Date: 02-07-2003

Case Style: Johnson v. Westhoff Sand Co., Inc.

Case Number: 88320

Judge: Knudson

Court: In The Court of Appeals of The State of Kansas

Plaintiff's Attorney: James Borthwick and Brian Martin, of Blackwell Sanders Peper Martin LLP, of Kansas City, Missouri, and William Corum, of the same firm, of Overland Park, for appellant.

Defendant's Attorney: Rex A. Sharp, of Gunderson, Sharp & Rhein, P.C., of Prairie Village, for appellees.

Description: In this garnishment proceeding Mid-Continent Casualty Company (Mid-Continent) appeals from the entry of judgment in favor of the garnishors, J. Michelle Johnson and Alan L. Johnson, who earlier had obtained a default judgment of $2,268,784.52 against Mid-Continent's insured, Westhoff Sand Company, Inc. The underlying Mid-Continent policy provided $1,000,000 in liability coverage. The district court rejected Mid-Continent's policy defenses and concluded the insurance company wrongfully refused to defend its insured. An excess judgment was entered against Mid-Continent, with attorney fees of $1,202,336.65 awarded under K.S.A. 40-256. Mid-Continent has filed a timely appeal.

Except for the amount of attorney fees awarded, we affirm the judgment of the district court. We set aside the award of attorney fees and remand to the district court for further hearing to determine an appropriate award.

The district court's decision was based upon the following stipulated facts agreed to by the parties:

"1. On June 14, 1992, Mr. Shultz was driving a semi and passing another truck at night in a construction zone going uphill without any signs or markings on Highway 54. Alan Johnson, driving his family in the other direction, encountered the two semis side-by-side coming at him. Alan Johnson went for his ditch, but so did Mr. Shultz. To avoid the head on collision with a semi, Alan Johnson attempted to shoot the gap between the oncoming semis resulting in a wreck injuring Alan and permanently ripping off Michelle's dominant right arm just below the elbow.

"2. On December 3, 1993, plaintiffs J. Michelle Johnson and Alan L. Johnson ('Alan and Michelle Johnson' or 'the Johnsons') sued in this Court: Roger L. Shultz, a truck driver; Southwest Transportation Company, the trucking company Mr. Shultz was driving for; Great West Casualty Company, Southwest Transportation Company's insurer; J. H. Shears' Sons, Inc., the general contractor ('Contractor') for the construction job on Highway 54 where the wreck occurred; C-Hawk Construction, Incorporated, and Twin Traffic Marking Corporation, both believed to be subcontractors responsible for signage on the construction job.

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Click the case caption above for the full text of the Court's opinion.

Outcome: In summary, we affirm the district court on all of the issues raised on appeal except for the amount of attorney fees to be awarded under K.S.A. 40-256. We vacate the judgment as to the amount of attorney fees and remand to the district court for further hearing consistent with this opinion.

Affirmed in part, vacated in part, and remanded with directions in favor of Plaintiff for $2,268,784.52.

Plaintiff's Experts: Unavailable

Defendant's Experts: Unavailable

Comments: L. Hargraves