Prior to the accident, Mr. Williams prepared his own meals, did his own laundry, drove himself in his vehicle, took care of his own personal hygiene, did his own shopping, and was capable of administering his own medication.

After Mr. Williams was released from the rehabilitation hospital, Ms. Williams assisted with and/or provided these services around the home and for Mr. Williams from mid-December 2015 until the end of March 2016.

Ms. Williams said that she frequently had to be absent from work to assist Mr. Williams and that he had agreed to pay her $25 per day for her additional care of him during his recovery.

On March 7, 2016, Mr. Williams filed a limited action proceeding against GEICO General Insurance Company, his automobile insurance company, claiming that it had not paid him certain personal injury protection ("PIP") benefits that he was owed. In particular, Mr. Williams claimed that GEICO had failed to pay "substitution benefits," as defined in K.S.A. 40-3103(w), for the services performed by Ms. Williams.

In response, GEICO denied liability for duties performed by Ms. Williams.

Although the parties were able to settle various other issues, the issue of payment of substitution benefits in the amount of $2,625 was unresolved, and each party filed a motion for summary judgment.

The trial court granted summary judgment in favor of Mr. Williams in the amount of $2,625.

GEICO appealed. It argued that payment of substitution benefits was not required under Section 40-3103(w) where the services were performed by the injured party's spouse. Specifically, GEICO argued that because a spouse owed a common law duty to provide financial and other support to the other spouse, the injured spouse had not "incurred" a legal obligation to pay for such services. In other words, GEICO argued that because spouses, unlike other family members, had a preexisting statutory and common law duty of mutual support, the assistance claimed here by Mr. Williams could not be said to have been incurred due to his accidental injuries, but rather was the result of the preexisting marital relationship.

Mr. Williams countered that nothing in the statute prohibited payment of substitution benefits simply because the services were performed by the injured party's spouse.

Kansas Law

The Kansas Automobile Insurance Reparations Act, K.S.A. 40-3101 et seq., provides that PIP benefits include:

disability benefits, funeral benefits, medical benefits, rehabilitation benefits, substitution benefits and survivors' benefits

K.S.A. 40-3103(q). It also provides that:

"Substitution benefits" means allowances for appropriate and reasonable expenses incurred in obtaining other ordinary and necessary services in lieu of those that, but for the injury, the injured person would have performed for the benefit of such person or such person's family, subject to a maximum of $25 per day for not longer than 365 days after the date such expenses are incurred.

K.S.A. 40-3103(w) (emphasis added).

The Appellate Court's Decision

The appellate court reversed.

In its decision, the appellate court ruled that, under Section 40-3103(w), the claimed economic loss to the injured party must "be incurred and that term must be given its common and ordinary meaning."

The appellate court said that it could "envision" family members who came forth or were "thrust" into a situation where another family member required substitution services – adult children, siblings, and stepparents, even aunts, uncles, cousins, and grandparents. However, it reasoned, the common thread was that these providers were "not under any legal duty or obligation to assist."

In contrast, the appellate court continued, "common law and societal mores" have traditionally considered the marital relationship as a "distinct and special category" apart from the generic "family" relationship. The appellate court said:

Marriage has traditionally and legally been determined to create a partnership of mutual benefits and obligations, not the least of which is the mutual obligation to provide support for each other. The thread of this mutual support obligation is woven through our statutory and common-law jurisprudence. The continuing support obligation lies at the heart of our civil laws governing domestic relations. . . . Our Supreme Court has recognized that under Kansas probate law, a spouse's right to an elective share of a deceased spouse's estate is premised in part on the mutual duties of support which spouses owe, which survives even after death. . . . The criminal laws set forth yet another reflection of this mutual duty – it is undisputed that a person may be charged under K.S.A. 2016 Supp. 21-5606(a) for criminal nonsupport of a child or spouse in necessitous circumstances.

The appellate court then ruled that because the obligation of Ms. Williams to provide assistance for her husband had been "incurred as a result of the marital relationship itself," Mr. Williams had not incurred, as a result of his accident, any economic obligation to reimburse Ms. Williams for her assistance, and he was not entitled to recover substitution benefits under K.S.A. 40-3103(w).

The appellate court concluded that it was "mindful" of Mr. Williams' "explicit arguments and implicit suggestion," and the trial court's suggestion, "that the nature of the marital relationship has evolved and changed" and that the precedents it relied on were "somewhat dated and of dubious continuing viability," but it concluded that it was for the legislature to decide whether to "implement a fundamental modification of the concept of mutual marital support obligations in the context of the omission of any such reference in an automobile insurance statute."

The case is Williams v. GEICO General Ins. Co., No. 117,149 (Kan. Ct.App. Feb. 2, 2018). Attorneys involved include: Lyndon W. Vix and Nathaniel T. Martens, of Fleeson, Gooing, Coulson & Kitch, L.L.C., of Wichita, for appellant. Theodore C. Davis, Kathryn A. Wright, and Richard W. James, of DeVaughn James Injury Lawyers, of Wichita, for appellee.