Auto-Owners Insurance Company v. McCollum et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
AUTO-OWNERS INSURANCE
COMPANY,
Plaintiff,
v.
SHARMEN MCCOLLUM, et al.,
Defendants.
Case No. 2:25-cv-02272-HLT-JBW
MEMORANDUM AND ORDER
This is an insurance dispute. Plaintiff is an insurance company who provided underinsured
motorist (“UIM”) coverage under its policy. Defendants are five individuals or their estates who
were involved in a tragic vehicle accident. The tortfeasor—the driver of the vehicle that collided
with Defendants—had coverage that provided only $100,000 per occurrence, which has been paid
to Defendants but is far less than Defendants’ damages. Defendants therefore sought UIM
coverage from Plaintiff, the insurer who covered Defendants’ vehicle. The UIM benefits under
Plaintiff’s policy are $250,000 per person or $500,000 per occurrence. The availability of UIM
coverage is not in dispute. The only dispute in this case is the amount of UIM benefits that are
owed by Plaintiff. Plaintiff argues that amount is $400,000, which represents the UIM per
occurrence coverage limit minus the $100,000 paid by the tortfeasor’s insurer. Defendants argue
the full $500,000 per occurrence coverage limit is owed if the benefits are calculated on a per
person basis.
Plaintiff filed a motion for summary judgment on largely undisputed facts. Doc. 13. The
Court grants Plaintiff’s motion. The policy, which provides for coverage in an amount equal to the
per occurrence limit minus the amount paid by a tortfeasor, does not conflict with or diminish the
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mandatory UIM coverage required by Kansas law, nor does it conflict with the cases interpreting
that law. The amount of benefits owed is $400,000.
I. BACKGROUND1
Defendants Sharmen McCollum, Robert McCollum, Jonathan Wright, Gary Wright, and
Alma Wright were occupants in a 2004 Toyota Sienna that collided with a vehicle driven by non-
party Richard Jackson on October 12, 2024. PSOF 1. Alma Wright and Robert McCollum were
killed. PSOF 2. Gary Wright and Sharmen McCollum suffered significant injuries. Id. Jonathan
Wright, the driver of the Toyota Sienna, was not injured. Id.; DSOF 1.
Jackson had an insurance policy issued by Progressive Insurance with bodily injury
coverage of $50,000 per person and $100,000 per occurrence. PSOF 3. Progressive tendered the
$100,000 per occurrence limit to Defendants as part of a settlement. PSOF 4. Those proceeds have
not been allocated among Defendants. PSOF 5. But no one person is to receive more than $50,000
inclusive of all liens under the terms of the settlement. Id.
The Toyota Sienna was insured under a policy issued by Plaintiff Auto-Owners Insurance
Company to Gary Wright and Alma Wright. PSOF 6. The policy includes the following provision:
a. The limit of our liability for Uninsured Motorist Coverage in any
one occurrence shall be as follows:
(1) Our payment to any one injured person shall not exceed the
smallest of the following:
(a) the “each person” Limit of Liability stated in the
Declarations for Uninsured Motorist Coverage;
(b) the difference between such “each person” limit of liability
and the amount paid to the injured person by or for any
person or organization which may be legally responsible for
the bodily injury sustained by such injured person; or
1 The following facts are undisputed for purposes of summary judgment and are considered in a light most favorable
to the non-moving party. “PSOF” refers to the facts listed in Plaintiff’s motion. Doc. 14. “DSOF” refers to the
additional facts in Defendants’ response. Doc. 22.
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(c) the amount of damages sustained but not recovered by the
injured person.
(2) Subject to the provisions of 4.a.(1) above, our payment to all
injured persons shall not exceed the smallest of the following:
(a) the “each occurrence” Limit of Liability stated in the
Declarations for Uninsured Motorist Coverage;
(b) the difference between such “each occurrence” limit of
liability and the total amount paid to all injured persons by
or for any persons or organization which may be legally
responsible for the bodily injury sustained by such injured
persons; or
(c) the total amount of damages sustained but not recovered by
all injured persons.
DSOF 10; see also Doc. 5 at 28 (bolding in original omitted; underlining added). The policy had
UIM coverage limits of $250,000 per person and $500,000 per occurrence. PSOF 6. The policy
insured vehicles garaged in Kansas and is governed by Kansas law. PSOF 7. The policy for the
Toyota Sienna provided “comprehensive” coverage. DSOF 2.
Defendants seek $500,000 in UIM benefits under the policy. PSOF 8. Plaintiffs tendered
$400,000 in UIM benefits to Defendants. PSOF 9. But Defendants rejected it. Id. For purposes of
summary judgment, Plaintiff stipulates that Gary Wright and Sharmen McCollum suffered
individual compensatory damages of more than $250,000 each, and that compensatory damages
for the wrongful death of Alma Wright and Robert McCollom exceed $250,000 each. PSOF 12.
II. STANDARD
Summary judgment is appropriate if there is “no genuine dispute as to any material fact
and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). The moving party
bears the initial burden of establishing the absence of a genuine issue of fact. Celotex Corp. v.
Catrett, 477 U.S. 317, 323 (1986). The burden then shifts to the nonmovant to demonstrate that
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genuine issues remain for trial. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,
586-87 (1986). In applying this standard, courts view the facts and any reasonable inferences in a
light most favorable to the non-moving party. Henderson v. Inter-Chem Coal Co., 41 F.3d 567,
569 (10th Cir. 1994). “An issue of material fact is genuine if a reasonable jury could return a
verdict for the nonmoving party.” Id. (internal quotation and citation omitted).
III. ANALYSIS
Plaintiff moves for summary judgment on the amount of UIM coverage owed. Doc. 13.
Plaintiff argues the amount owed is $400,000; Defendants say $500,000. Neither party seems to
dispute that the policy language calculates the UIM benefits at $400,000, which is “the difference
between such ‘each occurrence’ limit of liability [$500,000] and the total amount paid to all injured
persons by or for any persons or organization which may be legally responsible for the bodily
injury sustained by such injured persons [$100,000].” Doc. 5 at 28; PSOF 10. The only issue is
whether this provision comports with the law in Kansas regarding mandatory UIM coverage, or
whether Kansas law requires a different calculation to reach the amount of UIM coverage.
The statute establishing mandatory UIM coverage is K.S.A. § 40-284(b). It states:
Any uninsured motorist coverage shall include an underinsured
motorist provision which enables the insured or the insured’s legal
representative to recover from the insurer the amount of damages
for bodily injury or death to which the insured is legally entitled
from the owner or operator of another motor vehicle with coverage
limits equal to the limits of liability provided by such uninsured
motorist coverage to the extent such coverage exceeds the limits of
the bodily injury coverage carried by the owner or operator of the
other motor vehicle.
This provision is mandatory under Kansas law. E.H. v. Auto. Club Inter-Insurance Exch., 447 P.3d
382, 387 (Kan. Ct. App. 2019). Its purpose is to ensure that a person covered under a standard
automobile insurance policy has a right against his own insurer equal to what an insured would
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have against an uninsured or underinsured tortfeasor. Id. (citing O’Donoghue v. Farm Bureau Mut.
Ins. Co., 66 P.3d 822, 828 (Kan. 2003)). Where it applies, the statute is “to be considered a part of
every automobile policy in this state.” Long v. St. Paul Fire & Marine Ins. Co., 589 F.3d 1075,
1079 (10th Cir. 2009). An insurance policy only controls to the extent it does not conflict or
diminish this mandatory coverage. E.H., 447 P.3d at 391. Thus, the UIM provision under the policy
is only enforceable if it comports with K.S.A. § 40-284(b). Although the underlying policy of the
uninsured and underinsured statutes is to provide broad protections to insured parties, “this is a
general statement of policy, and must yield to specific statutory requirements.” Long, 589 F.3d at
1079-80.
A. The policy does not conflict with the statute.
“The fundamental rule of statutory construction is that the intent of the legislature governs
if that intent can be ascertained.” O’Donoghue, 66 P.3d at 825; see also Robinson v. Shell Oil Co.,
519 U.S. 337, 340 (1997) (“Our first step in interpreting a statute is to determine whether the
language at issue has a plain and unambiguous meaning with regard to the particular dispute in the
case.”). Thus, the Court starts with comparing the plain language of K.S.A. § 40-284(b) against
the policy to see whether the two conflict or whether the policy diminishes mandatory coverage.
The statute and the policy both appear to provide for the same amount of UIM coverage.
K.S.A. § 40-284(b) requires that policies include provisions that allow insured parties to recover
from their insurer an amount of damages equal to the limits of UIM coverage “to the extent such
coverage exceeds the limits of the bodily injury coverage” in the tortfeasor’s policy. The policy
states that the amount of UIM coverage available to all injured persons shall not exceed the
smallest of (a) the per occurrence limit, (b) the difference between the per occurrence limit and the
amount paid by a tortfeasor, or (c) the total damages sustained. Doc. 5 at 28. Although these
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provisions address slightly different concepts, the policy does not diminish what is required by the
statute. Under all contingencies, an insured party could recover an amount “equal to the limits” of
the UIM coverage “to the extent such coverage exceeds the limits” of the tortfeasor’s coverage.
See K.S.A. § 40-284(b).2
B. The Kansas Supreme Court’s opinion in O’Donoghue confirms this result.
Caselaw confirms that the policy in this case does not conflict with or diminish the
coverage mandated by K.S.A. § 40-248(b). The primary case relied on by both parties is
O’Donoghue. O’Donoghue was a passenger in a car involved in a single-car accident. 66 P.3d at
825. O’Donoghue and one other passenger died, and a third passenger was injured. Id. The three
claimed against the driver’s insurance policy, which had a per person limit of $50,000 and a per
occurrence limit of $100,000. The tortfeasor’s insurer paid the $100,000 per occurrence limit. Id.
O’Donoghue’s share of the settlement was $25,000. Id. O’Donoghue’s estate then claimed against
her own policy, which had UIM coverage limits of $100,000 per person and $300,000 per
occurrence. Id. The dispute was whether the amount of UIM coverage available was $75,000
($100,000 UIM per person limit minus the $25,000 paid by the driver’s insurer) or $50,000
($100,000 UIM per person limit minus $50,000 per person limit of the driver’s policy). Id. The
issue in the case—“the amount of UIM coverage where that coverage exists”—was one of first
impression in Kansas. Id. at 826.3
2 Although total damages sustained could be less than the UIM limit, in such a situation an injured party would be
fully compensated, and the purpose of the statute would be served. See McLean v. Nat’l Union Fire Ins. Co. of
Pittsburgh, P.A., 493 P.3d 968, 973 (Kan. Ct. App. 2021) (explaining that K.S.A. § 40-284 “should be liberally
construed to provide broad protection to the insured against all damages resulting from bodily injuries sustained
by the insured that are caused by an automobile accident where those damages are caused by the acts of an
uninsured or underinsured motorist” (emphasis added)).
3 Whether UIM coverage exists is not disputed in this case.
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The Kansas Supreme Court in O’Donoghue relied extensively on the lower appellate
court’s “interpretation of [K.S.A. § 40-284(b)] when dealing with the amount of UIM coverage
where it has been established that such coverage exists.” 66 P.3d at 827-28 (quoting O’Donoghue
v. Farm Bureau Mut. Ins. Co., 49 P.3d 22, 27 (Kan. Ct. App. 2002)). Specifically, the first part of
K.S.A. § 40-284(b) mandates “UIM coverage which enables the insured to collect from his or her
own insurance company the amount of money that the insured would have recovered from the
tortfeasor, if the tortfeasor had been carrying the same liability limits as the insured.” Id. at 827
(quoting O’Donoghue, 49 P.3d at 27). But the second part of K.S.A. § 40-284(b) prevents a
claimant from collecting the full UIM limits in addition to amounts collected from the tortfeasor.
Id. (citing O’Donoghue, 49 P.3d at 27). Specifically, “the statute qualifies the UIM recovery to the
extent such UIM coverage exceeds the limits of the bodily injury coverage carried by the owner
or operator of the other motor vehicle.” Id. (quoting O’Donoghue, 49 P.3d at 27) (citation
modified). O’Donoghue continued:
It is noteworthy that the statute speaks to the UIM ‘coverage’
exceeding the tortfeasor’s ‘coverage.’ This connotes that the amount
available for recovery under the tortfeasor’s policy, considering
both the per person and per occurrence limits and the number and
respective damages of all claimants, is deducted from the amount
which would have been available to the UIM claimant under the
same scenario if the tortfeasor had carried the higher UIM limits to
arrive at the amount which the UIM insurer must pay its insured.
The qualifying portion of the statute does not create a ‘per person
limits-to-per person limits’ limitation rule, but rather it provides for
a ‘coverage-to-coverage’ comparison. Because of the tortfeasor’s
inadequate per occurrence limit, the tortfeasor’s coverage available
to O’Donoghue was $25,000. The amount that was payable under
the tortfeasor’s policy limits ($25,000) is deducted from the amount
that would have been paid under the UIM policy limits ($100,000).
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Id. at 827-28 (quoting O’Donoghue, 49 P.3d at 27) (emphasis added). The Kansas Supreme Court
found this interpretation “persuasive and consistent with the remedial nature of [K.S.A. § 40-
284(b)].” Id. at 828.
The issue in O’Donoghue was whether the amount of UIM damages should be reduced by
the limits of the tortfeasor’s policy or by the amount actually received by the injured party. As
discussed, the latter calculation prevailed. Defendants argue that “O’Donoghue implicitly held the
amount of UIM benefits a claimant is eligible to recover is determined on an individual basis.”
Doc. 22 at 6. A per person calculation is what Defendants advocate. This would require an
assumption that each injured Defendant receives an equal share of the $100,000 tortfeasor
settlement ($20,000 each). Because the injury of each Defendant exceeds $250,000, the $20,000
settlement amount would be subtracted from the per person limit of $250,000. This would entitle
each Defendant to $230,000. But the per occurrence limit would then cap the total UIM award at
$500,000.4
In support of this calculation, Defendants rely on the statement in O’Donoghue’s syllabus
that “the underinsured motorist provider is responsible for paying the difference between the
insured’s pro rata share of the settlement with the tortfeasor and the insured’s total amount of
damages up to the insured’s underinsured motorist limits.” 66 P.3d at 824 Syl. ¶ 6. But it’s not
clear that O’Donoghue was stating a rule to be applied in all cases versus just explaining how it
was deciding the case and facts before it. O’Donoghue was factually different from this case in
that only one of three injured parties who collected from the tortfeasor was seeking UIM benefits.
The other injured parties were not seeking UIM benefits under O’Donoghue’s policy. The Kansas
4 It’s not clear that Jonathan Wright suffered any injuries, let alone in excess of $250,000. But even assuming he
would not factor in the calculus, the damages of just the four others would reach the same result.
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Supreme Court was only tasked with calculating the UIM benefits owed to one claimant, and thus
it made sense to consider only the pro rata share of the tortfeasor settlement paid to that person in
light of the per person policy limit.5 By contrast, here there are five individuals seeking the same
UIM benefits from Plaintiff. This would necessarily warrant a calculation using the per occurrence
limit.6
Defendants also argue that O’Donoghue “directly addressed the issue in the case at bar and
held the full per occurrence limit of the relevant UIM policy would be recoverable in an action by
multiple UIM claimants whose damages exceed their recovery.” Doc. 22 at 8. The quote they rely
on from O’Donoghue to argue for the full $500,000 is: “For instance, if there had been four UIM
claimants, each with $100,000 in damages, the $300,000 UIM per occurrence limits would have
been prorated, based on actual damages, rather than simply paid to the first persons to file a claim.”
66 P.3d at 827 (quoting O’Donoghue, 49 P.3d at 27). But as Plaintiff correctly points out, that
statement was made in the context of discussing the first part of K.S.A. § 40-284(b). The opinion
5 Defendants argue that calculating UIM benefits on an individual basis is necessary because “UIM coverage is first
party coverage and by its very nature must be calculated on an individual basis due to the inherent possibility that
multiple individuals within the same vehicle are covered under different UIM policies.” Doc. 22 at 7. Certainly, if
multiple individuals are covered under different UIM policies, calculating UIM benefits on an individual or pro
rata and per person basis would make sense. But that is not the situation here. Defendants also argue that giving a
UIM carrier a collective credit for multiple injured parties is what occurred in Taylor v. Allstate Indemnity Co., 43
P.3d 260 (Kan. Ct. App. 2002), and O’Donoghue disagreed with Taylor, see O’Donoghue, 66 P.3d at 830. But
Taylor applied a “limits to limits” calculation, Taylor, 43 P.3d at 261, which is what O’Donoghue rejected in favor
of a “coverage to coverage” calculation, O’Donoghue, 66 P.3d at 827-28. O’Donoghue did not otherwise address
a global settlement with multiple UIM claimants. The Court further notes that there is perhaps some confusion in
this case because the math is the same whether you apply an incorrect “limits to limits” calculation ($500,000 in
UIM per occurrence limit minus $100,000 in per occurrence limit under Jackson’s policy) or a correct “coverage
to coverage” calculation ($500,000 in UIM per occurrence limit minus the $100,000 in total coverage paid under
Jackson’s policy). But this does not change the legal analysis.
6 The “pro rata” statement in O’Donoghue’s syllabus seems to come from Jones v. Automobile Club Inter-Insurance
Exchange, 981 P.2d 767, 768 (Kan. Ct. App. 1999). The facts in Jones were similar to O’Donoghue, both of which
are dissimilar to this case. In Jones, three people in a car were injured by a tortfeasor and received inadequate
payouts from the tortfeasor. Id. Only one of those three then sought UIM benefits. Id. Here, by contrast, all five
Defendants (all of whom are entitled to payment under the settlement with Jackson) seek the same UIM benefits.
The Court therefore doesn’t read the “pro rata” statement in Jones and approved by O’Donoghue as setting a rule
clearly applicable in this case.
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goes on to state: “However, if [K.S.A. § 40-284(b)] contained no further provision, O’Donoghue
could collect $100,000 under the UIM, in addition to the $25,000 already collected from [the
tortfeasor’s] insurer. Therefore, the statute qualifies the UIM recovery to the extent such UIM
coverage exceeds the limits of the bodily injury coverage carried by the owner or operator of the
other motor vehicle.” Id. (citation modified). O’Donoghue went on to agree that the amount paid
by the tortfeasor must be deducted from the UIM policy limit. Id.7 The same is true here, and the
$100,000 paid by the tortfeasor must be deducted from the total coverage provided under the UIM
policy ($500,000). Again, because multiple claimants are involved, the per occurrence limit would
apply.
C. A more recent Kansas Court of Appeal’s decision supports Plaintiff’s position.
In E.H., a more recent opinion, E.H. was injured in a three car accident along with her
parents and two siblings. 447 P.3d at 385. The tortfeasor’s policy had a $50,000 per occurrence
limit. Id. E.H. and her family received $25,000 from that, $10,000 of which went to E.H.’s father
and $12,000 went to E.H. Id. at 385-86.8 E.H.’s father collected $40,000 under his UIM policy,
which had a $50,000 per person and $100,000 per occurrence limit. Id. at 386. The issue in the
case was the amount of UIM benefits available to E.H. Id. E.H. contended she was entitled to
$38,000 ($50,000 per person UIM limit minus the $12,000 from the tortfeasor). The insurance
7 Defendants also state that “[t]he effect of O’Donoghue was to allow the UIM claimant to globally recover their
per person UIM limit, regardless of the share of the tortfeasor’s liability limits that they ended up with.” Doc. 22
at 14 (citing O’Donoghue, 66 P.3d at 825, 830). It’s unclear what holding in O’Donoghue Defendants are referring
to here. In O’Donoghue, it was undisputed that the tortfeasor settlement reduced the amount of UIM benefits in
some degree. It was just the method of calculating that reduction that was at issue The overall total amount
O’Donoghue’s estate ultimately received was $100,000 ($25,000 from the tortfeasor plus $75,000 in UIM
coverage). This was true even though it was undisputed that O’Donoghue’s damages exceeded $100,000.
O’Donoghue, 66 P.3d at 825. To the extent Defendants are arguing that O’Donoghue authorized an injured party
to obtain more than the UIM coverage limits in total, O’Donoghue did not go so far.
8 The remainder of the family’s portion of settlement went to E.H.’s mother and siblings. The other half of the
tortfeasor’s payout went to the estate of a person in a third vehicle who died. E.H., 447 P.3d at 386.
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company argued there was only $50,000 total available UIM benefits ($100,000 UIM per
occurrence limit minus the $50,000 per occurrence limit of the tortfeasor’s policy), and $40,000
of that had gone to E.H.’s father, leaving only $10,000 available to E.H. Id. at 386-87. The trial
court awarded E.H. $38,000 in UIM benefits. Id. at 387. But the Kansas Court of Appeals reversed,
finding that E.H. was only entitled to $35,000. Id. at 385.
The Kansas Court of Appeals relied heavily on O’Donoghue. It rejected the limits-to-limits
approach advocated by the UIM insurer. Id. at 388. But it also rejected the calculation E.H. sought,
which is what Defendants advocate for here. Id. at 386 (“E.H. claimed she was entitled to $38,000
in UIM coverage based on the difference between her $12,000 pro rata share from the GEICO
settlement and the $50,000 per person UIM limit.”). This was because awarding $38,000 to E.H.
would allow her “family to ultimately obtain a greater recovery than that allowed by the $100,000
UIM per occurrence limit.” Id. at 389; see also id. at 390.9 Finding no definitive answer in the
caselaw, E.H. ultimately concluded that the total amount of available UIM benefits available to
E.H. was found by subtracting from the per occurrence UIM limit ($100,000) the total amounts
received by the family from the tortfeasor ($25,000) along with E.H.’s father’s recovery under the
UIM policy ($40,000).10 Id. at 388-89. This left $35,000 for E.H., which is what the court awarded.
Id.
Applying the logic of E.H. to this case, Defendants are entitled to $400,000 from Plaintiff,
which represents the UIM per occurrence limit of $500,000 minus the total received from the
9 The family recovered $25,000 from the tortfeasor, and E.H.’s father received $40,000 in UIM benefits. If E.H. was
awarded $38,000, the total received by the family would’ve been $103,000, which is more than $100,000 per
occurrence limit under the UIM policy.
10 Defendants argue that E.H. is factually distinct from this case because the court was only adjudicating the amount
of benefits available to one individual. Doc. 22 at 8-9. But although E.H. was the only plaintiff in that case, the
court specifically considered what amount was due to her in light of other claimants on the same UIM policy
(E.H.’s father and potentially her mother and siblings). See E.H., 447 P.3d at 390.
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tortfeasor ($100,000). This is also what the policy provides for: “the difference between such ‘each
occurrence’ limit of liability [$500,000] and the total amount paid to all injured persons by or for
any persons or organization which may be legally responsible for the bodily injury sustained by
such injured persons [$100,000].” Doc. 5 at 28.
D. Another court in the District of Kansas recently reached the same result.
This outcome is also consistent with a recent District of Kansas opinion addressing a
similar factual scenario. In Progressive Northwestern Insurance Company v. Edwards, 2026 WL
560246 (D. Kan. 2026), a tortfeasor caused an accident that injured a husband and wife. The
husband suffered $261,000 in damages and the wife suffered $5.3 million in damages. Id. at *1.
The tortfeasor had a policy with a $250,000 limit, which was paid in full to the couple. Id. The
husband had UIM coverage with a $300,000 combined single limit for each accident. Id. at *2.11
The UIM policy, like the one here, reduced UIM coverage by all sums paid by or on behalf of a
tortfeasor. Id. The couple argued they were nevertheless entitled to the full $300,000 in UIM
coverage. Id.
The court found that the “UIM policy language, consistent with K.S.A. § 40-284(b),
reduces the Edwards’ recovery by the amount they received from [the tortfeasor].” Id. The couple
was only permitted to “recover the difference between their recovery from [the tortfeasor]
($250,000) and their total damages up to their UIM combined limit ($300,000).” Id. at *3. The
court specifically rejected a reading of O’Donoghue that “an insured can collect her entire UIM
limit if her total damages minus her recovery from the tortfeasor is greater than her UIM limit”
because it would allow injured parties to recover more than the total coverage under the UIM
11 To the extent the existence of a combined single limit distinguishes Progressive from this case factually, the
outcome remains consistent with the outcome here and the application of O’Donoghue and E.H. discussed above.
The Court notes that Progressive was issued after the motion in this case was fully briefed, and thus the parties
have not had the opportunity to analyze it.
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policy. Id. This was counter to the plain language of K.S.A. § 40-284(b), which requires insurers
to provide coverage that enables an insured party to recover “the amount of money that the insured
would have recovered from the tortfeasor, if the tortfeasor had been carrying the same liability
limits as the insured.” Id. at *4 (quoting O’Donoghue, 66 P.3d at 827). The court concluded:
“O’Donoghue and E.H. show that UIM coverage ensures that the Edwards receive $300,000 either
wholly from [the tortfeasor], wholly from Progressive, or combining their recovery from both.”
Id. A $400,000 UIM payout achieves a similar result here because Defendants’ combined recovery
will be the full $500,000 limit of the UIM policy.
E. This outcome is consistent with Kansas law.
The Court recognizes the tragic nature of the accident and the considerable damages and
loss suffered by Defendants. But this outcome is not unjust. Had Jackson been insured at the same
limits as the Wrights, the maximum Defendants would have recovered from Jackson’s insurer
would be $500,000. Had the Toyota Sienna been responsible for the accident, Defendants
would’ve recovered a maximum of $500,000 under the bodily injury per occurrence limit in
Plaintiff’s policy. Here, the two policies combine to provide that same result—a total payout of
$500,000, combining $100,000 from the tortfeasor and $400,000 in UIM coverage. This is the
purpose of UIM coverage mandated by Kansas law: “to fill the gap” where uninsured or
underinsured tortfeasors are involved. O’Donoghue, 66 P.3d at 828; see also Rich v. Farm Bureau
Mut. Ins. Co., 824 P.2d 955, 959 (Kan. 1992) (“The purpose of [K.S.A. § 40-284] is to provide the
individual who is covered by the standard automobile liability policy with a right against his or
her own insurer equal to that the insured would have against the uninsured or underinsured
tortfeasor.” (emphasis added)). Defendants’ proposed calculation would more than fill the gap. It
would give them more than they’d be able to recover under any other scenario.
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Defendants also argue that this outcome means that “recovery for innocent injured [parties]
decreases as the number of injured claimants and the severity of their injuries increase,” which
“cannot be the public policy of Kansas.” Doc. 22 at 13-14. Regardless of whether it is the public
policy, it is an unfortunate reality for accidents involving multiple individuals. Nearly all policies
have “per occurrence” limits. The recoverable amounts inevitably decrease with each person over
two involved. This is true for both primary and UIM coverage.
IV. CONCLUSION
THE COURT THEREFORE ORDERS that Plaintiff’s Motion for Summary Judgment
(Doc. 13) is GRANTED. To the extent Defendants cross-move for summary judgment, that motion
is DENIED.12 The clerk shall enter judgment in favor of Plaintiff.
THE COURT FURTHER ORDERS that this case is closed.
IT IS SO ORDERED.
Dated: May 8, 2026 /s/ Holly L. Teeter
HOLLY L. TEETER
UNITED STATES DISTRICT JUDGE
12 Defendants’ response brief (Doc. 22) states it is also a cross-motion for summary judgment, though it was not
docketed as a motion.
Case 2:25-cv-02272-HLT-JBW Document 29 Filed 05/08/26 Page 14 of 14