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40-3110. Same; primary status of benefits, exception; when payable; time limitation on claims; overdue payments. (a) Except for benefits payable under any workmen's compensation law, which shall be credited against the personal injury protection benefits provided by subsection (f) of K.S.A. 40-3107, personal injury protection benefits due from an insurer or self-insurer under this act shall be primary and shall be due and payable as loss accrues, upon receipt of reasonable proof of such loss and the amount of expenses and loss incurred which are covered by the policy issued in compliance with this act. An insurer or self-insurer may require written notice to be given as soon as practicable after an accident involving a motor vehicle with respect to which the insurer's policy of motor vehicle liability insurance affords the coverage required by this act. No claim for personal injury protection benefits may be made after two (2) years from the date of the injury.

(b) Personal injury protection benefits payable under this act shall be overdue if not paid within thirty (30) days after the insurer or self-insurer is furnished written notice of the fact of a covered loss and of the amount of same, except that disability benefits payable under this act shall be paid not less than every two (2) weeks after such notice. If such written notice is not furnished as to the entire claim, any partial amounts supported by written notice is overdue if not paid within thirty (30) days after such written notice is furnished. Any part or all of the remainder of the claim that is subsequently supported by written notice is overdue if not paid within thirty (30) days after such written notice is so furnished: Provided, That no such payment shall be deemed overdue where the insurer or self-insurer has reasonable proof to establish that it is not responsible for the payment, notwithstanding that written notice has been furnished. For the purpose of calculating the extent to which any personal injury protection benefits are overdue, payment shall be treated as being made on the date a draft or other valid instrument which is equivalent to payment was placed in the United States mail in a properly addressed, postpaid envelope, or, if not so posted, on the date of delivery. All overdue payments shall bear simple interest at the rate of eighteen percent (18%) per annum.

History: L. 1974, ch. 193, § 10; February 22.

Source or prior law:

L. 1973, ch. 198, § 10.

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).

"No Fault—The Insurer's Reimbursement Rights Under the New Statute," William R. Sampson, 46 J.B.A.K. 211, 215 (1977).

"Don't Forget the PIP," Steven M. Dickson, J.K.T.L.A. Vol. XV, No. 6, 9 (1992).

"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).

CASE ANNOTATIONS

1. Applied in construing K.S.A. 40-3109 and 40-3113; right of insurer as to reimbursement and indemnity determined. Farm & City Ins. Co. v. American Standard Ins. Co., 220 Kan. 325, 332, 552 P.2d 1363.

2. Applied in construing K.S.A. 40-3113; insurer's right to full reimbursement of PIP benefits paid to insured determined. Easom v. Farmers Insurance Co., 221 Kan. 415, 429, 560 P.2d 117.

3. Cited; interest on survivor's benefit award determined hereunder. Hand v. State Farm Mut. Auto. Ins. Co., 2 Kan. App. 2d 253, 261, 577 P.2d 1202.

4. Under K.S.A. 40-3113 claimants not allowed interest on benefits owing while matter is under advisement by district court. Kaup v. Western Cas. & Sur. Co., 432 F. Supp. 922, 929.

5. No interest penalty where a good faith controversy existed as to the amount of survivor benefits. Coe v. Security National Ins. Co., 228 Kan. 624, 631, 632, 620 P.2d 1108.

6. In exercise of inherent powers, trial court did not abuse discretion in refusing deposition of out-of-state physician in action for overdue personal injury protection (PIP) benefits, attorney fees and interest. Wilson v. American Fidelity Ins. Co., 229 Kan. 416, 421, 625 P.2d 1117.

7. Where personal injury protection benefits properly denied and there is no obligation for payment of disability benefits, insurer not liable for attorney fees. Morgan v. State Farm Mut. Auto. Ins. Co., 5 K.2d 135, 143, 613 P.2d 684.

8. Computation of insured's average annual compensation; attorney fees denied. Coe v. Security National Ins. Co., 5 Kan. App. 2d 176, 182, 614 P.2d 455.

9. Plaintiff was entitled to recover last earnings because of disability, even though there was little out-of-pocket expenses. Dewey v. Allstate Ins. Co., 525 F. Supp. 857, 866 (1981).

10. Plaintiff not entitled to statutory interest; good-faith controversy. Armacost v. State Farm Mut. Auto. Ins. Co., 231 Kan. 276, 279, 644 P.2d 403 (1982).

11. Liability of insured for payment of PIP benefits on receipt of "reasonable proof" of loss; payment of interest considered; exceptions. DiBassie v. American Standard Ins. Co. of Wisconsin, 8 Kan. App. 2d 515, 517, 518, 519, 521, 522, 661 P.2d 812 (1983).

12. Right to make advance payments under K.S.A. 40-275 neither affected hereunder nor lost where one insurer covers both parties. Howard v. Edwards, 9 Kan. App. 2d 763, 765, 767, 689 P.2d 911 (1984).

13. Furnishing gross earnings in cattle business bore no relationship to value of services; not sufficient to trigger overdue provisions of (b). Dewey v. Allstate Ins. Co., 739 F.2d 1494, 1496 (1984).

14. Contractual provisions for setoff regarding attorney fees when PIP benefits involved (K.S.A. 40-284) examined. Bardwell v. Kester, 15 Kan. App. 2d 679, 682, 815 P.2d 120 (1991).

15. Statutory credit for workers compensation benefits held applicable to maximum PIP benefits payable under policy terms. House v. American Fam. Mut. Ins. Co., 251 Kan. 419, 420, 837 P.2d 391 (1992).

16. Insurer's liability for PIP benefits, requirements of insured regarding notice of loss examined; statute construed and applied. Miner v. Farm Bur. Mut. Ins. Co., Inc., 17 Kan. App. 2d 598, 841 P.2d 1093 (1992).

17. Award of attorney fees sustained when PIP benefits denied on basis of opinion by medical bill review firm. Scott v. State Farm Mut. Auto. Ins. Co., 18 Kan. App. 2d 93, 100, 850 P.2d 262 (1992).

18. Two-year deadline in section applies to limit for submission of claim; it is not a statute of limitations governing filing of suit. Patterson v. Allstate Ins. Co., 31 Kan. App. 2d 919, 75 P.3d 763 (2003).


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