Printable Format40-3109. Same; injuries for which payment of benefits required; liability for payment by two or more insurers; policy providing primary benefit coverage. (a) A self-insurer or the insurer of the owner of a motor vehicle covered by a policy of motor vehicle liability insurance meeting the requirements of this act shall pay any personal injury protection benefits which are required to be provided by this act or in such owner's policy of motor vehicle liability insurance for any injury:
(1) Sustained within the United States of America, its territories or possessions or Canada by the owner while:
(A) Occupying a motor vehicle not excluded by subsection (a) of K.S.A. 40-3108, and amendments thereto; or
(B) not an occupant of a motor vehicle if the injury is caused by physical contact with a motor vehicle;
(2) sustained by a relative of the owner residing in the same household, under the circumstances described in paragraph (1) of this subsection, if the relative at the time of the accident is not the owner of a motor vehicle with respect to which a motor vehicle liability insurance policy is required by this act;
(3) sustained in this state by any other person while occupying such motor vehicle or, if a resident of this state, while not an occupant of such motor vehicle if the injury is caused by physical contact with such motor vehicle, and the injured person is not the owner of a motor vehicle with respect to which a motor vehicle liability insurance policy is required under this act.
(b) If two or more insurers or self-insurers are liable to pay personal injury protection benefits for the same injury to any one person, the maximum benefits payable from all applicable policies shall be the highest limit of any one policy providing such personal injury protection benefits. The primary personal injury protection coverage shall be provided by the policy covering:
(1) The motor vehicle occupied by the injured person at the time of the accident; or
(2) the motor vehicle causing such physical contact.
History: L. 1974, ch. 193, § 9; L. 1984, ch. 167, § 3; L. 1987, ch. 173, § 4; January 1, 1988.
Source or prior law:
L. 1973, ch. 198, § 9.
Law Review and Bar Journal References:
"Survey of Kansas Law: Insurance," Charles H. Oldfather, Jr., 27 K.L.R. 255, 260, 261 (1979).
"Some Current Problems in No-Fault," Jerry R. Palmer, 2 J.K.T.L.A. No. 4, 21, 23 (1978).
"Stacking Personal Injury Protection Benefits: Can You? Should You?" Jay Thomas, 3 J.K.T.L.A. No. 6, 20 21 (1980).
"Recent Developments in Kansas Insurance Law: A Survey, Some Analysis, and Some Suggestions," Robert H. Jerry II, 32 K.L.R. 287, 346 (1984).
"Liens, Liens & More Liens," David P. Calvert, J.K.T.L.A. Vol. 25, No. 5, 10 (2002).
CASE ANNOTATIONS
1. Construed; last qualifying phrase in subsection (a) (4) modifies both preceding clauses; qualification relates to both occupant and pedestrian. Farm & City Ins. Co. v. American Standard Ins. Co., 220 Kan. 325, 328, 331, 333, 334, 335, 552 P.2d 1363.
2. Insurer of motor vehicle not liable for personal injury protection (PIP) benefits to permissive user required to maintain own liability coverage. Dreiling v. State Farm Mut. Auto. Ins. Co., 227 Kan. 851, 852, 855, 610 P.2d 611.
3. Mini-bike operated on highway is vehicle for which insurance is required for purposes of subsection (a)(3). Kresyman v. State Farm Ins., 5 Kan. App. 2d 666, 667, 623 P.2d 524.
4. Excess coverage permitted, but not to exceed full amount of damages sustained. Bradley v. AID Insurance Co., 6 Kan. App. 2d 367, 376, 377, 378, 380, 381, 382, 383, 384, 385, 629 P.2d 720 (1981).
5. Uninsured motorist may recover under another's policy if uninsured motorist is an "insured" under that policy. Merritt v. Farmers Ins. Co., 7 Kan. App. 2d. 705, 710, 647 P.2d 1355 (1982).
6. PIP benefits payable to nonoccupant of vehicle only when "struck by" vehicle. Pestock v. State Farm Auto. Ins. Co., 9 Kan. App. 2d 188, 189, 674 P.2d 1062 (1984).
7. No reimbursement to PIP insurer where actual damages exceed liability coverage plus PIP benefits received. Kansas Farm Bureau Ins. Co. v. Miller, 236 Kan. 811, 812, 817, 696 P.2d 961 (1985).
8. Nonresident self-insurer's duty to defend and pay employee vehicle defense costs, including attorney fees examined. Overbaugh v. Strange, 254 Kan. 605, 613, 867 P.2d 1016 (1994).
9. Trial court may apportion an injured party's attorney fees from PIP benefits paid to tortfeasor's insurer. Jackson v. Browning, 21 Kan. App. 2d 845, 850, 908 P.2d 641 (1995).
10. Nonresident driving Kansas resident's vehicle while injured is entitled to PIP benefits from out-of-state insurer of nonresident's vehicle. Morris v. American Standard Ins. Co., 26 Kan. App. 2d 933, 938, 996 P.2d 349 (2000).