Page:Copeland By and Through Copeland v. Toyota Motor Sales U.S.A., Inc.pdf/21

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Because the statute contains these express limitations on SRS' subrogation right, we are reluctant to impose additional, implied limitations on SRS’ recovery based on general equitable principles unexpressed in the statute.^[1] Cf. Walker, 682 A.2d at 644 (stating “[t]he Act itself defines the operative principles that govern these exceptions. There is no warrant for the judicial imposition of another, illdefined exception [based on equitable principles] to the explicit distributive scheme of the [subrogation] statute”); Norman J. Zinger, 2A Sutherland’s Statutes and Statutory Construction § 47.11 (5th ed. 1992) (stating that “exceptions are not to be implied. Where there is an express exception, it comprises the only

↑ Kansas courts have similarly refused to imply additional restrictions on an insurer’s statutory subrogation right under Kansas’ no-fault insurance statute, because the statute creating the subrogation right provides explicit exceptions to that right. See, e.g., Russell v. Mackey, 592 P.2d 902, 906 (Kan. 1979) (discussing subrogation right, under Kansas’ no-fault statute, of personal injury protection (PIP) insurance carrier to reimbursement of PIP benefits paid when the insured recovers by means of a settlement with third-party tortfeasor, and stating statute provides for full reimbursement to PIP carrier for PIP benefits paid, subject only to two statutory exceptions: the PIP carrier’s recovery may be reduced for attorney fees and may be reduced for the comparative negligence of the insured when the insured’s own recovery is reduced by the insured’s negligence in an action brought pursuant to Kan. Stat. Ann. § 60-258a); cf. Easom v. Farmers Ins. Co., 560 P.2d 117, 124-26 (Kan. 1977) (comparing Kansas no-fault statute to Florida no-fault statute which explicitly permitted equitable apportionment of insured’s recovery between insured and PIP carrier, and holding that "an apportionment or equitable distribution theory" should not be injected into the Kansas no-fault law in part because the Kansas statute contained no explicit provision for equitable distribution).

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[1] Kansas courts have similarly refused to imply additional restrictions on an insurer’s statutory subrogation right under Kansas’ no-fault insurance statute, because the statute creating the subrogation right provides explicit exceptions to that right. See, e.g., Russell v. Mackey, 592 P.2d 902, 906 (Kan. 1979) (discussing subrogation right, under Kansas’ no-fault statute, of personal injury protection (PIP) insurance carrier to reimbursement of PIP benefits paid when the insured recovers by means of a settlement with third-party tortfeasor, and stating statute provides for full reimbursement to PIP carrier for PIP benefits paid, subject only to two statutory exceptions: the PIP carrier’s recovery may be reduced for attorney fees and may be reduced for the comparative negligence of the insured when the insured’s own recovery is reduced by the insured’s negligence in an action brought pursuant to Kan. Stat. Ann. § 60-258a); cf. Easom v. Farmers Ins. Co., 560 P.2d 117, 124-26 (Kan. 1977) (comparing Kansas no-fault statute to Florida no-fault statute which explicitly permitted equitable apportionment of insured’s recovery between insured and PIP carrier, and holding that "an apportionment or equitable distribution theory" should not be injected into the Kansas no-fault law in part because the Kansas statute contained no explicit provision for equitable distribution).

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Page:Copeland By and Through Copeland v. Toyota Motor Sales U.S.A., Inc.pdf/21

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