Kansas law on the reimbursement of Personal Injury Protection (PIP) benefits and the determination of whether the PIP insurance carrier has the right of subrogation under K.S.A.40-3113a.
Kansas law allows the Plaintiff’s no-fault benefits insurance carrier or PIP carrier to be reimbursed for PIP payments made pursuant to K.S.A. 40-3113a except when the Plaintiff has not been made fully whole and the PIP benefits are not duplicative. In that circumstance your car insurance carrier is not entitled to be repaid for the medical bills, wage loss payments and other PIP benefits. You have to establish that your damages exceeds the combined payment of the defendant’s total policy limits plus your total paid PIP benefits.
K.S.A. 40-3113a proscribes remedies against a tortfeasor, insurer or self-insurer and discusses when an insurance company is subrogated for payments of personal injury protection benefits.
K.S.A. 40-3113a states in part,
(a) When the injury for which personal injury protection benefits are payable under this act is caused under circumstances creating a legal liability against a tortfeasor pursuant to K.S.A. 40-3117 or the law of the appropriate jurisdiction, the injured person, such person’s dependents or personal representatives shall have the right to pursue such person’s remedy by proper action in a court of competent jurisdiction against such tortfeasor.
(b) In the event of recovery from such tortfeasor by the injured person, such person’s dependents or personal representatives by judgment, settlement or otherwise, the insurer or self-insurer shall be subrogated to the extent of duplicative personal injury protection benefits provided to date of such recovery and shall have a lien therefor against such recovery and the insurer or self-insurer may intervene in any action to protect and enforce such lien. . .” (emphasis supplied).
In Kansas Farm Bureau Ins. Co. v. Miller, 236 Kan. 811, 696 P.2d 961, (Kan. 1985) the court was presented with a set of facts regarding the circumstance where the Plaintiff has received PIP benefits and policy limits are being tendered by the tortfeasor’s insurance company. In that case, the court was presented with a driver who had statutory minimum amounts of liability coverage and was involved in a car accident where the passenger was seriously injured. A PIP carrier filed a motion to intervene in order to seek subrogation of the PIP benefits. The Court, on the intervenor’s interlocutory appeal, held that where a claimant, such as the intervenor, had actual damages in excess of the liability coverage available plus the amount of the PIP benefits received, and the insurance company (PIP carrier) was not entitled to reimbursement for the benefits it paid. The Kansas Supreme Court reversed the portion of the lower court judgment that gave the insurance company the right to be fully reimbursed from the driver’s insurance coverage for PIP benefits that were paid to the intervenor.
In reversing the lower District Court, the Kansas Supreme Court noted that the case of State Farm Mut. Auto Ins. Co. v. Kroeker, 234 Kan. 636, 676 P.2d 66 (Kan. 1984) had not yet been decided when the lower trial court made its improper ruling. The Kansas Supreme Court ruled in Kroeker that “under K.S.A. 40-3113a, the right of a PIP insurer to be reimbursed for PIP benefits paid is limited to those damages recovered by the injured insured which are ‘duplicative’ of the PIP benefits.” Id. at Syl 1. “Damages recovered are duplicative when the failure to reimburse the PIP carrier would result in a double recovery by the insured.” Id at Syl 2. “If the injured insured does not settle his total claim or release the tortfeasor from all further liability, and if the actual damages suffered by the insured are shown to be in excess of the PIP benefits paid by the insurer so that the insured will not receive a double recovery for the same elements of damages, any payments made on behalf of the tortfeasor on a settlement or judgment are not ‘duplicative’ of PIP benefits within the meaning of K.S.A. 40-3113a. In such case, the PIP insurer is not entitled to be reimbursed for prior PIP payments out of the insured’s recovery.” Id. at Syl 5. (emphasis supplied).
The Kansas Supreme Court stated its rationale for not allowing the insurance company to be reimbursed in a non-duplicative set of facts stating, “such right extends only to repayment for the benefits called for under the no-fault statute. Since the purpose of indemnification of the insurer is to prevent double recovery by the insured, the insurer’s right to indemnification relates only to additional compensation received by the insured for the same damages as were covered by the personal injury protection benefits. If the payment received from the tortfeasor does not duplicate the PIP benefits received from the insurer, the insurer has no right to receive reimbursement out of such payment.” Id. at 647-648.
It is important that you not settle the case with the defendant’s insurance carrier before asking your car insurance carrier to waive their claimed right to be subrogated or reimbursed for their PIP payments made before your settlement. This long standing Kansas case law going back to 1984 led to the modification of K.S.A. 40-3113a and every lawyer that practices personal injury law in the State of Kansas should know of and be aware of the fact that where the damages of the plaintiff exceed the total policy limits of the defendant tortfeasor and the PIP payments that are paid by the Plaintiff’s insurance company, then the damages are not duplicative and there is no right of subrogation or reimbursement to the PIP carrier.
At Brad Pistotnik Law are lawyers understand the complexities of PIP reimbursement or subrogation and how to attempt to make your insurance carrier give up their claimed right of reimbursement when you settle your personal injury case with the defendant’s insurance carrier. You should call us at 800-241-BRA D ore at 316-684-4400 or you can call Brad Pistotnik on his cell phone at 316-706-5020 or Tony Atterbury on his cell phone at 316-9237. We are The Bull Attorneys.®