40-3113a.
Remedy against a tortfeasor, insurer or self-insurer subrogated, when; credits against future payments; limitation of actions; attorney fees.
(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. Whenever any judgment in any such action, settlement or recovery otherwise shall be recovered by the injured person, such person's dependents or personal representatives prior to the completion of personal injury protection benefits, the amount of such judgment, settlement or recovery otherwise actually paid and recovered which is in excess of the amount of personal injury protection benefits paid to the date of recovery of such judgment, settlement or recovery otherwise shall be credited against future payments of such personal injury protection benefits.
(c) In the event an injured person, such person's dependents or personal representative fails to commence an action against such tortfeasor within 18 months after the date of the accident resulting in the injury, such failure shall operate as an assignment to the insurer or self-insurer of any cause of action in tort which the injured person, the dependents of such person or personal representatives of such person may have against such tortfeasor for the purpose and to the extent of recovery of damages which are duplicative of personal injury protection benefits. Such insurer or self-insurer may enforce same in such person's own name or in the name of the injured person, representative or dependents of the injured person for their benefit as their interest may appear by proper action in any court of competent jurisdiction.
(d) In the event of a recovery pursuant to K.S.A. 60-258a, and amendments thereto, the insurer or self-insurer's right of subrogation shall be reduced by the percentage of negligence attributable to the injured person.
(e) Pursuant to this section, the court shall fix attorney fees which shall be paid proportionately by the insurer or self-insurer and the injured person, such person's dependents or personal representatives in the amounts determined by the court.
History:
L. 1977, ch. 164, § 4; L. 1987, ch. 173, § 5; January 1, 1988.
Notes of Decisions
Cited in
63
cases (
1 in the last 5 years), 1979–2021 · leading case:
McCullough v. Wilson, 426 P.3d 494 (Kan. 2018).
McCullough v. Wilson, 426 P.3d 494 (Kan. 2018).
· cites it 14× “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.”
Nitchals v. Williams, 590 P.2d 582 (Kan. 1979).
· cites it 9× “Remedy against a tortfeasor, insurer or self-insurer subrogated, when; credits against future payments; limitation of actions; attorney fees, (a) When the injury for which personal injury protection benefits are payable under this act are caused under circumstances creating a…”
Jackson Ex Rel. Warren v. Browning, 908 P.2d 641 (Kan. Ct. App. 1995).
· cites it 58× “40-3113a provides: “(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.”
Chamberlain v. Farm Bureau Mut. Ins., 137 P.3d 1081 (Kan. Ct. App. 2006).
· cites it 9× “The court found that the setoff provision in K.S.A. 40-3113a did not apply when settlement with the tortfeasor occurred before the payment of all PIP benefits.”
Davis v. Hughes, 622 P.2d 641 (Kan. 1981).
· cites it 7× “” K.S.A. 1979 Supp. 40-3113a replaced K.S.A.”
Hall v. State Farm Mut. Auto. Ins., 661 P.2d 402 (Kan. Ct. App. 1983).
· cites it 11× “Plaintiff brought this declaratory judgment action to determine the extent of State Farm’s subrogation right under K.S.A. 40-3113a. The settlement check was placed in escrow and both parties moved for summary judgment.”
O'DONNELL v. Fletcher, 681 P.2d 1074 (Kan. Ct. App. 1984).
· cites it 12× “O'Donnell, to recover payments for medical expenses and lost wages pursuant to K.S.A. 40-3113a( c ). The trial court entered a judgment in favor of defendant Daniel J.”
Richards v. Etzen, 647 P.2d 1331 (Kan. 1982).
· cites it 11× “00 pursuant to his contingent fee contract and said attorney fees constitute a first and prior lien under K.S.A. 40-3113a. The Court finds under the circumstances that said amount is a reasonable attorney fee in this particular case.”
Russell v. MacKey, 592 P.2d 902 (Kan. 1979).
· cites it 7× “In determining that a reasonable share of the insured’s attorney fees should be paid by the PIP insurer, the trial court held that K.S.A. 1977 Supp. 40-3113a (e) should be applied retrospectively in this case, concluding that the statute was procedural in nature, rather than…”
Bardwell v. Kester, 815 P.2d 120 (Kan. Ct. App. 1991).
· cites it 12× “Attorney Fees The court relied on K.S.A. 1990 Supp. 40-3113a as the statutory authority for the award of attorney fees against Farmers.”
Foveaux v. Smith, 843 P.2d 283 (Kan. Ct. App. 1992).
· cites it 13× “Did the trial court err by limiting Colonial’s participation in the discovery and trialP Colonial contends that because K.S.A. 1991 Supp. 40-3113a makes an absolute assignment to it of Foveaux’s cause of action in tort once 18 months after the date of the automobile accident had…”
Gilmore v. Attebery, 899 S.W.2d 164 (Mo. Ct. App. 1995).
· cites it 6× “In March 1993, the present action was filed in the names of Gilmore and Zinn; State Farm seeks reimbursement from appellant of the sums paid on behalf of Gilmore and Zinn under its PIP coverage and pursuant to K.S.A. § 40-3113a. Gilmore and Zinn were residents of Kansas on the…”
— K.S.A. § 40-3113a(a) — 6 cases
McCullough v. Wilson, 426 P.3d 494 (Kan. 2018).
“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.”
Chamberlain v. Farm Bureau Mut. Ins., 137 P.3d 1081 (Kan. Ct. App. 2006).
“The court found that the setoff provision in K.S.A. 40-3113a did not apply when settlement with the tortfeasor occurred before the payment of all PIP benefits.”
Bardwell v. Kester, 815 P.2d 120 (Kan. Ct. App. 1991).
“Attorney Fees The court relied on K.S.A. 1990 Supp. 40-3113a as the statutory authority for the award of attorney fees against Farmers.”
— K.S.A. § 40-3113a(b) — 24 cases
Chamberlain v. Farm Bureau Mut. Ins., 137 P.3d 1081 (Kan. Ct. App. 2006).
“The court found that the setoff provision in K.S.A. 40-3113a did not apply when settlement with the tortfeasor occurred before the payment of all PIP benefits.”
Hall v. State Farm Mut. Auto. Ins., 661 P.2d 402 (Kan. Ct. App. 1983).
“Plaintiff brought this declaratory judgment action to determine the extent of State Farm’s subrogation right under K.S.A. 40-3113a. The settlement check was placed in escrow and both parties moved for summary judgment.”
Gilmore v. Attebery, 899 S.W.2d 164 (Mo. Ct. App. 1995).
“In March 1993, the present action was filed in the names of Gilmore and Zinn; State Farm seeks reimbursement from appellant of the sums paid on behalf of Gilmore and Zinn under its PIP coverage and pursuant to K.S.A. § 40-3113a. Gilmore and Zinn were residents of Kansas on the…”
Jackson Ex Rel. Warren v. Browning, 908 P.2d 641 (Kan. Ct. App. 1995).
“40-3113a provides: “(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.”
— K.S.A. § 40-3113a(c) — 11 cases
McCullough v. Wilson, 426 P.3d 494 (Kan. 2018).
“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.”
O'DONNELL v. Fletcher, 681 P.2d 1074 (Kan. Ct. App. 1984).
“O'Donnell, to recover payments for medical expenses and lost wages pursuant to K.S.A. 40-3113a( c ). The trial court entered a judgment in favor of defendant Daniel J.”
Davis v. Hughes, 622 P.2d 641 (Kan. 1981).
“” K.S.A. 1979 Supp. 40-3113a replaced K.S.A.”
Chamberlain v. Farm Bureau Mut. Ins., 137 P.3d 1081 (Kan. Ct. App. 2006).
“The court found that the setoff provision in K.S.A. 40-3113a did not apply when settlement with the tortfeasor occurred before the payment of all PIP benefits.”
Foveaux v. Smith, 843 P.2d 283 (Kan. Ct. App. 1992).
“Did the trial court err by limiting Colonial’s participation in the discovery and trialP Colonial contends that because K.S.A. 1991 Supp. 40-3113a makes an absolute assignment to it of Foveaux’s cause of action in tort once 18 months after the date of the automobile accident had…”
— K.S.A. § 40-3113a(d) — 4 cases
— K.S.A. § 40-3113a(e) — 19 cases
Nitchals v. Williams, 590 P.2d 582 (Kan. 1979).
“Remedy against a tortfeasor, insurer or self-insurer subrogated, when; credits against future payments; limitation of actions; attorney fees, (a) When the injury for which personal injury protection benefits are payable under this act are caused under circumstances creating a…”
Jackson Ex Rel. Warren v. Browning, 908 P.2d 641 (Kan. Ct. App. 1995).
“40-3113a provides: “(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.”
Foveaux v. Smith, 843 P.2d 283 (Kan. Ct. App. 1992).
“Did the trial court err by limiting Colonial’s participation in the discovery and trialP Colonial contends that because K.S.A. 1991 Supp. 40-3113a makes an absolute assignment to it of Foveaux’s cause of action in tort once 18 months after the date of the automobile accident had…”
— K.S.A. § 40-3113a(fe) — 2 cases
Hall v. State Farm Mut. Auto. Ins., 661 P.2d 402 (Kan. Ct. App. 1983).
“Plaintiff brought this declaratory judgment action to determine the extent of State Farm’s subrogation right under K.S.A. 40-3113a. The settlement check was placed in escrow and both parties moved for summary judgment.”
— K.S.A. § 40-3113a(h) — 2 cases
Hall v. State Farm Mut. Auto. Ins., 661 P.2d 402 (Kan. Ct. App. 1983).
“Plaintiff brought this declaratory judgment action to determine the extent of State Farm’s subrogation right under K.S.A. 40-3113a. The settlement check was placed in escrow and both parties moved for summary judgment.”
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