Attorney fees in actions on insurance policies; exception

40-256. Attorney fees in actions on insurance policies; exception. That in all actions hereafter commenced, in which judgment is rendered against any insurance company as defined in K.S.A. 40-201, and including in addition thereto any fraternal benefit society and any reciprocal or interinsurance exchange on any policy or certificate of any type or kind of insurance, if it appear from the evidence that such company, society or exchange has refused without just cause or excuse to pay the full amount of such loss, the court in rendering such judgment shall allow the plaintiff a reasonable sum as an attorney's fee for services in such action, including proceeding upon appeal, to be recovered and collected as a part of the costs: Provided, however, That when a tender is made by such insurance company, society or exchange before the commencement of the action in which judgment is rendered and the amount recovered is not in excess of such tender no such costs shall be allowed. History: L. 1931, ch. 212, § 1; L. 1957, ch. 276, § 1; L. 1967, ch. 257, § 1; L. 1972, ch. 175, § 1; July 1. Cross References to Related Sections: Allowance of attorney fees in other insurance cases, see 40-908, 40-3111, 40-3113a, 40-3114. Law Review and Bar Journal References: 1959-61 survey of insurance law, Charles H. Oldfather, Jr., 10 K.L.R. 247, 249 (1961). Law of damages, David Prager, 12 K.L.R. 209 (1963). 1963-65 survey of insurance law, James L. Crabtree, 14 K.L.R. 311 (1965). 1963-65 survey of law of contracts, Fred N. Six, 14 K.L.R. 209, 213, 215 (1965). "Focus on Debtors' Rights—Making The Bill Collector Pay," 23 K.L.R. 681, 691 (1975). "Survey of Kansas Law: Insurance," Charles H. Oldfather, Jr., 27 K.L.R. 255, 265, 267 (1979). "Recovery of Attorney Fees in Kansas," Mark A. Furney, 18 W.L.J. 535, 546, 553, 555, 558 (1979). "Insurer's Bad Faith: A New Tort for Kansas?," Janet Amerine and Jan E. Montgomery, 19 W.L.J. 467 (1980). "Survey of Kansas Law: Civil Procedure," 29 K.L.R. 449, 459 (1981). "Torts—Insurance—First Party Bad Faith—Is There an Adequate Remedy in Kansas After Spencer v. Aetna Life & Casualty Insurance Co.?" Karen S. Kressin, 29 K.L.R. 277, 281, 285 (1981). "Unfair Claims Settlements—A Suggested Approach to a Potential Cause of Action," Gene E. Schroer and Paul H. Hulsey, 5 J.K.T.L.A. No. 4, 8, 13 (1982). "Recent Developments in Kansas Insurance Law: A Survey, Some Analysis, and Some Suggestions," Robert H. Jerry II, 32 K.L.R. 287, 292, 308, 309 (1984). "Recovery of Attorney Fees—An Historical Perspective," Ron Leslie, 53 J.K.B.A. 154 (1984). "New Developments in Kansas Insurance Law," Robert H. Jerry II, 37 K.L.R. 841, 843 (1989). "Uninsured/Underinsured Motorist Insurance: A Sleeping Giant," Gerald W. Scott, 63 J.K.B.A. No. 4, 28, 39 (1994). "Plaintiff's Guide To Court Awarded Attorney Fees," Gerald W. Scott and Mark A. Scott, J.K.T.L.A. Vol. XVII, No. 6, 4, 5, 7 (1994). "For Workers Compensation A Civil Remedy: Fraud and Abuse," John D. Shultz and Donald E. Shultz, J.K.T.L.A. Vol. XIX, No. 6, 32 (1996). "Kansas's Conflict of Laws Rules for Insurance Contract Cases: It's Time to Change Policies," Jason E. Pepe, 46 K.L.R. 819 (1998). "An Update to Consumer's Guide to Court-Awarded Attorney Fees," Mark A. Scott, J.K.T.L.A. Vol. XXII, No. 1, 7 (1998). "Settlements and Verdicts," Robin Maxon, J.K.T.L.A. Vol. 24, No. 5, 19 (2001). "Settlements and Verdicts," Robin Maxon, Editor, J.K.T.L.A. Vol. 27, No. 3, 24 (2004). "Special Committee on Judiciary Prepares for 2006 Legislative Session," James W. Clark, 74 J.K.B.A. No. 10, 22 (2005). "Lee Builders: A New Attorney's Fee Bonanza?," Timothy J. Finnerty, K.D.J. Winter (2007). "Recovery of Attorney's Fees in Kansas," Jerry D. Fairbanks, 77 J.K.B.A. No. 4, 20 (2008). CASE ANNOTATIONS 1. Retention of jurisdiction to allow additional fees, if appealed, unauthorized. Noel v. Continental Casualty Co., 138 Kan. 136, 142, 23 P.2d 610. 2. Recovery under health and accident policy; attorney fee held properly allowed. Frazier v. Royal Life & Cas. Ass'n, 158 Kan. 533, 534, 148 P.2d 503. 3. Fees not allowable where payment made to proper beneficiary. Geisler v. Mutual Benefit H.&A. Ass'n, 163 Kan. 518, 522, 529, 183 P.2d 853. 4. Attorney fee allowed held excessive considering amount involved in action. Akins v. Illinois Bankers Life Assurance Co., 166 Kan. 648, 656, 203 P.2d 180. 5. Additional attorney fee tacked on at post-trial hearing of motions upheld. Humfeld v. Pyramid Life Ins. Co., 187 Kan. 231, 235, 356 P.2d 668. 6. This section did not repeal K.S.A. 40-908 by implication; construed. Ferrellgas Corporation v. Phoenix Ins. Co., 187 Kan. 530, 534, 535, 358 P.2d 786. 7. Previous decision determined law of case; attorney fee properly allowed. Allen v. Hartford Fire Ins. Co., 187 Kan. 728, 730, 359 P.2d 829. 8. Action on contractor's statutory bond; attorney fee properly allowed. Russell v. Phoenix Assurance Co., 188 Kan. 424, 426, 362 P.2d 430. 9. Carrier's refusal to pay loss not without just cause or excuse; attorney fees not allowed. Fleming v. National Cash Register Co., 188 Kan. 571, 574, 577, 363 P.2d 432. 10. Construed; settlement of action before trial or judgment; statute compensatory not penal; attorney fees allowed; mode of fixing. Wolf v. Mutual Benefit Health & Accident Association, 188 Kan. 694, 695, 696, 697, 700, 701, 703, 704, 705, 713, 714, 715, 716, 366 P.2d 219. 11. Trial court refused to allow attorney fees; affirmed. Lindesmith v. Republic Mutual Fire Ins. Co., 189 Kan. 201, 204, 368 P.2d 35. 12. Attorney fees allowed in action on burglary insurance policy; provision of policy requiring evidentiary facts contravened public policy. Ferguson v. Phoenix Assurance Co., 189 Kan. 459, 462, 370 P.2d 379. 13. Real test for amount allowable as attorney fee is value of services performed not amount recovered above tender. Attebery v. M.F.A. Mutual Ins. Co., 191 Kan. 178, 179, 180, 380 P.2d 327. 14. Section does not provide for allowance of attorney fee for appeal to supreme court. Attebery v. M.F.A. Mutual Ins. Co., 191 Kan. 178, 179, 180, 380 P.2d 327. 15. Company has "just cause or excuse" when statute involved in claim is ambiguous; attorney fees disallowed. Parker v. Continental Casualty Co., 191 Kan. 674, 683, 684, 383 P.2d 937. 16. Life policy with double indemnity provisions; attorney's fees unauthorized. New York Life Ins. v. Doerksen, 64 F.2d 240. 17. Attorney fees are not allowable in action against fraternal benefit society. National Postal Transport Ass'n v. Hudson, 216 F.2d 193, 197, 200. 18. Attorney fees properly allowed; insurer denied liability and loss. Vanguard Insurance Company v. Connett, 270 F.2d 868, 869, 871. 19. This section repealed K.S.A. 40-908 by implication; payment refused for just cause; attorney fee denied. Smart v. Hardware Dealers Mutual Fire Insurance Co., 181 F. Supp. 575, 576, 577, 578. 20. Liability insurer who unjustifiably refused, on ground of lack of coverage to defend successful action against insured, liable for insured's attorney fees and expenses. Connecticut Fire Ins. Co. v. Reliance Ins. Co. of Madison, Wis., 208 F. Supp. 20, 21, 27. 21. Attorney fees properly denied when insured failed to recover under insurance policy. Eis v. Hawkeye-Security Ins. Co., 192 Kan. 103, 109, 386 P.2d 206. 22. Insurance company held to have refused without just cause or excuse to pay insured; amount of fees set at court's discretion. Barnes v. Mid-Continent Casualty Co., 192 Kan. 401, 404, 388 P.2d 642. 23. Suit by transport company against surety on bond given pursuant to K.S.A. 68-410; reasonable attorney fees allowed plaintiff. Thompson Transport Co. v. Middlestates Construction Co., 194 Kan. 52, 59, 397 P.2d 368. 24. Finding that insurance company refused to pay without just cause or excuse can be made without trial on merits. Thompson Transport Co. v. Middlestates Construction Co., 195 Kan. 172, 403 P.2d 999. 25. Question of whether insurer has refused to pay without just cause is question of fact upon which liability for attorney fee is determined. Milliken v. Fidelity and Casualty Company of New York, 338 F.2d 35, 41. 26. Allowance of attorney fees denied in action for tortious breach of contract. Grohusky v. Atlas Assurance Co., 195 Kan. 626, 633, 408 P.2d 697. 27. Act does not apply to workmen's compensation case. Walker v. Davis Van & Storage Co., 198 Kan. 452, 453, 454, 455, 456, 424 P.2d 473. 28. Where there is a bona fide dispute with merit on both sides court did not err in failing to award attorney fees; no right of contribution existed. Maryland Cas. Co. v. American Family Insurance Group, 199 Kan. 373, 386, 429 P.2d 931. 29. Held inapplicable; secondary insurer not entitled to recover from primary insurer attorneys' fees or expenses in defending insured. MFA Mutual Insurance Co. v. Employers Mutual Casualty Co., 278 F. Supp. 326, 328. 30. Statute does not preclude recovery of attorneys' fees in all cases where jury question presented; counterclaimant seeks relief in position of plaintiff within meaning of statute. Grain Dealers Mutual Ins. Co. v. Farmers Union Co-op., 377 F.2d 672, 682, 683. 31. Section has application only in those cases where insurance company has wrongfully refused to pay. Farmers Casualty Company (Mutual) v. Green, 390 F.2d 188, 192. 32. Where insurance company refuses without just cause or excuse to pay proceeds of policy, reasonable attorney fees are recoverable. Service v. Pyramid Life Ins. Co., 201 Kan. 196, 197, 201, 202, 220, 221, 440 P.2d 944. 33. The words "on any policy or certificate of any type or kind of insurance" are broad enough to cover contract of temporary insurance evidenced by binding receipt. Service v. Pyramid Life Ins. Co., 201 Kan. 196, 197, 220, 221, 440 P.2d 944. 34. Evidence may be produced at hearing on the merits upon which court bases decision on attorney fees. Buchanan v. Employers Mutual Liability Ins. Co., 201 Kan. 666, 675, 443 P.2d 681. 35. Mentioned; action for workmen's compensation under K.S.A. 44-512; no statutory provisions to delay remedies pending appeal. Casebeer v. Alliance Mutual Casualty Co., 203 Kan. 425, 427, 454 P.2d 511. 36. No attorney fees authorized where insurance company was at all times willing to pay party legally entitled. Macek v. Swift & Co. Employees Benefit Association, 203 Kan. 581, 587, 588, 455 P.2d 521. 37. Though mistaken, position of defendant not unreasonable; attorney's fee not allowed. Sturdy v. Allied Mutual Ins. Co., 203 Kan. 783, 785, 793, 457 P.2d 34; Rosson v. Allied Mutual Ins. Co., 203 Kan. 795, 457 P.2d 42. 38. Applied; judgment awarding attorney fees reversed. Casey v. Aetna Casualty & Surety Co., 205 Kan. 495, 498, 502, 470 P.2d 821. 39. Applied; question of fact whether insurance company refused without just cause to pay insured's loss; where facts based upon pleadings, admissions, exhibits and stipulations, court on review may determine de novo what facts establish. Koch, Administratrix v. Prudential Ins. Co., 205 Kan. 561, 562, 563, 564, 565, 470 P.2d 756. 40. Factual dispute as to age of insured constituted reasonable basis for insurance company to refuse to pay insured's loss without subjecting itself to payment of an attorney's fee under this section. Koch, Administratrix v. Prudential Ins. Co., 205 Kan. 561, 564, 565, 470 P.2d 756. 41. Cited; case concerning duty of an administrator. In re Estate of Lohse v. Rubow, 207 Kan. 36, 41, 483 P.2d 1048. 42. Whether refusal to pay loss is reasonable on part of insurance company is question of fact; allowance of attorney fees to insured plaintiff granted. Lord v. State Automobile & Casualty Underwriters, 208 Kan. 227, 228, 231, 234, 491 P.2d 917. 43. Holding up payment of claim based on possible existence of third party claim is not "just cause or excuse." Lord v. State Automobile & Casualty Underwriters, 208 Kan. 227, 234, 491 P.2d 917. 44. Reasonableness of action by notice to an agent of insured must be raised in trial court to be considered on appeal. Ogden v. Continental Casualty Co., 208 Kan. 806, 807, 812, 494 P.2d 1169. 45. Cited in holding that statute did not, by implication, repeal K.S.A. 40-908. Iowa National Mut. Ins. Co. v. City of Osawatomie, Kansas, 458 F.2d 1124, 1129, 1130. 46. Award of attorney fees to subcontractor bringing action under Miller Act against general contractor and its surety was proper. Arnold v. United States, 470 F.2d 243. 47. Attorneys' fee upheld; defendant failed to conduct good faith investigation; fee set for services on appeal. Brown v. Continental Casualty Co., 209 Kan. 632, 639, 642, 498 P.2d 26. 48. Action under medical payments section of automobile insurance policy; "struck by automobile" construed; attorney fees allowed. Wheeler v. Employer's Mutual Casualty Co., 211 Kan. 100, 105, 505 P.2d 768. 49. Where insurer held not liable under policy, question of liability for attorney's fees became moot. St. Francis Hospital & School of Nursing, Inc. v. Eckman, 212 Kan. 131, 136, 510 P.2d 175. 50. Judgment denying attorney fees reversed; insurance company failed to conduct good faith investigation into whether appellant totally disabled. Matthews v. Travelers Insurance Co., 212 Kan. 292, 293, 295, 300, 510 P.2d 1315. 51. Prior case law overruled; insurer's duty to defend not determined by plaintiff's petition alone. Spruill Motors, Inc. v. Universal Underwriters Ins. Co., 212 Kan. 681, 689, 512 P.2d 403. 52. Issue of whether insurance company failed to defend without just excuse determined by law and facts at time petition filed. Spruill Motors, Inc. v. Universal Underwriters Ins. Co., 212 Kan. 681, 689, 512 P.2d 403. 53. Attorney fees not allowed; good faith legal controversy of first impression in jurisdiction; authorities from other states divided. Forrester v. State Farm Mutual Automobile Ins. Co., 213 Kan. 442, 452, 517 P.2d 173. 54. Insurance company's refusal to pay loss reasonable; denial of attorney fees upheld. Conwell v. Great Central Ins. Co., 214 Kan. 41, 519 P.2d 681. 55. Insurance company's refusal to pay loss without just cause; allowance of attorney fees upheld. Venable v. Import Volkswagen, Inc., 214 Kan. 43, 46, 51, 519 P.2d 667. 56. Alleged violation of restrictive covenants in action for mandatory injunction; no genuine issue as to facts; summary judgment granted. Ebert v. Mussett, 214 Kan. 62, 64, 65, 66, 519 P.2d 687. 57. Insured entitled to recover attorney fees and expenses incurred in defense of declaratory judgment action where determination of coverage. Upland Mutual Insurance, Inc., v. Noel, 214 Kan. 145, 152, 519 P.2d 737. 58. Allowance of attorney fees erroneous where no evidence company refused to pay loss. Sloan v. Employers Casualty Ins. Co., 214 Kan. 443, 521 P.2d 249. 59. Application of section referred to in determining factors considered in allowing attorney fees under K.S.A. 26-509. City of Wichita v. Chapman, 214 Kan. 575, 586, 587, 521 P.2d 589. 60. Attorney fees disallowed; refusal to pay loss not without just cause or excuse. Farm Bureau Mutual Ins. Co. v. Carr, 215 Kan. 591, 598, 528 P.2d 134. 61. Debtor harassment case; allowance of attorney fees. Dawson v. Associates Financial Services Co., 215 Kan. 814, 819, 529 P.2d 104. 62. No just cause for refusal of payment of attorney fees by defendant insurance company. Steele v. General American Life Ins. Co., 217 Kan. 24, 32, 535 P.2d 948. 63. Attorney fees assessed; insurer refused to pay loss without just cause or excuse. American States Ins. Co. v. Hartford Accident & Indemnity Co., 218 Kan. 563, 575, 545 P.2d 399. 64. Order denying attorney fees in action involving uninsured motorist statute (K.S.A. 40-284) upheld; good faith controversy. Van Hoozer v. Farmers Insurance Exchange, 219 Kan. 595, 596, 615, 549 P.2d 1354. 65. Insurer entitled to full reimbursement of PIP benefits paid to insured without deduction of attorney fees or costs; K.S.A. 40-3113 construed. Davis v. Western Insurance Companies, 221 Kan. 441, 443, 560 P.2d 133. 66. Under facts and circumstances, attorney fees not allowable; action against county treasurer and his surety. State, ex rel., v. Masterson, 221 Kan. 540, 551, 561 P.2d 796. 67. Specific provisions of section takes precedence over garnishment statute (K.S.A. 60-271); attorney fees properly awarded. Coleman v. Holecek, 542 F.2d 532, 533, 538, 539. 68. Construed; attorney fees not allowable where insurer paid claims against plaintiff and no judgment rendered against party. Frickey v. Equity Mut. Ins. Co., 2 Kan. App. 2d 163, 167, 172, 173, 576 P.2d 702. 69. Cited in construing K.S.A. 40-311(b); attorney fees awarded when denial of liability is frivolous. Hand v. State Farm Mut. Auto. Ins. Co., 2 Kan. App. 2d 253, 261, 577 P.2d 1202. 70. Insurance company constructively refused to pay claim. Farmers Ins. Exchange v. Schropp, 222 Kan. 612, 627, 567 P.2d 1359. 71. Section improper; no unjustified refusal by insurer to pay full amount of loss. Club Exchange Corporation v. Searing, 222 Kan. 659, 665, 567 P.2d 1353. 72. Section not applicable; fees incurred by insured in a suit which insurer had duty to defend not allowed under statute. American Fidelity Ins. Co. v. Employers Mut. Cas. Co., 3 Kan. App. 2d 245, 252, 593 P.2d 14. 73. Attorney's fees denied; award could not be premised upon insurer's wrongful failure to negotiate settlement. Covill v. Phillips, 455 F. Supp. 485. 74. "Without just cause or excuse" means frivolous or unfounded denial of liability; factual dispute over extent of insurance coverage held sufficient reason to pay full amount of insured's loss. Brown v. Combined Ins. Co. of America, 226 Kan. 223, 224 to 229, inclusive, 597 P.2d 1080. 75. Applied; no abuse of discretion by trial court in disallowing attorney fees. Clark Equip. Co. v. Hartford Accident & Indemnity Co., 227 Kan. 489, 493, 608 P.2d 903. 76. Mentioned; burden on insured to prove by a preponderance of evidence that the insurance company refused to pay "without just cause or excuse." Salt City Business College, Inc. v. Ohio Cas. Ins. Co., 4 Kan. App. 2d 77, 602 P.2d 953. 77. Where unresolved questions of fact and undecided question of law exist, denial of liability for attorney's fees not error. Watson v. Jones, 227 Kan. 862, 863, 870, 871, 610 P.2d 619. 78. Tort of bad faith not recognized in Kansas. Spencer v. Aetna Life & Casualty Ins. Co., 227 Kan. 914, 923, 611 P.2d 149. 79. Trial court erred in awarding attorney fees because of erroneous ruling that insurer would be liable for punitive damages. Guarantee Abstract & Title Co. v. Interstate Fire & Cas. Co., 228 Kan. 532, 539, 618 P.2d 1195. 80. Cited in holding no recovery of attorney fees under K.S.A. 40-3111. Coe v. Security National Ins. Co., 228 Kan. 624, 620 P.2d 1108. 81. No statute authorizes plantiff's attorney to collect fees from subrogated insurer's portion of settlement fund. Quesenbury v. Wichita Coca Cola Bottling Co., 229 Kan. 501, 502, 625 P.2d 1129. 82. Attorney fees not payable where just cause or excuse exists in refusing to pay loss. St. Francis Hosp. & Med. Center, Inc. v. Baldwin, 6 Kan. App. 2d 124, 125, 126, 626 P.2d 1229. 83. Insured bears burden of proving absence of just cause or excuse; where such a showing cannot be made, attorney fees not allowed. Anderson v. Nationwide Life Ins. Co., 6 Kan. App. 2d 163, 168, 169, 627 P.2d 344. 84. Summary judgment granted as to question of liability for attorney fees in favor of insured. Burke v. AID Ins. Co., 487 F. Supp. 831, 838. 85. Attorney fees not allowed; insurance company's refusal to pay was based on a misconception, but was not arbitrary, capricious or done in bad faith. Dronge v. Monarch Ins. Co. of Ohio, 511 F. Supp. 1, 5 (1981). 86. Insured was regularly employed and covered by group life insurance policy; allowance for attorney fees against company correct. Estate of Bingham v. Nationwide Life Ins. Co., 7 Kan. App. 2d 72, 77, 80, 638 P.2d 352 (1982). 87. Act inapplicable to workers' compensation cases. Barnett & Lerner, Chtd. v. Aetna Cas. & Sur. Ins. Co., 8 Kan. App. 2d 270, 275, 656 P.2d 165 (1983). 88. Section contains language similar to K.S.A. 40-3111; construction of sections considered. DiBassie v. American Standard Ins. Co. of Wisconsin, 8 Kan. App. 2d 515, 661 P.2d 812 (1983). 89. Whether insurance company's refusal to pay claim is without just cause depends on circumstances of case; attorney fees not allowed. Harper v. Prudential Ins. Co. of America, 233 Kan. 358, 372, 662 P.2d 1264 (1983). 90. Trial court has discretion to determine if delay in insurance payment is "without just cause and excuse." DiBassie v. American Standard Ins. Co. of Wisconsin, 8 Kan. App. 2d 515, 522, 661 P.2d 812 (1983). 91. Noted in case stating and applying rules relating to contract ambiguity. Mears v. Hartford Fire Ins. Co., 8 Kan. App. 2d 760, 765, 667 P.2d 902 (1983). 92. Obtaining judgment against insurer is condition precedent to award of attorney fees; intentional act of defendant excluded coverage. Bell v. Tilton, 234 Kan. 461, 472, 674 P.2d 468 (1983). 93. Amount recovered more than settlement offer; attorney fees allowed where underwriters refused payment unjustly on loan induced by forgery. Regional Inv. Co. v. Haycock, 723 F.2d 38, 41 (1983). 94. Excess insuror not entitled to attorney fees against primary insurer in medical malpractice claim. Ins. Co. of North America v. Med. Protective Co., 570 F. Supp. 964, 974 (1983). 95. Award of attorney fees at trial not abuse of discretion; additional fees awarded for appeal. Hochman v. American Family Ins. Co., 9 Kan. App. 2d 151, 154, 155, 673 P.2d 1200 (1984). 96. Attorney fees not allowed to defendant in declaratory judgment action joined in dispute over cancellation and construction of a medical malpractice insurance policy. Missouri Medical Ins. Co. v. Wong, 234 Kan. 811, 825, 676 P.2d 113 (1984). 97. In awarding interest, question of excuse for nonpayment determined by court; case law hereunder relevant. Dewey v. Allstate Ins. Co., 588 F. Supp. 479, 481 (1984). 98. Where judgment rendered in garnishment proceeding based on insurance, attorney fees allowed to judgment creditor. Farmco, Inc. v. Explosive Specialists, Inc., 9 Kan. App. 2d 507, 515, 684 P.2d 436 (1984). 99. K.S.A. 40-908 not impliedly repealed by provisions herein; both operative side by side. State Farm Fire & Cas. Co. v. Liggett, 236 Kan. 120, 127, 689 P.2d 187 (1984). 100. Cited; court need only establish employment of attorney under K.S.A. 59-1504, not terms thereof. In re Estate of Robinson, 236 Kan. 431, 438, 439, 690 P.2d 1383 (1984). 101. Attorney fees not allowed where no bad faith shown and valid controversy exists. Kansas Farm Bureau Ins. Co. v. Miller, 236 Kan. 811, 820, 696 P.2d 961 (1985). 102. Statute has no provision for awarding attorney fees to unsuccessful plaintiff. Girrens v. Farm Bureau Mut. Ins. Co., 238 Kan. 670, 681, 715 P.2d 389 (1986). 103. Cited; failure to provide private remedies in Kansas uniform trade practices act (K.S.A. 40-2401 et seq.) implies no private remedy intended. Earth Scientists v. United States Fidelity & Guar., 619 F. Supp. 1465, 1471 (1985). 104. Cited; award of attorney fees reversed in dispute over definition of "resident of household" in homeowner's insurance policy; good faith issue. Friedman v. Alliance Ins. Co., 240 Kan. 229, 729 P.2d 1160 (1986). 105. Presence of genuine issue raised in good faith bars an award of attorney fees. Whitaker v. State Farm Mut. Auto Ins. Co., 13 Kan. App. 2d 279, 285, 768 P.2d 320 (1989). 106. Bona fide dispute exists where trial court decision reversed. Crawford v. Prudential Ins. Co., 13 Kan. App. 2d 452, 459, 773 P.2d 678 (1989). 107. Liability of insurer in excess of policy limits as based upon wrongdoing causing loss to insured examined. Heinson v. Porter, 244 Kan. 667, 676, 772 P.2d 778 (1989). 108. Rules used in determining whether award of attorney fees appropriate stated and applied. Crawford v. Prudential Ins. Co. of America, 245 Kan. 724, 736, 783 P.2d 900 (1989). 109. Insurer refused to defend corporate insured's wholly owned division "without just cause or excuse." Container Supply Co. v. Fireman's Fund Ins. Co., 715 F. Supp. 326 (1989). 110. Acts constituting refusal without just cause or excuse to pay full amount of loss, thus mandating attorney fees, examined. Smith v. Blackwell, 14 Kan. App. 2d 158, 791 P.2d 1343 (1990). 111. Request for attorney fees not part of merits of action for purpose of appeal. Snodgrass v. State Farm Mut. Auto, Ins. Co., 246 Kan. 371, 372, 789 P.2d 211 (1990). 112. Where scope of exclusion authorized by K.S.A. 40-284 has never been litigated, insurer acting in good faith; attorney fees denied. Farmers Ins. Co. v. Gilbert, 14 Kan. App. 2d 395, 407, 409, 791 P.2d 742 (1990). 113. Whether just cause exists is determined by circumstances facing issuer as judged by reasonable person. Southgate Bank v. Fidelity & Deposit Co. of Maryland, 14 Kan. App. 2d 454, 794 P.2d 310 (1990). 114. Conflict of laws regarding issuance of credit life insurance policy examined; attorney fees to be determined on rehearing. Frasher v. Life Investors Ins. Co. of America, 14 Kan. App. 2d 583, 588, 796 P.2d 1069 (1990). 115. Court's determination that insurer refused to pay claim without just cause, reasonableness of fees allowed examined. Evans v. Provident Life & Accident Ins. Co., 15 Kan. App. 2d 97, 106, 803 P.2d 1033 (1991). 116. Attorney fees to pursue appeal denied where trial court awarded attorney fees which included fees for pursuing appeal. Snodgrass v. State Farm Mut. Auto. Ins. Co., 15 Kan. App. 2d 153, 173, 804 P.2d 1012 (1991). 117. Attorney fees can be awarded in underinsured motorist cases if facts and circumstances warrant. Allied Mut. Ins. Co. v. Gordon, 248 Kan. 715, 735, 811 P.2d 1112 (1991). 118. Justification for denial of fees in trial court's sound discretion; defendant's attorney fees irrelevant to plaintiff's claim. Evans v. Provident Life & Accident Ins. Co., 249 Kan. 248, 261, 264, 815 P.2d 550 (1991). 119. Attorney's fees hereunder allowed; determined by facts in each case. Brown v. Equitable Life Assur. Soc. of U.S., 766 F. Supp. 928, 934 (1991). 120. Award for attorney fees may not be granted where purported insured unsuccessful in action against purported insurer. MGM, Inc. v. Liberty Mut. Ins. Co., 17 Kan. App. 2d 492, 496, 839 P.2d 537 (1992). 121. What constitutes unreasonable refusal to pay PIP claim (K.S.A. 40-3110) or unreasonable delay in making payment examined. Miner v. Farm Bur. Mut. Ins. Co., Inc., 17 Kan. App. 2d 598, 620, 841 P.2d 1093 (1992). 122. Insured's attorney fees are recoverable for litigation expenses in defending against claim of excess carrier. Pacific Employer Ins. v. P.B. Hoidale Co. 789 F. Supp. 1117, 1123, 1124 (1992). 123. Under facts, award of statutory attorney fees were not warranted. Pacific Employers Inc. v. P.B. Hoidale Co., 804 F. Supp. 137, 139, 144 (1992). 124. Attorney fees denied where no evidence shows lack of just cause or excuse. Kilner v. State Farm Mut. Auto. Ins. Co., 252 Kan. 675, 687, 688, 847 P.2d 1292 (1993). 125. Company not liable for attorney fees when good faith legal controversy existed. Spivey v. Safeco Ins. Co., 254 Kan. 237, 251, 865 P.2d 182 (1993). 126. Nonresident self-insurer's duty to defend and pay employee vehicle defense costs, including attorney fees examined. Overbaugh v. Strange, 254 Kan. 605, 615, 867 P.2d 1016 (1994). 127. Whether punitive damages are recoverable for insurance contract breach absent an independent tort examined. Smith v. Hawkeye-Security Ins. Co., 842 F. Supp. 1373, 1375 (1994). 128. Whether insurer must pay city's attorney fees because insurer refused to pay claim in bad faith examined. City of Salina, Kan. v. Maryland Cas. Co., 856 F. Supp. 1467, 1481 (1994). 129. Whether attorney fees may be awarded where issues of first impression are raised in good faith in insurance coverage case examined. Garrison v. State Farm Mut. Auto. Ins. Co., 20 Kan. App. 2d 918, 931, 894 P.2d 226 (1995). 130. Whether calculation of attorney fees based on contingent fee is excessive and unreasonable examined. Bergeson v. Dilworth, 875 F. Supp. 733, 736 (1995). 131. Trial court abused discretion in determining amount of attorney fee awarded plaintiff in insurance case. Hawkins v. Dennis, 258 Kan. 329, 331, 337, 348, 905 P.2d 678 (1995). 132. Award of attorney fees in Miller act (40 USCA § 270a et seq.) action is a matter of federal law. U.S. for Use & Ben. of D & P v. Transamerica Ins., 881 F. Supp. 1505, 1510 (1995). 133. Insured not entitled to attorney fees where issue of coverage constituted a good faith legal controversy. Glickman, Inc. v. Home Ins. Co., 887 F. Supp. 259, 260 (1995). 134. Insured not entitled to attorney fees for insurer's refusal to defend claim for environmental costs. Glickman, Inc. v. Home Ins. Co., 86 F.3d 997, 998 (1996). 135. Insured was not entitled to attorney fees for insurer's refusal to defend claim against insured. Glickman, Inc. v. Home Ins. Co., 86 F.3d 997, 998 (1996). 136. Federal trial court held that attorney fee was reasonable. Liniger v. State Farm Fire and Cas. Co., 958 F. Supp. 519, 520 (1997). 137. Life insurance beneficiary not entitled to recover attorney fees from insurer. Aetna U.S. Healthcare v. Higgs, 962 F. Supp. 1412, 1415 (1997). 138. Insured who prevailed against insurer on refusal to pay claim was not entitled to attorney's fees. United Wats, Inc. v. Cincinnati Ins. Co., 971 F. Supp. 1375, 1387 (1997). 139. Award of attorney fees to insured proper where insurer refused to pay claim without just cause. Davis v. Prudential Property and Cas. Ins. Co., 985 F. Supp. 1251, 1253 (1997). 140. Insured entitled to attorney fees in defending insurer's action challenging duty to defend and coverage where coverage existed. Farm Bur. Mut. Ins. Co. v. Kurtenbach, 265 Kan. 465, 477, 961 P.2d 53 (1998). 141. Underinsured motorist carrier not required to join insured's tort action for liability and damages where underinsurance remains unresolved issue. Mitchell v. Liberty Mut. Ins. Co., 265 Kan. 556, 559, 961 P.2d 1235 (1998). 142. Question concerning amount of reasonable sum for attorney fees incurred in claim remanded to trial court. Sours v. Russell, 25 Kan. App. 2d 620, 630, 971 P.2d 1210 (1998). 143. Award of attorney fees for prosecuting action premature where court had not rendered final judgment against defendant. ERA Franchise Systems v. Northern Ins. Co. of N.Y., 32 F. Supp. 2d 1254, 1257, 1261 (1998). 144. Attorney fees incurred in litigating amount of attorney fees to be approved are not recoverable; attorney fees incurred in making plaintiff whole are approved. Moore v. St. Paul Mercury Ins. Co., 26 Kan. App. 2d 506, 509, 989 P.2d 294 (1999). 145. Fees incurred litigating the amount of attorney fees to be awarded are recoverable hereunder ($2,500 in damages to car, $6,078.50 in attorney fees). Moore v. St. Paul Fire Mercury Ins. Co., 269 Kan. 272, 3 P.3d 81 (2000). 146. Determination of attorney fees issue was premature for claim of failure to pay by insurer. People Mortg. Corp. v. Kansas Bankers Ser. Trust, 176 F. Supp. 2d 1119, 1204 (2001). 147. Insurer's refusal to defend action did not render insurer liable for insured's assignee's attorneys fee. Fidelity & Deposit Co. of MD. v. Hartford Cas. Ins., 215 F. Supp. 2d 1171, 1192 (2002). 148. Insurer's refusal to defend underlying action did not warrant award of attorney fees incurred by insurer's assignee. Fidelity & Deposit Co. of MD. v. Hartford Cas. Ins., 216 F. Supp. 2d 1240, 1248 (2002). 149. Plaintiff was not entitled to attorney's fees for motor carrier act claim. Stewart v. Mitchell Transport, 241 F. Supp. 2d 1216, 1221 (2002). 150. Judgment in excess of policy limits affirmed for failure to defend but remanded for determination of "reasonable" attorney fees. Johnson v. Westhoff Sand Co., 31 Kan. App. 2d 259, 62 P.3d 685 (2003). 151. Denial of attorney fee affirmed in uninsured motorist claim; company's denial of liability was not without just cause. Knuth v. State Farm Mut. Auto Ins. Co., 30 Kan. App. 2d 184, 41 P.3d 287 (2000). 152. Award of attorney fees inappropriate when dispute involves statutory interpretation of first instance. O'Donoghue v. Farm Bureau Mut. Ins. Co., 30 Kan. App. 2d 626, 49 P.3d 22 (2002). 153. When insurance policy does not cover a claim, insurer not liable for damages associated with claim nor for plaintiff's attorney fees. South Central Kansas Health Ins. Group v. Harden & Co. Ins. Services, Inc., 278 Kan. 347, 97 P.3d 1031 (2004). 154. Plaintiff driver of vehicle entitled to recover excess damages on her underinsured motorist insurance coverage after primary underinsured motorist coverage of owner of vehicle was exhausted. Narron v. Cincinnati Ins. Co., 278 Kan. 365, 97 P.3d 1042 (2004). 155. Award of attorney fees approved; remanded for determination of reasonable amount. Loucks v. Farm Bureau Mut. Ins. Co., 33 Kan. App. 2d 288, 101 P.3d 1271 (2004). 156. Plaintiff who prevailed on denial of insurance benefits claim entitled to attorney fees. Hofer v. Unum Life Ins. Co. of America, 338 F. Supp. 2d 1252, 1253 (2004). 157. Issue of fact precluded court striking claim for bad-faith denial of insurance benefits. Home Quest Mortg. v. American Family Mut. Ins., 393 F. Supp. 2d 1096, 1099 (2005). 158. Valid controversy justified denial of attorney fees. Tradesman Int'l, Inc. v. Wal-Mart Real Estate Business Trust, 35 Kan. App. 2d 146, 129 P.3d 102 (2006). 159. Attorney fees, no abuse of discretion, district court considered factors of Rule 1.5(a), Kansas Rules of Professional Conduct. Johnson v. Westhoff Sand Co., 281 Kan. 930, 950, 135 P.3d 1127 (2006). 160. Attorney fees, Kansas Rules of Professional Conduct 1.5(a) does not require plaintiffs to be made whole. Johnson v. Westhoff Sand Co., 281 Kan. 930, 951, 135 P.3d 1127 (2006). 161. Lack of specific statutory authority under K.S.A. 40-256 precludes award of expert witness fees. Johnson v. Westhoff Sand Co., 281 Kan. 930, 959, 135 P.3d 1127 (2006). 162. Insured's entitlement to fees hinges on judgment being rendered against the insurer. Advantage Homebuilding, LLC v. Maryland Cas. Co., 470 F.3d 1003, 1014 (10th Cir. 2006). 163. Cited in case challenging insurer's alleged exclusion defenses to insured's claim. Ash Grove Cement Co. v. Employers Ins. of Wausau, 513 F. Supp. 2d 1193, 1203 (2007). 164. K.S.A. 40-284 and 40-256 are analyzed and applied regarding uninsured and underinsured motorist coverage. Phillips v. St. Paul Fire and Marine Ins. Co., 39 Kan. App. 2d 758, 760, 184 P.3d 280 (2008). 165. Cited; claim for "bad faith" in first party litigation against insurer is not recognized in Kansas; exception for attorney fees. Payless Shoesource, Inc. v. Travelers Companies, 569 F. Supp. 2d 1189, 1200 (2008). 166. When judgment is rendered in favor of insurance company, attorney fees not allowed under K.S.A. 40-256. Polson v. Farmers Ins. Co., 288 Kan. 165, 200 P.3d 1266 (2009). 167. Attorney fees award reversed. National Bank of Andover v. Kansas Bankers Surety Co., 290 Kan. 247, 225 P.3d 707 (2010). 168. Beneficiaries are entitled to attorney fees in action against insurer, where the court has decided all coverage issues in favor or beneficiaries. Edwards v. Monumental Life Ins., Co., 812 F. Supp. 2d 1263 (D. Kan. 2011). 169. An insurance company has a duty to investigate a claim to determine whether it has a duty to defend. Hartford Fire Ins. Co. v. VITA Craft Corp., 911 F. Supp. 2d 1164 (D. Kan. 2012). 170. The insurer did not fulfill its obligation to conduct a good-faith evaluation of the claim. Foster v. Stonebridge Life Ins. Co., 50 Kan. App. 2d 1, 291 P.3d 105 (2014). Previous | Next LEGISLATIVE COORDINATING COUNCIL General Policies 2026 Archived LCC Documents Archived LCC Meetings REVISOR OF STATUTES Archived Session Documents Archived School Finance Documents USEFUL LINKS Session Laws Kansas Administrative Regulations OTHER LEGISLATIVE SITES Kansas Legislature Administrative Services Division of Post Audit Research Department Contact Us PDF Help www.ksrevisor.gov 2026