Michael P. Mitchell v. Liberty Mutual Insurance Company, et al.

Breach of insurance contract - On November 1, 1991, a UPS van driven by Mitchell in the course of employment collided with a station wagon driven by Loretta Mattson. Mitchell filed suit against Mattson, who was insured by Mid-Century Insurance Company. UPS intervened to protect and enforce its statutory lien rights for workers compensation benefits paid to Mitchell. Mid-Century tendered Mattson's policy limited in the amount of $50,000. Mitchell's personal automobile insurance carrier, Shelter, and UPS's carrier, Liberty, were notified by Mitchell that he would be instituting an underinsured motorist claim against them. Bother were given the option of intervening in the action or substituting payment under the provisions of K.S.A. 40-284(f). Neither carrier opted to substitute payment. Shelter intervened in the liability aand damages action filed by Mitchell, but Liberty chose not to intervene. As one of its defenses, Shelter claimed its underinsured motorist coverage was secondary and excess to the
coverage provided by Liberty. The primary issue decided by the trial court was whether Liberty, which insured UPS, or Shelter, which insured Mitchell, was primary and the amount of the UM policy limits on the policy issued to UPS.

Judgment for plaintiff for $950,000.00 against Mattson and that the policy issued to UPS by Liberty was primary.

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Dismissed for lack of jurisdiction by the Supreme Court of Kansas. See: 961 P.2d 1235 (Kan. 1998).