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60-2006. Attorney fees taxed as costs in certain actions involving negligent motor vehicle operation. (a) In actions brought for the recovery of property damages only of less than $15,000 sustained and caused by the negligent operation of a motor vehicle, the prevailing party shall be allowed reasonable attorney fees which shall be taxed as part of the costs of the action unless:

(1) The prevailing party recovers no damages; or

(2) a tender equal to or in excess of the amount recovered was made by the adverse party before the commencement of the action in which judgment is rendered.

(b) For the plaintiff to be awarded attorney fees for the prosecution of such action, a written demand for the settlement of such claim containing all of the claimed elements of property damage and the total monetary amount demanded in the action shall have been made on the adverse party at such party's last known address not less than 30 days before the commencement of the action. For the defendant to be awarded attorney fees, a written offer of settlement of such claim shall have been made to the plaintiff at such plaintiff's last known address not more than 30 days after the defendant filed the answer in the action.

(c) This section shall apply to actions brought pursuant to the code of civil procedure and actions brought pursuant to the code of civil procedure for limited actions.

History: L. 1969, ch. 288, § 1; L. 1976, ch. 251, § 28; L. 1977, ch. 205, § 1; L. 1982, ch. 249, § 1; L. 1990, ch. 206, § 1; L. 1995, ch. 240, § 1; L. 2010, ch. 115, § 1; July 1.

Law Review and Bar Journal References:

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

"Recovery of Attorney Fees in Kansas," Mark A. Furney, 18 W.L.J. 535, 561 (1979).

"Garnishment in Kansas: A Procedural Paradox," Leon B. Graves, 49 J.B.A.K. 129, 131 (1980).

"Survey of Kansas Law: Civil Procedure," 29 K.L.R. 449, 479 (1981).

"From the Capitol," Tim Alvarez, J.K.T.L.A., Vol. XIII, No. 3, 4 (1990).

"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, 8 (1994).

"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).

"Kansas Judicial Council Report: Proposed 2010 Legislation," Christy Molzen, 79 J.K.B.A. No. 2, 19 (2010).

CASE ANNOTATIONS

1. Construed; section held constitutionally permissible under due process clause (U.S. Constitution Amendment 14, § 1). Pinkerton v. Schwiethale, 208 K. 596, 597, 599, 602, 493 P.2d 200.

2. Factors to be considered by court in awarding attorney fees hereunder discussed. Stafford v. Karmann, 2 K.A.2d 248, 577 P.2d 836.

3. Awarding of attorney fees for services on appeal held inherently allowed hereunder. Stafford v. Karmann, 2 K.A.2d 248, 252, 577 P.2d 836.

4. Trial court's awarding of attorney fees reversed; statute not applicable when claim asserted was not less than $750. Faucett v. Kirk, 227 K. 505, 506, 508, 608 P.2d 1306.

5. Discussed; statute does not require a demand prior to filing a case to recover attorney fees. Arnold v. Hershberger, 4 K.A.2d 24, 25, 602 P.2d 120.

6. Only requirement for award of attorney fees is that recovery be greater than amount tendered before action commenced. Darnall v. Lowe, 5 K.A.2d 240, 241, 242, 243, 244, 615 P.2d 786.

7. No reduction in attorney fees chargeable to driving party based upon fault of nondriving parties. Squires v. City of Salina, 9 K.A.2d 199, 203, 675 P.2d 926 (1984).

8. Cited; while not specifically provided for, successful appellee in small claims case (61-2701 et seq.) allowed reasonable attorney fee on final appeal. Vogel v. Haynes, 11 K.A.2d 454, 457, 730 P.2d 1096 (1986).

9. Nothing in statute implies an exception to uninsured motorists or others without financial ability for payment of attorney fees. Layton v. Heinlein, 14 K.A.2d 104, 106, 782 P.2d 1254 (1989).

10. Cited by dissent in disputing majority ruling re 40-256 for attorney fees for appellate work be decided by trial court. Evans v. Provident Life & Accident Ins. Co., 249 K. 248, 269, 815 P.2d 550 (1991).

11. Cited; discussion of when attorney fees recoverable under 40-908. Cann v. Farmers Ins. Co., 17 K.A.2d 869, 872, 845 P.2d 710 (1993).

12. Whether municipal judge has authority to order defendant to reimburse city for appointed counsel examined. City of Dodge City v. Anderson, 20 K.A.2d 272, 274, 886 P.2d 901 (1994).

13. Whether jurisdictional limit for recovering attorney fees should be measured against aggregate damages claimed by adverse parties examined. Chavez v. Markham; aff'd, 19 K.A.2d 702, 704, 875 P.2d 997 (1994), 256 K. 859, 861, 889 P.2d 122 (1995).

14. Award of attorney fees reversed where appellate court remanded case for further proceedings. Felix v. U.S.D. No. 202, 22 K.A.2d 849, 850, 852, 923 P.2d 1056 (1996).

15. Offer of settlement was properly served on plaintiff's attorney. Wilkerson v. Brown, 26 K.A.2d 831, 832, 995 P.2d 393 (1999).

16. Attorney fees denied for defendant with respect to one plaintiff but by filing counter claim is entitled to attorney fees from another plaintiff. Rensenhouse v. Bauer, 33 K.A.2d 148, 98 P.3d 668 (2004).

17. Diminished value loss does not qualify under the definition of "property damages only" to allow the recovery of the prevailing parties' attorney fees. Ohlmeier v. Jones, 51 K.A.2d 1014, 1027, 360 P.3d 447 (2015).


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