Printable Format40-287. Same; subrogation rights. The policy or endorsement affording the coverage specified in K.S.A. 40-284 may further provide that payment to any person of sums as damages under such coverage shall operate to subrogate the insurer to any cause of action in tort which such person may have against any other person or organization legally responsible for the bodily injury or death because of which such payment is made, and the insurer shall be subrogated, to the extent of such payment, to the proceeds of any settlement or judgment that may thereafter result from the exercise of any rights of recovery of such person against any person or organization legally responsible for said bodily injury or death for which payment is made by the insurer. Such insurer may enforce such rights in its own name or in the name of the person to whom payment has been made, as their interest may appear, by proper action in any court of competent jurisdiction.
History: L. 1968, ch. 273, ยง 4; July 1.
Law Review and Bar Journal References:
"New Developments in Kansas Insurance Law," Robert H. Jerry II, 37 K.L.R. 841, 879 (1989).
"Money Left on the Table," Gerald W. Scott, J.K.T.L.A. Vol. XV, No. 2, 9 (1991).
Attorney General's Opinions:
Statutory basis for rules and regulations concerning prohibition of subrogation clauses by insurance commissioner. 84-35.
CASE ANNOTATIONS
1. Action was brought by insurance company without right of subrogation and the action dismissed; no determination of issues of wrongful death between the parents of the deceased child and the alleged wrongdoer, and no privity existed between the parents and the insurance company which would bar an action for wrongful death. Penachio v. Walker, 207 Kan. 54, 55, 483 P.2d 1119.
2. Tortfeasor cannot diminish amount of his liability by pleading payment to insured plaintiff by insurer. Southard v. Lira, 212 Kan. 763, 770, 512 P.2d 409.
3. Settlement by insured without insurer's consent voided provisions of uninsured motorist coverage. Benson v. Farmers Ins. Co., 227 Kan. 833, 836, 838, 610 P.2d 605.
4. Cited in detailed opinion on reimbursement rights of PIP benefits. State Farm Mut. Auto. Ins. Co. v. Kroeker, 234 Kan. 636, 647, 676 P.2d 66 (1984).
5. Cited; enforcement of policy provision against releases without consent violates public policy where insurer's subrogation rights preserved. Horace Mann Ins. Co. v. Ammerman, 630 F. Supp. 114, 117 (1986).
6. Settlement of claims with third-party tortfeasors does not preclude claims by plaintiffs against plaintiff's uninsured motorist coverage carrier. Bartee v. R.T.C. Transportation, Inc., 245 Kan. 499, 517, 521, 781 P.2d 1084 (1989).
7. Authority of regulation to prohibit subrogation of medical benefits coverage other than PIP (K.S.A. 40-3113a) examined. Durrett v. Bryan, 14 Kan. App. 2d 723, 730, 799 P.2d 110 (1990).
8. Action by insured against own insurer for underinsured motorist benefits as not requiring naming underinsured tortfeasor determined. Gifford v. Farm Bur. Mut. Ins. Co., 14 Kan. App. 2d 740, 741, 799 P.2d 105 (1990).
9. Policy provision reducing underinsured motorist coverage (K.S.A. 40-284) by amount paid by party potentially liable held void. Allied Mut. Ins. Co. v. Gordon, 248 Kan. 715, 718, 811 P.2d 1112 (1991).
10. Cited in holding insured may recover underinsured motorist benefits (K.S.A. 40-284) which are not duplicative of workers compensation benefits. Kilner v. State Farm Mut. Auto. Ins. Co., 252 Kan. 675, 683, 847 P.2d 1292 (1993).
11. Settlement and release of underinsured tortfeasor without notice to insurer forfeited insured's right of recovery under policy's underinsured motorist provisions. Dalke v. Allstate Ins. Co., 23 Kan. App. 2d 742, 749, 935 P.2d 1067 (1997).
12. Cited; insurer subrogated to rights of injured party but failed to request reimbursement before statute of limitation expired. Farm Bureau Mut. Ins. Co. v. Progressive Direct Ins. Co., 40 Kan. App. 2d 123, 127 to 129, 190 P.3d 989 (2008).