Injured motorist recovers $900,000 after collision

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A motorist injured in a rear-end collision has recovered $900,000 following a ruling from a Johnson County judge allowing the stacking of automobile liability policies against a defendant driver operating a non-owned vehicle.

Alfred Durbin, 76, was driving a 1998 Chevy S-10 pickup westbound on Highway 50 in Johnson County on July 27, 2007. Durbin was rear-ended by a 2001 Chevrolet 3500 tow truck driven by Robert Deitrick Jr. and owned by his employer, Leonard Minor d/b/a B&L Towing. At the time of the accident, Deitrick claimed he was operating the tow truck outside the scope of his employment with the towing company.

Durbin sustained a cervical fracture and a traumatic brain injury requiring a one-month hospitalization followed by two months in a nursing facility for rehabilitation. Durbin incurred $505,000 in medical bills, which were satisfied with a $150,000 payment after a $355,000 write-off.

Durbin filed suit against Deitrick and Minor in September 2007. Through discovery, Durbin learned that Minor owned the tow truck and carried a $500,000 liability policy through Empire Fire and Marine Insurance.

At the time of the accident, Deitrick also carried automobile insurance through American Family Mutual Insurance Co. on four of his personal vehicles. Three of the American Family policies listed Deitrick as the named insured and a fourth listed his wife, who lived in the same household. All four of the Deitrick policies with American Family carried liability limits of $100,000 per person and $300,000 per accident.

Durbin accepted an offer of judgment from Deitrick for $900,000 – subject to a settlement and release agreement that execution of the judgment would be limited to any applicable insurance from Empire and American Family. The court entered a $900,000 judgment for Durbin in September 2008.

Empire paid its $500,000 policy limit. American Family paid $100,000 on behalf of Deitrick from one of his four personal policies. American Family claimed that its coverage was limited to $100,000 based on anti-stacking language in each of their four policies.

Durbin next amended his original lawsuit to include a declaratory judgment action against American Family to determine the extent of coverage. American Family filed a motion for summary judgment. Durbin filed a counter-motion for summary judgment on the declaratory judgment claim.

American Family argued that the policies, read as a whole, are clear and unambiguous, and as such Durbin was limited to the liability limits of only one policy. Each of the four policies contained anti-stacking language in the “General Provisions” portion of the policies. Each of the four policies also contained anti-stacking language in the “Limits of Liability” portion of the policies.

Durbin claimed, however, that the “Other Insurance” clause contained in each policy allowed stacking. As such, he argued, the policies were ambiguous and must be construed in his favor.

In June 2009, Johnson County Circuit Court Judge Jacqueline Cook denied American Family’s motion for summary judgment and granted plaintiff’s counter-motion for summary judgment.

Plaintiff’s attorney James Montee said Cook reasoned that the “Other Insurance” provision created an ambiguity with the “Limits of Liability” section. The “Limits of Liability” section stated: “[w]e will pay no more than these maximums no matter how many vehicles are described in the declarations, or insured persons, claims, claimants, policies or vehicles involved.”

The court ruled that even if this anti-stacking provision was clear and unambiguous when considered alone, it was still inconsistent with the second sentence of the “Other Insurance” provision in the situation where coverage is provided with respect to a vehicle not owned by the insured, Montee said. The “Other Insurance” provision stated: “Any insurance provided under this Part for a vehicle you do not own is excess over any other collectible auto liability insurance.”

Cook reasoned that while the “Limits of Liability” language purported to deny coverage, the “Other Insurance” provision purported to provide coverage, Montee said.

In her ruling, Cook concluded, “Whereas the policy is silent as to which provision takes precedent over the other, an ambiguity exists between these two provisions of the policy. The court resolves these ambiguities in favor of the insured. The court finds that the liability coverage on each of the four policies should be stacked.”

Jason Moore, Kansas City attorney for Deitrick, confirmed the settlement details on behalf of his client but declined further comment.

Larry Tyrl, who represented Minor d/b/a B&L Towing, and David Frye, attorney for American Family, did not respond to requests for comment.

– Anne C. Vitale

 n  $900,000 judgment

Personal injury/ vehicular

n Court: Johnson County Circuit Court

n Case Number/Date: 07JO-CV01005/June 14, 2009

n Judge: Jacqueline Cook

n Special Damages: $505,000 past medical expenses

n Insurer: Empire Fire and Marine Insurance (for Minor d/b/a B&L Towing); American Family Mutual Insurance (for Deitrick)

n Caption: Alfred C. Durbin v. Leonard Minor d/b/a B&L Towing and Robert L. Deitrick Jr. (later amended to Alfred C. Durbin v. Robert L. Deitrick Jr. and American Family Mutual Insurance Co.)

n Plaintiff’s Attorney: James Montee, Montee Law Firm, St. Joseph

n Defendants’ Attorneys: Larry Tyrl, Tyrl & Bogdan, Kansas City (for Minor d/b/a B&L Towing); Jason Moore, Franke Schultz & Mullen, Kansas City (for Deitrick); David Frye, Lathrop & Gage, Overland Park, Kan. (for American Family Mutual Insurance)