Opinion
No. 52,480
Opinion filed June 11, 1982.
MEMORANDUM OPINION
INSURANCE — Group Life Insurance Policy — "Regularly Employed" Insured Construed — Attorney Fees on Appeal.
Review of the judgment of the Court of Appeals in Estate of Bingham v. Nationwide Life Ins. Co., 7 Kan. App. 2d 72, 638 P.2d 352 (1981). Appeal from Johnson district court; CHARLES A. ELLIOTT, judge. Judgment of the Court of Appeals affirming the district court is affirmed as modified. Judgment of the district court is affirmed. Opinion filed June 11, 1982.
David Fromme, of Weeks, Thomas Lysaught, Chartered, of Kansas City, argued the cause, and Lee M. Smithyman, of the same firm, was on the brief for the appellant.
Patrick D. McAnany, of McAnany, Van Cleave Phillips, P.A., of Prairie Village, argued the cause, and Robert E. Fabian, of the same firm, and the firm of Goehring Turner, of Kansas City, Missouri, were with him on the brief for the appellees.
This is an action brought by certain named beneficiaries to recover benefits under a group life and health insurance policy. After extensive discovery, the district court sustained the motion of the plaintiffs for summary judgment and awarded plaintiffs the full amount of the benefits under the policy plus attorney fees. The defendant, Nationwide Life Insurance Company, appealed to the Court of Appeals. That court affirmed in a unanimous opinion by Frederick Woleslagel, district judge retired, who was assigned to the Court of Appeals panel. The comprehensive and well-written opinion by Judge Woleslagel may be found in Estate of Bingham v. Nationwide Life Ins. Co., 7 Kan. App. 2d 72, 638 P.2d 352 (1981). The Supreme Court granted Nationwide's petition for review.
The opinion of the Court of Appeals sets forth the undisputed facts, the issues presented in the case, and the controlling Kansas law. After consideration of the entire record and the briefs of counsel, we have concluded that the case was correctly determined by the Court of Appeals and that the judgment of the Court of Appeals affirming the judgment of the district court should be affirmed by this court. We adopt the opinion of the Court of Appeals except for that portion of that opinion remanding the case to the district court to determine and allow an additional attorney fee for the plaintiffs on the appeal. The allowance of an attorney fee on appeal is a matter for determination by the appellate court on motion of a party to the appeal.
The judgment of the district court and the judgment of the Court of Appeals affirming the district court are affirmed as modified.
FROMME, J., not participating.