsured motor vehicle [$50,000]."


       But K.S.A. 40-284(b) provides that UIM coverage should enable the insured "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 liability provided by such uninsured motorist
coverage." (Emphasis added.) Therefore, E.H. should be able to collect damages for her
bodily injuries from ACIIE to the limits of the UIM coverage, here, $50,000 per person
and $100,000 per accident. ACIIE's provision that allows a reduction in the maximum
UIM per accident limit by subtracting the tortfeasor's per accident limit impermissibly
limits or dilutes the UIM coverage mandated by K.S.A 40-284(b). In addition, ACIIE
presents no argument that its policy provision fits under one of the permissible exclusions
or limitations in K.S.A. 40-284(e). "Where an appellant fails to brief an issue, that issue
is waived or abandoned." Friedman v. Kansas State Bd. of Healing Arts, 

296 Kan. 636

,
Syl. ¶ 2, 

294 P.3d 287

 (2013). As a result, we find that the policy provision is void and
unenforceable under K.S.A. 40-284(e).


       In conclusion, the district court improperly declared that the maximum amount of
E.H.'s available UIM coverage is $38,000. For the reasons we have explained, $35,000 is
the proper limit. Accordingly, we reverse the district court's determination on this point
and remand for further proceedings consistent with this opinion.


       Reversed and remanded with directions.




                                                    16

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