Estate of Bingham v. Nationwide Life Ins. Co.

231 Kan. 389 (1982)

646 P.2d 1048

ESTATE OF CLIFFORD E. BINGHAM, DECEASED, ALTA L. BINGHAM and WILLIAM H. BINGHAM, JR., Plaintiffs-Appellees, v. NATIONWIDE LIFE INSURANCE COMPANY OF COLUMBUS, OHIO, Defendant-Appellant.

No. 52,480

Supreme Court of Kansas.

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.

MEMORANDUM OPINION

PER CURIAM: 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 *390 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.