Armacost v. State Farm Mutual Automobile Insurance , 231 Kan. 276 ( 1982 )

McFarland, J.,

dissenting: The majority opinion remands the case to the trial court with directions “to enter judgment for the plaintiff consistent with the foregoing opinion.” What judgment would be “consistent” with the majority opinion? The opinion is capable of two significantly different interpretations. I agree with one and disagree with the other. Therefore, I must dissent.

I concur with the conclusion of the majority that plaintiff is a regularly employed person. I believe that the plaintiff is entitled to be made whole from any salary loss incurred in the 1979-80 contract year as a result of the accident. Unfortunately, the parties have not seen fit to provide us with the actual figures involved. As I understand the situation, plaintiff received less salary under some type of formula by virtue of her having missed school days as a result of the accident. For illustrative purposes, let us assume the following. Plaintiff’s contract called for an annual salary of $12,000 to be paid in 12 monthly installments of $1,000. Plaintiff received six monthly checks of $1,000 each prior to her accident, representing September 20 through February 20, for a total of $6,000. As a result of the accident, plaintiff received only $500 per month for the salary installments due March 20 through August 20 for a total of $3,000. Her salary for the school year would then be $9,000 as opposed to $12,000. Plaintiff, a regularly employed person, thus would have suffered loss of income of $3,000 and be entitled to PIP disability payments to make up the difference.

We know plaintiff has received some PIP payments for the period March 10,1980, through June 5,1980.1 would remand the case with directions to determine: (1) the amount of salary due plaintiff under her 1979-80 contract, had same been fully performed; (2) the amount actually paid plaintiff under said contract; (3) the amount of PIP disability payments to plaintiff covering time periods within the contract year; and (4) enter judgment in favor of plaintiff for any shortfall existing after the amounts set forth in (2) and (3) are subtracted from (1) above. If this is the result “consistent with majority opinion” I would agree therewith.

However, if the majority intended this result, then why does it become so preoccupied with plaintiff’s accident-induced inability to work during the summer of 1980 as opposed to her expressed intent not to work at a summer job. Does the majority intend the trial court to determine what plaintiff might have earned at some unspecified summer job and add that into lost earnings for PIP disability benefits computation purposes? If so, I strongly disagree therewith.

Further, the following paragraph from the majority opinion is inappropriate and its inclusion is misleading.

“Defendant argues that the Act only covers actual economic loss. In Hand v. State Farm Mut. Auto. Ins. Co., 2 Kan. App. 2d 253, 577 P.2d 1202, rev. denied 225 Kan. 844 (1978), the claimant was the surviving widow of the deceased insured. The parties had been separated and the deceased had not been providing support to his estranged wife prior to his death. The court held that it was not necessary for the survivor to show an actual economic loss to recover benefits under the Act.” 231 Kan. at 276.

Hand involves survivors’ benefits under K.S.A. 40-3103(y). We are concerned herein with disability benefits under K.S.A. 40-3103(h), which provides:

“(b) ‘Disability benefits’ means allowances for loss of monthly earnings . . . (2) subject to the maximum benefits stated herein, allowances shall equal one hundred percent (100%) of any such loss per individual . . . .”

The section on survivors’ benefits (K.S.A. 40-3103[t/]) does not expressly limit the recovery to actual economic loss. The inclusion of the Hand citation appears to obliterate a key distinction between the two types of benefits without any consideration thereto. Also, if plaintiff’s recovery is limited to being made whole for any loss in her teacher’s salary, then why is reference to Hand even included?

For the reasons above expressed, I dissent from the majority opinion.