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40-3117. Tort actions; conditions precedent to recovery of damages for pain and suffering. In any action for tort brought against the owner, operator or occupant of a motor vehicle or against any person legally responsible for the acts or omissions of such owner, operator or occupant, a plaintiff may recover damages in tort for pain, suffering, mental anguish, inconvenience and other non-pecuniary loss because of injury only in the event the injury requires medical treatment of a kind described in this act as medical benefits, having a reasonable value of $2,000 or more, or the injury consists in whole or in part of permanent disfigurement, a fracture to a weightbearing bone, a compound, comminuted, displaced or compressed fracture, loss of a body member, permanent injury within reasonable medical probability, permanent loss of a bodily function or death. Any person who is entitled to receive free medical and surgical benefits shall be deemed in compliance with the requirements of this section upon a showing that the medical treatment received has an equivalent value of at least $2,000. Any person receiving ordinary and necessary services, normally performed by a nurse, from a relative or a member of such person's household shall be entitled to include the reasonable value of such services in meeting the requirements of this section. For the purpose of this section, the charges actually made for medical treatment expenses shall not be conclusive as to their reasonable value. Evidence that the reasonable value thereof was an amount different from the amount actually charged shall be admissible in all actions to which this subsection applies.

History: L. 1974, ch. 193, § 17; L. 1987, ch. 173, § 7; January 1, 1988.

Source or prior law:

L. 1973, ch. 198, § 17.

Law Review and Bar Journal References:

"No-Fault Automobile Insurance," Barry W. McCormick and Lynn Franklin Taylor II, 23 K.L.R. 141, 143 (1974).

Cited in note concerning wrongful death, Mark A. Buck, 17 W.L.J. 26, 82 (1977).

"No Fault—The Insurer's Reimbursement Rights Under the New Statute," William R. Sampson, 46 J.B.A.K. 211, 219 (1977).

"Survey of Kansas Law: Insurance," Charles H. Oldfather, Jr., 27 K.L.R. 255 (1979).

"Insurer's Bad Faith: A New Tort for Kansas?" Janet Amerine and Jan E. Montgomery, 19 W.L.J. 467, 485 (1980).

"Recent Developments in Kansas Insurance Law: A Survey, Some Analysis, and Some Suggestions," Robert H. Jerry II, 32 K.L.R. 287, 342, 343 (1984).

"Evidenciary and Procedural Considerations in Meeting the Automobile No-fault Threshold," Timothy Alvarez, 12 J.K.T.L.A. No. 4, p. 17 (1989).

"Money Left on the Table," Gerald W. Scott, J.K.T.L.A. Vol. XV, No. 2, 9 (1991).

"Don't Forget the Appellate Courts," Steven M. Dickson, J.K.T.L.A. Vol. XV, No. 5, 6, 8 (1992).

"Recent Decisions Affecting the Trial of Cases," Ruth M. Benien, J.K.T.L.A. Vol. XVI, No. 3, 18, 21 (1993).

"The Uniform Statute and Rule Construction Act: Help, Hindrance, or Irrelevancy?" Adrienne L. Mickells, 44 K.L.R. 423, 439 (1996).

"A Discrete and Insular Minority: Behind the Headlines of Murphy v. United Parcel Services, Inc.," Kirk W. Lowry, 39 W.L.J. 196 (2000).

"The Unfair Application of the Actual Payment Rule: Bates v. Hogg Revisited," Thomas M. Warner, Jr., J.K.T.L.A. Vol. 29, No. 4, 7 (2006).

"Martinez v. Milburn Enterprises, Inc.: A Change in the Collateral Source Rule," Gregory A. Lee, K.D.J. Summer (2010).

CASE ANNOTATIONS

1. Section held not invidiously discriminatory in upholding constitutionality of no-fault insurance act. Manzanares v. Bell, 214 Kan. 589, 592, 595, 597, 617, 618, 522 P.2d 1291.

2. History and content of section noted in holding no-fault insurance act constitutional. Manzanares v. Bell, 214 Kan. 589, 595, 522 P.2d 1291.

3. Section does not require permanent disfigurement to be "significant". Smith v. Marshall, 2 Kan. App. 2d 213, 577 P.2d 362. Reversed: 225 Kan. 70, 71, 587 P.2d 320.

4. Section requires injury to be of some severity (dissenting opinion). Smith v. Marshall, 2 Kan. App. 2d 213, 218, 577 P.2d 362.

5. Applied; nonresident plaintiff precluded from bringing injury action for nonpecuniary loss resulting from automobile accident. Mayer v. Harris, 224 Kan. 231, 232, 233, 579 P.2d 715.

6. Plaintiff's injury insufficient to satisfy threshold requirements of section; summary judgment proper. Smith v. Marshall, 225 Kan. 70, 71, 587 P.2d 320.

7. Mentioned in action by insurer to recover PIP benefits paid; two year statute of limitations applies. Farmers Ins. Co. v. Farm Bureau Mut. Ins. Co., 227 Kan. 533, 537, 608 P.2d 923.

8. Cause of action accrued on date of accident and not on date statutory threshold of $500 reached. Dinesen v. Towle, 3 Kan. App. 2d 505, 506, 507, 508, 597 P.2d 264.

9. Monetary threshold must be met not later than the date of trial or the date the cause of action is barred by statute of limitation; trial court erred in reducing jury verdict for future medical expenses and eliminating award for pain and suffering. Key v. Clegg, 4 Kan. App. 2d 267, 268, 270, 271, 272, 273, 274, 604 P.2d 1212.

10. Attainment of threshold amount not condition precedent to filing suit; action for property damage does not render rule against splitting cause of action or doctrine of res judicata inapplicable. Pretz v. Lamont, 6 Kan. App. 2d 31, 35, 36, 626 P.2d 806.

11. Monetary threshold must be met by trial date in action for nonpecuniary loss. Cansler v. Harrington, 231 Kan. 66, 67, 68, 69, 643 P.2d 110 (1982).

12. Insurer has no right of subrogation where plaintiff recovered from owner of steer which collided with plaintiff's car. Yunghans v. Carson, 9 Kan. App. 2d 45, 47, 670 P.2d 928 (1983).

13. Replacement of eyeglasses damaged in collision not medical treatment under statute. Smith v. Vanguard Products Corp., 9 Kan. App. 2d 585, 682 P.2d 1313 (1984).

14. Threshold requirements not affirmative defense within K.S.A. 60-208(c); disfigurement must be serious or significant to meet threshold. Stang v. Caragianis, 243 Kan. 249, 252, 253, 757 P.2d 279 (1988).

15. Cited; statutes (K.S.A. 60-3407, 60-3409, 60-3411) limiting recovery in medical malpractice actions as unconstitutional examined. Kansas Malpractice Victims Coalition v. Bell, 243 Kan. 333, 344, 757 P.2d 251 (1988).

16. Legislative limitation on recovery of noneconomic damages (K.S.A. 60-19a01, 60-19a02) as not violating any constitutional rights determined. Samuel v. Wheeler Transport Services, Inc., 246 Kan. 336, 357, 789 P.2d 541 (1990).

17. Cited in holding vicarious liability not imputed to vehicle owner based solely on permissive use by third party. West v. Collins, 251 Kan. 657, 663, 840 P.2d 435 (1992).

18. What recovery available when threshold provisions not met, threshold requirement necessary for nonpecuniary loss determined. Noon v. Smith, 16 Kan. App. 2d 818, 829 P.2d 922 (1992).

19. Collateral source rule not applicable to allow damage amounts written off by medical provider under Medicaid contract. Bates v. Hogg, 22 Kan. App. 2d 702, 921 P.2d 249 (1996).

20. Plaintiff awarded amount under statutory threshold in medical expenses could not recover for pain and suffering. Mommens v. Ottley, 948 F. Supp. 57, 59 (1996).

21. Permanent injury under section must be permanent with a reasonable medical probability and serious or significant. Rose & Nelson v. Frank, 25 Kan. App. 2d 22, 30, 956 P.2d 729 (1998).

22. If there is disagreement as to whether threshold requirement of section had been met, appropriate jury instruction should be given to resolve issue. Smith v. Fisher, 29 Kan. App. 2d 400, 26 P.3d 83 (2001).


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