Summer 1999 - Page 6

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minor child has paid or agreed to pay the expenses, (2) when the minor child is legally responsible for payment, such as by reason of emancipation, or the death or incompetency of his parents, (3) when the parents have waived or assigned their right of recovery in favor of the minor child, or (4) when recovery of expenses is permitted by statute." The Court noted there are no Kansas cases on point, and concluded that prior cases suggest Kansas follows the general rule. The opinion acknowledged that Kansas has long held that a minor is bound by his or her contracts for necessaries, and the Court agreed that medical expenses are necessaries, but determined that this is not an exception to the general rule vesting in the parent the right to recover medical expenses incurred for a minor child.

The unfairness of this decision, and its implications, are important

to note for every Kansas case involving injury to a minor. Claims for medical expenses incurred on behalf of children are governed by the two year statute of limitations pertaining to the parents' claims, even though the statute of limitations on the child's claim is eight years (or at least one year after reaching the age of majority). In birth injury cases in particular, where long-term costs can be catastrophic, the extent of injuries to children are not necessarily apparent early on, and evolve over the first years of life. Parents often do not even seek legal representation until the baby is a toddler falling behind in development. Therefore, claims for medical expenses may be barred by the statute of limitations before there is any realization of a need or right to sue.

The Wilson case leaves open the issues of future medical expenses, and how to make an assignment of the claim.

In cases of significant injury requiring intensive care over the child's projected life expectancy, the question is whether claims for future medical and custodial expenses - which may be catastrophic - are vested exclusively in the parents and governed by the parents' statute of limitation. If so, then the Wilson decision may add insult to catastrophic injuries to children who have to look to their parents to pay medical expenses that the parents cannot afford and which cannot be recovered in their lawsuits.

On the basis of the Wilson decision, it will be important to get parents' claims on file before the two year statute of limitations expire whenever possible, and to have the parents execute an assignment of their right of recovery of medical expenses in favor of the minor child.

P r a c t i c e  T i p s

Rinehart v. Anderson Expands Missouri Garage Liability Coverage

In Rinehart v. Anderson, 985 S.W.2d 363 (Mo.App. W.D. 1998), the Missouri Court of Appeals expanded the scope of coverage provided under a garage liability policy. Before Rinehart, insurers successfully maintained that garage liability policies were limited to occurrences that were a "necessary or incidental part of the garage business" and therefore would not cover an employee's automobile accident away from the garage or service station. In Rinehart, the decedent was killed when she was struck by a vehicle operated by the proprietor of a service station. The proprietor and another employee delivered a repaired vehicle to a customer and returned to the service station, pulling into a parking space on an adjacent street. The proprietor then decided to refuel the vehicle, backed up, and struck and killed the decedent. Plaintiffs argued that his operation of the vehicle off the premises was incidental to the garage business. However, the insurance company denied coverage. The Missouri Court of Appeals decided that the operation of the vehicle was covered by the garage liability policy.

In the Buening case, reported in this issue, an employee of Grande Tire Company struck Andrea Buening while driving a Grande Tire vehicle some distance away from the tire store. Our firm demanded that the garage liability insurer tender its policy limits. The insurer denied coverage but, after the decision in Rinehart and shortly before trial, the full policy limits were paid. Practitioners should keep in mind that these types of garage liability policies, despite the exclusionary language in the policy, may provide coverage in some situations.