author: Arnold-Burger, C.J.: Atcheson, J., dissenting:

text:
    Zachary SHORT, Appellant, v. BLUE CROSS AND BLUE SHIELD OF KANSAS, INC., Appellee.
    No. 118,688
    Court of Appeals of Kansas.
    Opinion filed April 12, 2019
    Matthew L. Bretz, of Bretz & Young, L.L.C., of Hutchinson, for appellant.
    David S. Wooding and Anna C. Ritchie, of Martin, Pringle, Oliver, Wallace & Bauer, L.L.P., of Wichita, for appellee.
    Before Arnold-Burger, C.J., Atcheson, J., and Burgess, S.J.
   Arnold-Burger, C.J.:

The cardinal rule of contract interpretation is to ascertain the parties' intent. If the contract is unambiguous, we determine the parties' intent by the language of the contract alone. But if a contract has ambiguous language, we may consider extrinsic evidence to construe it.

Zachary Short sued Blue Cross and Blue Shield of Kansas (BCBS) for breach of contract after BCBS refused to cover the full cost of a prosthetic leg called the Ottobock X3. The insurance policy provided that BCBS would cover the cost of a basic (standard) device and that it would not cover charges for deluxe or electrically operated devices beyond the extent allowed for a basic (standard) device. BCBS provided evidence that the X3 was electrically operated and thus subject to the limitations in the insurance policy. The district court agreed and granted BCBS's motion for summary judgment.

Short appeals, arguing that the contract is ambiguous and should be construed in a way that would require BCBS to cover the full cost of the X3. He also asserts that he should have been permitted to conduct more extensive discovery and that he should have been allowed to present expert testimony. However, the language in the contract is not ambiguous and electrically operated prosthetics are clearly subject to the limitations. Because the contract was unambiguous, the district court did not err in refusing to allow Short to seek additional evidence through discovery or introduce extrinsic evidence in the form of expert testimony. The decision of the district court is affirmed.

FACTUAL AND PROCEDURAL HISTORY

Short was involved in a catastrophic farming accident in October 2014 which left him severely injured. Short's injuries required him to undergo a bilateral knee amputation, with his left leg amputated above the knee and his right leg below the knee.

At the time of the accident, Short was insured by Blue Cross Blue Shield of Kansas (BCBS). Short sent a pre-service request to BCBS requesting coverage for multiple prosthetics. One of the prosthetics was an Ottobock X3 Microprocessor leg and knee. The X3 costs about $ 145,000. BCBS declined to cover the full cost of the X3 based on its insurance contract. The relevant portion of the contract provided:

"Except as limited, the services listed below are covered:
....
b. Orthopedic and prosthetic devices, appliances and items when medically needed and not otherwise excluded herein. This includes items such as orthopedic braces, artificial limbs, artificial eyes, and auditory osseointegrated devices.
Limitations:
....
(3) Benefits are limited to the amount normally available for a basic (standard) appliance which allows necessary function. Basic (standard) medical devices or appliances are those that provide the essential function required for the treatment or amelioration of the medical condition at a Medically Necessary level.
(4) Charges for deluxe or electrically operated orthotic or prosthetic appliances, devices or items are not covered, beyond the extent allowed for basic (standard) appliances. Deluxe describes medical devices or appliances that have enhancements that allow for additional convenience or use beyond that provided by a basic (standard) device or appliance."

The contract defines "medically necessary" as:

"a service required to diagnose or to treat an illness or injury. To be Medically Necessary, the service must: be performed or prescribed by a Doctor; be consistent with the diagnosis and treatment of Your condition; be in accordance with standards of good medical practice; not be for the convenience of the patient or his Doctor; and is provided in the most appropriate setting."

BCBS believed that a prosthetic device was medically necessary and thus covered by the insurance contract. However, BCBS considered the X3 to be a deluxe or electrically operated prosthetic appliance subject to the limitations provision in the contract. BCBS determined that a basic (standard) knee would cost $ 2,925.32. It informed Short that it would pay him that amount, and that Short would be responsible for the balance of the cost of the X3. Short disagreed, and he sued BCBS for breach of contract.

During discovery, Short made several inquiries that are now at issue on appeal. In Interrogatory Number 2, Short asked BCBS to "[s]tate all facts and identify all documents you contend support [BCBS]'s refusal to pay the cost of the Ottobock X3 prosthetic knees ...." Short also made several requests for documents, including:

"1. All insurance claims and underwriting files pertaining to the subject matter of this lawsuit.
....
"5. Copies of all correspondence to and from others concerning Plaintiff.
"6. Original or true and correct copies of any recorded statement taken of Plaintiff.
....
"8. Original or true and correct copies of all medical records and reports pertaining in any way to Plaintiff.
....
"10. Any utilization or medical reviews dealing with Plaintiff.
"11. All documents you intend to introduce as evidence at the time of trial."

BCBS objected to these requests based on their relevance and scope. BCBS argued that the issue in the case was whether the full cost of the X3 fell within the provisions of Short's insurance, and that the issue could "be determined by the contract language as a matter of law by the Court."

Short filed a motion to compel discovery responses. Short asserted that he was "entitled to know what facts and documents [BCBS] contends supports their denial." He asked the district court to require BCBS to "produce any facts or documents besides the contract upon which [BCBS] relies in denying to provide [Short] the Ottobock X3, if any exists besides the contract." BCBS objected to Short's motion to compel discovery responses. It maintained its argument that this was a straightforward case that the court could decide by the language within the four corners of the contract.

The district court denied Short's motion to compel, finding that the contract language was not ambiguous, deluxe or electrically operated devices were not covered, and the requested discovery would not likely lead to any relevant information regarding the nature of the claim.

Later in the litigation, Short filed an expert witness disclosure. He named only one person-Dr. Todd Cowen. Dr. Cowen prepared a Catastrophic Life Care Plan for Short. An expert develops a Life Care Plan by "applying methodological, expert analysis to determine and quantify the current and future medical care requirements of an individual." Although his report is over 130 pages long, Dr. Cowen only briefly addressed the X3. He stated:

"The Ottobock X3 is a standard prosthetic appliance frequently used for military and other amputees, which allows the essential function required for the treatment or amelioration of the medical condition at a minimal level. It will not return full function to the knee and is not for mere convenience but would allow Mr. Short to keep up with everyday activities such as showering or walking on unlevel ground. The X3 protective cover is lightweight and incredibly strong. Ability Dynamic's Rush Foot is made of a unique glass composite that has been proven not to break down in heavy use like carbon fiber. It is a specially-formulated composite fiber material that is nearly indestructible, highly flexible and only available on Ability Dynamic's Rush Foot prosthetic devices. It delivers one of the most realistic and responsive foot and ankle motions available on the market."

When Dr. Cowen assessed Short, Short was using a borrowed X3. Short reported feeling safe and stable with the device, especially while trying to work on his family farm.

BCBS moved to strike Dr. Cowen as an expert witness in the case. BCBS reiterated its argument that expert testimony was unnecessary because the court could decide the issue solely by the language of the contract. We find no evidence in the record that the district court ever ruled on the motion to strike.

BCBS ultimately moved for summary judgment. BCBS framed the issue as whether it "was correct in determining that it could not cover the balance of the cost for the Ottobock X3 Microprocessor Knee based on the language in the contract excluding coverage for charges for deluxe or electrically operated prosthetic devices." BCBS argued that the district court need only "examine the pertinent contract language, which it has already determined is not ambiguous, to make its decision." BCBS attached screenshots from Ottobock's website related to the X3. The website described the X3 as "[t]he world's most technologically advanced microprocessor prosthetic leg." The website advertises that the X3 has several sensors and a microprocessor which help the knee operate. It is activated by five different activity modes using a small remote. The X3 is also battery operated, with one charge lasting approximately five days.

The district court granted BCBS's motion for summary judgment. In its decision, the district court reiterated its prior holding that the relevant contract provision was not ambiguous. The court noted that the relevant provision "excludes coverage of cost beyond a basic (standard) device for 'deluxe' or 'electrically operated' prosthetics." The court "interpret[ed] this language to mean that a basic (standard) device cannot be a deluxe or electrically operated device." Because the X3 is a deluxe device and electrically operated, the court held that BCBS correctly determined that it was not covered by the insurance contract.

Short appealed.

ANALYSIS

The district court did not err by finding that the insurance policy was unambiguous.

The district court's rulings on Short's motion to compel discovery responses and its grant of summary judgment to BCBS rested on its holding that the relevant contract provisions were unambiguous. Short argues that this holding was erroneous.

Whether a written instrument is ambiguous is a question of law subject to de novo review. Waste Connections of Kansas, Inc. v. Ritchie Corp ., 296 Kan. 943, 964, 298 P.3d 250 (2013).

Contract language "is ambiguous when the words used to express the meaning and intention of the parties are insufficient in a sense the contract may be understood to reach two or more possible meanings." Wood v. Hatcher , 199 Kan. 238, 242, 428 P.2d 799 (1967). Ambiguity does not arise until "application of pertinent rules of interpretation to an instrument as a whole fails to make certain which one of two or more meanings is conveyed by the words employed by the parties." 199 Kan. at 242, 428 P.2d 799. Several of these rules are relevant here. "A cardinal rule in the interpretation of contracts is to ascertain the intention of the parties and to give effect to that intention if the intention is consistent with legal principles.... Reasonable rather than unreasonable interpretations are favored by the law." Hollenbeck v. Household Bank , 250 Kan. 747, Syl. ¶ 1, 829 P.2d 903 (1992). Additionally, "all pertinent provisions of an insurance policy must be considered together, rather than in isolation, and given effect." Brumley v. Lee , 265 Kan. 810, 813, 963 P.2d 1224 (1998). Finally, when determining whether a provision in an insurance policy is ambiguous, courts consider "what a reasonably prudent insured would understand the language to mean, not what the insurer intends the language to mean." 265 Kan. at 813, 963 P.2d 1224.

Short's first argument is that the district court failed to consider the insurance policy as a whole. The insurance contract provides coverage for prosthetic devices in a section titled "Other Covered Services ." Specifically, the contract states that it covers prosthetic devices "when medically needed and not otherwise excluded herein." Directly following this provision is a section titled "Limitations ." This section provides that charges for deluxe or electrically operated prosthetics is not covered beyond the amount allowed for a basic (standard) device. The contract defines deluxe devices as devices "that have enhancements that allow for additional convenience or use beyond that provided by a basic (standard) device or appliance." Short argues that the district court erred by holding that the only relevant policy provisions are in the "Other Covered Services " portion in the contract. He asserts that the district court's interpretation of this section is inconsistent with the definition of "medically necessary" found elsewhere in the contract.

As Short notes, the district court ruled that the term "medically necessary" was not at issue in the action because BCBS agreed that a prosthetic was medically necessary. Short then argues: "While the parties do agree that a prosthetic is medically necessary, the issue that sits at the heart of this case is what prosthetic is medically necessary to treat or ameliorate [his] condition-the unidentified prosthetic that purportedly costs $ 2,925.32 or the X3?" Short asserts that to answer this question the district court needed to interpret the term "medically necessary."

Short's argument misses the point. The issue is not which device is medically necessary, as BCBS has already determined that both the X3 and a basic prosthetic are medically necessary. If the X3 was not medically necessary, then BCBS would not have offered to pay for a portion of its cost. The true issue in this case is determining how much BCBS must pay for a medically necessary prosthetic. If it is a basic or standard appliance, BCBS will pay the full cost. If it is a deluxe or electrically operated appliance, BCBS will pay the amount that a basic or standard appliance would cost. For these reasons, the district court did not err in concluding that the term "medically necessary" was not at issue.

Short also uses the definition of "medically necessary" to argue that the district court's decision subverts the intention of the parties. He asserts that the contract displays a clear intention of the parties to obligate BCBS to pay for medically necessary treatments. Short contends that "[r]eading the 'Other Covered Services ' section as indiscriminately excluding coverage for electrically operated devices is a clear subversion of that intention." Short does not elaborate on this argument. However, excluding electrically operated prosthetic appliances does not necessarily subvert the parties' intentions because BCBS will still pay for standard prosthetics. Furthermore, electrically operated devices are not exactly excluded from coverage. Under the contract, BCBS must pay for electrically operated prosthetics if they are medically necessary, but the amount of that payment is limited to the amount that would have been allowed for a basic (standard) prosthetic.

Similarly, Short argues that "interpreting the relevant provision as furnishing coverage for devices that provide 'essential function' 'at a Medically Necessary Level,' but then excluding coverage wholesale for electrically operated devices, creates a conflicting and absurd result." He says it is "conceivable that an electrically operated device would meet the policy's definition of a 'basic (standard)' prosthetic without providing the additional convenience necessary to convert it into a 'deluxe' device." He concludes that "an electrically operated device can also be a basic one, addressing the insured's condition only at a medically necessary level." Short's argument is defeated by the terms of the contract. An electrically operated device can never be a basic device according to the contract. The contract limits coverage for electrically operated devices and deluxe devices. Just because an electrically operated device may not meet the definition of a deluxe device does not mean that it is a basic or standard device. This is not an absurd result. Presumably, BCBS researched the various prosthetic devices before drafting this policy. It concluded that it was willing to cover the cost of a standard device, but not an electrically operated one. This is a reasonable business practice, and the district court's interpretation of the contract does not lead to an absurd result.

Finally, Short argues that the definitions for "basic (standard)" and "deluxe" devices in the policy are "so terse and skeletal as to raise more questions than answers." The contract provides that "[b]asic (standard) medical devices or appliances are those that provide the essential function required for the treatment or amelioration of the medical condition at a Medically Necessary level." The term "deluxe" means "medical devices or appliances that have enhancements that allow for additional convenience or use beyond that provided by a basic (standard) device or appliance." Short asks: "What constitutes 'essential function[ing]'? When do a device's enhancements provide 'additional convenience' beyond mere 'essential function'?" He asserts that the answers to these questions are not apparent from the four corners of the contract.

While the insurance policy does not identify the exact products that it covers, it does provide sufficient detail to support the district court's decision that the policy is not ambiguous. "Essential" means "absolutely necessary; indispensable; requisite." Webster's New World College Dictionary 497 (5th ed. 2014). As a result, the policy will cover a nonelectric device that provides only what is absolutely necessary to treat the insured's condition. If a device does more than what is necessary to treat the condition, it provides additional convenience, and coverage for such a device would be limited by the contract. Here, there is no dispute that the X3 is electrically operated so it is easy to apply the policy because it specifically excludes electrically operated devices.

As a final note, Short asks this court to apply one of two principles of construction. First is the doctrine of "reasonable expectations" and second is the "rule of liberal construction." See Penalosa Co-op Exchange v. Farmland Mut. Ins. Co. , 14 Kan. App. 2d 321, 324, 789 P.2d 1196 (1990) (describing the two doctrines). Short argues that application of either doctrine shows that BCBS must provide coverage for the X3. But courts only utilize these doctrines when a contract is ambiguous. 14 Kan. App. 2d at 324, 789 P.2d 1196 ; see also Liggatt v. Employers Mut. Casualty Co. , 273 Kan. 915, 923, 46 P.3d 1120 (2002) ("Unless there is a finding that an insurance policy is ambiguous, the reasonable expectations doctrine does not permit the court to reform the unambiguous meaning of the contract."). Because the BCBS insurance policy was not ambiguous, this court cannot apply these particular doctrines of construction.

Before ruling, the district court appropriately considered the insurance policy as a whole. The intentions of the parties are clear from the face of the document-BCBS agreed to cover the cost of basic prosthetics and contribute to the cost of deluxe or electrically operated prosthetics when medically necessary. The district court's interpretation of the policy did not lead to unreasonable results. Therefore, the district court did not err in holding that the insurance policy was unambiguous.

BCBS properly set out exclusions in its policy.

Next, Short argues that BCBS had to set out the limitations on deluxe or electrically operated devices in a separate policy provision specifically designated as "exclusions." He characterizes the limitations provision as following the paragraph bestowing coverage for basic prosthetics and being nestled between various definitions. Short contends that BCBS "cannot confer coverage for prosthetics, and then, in the same breath, rescind coverage for a significant portion of the prosthetics available on the market." Short claims that the way that BCBS drafted the contract "creates a strong likelihood that ordinary insureds such as Plaintiff will be broadsided and unfairly surprised by the insurer's denial of coverage."

Determining whether an insurance policy provides clear exclusions requires interpretation of a written insurance contract, which presents a question of law over which this court exercises unlimited review. Crist v. Hunan Palace, Inc. , 277 Kan. 706, 709-10, 89 P.3d 573 (2004).

The Kansas Supreme Court discussed exclusions in insurance policies in Marquis v. State Farm Fire & Cas. Co. , 265 Kan. 317, 961 P.2d 1213 (1998). There, it stated:

"Generally, exceptions, limitations, and exclusions to insurance policies require narrow construction on the theory that the insurer, having affirmatively expressed coverage through broad promises, assumes the duty to define any limitations on that coverage in clear and explicit terms. Catholic Diocese of Dodge City v. Raymer , 251 Kan. 689, 695, 840 P.2d 456 (1992). If an insurer intends to restrict or limit coverage, it must use clear and unambiguous language in doing so, otherwise the insurance policy will be liberally construed in favor of the insured. Farm Bureau Mut. Ins. Co. v. Old Hickory Cas. Ins. Co. , 248 Kan. 657, 659, 810 P.2d 283 (1991). The burden is on the insurer to prove facts which bring a case within the specified exception. Upland Mutual Insurance, Inc. v. Noel , 214 Kan. 145, 150, 519 P.2d 737 (1974)." 265 Kan. at 327, 961 P.2d 1213.

Short asserts that this case is analogous to Ferguson v. Phoenix Assurance Co. , 189 Kan. 459, 370 P.2d 379 (1962). There, Forrest Ferguson had a Storekeepers Burglary and Robbery Policy to insure money lost by safe burglary. Phoenix Assurance Company of New York issued the policy. Someone broke in to Ferguson's business and stole money out of his safe. The person opened the outer door of the safe by manipulating the combination lock. The inner door of the safe had marks of force on it, which evidenced the use of tools to gain access to the safe. The thief stole $ 433.76 from the safe. Yet Phoenix asserted that an exclusion in its policy limited the amount that Ferguson could recover to $ 50. Ferguson sued.

The policy at issue in Ferguson limited liability to $ 1,000 for each of seven "INSURING AGREEMENTS." 189 Kan. at 461, 370 P.2d 379. One of these events was "Burglary; Safe Burglary." 189 Kan. at 461, 370 P.2d 379. This section was " '[t]o pay for loss by safe burglary of money, securities and merchandise within the premises and for loss, not exceeding $ 50, by burglary of money and securities within the premises.' " 189 Kan. at 461, 370 P.2d 379. After listing the seven insuring events, the policy had a section titled "EXCLUSIONS." 189 Kan. at 461, 370 P.2d 379. Then, the policy had a section titled "CONDITIONS." 189 Kan. at 461, 370 P.2d 379. It included a definitions section in the conditions section. The policy included the term "Safe Burglary" in the definitions section. It provided:

" ' "Safe Burglary" means (1) the felonious abstraction of insured property from within a vault or safe, the door of which is equipped with a combination lock, located within the premises by a person making felonious entry into such vault or such safe and any vault containing the safe, when all doors thereof are duly closed and locked by all combination locks thereon, provided such entry shall be made by actual force and violence, of which force and violence there are visible marks made by tools, explosives, electricity or chemicals upon the exterior of (a) all of said doors of such vault or such safe and any vault containing the safe, if entry is made through such doors , or (b) the top, bottom or walls of such vault or such safe and any vault containing the safe through which entry is made, if not made through such doors, or (2) the felonious abstraction of such safe from within the premises.' " 189 Kan. at 461, 370 P.2d 379.

Phoenix relied on the italicized language as evidence that it did not have to compensate Ferguson for the money lost in the safe. It argued that because "there were no visible marks of force and violence made by tools, explosives, electricity or chemicals upon the exterior of the outer door through which entry was made, the loss was not insured under the plain meaning of the policy." 189 Kan. at 462, 370 P.2d 379.

The Kansas Supreme Court disagreed. It began its analysis by noting that the provision is intended to protect the insurer from fraudulent claims arising from " 'inside jobs.' " 189 Kan. at 464, 370 P.2d 379. The court interpreted the provision as "a rule of evidence upon the assured to establish that entry was made into the safe by actual force and violence." 189 Kan. at 469, 370 P.2d 379. The court held that insurance companies have the right to require proof of evidentiary facts, but only when such a provision is not in contravention of public policy and not ambiguous. 189 Kan. at 470, 370 P.2d 379. Then, noting that the provision at issue in the case was "obviously designed to defeat recovery on a just claim," the court held that it violated public policy. 189 Kan. at 471, 370 P.2d 379. The court concluded by stating: "Had the insurance carrier desired to exclude loss by safe burglary where the combination of the outer door is worked by manipulation, such provision should have been incorporated under the 'EXCLUSIONS' in the policy." 189 Kan. at 471, 370 P.2d 379.

This case is distinguishable from Ferguson . There is no allegation here that the insurance contract contravenes public policy. Additionally, the language at issue in this case is a substantive provision in the contract, not a standard of evidence like in Ferguson . The primary distinction between the cases is that the limitations in BCBS's insurance contract are much clearer and more explicit than the insurance contract in Ferguson . The language which provided insurance coverage for safe burglaries in Ferguson did not mention that it was subject to limitations. In the current case, the language in the contract providing insurance coverage for prosthetic devices specifically states that the coverage may be limited by other parts of the contract. Directly after the provision granting coverage for prosthetics is a section called "Limitations ," written in bold font. In Ferguson , the provision conveying coverage for safe burglaries was followed by a section called "EXCLUSIONS," but that section contained no relevant language. 189 Kan. at 461, 370 P.2d 379. The insured had to go to the next section of the contract-"CONDITIONS"-and read the definition of "Safe Burglary" to discover the limitations on recovery. 189 Kan. at 461, 370 P.2d 379. This is much farther removed from the original grant of coverage than in this case.

Finally, Short argues that BCBS "was apparently well-aware of its obligation to state its exclusions to coverage in clear and explicit terms, as its policy contains several conspicuously marked exclusion sections." While this is true, the policy also contains several conspicuously marked limitation sections. BCBS organized its contract so that a section will begin by bestowing coverage and end by listing either exclusions or limitations on that coverage. For example, the insurance policy provides benefits for temporomandibular joint dysfunction (TMJ) syndrome. This includes several nonsurgical treatments. After the section that bestows coverage for nonsurgical treatments for TMJ, there is both a limitations and an exclusions section. The limitations section creates monetary and temporal limits on benefits. The insured is limited to $ 1,000 per course of treatment, and the insured may only receive benefits under the section every five years. The exclusions section lists nonsurgical treatments for TMJ that are never covered, such as vitamins or transcutaneous electrical nerve stimulators. It makes sense that the provision on deluxe or electrically operated prosthetics would be in a limitation section and not an exclusion section because such devices are not excluded from coverage. They are covered by the insurance policy, but recovery is limited to the amount that would have been available for a basic device. If deluxe prosthetics were excluded from the policy, then BCBS would not have offered Short $ 2,925.32. For these reasons, Short's argument is not persuasive.

A reasonable insured person could read the contract and understand that BCBS will pay for medically necessary prosthetics up to the amount that a basic (standard) prosthetic would cost. As a result, the BCBS insurance policy adequately sets out exclusions and limitations.

The district court did not err in granting summary judgment.

Short argues that even if the contract is unambiguous, the district court erred in granting summary judgment. Short makes two primary arguments: (1) BCBS did not offer facts sufficient to justify application of the limitation; and (2) this issue presented a question of fact ill-suited for summary disposition.

The standard of review in summary judgment appeals is well established:

"Summary judgment is appropriate when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. The trial court is required to resolve all facts and inferences which may reasonably be drawn from the evidence in favor of the party against whom the ruling is sought. When opposing a motion for summary judgment, an adverse party must come forward with evidence to establish a dispute as to a material fact. In order to preclude summary judgment, the facts subject to the dispute must be material to the conclusive issues in the case. On appeal, we apply the same rules and where we find reasonable minds could differ as to the conclusions drawn from the evidence, summary judgment must be denied." Bergstrom v. Noah , 266 Kan. 847, 871-72, 974 P.2d 531 (1999).

Short begins by noting that "[t]he applicability of an insurance exclusionary clause is a question of fact." Wiles v. American Family Life Assurance Co. , 302 Kan. 66, 79, 350 P.3d 1071 (2015). The insurer bears the burden of proving facts which would bring a case within the specified exception. Marquis , 265 Kan. at 327, 961 P.2d 1213.

Short's first argument is that BCBS provided no facts that justified application of the exclusion. Short argues that "[t]he medical necessity of the X3 for Plaintiff was a question for medical experts to address." Short notes that expert testimony can only be controverted by other expert testimony. See City of Arkansas City v. Bruton , 284 Kan. 815, Syl. ¶ 1, 166 P.3d 992 (2007) ("[T]he testimony of an expert witness on a subject calling for expert opinion is conclusive to the extent that it may not be contradicted by the testimony of a nonexpert witness."). Short concludes that Dr. Cowen's report conclusively showed the contract covers the X3, and BCBS failed to present its own expert to controvert Dr. Cowen's report.

The problem with Short's argument is that medical necessity is not at issue here. As stated above, BCBS agreed that the X3, a prosthetic device, was medically necessary. As a result, there was no reason to controvert Dr. Cowen's report. Dr. Cowen did not opine on whether the X3 was a basic device, an electrically operated device, or a deluxe device.

BCBS provided evidence that the X3 was electrically operated by providing the court with screenshots from Ottobock's website. The website advertised the X3 as having sensors, a microprocessor, and a battery. From the website, it is clear that the X3 is electrically operated and thus subject to the limitations provision in the insurance policy. Short argues that the statements on Ottobock's "website are obviously promotional and intended to portray the X3 in the best possible light." He adds that companies "frequently embellish their products' features in an attempt to sell as many products as possible."

Short's accusation that Ottobock engages in unscrupulous advertising is insufficient to create a genuine issue of material fact that would preclude summary judgment. Short presented no evidence to dispute BCBS's assertion that the X3 was electrically operated. He also provided no evidence to support his claim that Ottobock lied on its website to sell more products. "When opposing a motion for summary judgment, an adverse party must come forward with evidence to establish a dispute as to a material fact." Bergstrom , 266 Kan. at 871, 974 P.2d 531. Short failed to come forward with the evidence. Accordingly, it was appropriate for the district court to grant BCBS's motion for summary judgment.

The district court abused its discretion when it denied Short's motion to compel, but the error was harmless.

During discovery, Short asked BCBS to provide information explaining its decision to refuse to cover the full cost of the X3. He also asked for various documents related to his case like medical records and reports and correspondences to and from others about Short. BCBS objected to several of Short's questions based on relevance and scope. Short filed a motion to compel discovery responses, and the district court denied it. Now on appeal, Short argues that the district court committed errors of law and fact, thus abusing its discretion, when it denied his motion to compel.

"The control of discovery in Kansas is entrusted to the sound discretion of the district court ... and orders concerning discovery will not be disturbed on appeal in the absence of a clear abuse of discretion." In re Tax Appeal of City of Wichita , 277 Kan. 487, 513, 86 P.3d 513 (2004). A judicial action constitutes an abuse of discretion if (1) no reasonable person would take the view adopted by the trial court; (2) it is based on an error of law; or (3) it is based on an error of fact. Wiles , 302 Kan. at 74, 350 P.3d 1071.

Under K.S.A. 2016 Supp. 60-226(b), which defines the scope of discovery, "[p]arties may obtain discovery regarding any nonprivileged matter that is relevant to the subject matter involved in the action." "[T]he scope of relevancy in a discovery proceeding is broader than the scope of relevancy at trial." Kansas Medical Mut. Ins. Co. v. Svaty , 291 Kan. 597, 620, 244 P.3d 642 (2010). This is because "[r]elevant information need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence." K.S.A. 2016 Supp. 60-226(b)(1) ; Kansas Med. Mut. Ins. Co. , 291 Kan. at 620, 244 P.3d 642.

Generally, "[w]hen the intent of the parties to a contract is clearly ascertainable by construing the document from its four corners it is not considered ambiguous; although some terms may be conflicting, extrinsic evidence is inadmissible and rules of construction applicable to ambiguous contracts do not apply." Brown v. Lang , 234 Kan. 610, 614-15, 675 P.2d 842 (1984). As already discussed, the insurance policy here is not ambiguous. If the evidence is limited to the contract, then discovery would not lead to any admissible evidence and the district court did not abuse its discretion in denying Short's motion to compel. But this case involves a limitations clause. As stated above, the application of a limitations clause in an insurance contract is a question of fact, and the insurer bears the burden of proving facts which would bring a case within the specified exception. Marquis , 265 Kan. at 327, 961 P.2d 1213. This meant that BCBS had to provide facts beyond what was available in the contract. BCBS did provide such facts in its motion for summary judgment, when it attached screenshots of the Ottobock website. BCBS did not provide the information from the Ottobock website to Short when he requested information explaining BCBS's decision to refuse to cover the full cost of the X3.

The district court premised its opinion on the idea that the only issue was one of contract interpretation, a matter of law for the court to decide without extrinsic evidence. But because BCBS needed to provide facts justifying its application of the limitations clause, the issue was not a purely legal one. The district court made an error of law when it denied Short the opportunity to discover the facts that BCBS used to justify application of the limitation.

Having found that the district court made an error of law, the next issue is determining whether the error was prejudicial. A trial error is not grounds for reversal unless the error affects a party's substantial rights. K.S.A. 2018 Supp. 60-261. "Among other things, this court specifically considers whether the error is of such a nature as to affect the outcome of the trial." State v. Wells , 289 Kan. 1219, 1233, 221 P.3d 561 (2009). Here, BCBS's failure to provide Short with the information from the website did not affect the outcome of the trial. Short did receive the screenshots from the Ottobock website when BCBS moved for summary judgment. Because Short used a loaner X3 during the case, the printouts describing the features of the X3 could not have surprised him. Short had an opportunity to contest this information, which would not have been hard as he had personal experience with the X3 and its features, in responding to BCBS's motion for summary judgment. Instead of proving that the X3 was not electrically operated, Short made a conclusory allegation that the Ottobock embellished products on its website. Short has never disputed that the X3 is electrically powered by battery. He would know if it was not electrically powered because he was using a loaner device for some time.

While it was error for the district court to bar Short from discovering the facts that BCBS relied on in denying coverage for the X3, the error was harmless. Short was aware throughout the litigation that BCBS considered the X3 a deluxe or electrically operated device, and thus subject to the limitation in the insurance policy. Short had an opportunity to contradict the evidence BCBS included in its motion for summary judgment, but he failed to do so. This error, therefore, does not require reversal.

Affirmed.

Atcheson, J., dissenting:

Based on the narrow issue Defendant Blue Cross and Blue Shield of Kansas presented in its motion for summary judgment and the limited factual support in the record, the Saline County District Court erred in holding as a matter of law that the insurance company properly refused to pay for an electronic prosthetic leg for Plaintiff Zachary Short. The contract language Blue Cross relied on to deny Short's request doesn't so obviously mean what the company says it means. And Blue Cross hasn't shown its denial fits within that language. I would reverse the summary judgment the district court entered for Blue Cross and remand the case for further proceedings. So I respectfully dissent from my colleagues' decision to affirm.

Factual and Procedural Background

The relevant underlying facts can be quickly outlined. Short had a medical insurance policy with Blue Cross when he suffered catastrophic injuries resulting in the amputation of both his legs. Short requested that Blue Cross pay for an Ottobock X3, an above-the-knee prosthetic leg. Blue Cross refused, claiming the Ottobock X3 fell within a policy limitation for certain prosthetic devices. Short sued Blue Cross for breach of contract. Short's other leg was amputated below the knee, and this case does not concern benefits related to that injury.

The insurance contract covered the cost of "[o]rthopedic and prosthetic devices ... includ[ing] ... artificial limbs" subject to a pair of related limitations:

"(3) Benefits are limited to the amount normally available for a basic (standard) appliance which allows necessary function. Basic (standard) medical devices or appliances are those that provide the essential function required for the treatment or amelioration of the medical condition at a Medically Necessary level.
"(4) Charges for deluxe or electrically operated orthotic or prosthetic appliances, devices or items are not covered, beyond the extent allowed for basic (standard) appliances. Deluxe describes medical devices or appliances that have enhancements that allow for additional convenience or use beyond that provided by a basic (standard) device or appliance."

For summary judgment purposes, nobody disputes Blue Cross was contractually obligated to pay for a prosthetic leg for Short. After Short asked Blue Cross to cover the Ottobock X3, the company responded that it would pay $ 2,925.32 as "the allowed [contract] amount for the basic (standard) knee" without identifying a particular device. The Ottobock X3 costs far more than Blue Cross' allowed amount. The parties did not identify an amount in their statements of fact on summary judgment, but the supporting evidentiary materials indicate a cost of about $ 145,000. The parties do not dispute the Ottobock X3 uses a battery for certain functions and, therefore, is "electrically operated" within the meaning of that phrase in policy limitations.

The district court found the policy limitations to be unambiguous and applicable to the Ottobock X3 and, therefore, granted summary judgment to Blue Cross, limiting the company's contractual obligation to $ 2,925.32. Short has appealed.

Summary Judgment for Blue Cross Improperly Granted

The standards for granting summary judgment and their review on appeal are well known. A party seeking summary judgment has the obligation to show, based on appropriate evidentiary materials, there are no disputed issues of material fact and judgment may, therefore, be entered in its favor as a matter of law. Trear v. Chamberlain , 308 Kan. 932, 935, 425 P.3d 297 (2018) ; Shamberg, Johnson & Bergman, Chtd. v. Oliver , 289 Kan. 891, 900, 220 P.3d 333 (2009). In essence, the movant argues there is nothing for a jury or a trial judge sitting as fact-finder to decide that would make any difference. In ruling on a summary judgment request, the district court must view the evidence most favorably to the party opposing the motion and give that party the benefit of every reasonable inference that might be drawn from the evidentiary record. Trear , 308 Kan. at 935-36, 425 P.3d 297 ; Shamberg , 289 Kan. at 900, 220 P.3d 333.

An appellate court applies the same standards in reviewing the entry of a summary judgment. Trear , 308 Kan. at 936, 425 P.3d 297. Because summary judgment amounts to a question of law-it entails the application of legal principles to uncontroverted facts-an appellate court owes no deference to the district court's decision to grant the motion and review is unlimited. Adams v. Board of Sedgwick County Comm'rs , 289 Kan. 577, 584, 214 P.3d 1173 (2009) ; Golden v. Den-Mat Corporation , 47 Kan. App. 2d 450, 460, 276 P.3d 773 (2012).

In the district court, Blue Cross argued the contract language is unambiguous and plainly limits coverage for "deluxe" and electrically operated prostheses to the cost of what is considered a "basic (standard)" prosthetic. And Blue Cross said the evidence submitted in support of the summary judgment shows the Ottobock X3 comes within either limitation. The district court agreed. Blue Cross essentially reprises those points on appeal. The majority opinion focuses on the exclusion for electrically operated devices in affirming the district court. But the opinion also seems to conclude the Ottobock X3 can be excluded from coverage as a deluxe device. The contract language and the record evidence support neither conclusion.

A contract is unambiguous "if the language ... is clear and can be carried out as written." Simon v. National Farmers Organization, Inc. , 250 Kan. 676, Syl. ¶ 2, 829 P.2d 884 (1992). Conversely, an ambiguous contract "must contain provisions or language of doubtful or conflicting meaning." 250 Kan. 676, Syl. ¶ 2, 829 P.2d 884. Ambiguity arises if "the face of the instrument leaves it genuinely uncertain which one of two or more meanings is the proper meaning." Catholic Diocese of Dodge City v. Raymer , 251 Kan. 689, 693, 840 P.2d 456 (1992) ; Antrim, Piper, Wenger, Inc. v. Lowe , 37 Kan. App. 2d 932, 938, 159 P.3d 215 (2007). A contract, therefore, is not ambiguous simply because the parties disagree about its meaning. 37 Kan. App. 2d at 938, 159 P.3d 215. If a contract is unambiguous, it may be construed as a matter of law. See Osterhaus v. Toth , 291 Kan. 759, 768, 249 P.3d 888 (2011) ; Levin v. Maw Oil & Gas , 290 Kan. 928, Syl. ¶ 2, 234 P.3d 805 (2010) ("The interpretation and legal effect of a written instrument are matters of law ....").

Insurance policies are to be strictly construed, and any ambiguities should be resolved against the insurer, here Blue Cross. Bussman v. Safeco Ins. Co. of America , 298 Kan. 700, 707, 317 P.3d 70 (2014). The applicability of a policy limitation or exclusion to a claim reflects an avoidance or affirmative defense on which the insurer bears the ultimate burden of proof. Evergreen Recycle v. Indiana Lumbermens Mut. Ins. Co. , 51 Kan. App. 2d 459, 478, 350 P.3d 1091 (2015) (policy exclusion constitutes affirmative defense); Golden , 47 Kan. App. 2d 450, Syl. ¶ 20, 276 P.3d 773 (defendant carries burden of proof on affirmative defense). That means to prevail on summary judgment an insurance company must present uncontroverted evidence establishing that the limitation or exclusion applies. 47 Kan. App. 2d 450, Syl. ¶ 20, 276 P.3d 773.

Blue Cross contends the policy limitation categorically applies to any electrically operated prosthetic device and, thus, to the Ottobock X3. But the language doesn't say that. The limitation simply says that Blue Cross does not have to pay for the cost of "electrically operated ... prosthetic appliances ... beyond the extent allowed for basic (standard) appliances." The policy describes "basic (standard) devices" as those providing "the essential function required for the treatment or amelioration of the medical condition." If an electrically operated prosthesis is a "basic (standard) device"-a term that itself is fraught with ambiguity-then Blue Cross has to pay for it. Blue Cross would not have to pay for the additional cost of a higher grade electronic device with more bells and whistles than the basic (standard) one.

A clear categorical limitation of the type Blue Cross wants wouldn't be difficult to draft. For example, in paragraph (4) of the limitations, Blue Cross could have deleted the phrase "electrically operated" from the first sentence, leaving "deluxe" as the sole descriptor, and revised the second sentence to say that "[d]eluxe describes any electrically operated orthotic or prosthetic appliances or devices and those medical devices or appliances that have enhancements ...." Or Blue Cross could have added something like this as a freestanding sentence in one of the limitation paragraphs: "Any electrically operated orthotic or prosthetic appliance is not considered a basic (standard) appliance." Or this: "Any electrically operated orthotic or prosthetic appliance is considered a deluxe appliance."

Measured against that sort of plainly articulated limitation, the actual policy language should be fairly read to cover electrically operated prosthetics that otherwise can be characterized as "basic (standard)" devices. At the very least, the language is ambiguous and open to that reading, meaning it should be strictly construed against Blue Cross to include those devices. That's especially true when we consider the point in weighing the company's summary judgment motion. By rejecting either of those interpretations and buying into Blue Cross' self-serving reading of the limitation, the district court and my colleagues mistakenly deviate from the rules governing summary judgment and interpretation of insurance contracts.

But my take on the policy language wouldn't require reversal if Blue Cross had shown that the Ottobock X3 cannot be considered a "basic (standard)" device or must be considered a "deluxe" device as a matter of law based on the evidence presented on summary judgment. Those really are congruent frames for the secondary argument Blue Cross advanced in its summary judgment papers and again on appeal. The argument, however, fails on this record.

First, as I have indicated, the term "basic (standard)" used in the policy to describe prostheses and other devices or appliances is ambiguous. The phrase effectively presents "basic" as equivalent to or synonymous with "standard," and that is incorrect. Words not otherwise specifically defined in a contract should be given their ordinary meaning. See Pfeifer v. Federal Express Corporation , 297 Kan. 547, 550, 304 P.3d 1226 (2013). Thus, "basic" describes something "serving as the basis or starting point" as in "a [basic] set of tools." Merriam-Webster's Collegiate Dictionary 101 (11th ed. 2003). In that sense, "basic" connotes minimally acceptable for a particular purpose. By contrast, "standard" carries two potentially relevant meanings: "sound and usable but not of top quality" or "regularly and widely used." Merriam-Webster's Collegiate Dictionary 1216 (11th ed. 2003). The first meaning refers to a qualitative level that exceeds basic but falls short of, for example, deluxe. The second meaning refers to breadth of use and contrasts with limited or experimental. The Blue Cross policy presumably uses the word "standard" qualitatively, since it pairs with "basic," albeit in something of an oxymoron, and contrasts with "deluxe."

The phrase "basic (standard)" incorporates two qualitative levels-minimally acceptable and sound but less than the best. Applying the rule of strict construction of insurance contracts against the insurer, the phrase should be treated as referring to midrange quality unless the context obviously demands something else.

As defined in the policy, a "deluxe" prosthetic would be one that has "enhancements that allow for additional convenience or use" over and above "a basic (standard) device." In other words, a deluxe device would be better than a standard one. So Blue Cross would still be entitled to summary judgment if the record evidence indisputably shows the Ottobock X3 is better than a standard above-the-knee prosthetic leg. But the record doesn't establish that proposition as a matter of law.

The only uncontroverted fact Blue Cross offered on the point is a statement that the Ottobock X3 is "[t]he world's most technologically advanced prosthetic leg." Blue Cross identifies Ottobock's website as the source of the assertion. For summary judgment purposes, Short did not dispute the evidentiary foundation but characterized the statement as an "obviously promotional" advertisement of the device. But he cited no factual support for his characterization.

In opposing Blue Cross' motion, Short presented Dr. Todd Cowen's description of the Ottobock X3 leg as a "standard prosthetic appliance." Dr. Cowen, a medical doctor, prepared a lengthy life care plan for Short detailing his current and future medical treatment and related needs based on his injuries. In its reply, Blue Cross challenged Dr. Cowen's qualifications to make the statement but did not otherwise controvert that description of the Ottobock X3. Blue Cross argued Dr. Cowen's statement was irrelevant given the policy limitation for electrically operated devices. The district court neither ruled on Dr. Cowen's expertise nor specifically rejected his statement describing the Ottobock X3 as a standard prosthesis.[*]

[*]In its uncontroverted facts, Blue Cross also relied on Ottobock's website to show the prosthetic leg used a rechargeable battery, contained a microprocessor, and provided multiple "activity modes" that could be activated by a remote control. Those representations bear directly on the Ottobock X3 being electrically operated-an undisputed fact-rather than on its being standard or deluxe.

The dueling representations about the Ottobock X3 are more in the nature of factually unsupported opinions than they are facts. As such, they do little to inform the summary judgment determination. Ottobock's characterization of the prosthetic as the most technologically advanced has the look of puffing or an essentially unverifiable claim of superior quality that could not be legally enforced by a dissatisfied customer. See Golden , 47 Kan. App. 2d at 482, 276 P.3d 773 ("A seller's representations that goods are 'first rate' or 'the finest around' are examples of sales talk or puffing that would not create an express warranty."); see K.S.A. 84-2-313(2) ("seller's opinion or commendation of the goods does not create a warranty"). At most, the statement could (and may well) support an inference that the Ottobock X3 amounts to a deluxe prosthetic within the policy limitation. But granting summary judgment for Blue Cross based on the statement would require drawing an inference against Short as the nonmoving party, contrary to the governing standard of review. The error would be redoubled here, since Blue Cross has the obligation to present uncontroverted facts demonstrating a clear legal entitlement to the policy limitation.

If that were not enough, Dr. Cowen's representation about the Ottobock X3 at least arguably creates a disputed issue of material fact (or, more accurately, unsupported opinion) about the device. His representation that the Ottobock X3 is a "standard" prosthetic device could remove it from the policy limitation and may controvert Blue Cross' ostensible representation about its technological attributes. The representation, however, is ambiguous in its brevity. Dr. Cowen might well have been explaining that the Ottobock X3 is in common use and, thus, standard rather than experimental as opposed to being of middling quality or functionality. Without something more in the record explaining what Dr. Cowen meant, we would have to draw an inference against Short and for Blue Cross to disregard the statement for summary judgment purposes. Blue Cross didn't object to the representation from Dr. Cowen as vague and ambiguous or as an insufficiently supported opinion.

In sum, Blue Cross has failed to provide a sufficient factual basis to show that the Ottobock X3 is a nonstandard or deluxe prosthesis coming within the policy limitation as a matter of law. Could Blue Cross have done so? Maybe. Do I harbor doubts about whether Short will prevail on the merits? Indeed. But that is not the test I am supposed to use in reviewing a summary judgment. See Estate of Belden v. Brown County , 46 Kan. App. 2d 247, 276, 261 P.3d 943 (2011) (In reviewing summary judgment granted a defendant, an appellate court gives the plaintiff the benefit of all factual disputes and every reasonable inference drawn from those facts and asks whether a reasonable jury might render a verdict for the plaintiff-not whether such a verdict is probable.); Cine SK8, Inc. v. Town of Henrietta , 507 F.3d 778, 788 (2d Cir. 2007) ; Wright v. Enhanced Recovery Company, LLC , 227 F.Supp.3d 1207, 1215 & n.36 (D. Kan. 2016) ; Dreamland Villa Community Club, Inc. v. Raimey , 224 Ariz. 42, 46, 226 P.3d 411 (Ariz. App. 2010) (summary judgment not substitute for trial, "even if the trial court determines that the moving party will likely prevail at trial"); Community Hospitals of Indiana, Inc. v. Aspen Insurance UK Limited , 113 N.E.3d 636, 641 (Ind. App. 2018) ("Summary judgment is not a summary trial, and it is not appropriate just because the non-movant appears unlikely to prevail at trial.").

Given the rules we are to apply and the factual record in front of us, the district court erred in granting summary judgment to Blue Cross. I would reverse and remand for further proceedings.


source: Caselaw Access Project

author: McAnany, S.J.:

license: Public Domain

text:
    STATE of Kansas, Appellee, v. Bridgette Marie WARNKE, Appellant.
    No. 118,738
    Court of Appeals of Kansas.
    Opinion filed May 3, 2019
    Randall L. Hodgkinson, of Kansas Appellate Defender Office, for appellant.
    Daryl E. Hawkins, assistant county attorney, Andrea Purvis, county attorney, and Derek Schmidt, attorney general, for appellee.
    Before Arnold-Burger, C.J., Pierron, J., and McAnany, S.J.
   McAnany, S.J.:

On a summer day on a straight and level highway in Dickinson County, the 21st century collided with the 19th century with near-tragic consequences. An automobile driven by Bridgette Warnke collided with a horse-drawn open two-wheeled buggy-sometimes referred to as a forecart-with an empty hay trailer attached. The buggy was occupied by Malachi and Micah Hamilton, ages 13 and 15, who are members of the Amish Mennonite community. The collision resulted in the boys being thrown from the buggy and injured and one of the horses being killed.

While it is apparent that the collision was caused by Warnke's negligence, we conclude that her conduct was not criminal in nature. Accordingly, we reverse Warnke's criminal convictions for two counts of felony reckless aggravated battery and for misdemeanor criminal damage to property that arose from this unfortunate incident. We dismiss as moot Warnke's constitutional claim with respect to K.S.A. 2018 Supp. 21-5413(b)(2).

The accident resulted in Warnke being charged with two counts of felony reckless aggravated battery, misdemeanor criminal damage to property, and two traffic infractions: following another vehicle too closely and using an electronic device while operating a motor vehicle. The traffic infraction charges were tried to the court. The three remaining charges were tried to a jury. Warnke was convicted on all charges. The district court sentenced her to 16 months in prison on the felony reckless aggravated battery convictions and a consecutive 6-month jail sentence on her misdemeanor criminal damage to property conviction, but granted her probation. As a condition of probation, the district court ordered Warnke to serve 15 consecutive weekends in jail.

FACTS

The testimony and documentary evidence educed at trial establish the following.

Micah and Malachi Hamilton had used a borrowed trailer to haul hay to their family farm. At the time of the accident they were on their way from home to return the hay trailer. They rode on a two-wheeled buggy with a team of two horses. The empty hay trailer was attached to the buggy. There was a 14-inch slow-moving vehicle emblem attached to the back of the trailer. Their route took them on Highway K-43 north of Enterprise.

Both boys testified that as they traveled north on K-43 their buggy and trailer never left the asphalt roadway and did not cross over the white fog line. Micah explained that they stay on the highway not only for safety, but also because the horses preferred it-the hard asphalt provided better footing for the horses and made pulling the buggy and trailer easier.

While Malachi was driving the team, Micah heard something behind them and turned to see a quickly approaching car. Micah did not see the car slow down, and there was no oncoming southbound traffic on K-43. He did not have a chance to warn Malachi about the approaching car before it struck the hay trailer, throwing both boys into the ditch beside the road. Micah remembered hitting his head but then lost consciousness until he later found himself in the ditch. Meanwhile, Malachi had broken his leg in the collision.

One of the horses was dead, and the other had run off.

Vance Riffel witnessed the accident. He was driving his pickup truck home from work and traveling north on Highway 43 at the speed limit of 55 miles per hour. He was following Warnke's vehicle, which he estimated was about an eighth of a mile ahead of him. He also saw a horse-drawn carriage in front of Warnke, which was traveling in the same lane of traffic and was not off the road or on the shoulder. Riffel did not see any oncoming southbound traffic. Warnke's vehicle and "the horse drawn carriage in front of her" were the only traffic he observed on the road that day. When Warnke collided with the trailer, Riffel saw a dark object fly off to the left. He later determined this was one of the horses that had been pulling the buggy and trailer. He saw "another couple objects fly off to the right." Those were the two boys.

According to Warnke, on the day of the accident, a Friday, she had been working at the elementary school in Enterprise. She had left her daughter with Christina Bartlett that morning because Warnke's daughter did not have Head Start preschool on Fridays. Warnke parked that day at the Methodist church parking lot across the street from the school.

At the end of the work day, she checked her cell phone and saw a text from Christina who asked Warnke when she was going to pick up her child. While sitting in her car in the church parking lot, Warnke texted to Christina: "Leaving Enterprise now." Warnke then pulled out of the church parking lot and headed for home.

When Warnke reached the stop sign, "which is right before you turn onto 43," she received another text message from Christina asking whether Warnke was bringing Christina's child home with her. Warnke called Christina and told her that her daughter had taken the bus home. That call lasted for 46 seconds. Warnke claimed she made this call while she was stopped at the stop sign and before turning onto K-43.

Warnke's call to Christina was at 3:31 p.m. Christina attempted to call Warnke back at 3:39 p.m. Warnke did not pick up that call because the accident had happened-sometime between 3:31 and 3:39 p.m.

As Warnke turned onto Highway K-43 the speed limit was 30 miles per hour. Once she crossed a bridge the speed limit increased to 55 miles per hour. As she proceeded north on K-43 Warnke's speed was "55, maybe 57." She testified: "I seen the trailer and I went to go around it. There was a truck coming in the other lane, so I pulled back over, I hit my brakes. I realized the horse was coming back on the road, because they were off to the shoulder, and the impact happened."

Witness Riffel pulled up to the accident scene. He testified to the following at trial:

"[Prosecutor:] Okay. Did you park before you called 911?
"[Riffel:] Um, it was kind of a simultaneous deal. I just remember stopping and calling right away."
"[Prosecutor:] Okay, Um, when you called, were you still in your car?
"[Riffel:] Yes."

When pressed further, Riffel testified it was possible that he called 911 approximately two minutes after he stopped at the scene, maybe a minute longer or a minute shorter. But on cross-examination he stated that he did not delay in calling 911: "As soon as I got to the scene I called."

When Warnke first talked to Riffel he was on the phone. Warnke told Riffel she thought she was okay but was worried about the boys. Warnke then

"proceeded to go back to my car to get my phone, because I wasn't sure if he was on the phone with 911, or just on the phone. And there was another car that pulled up and she came up to see if I was all right, and I told her I needed to find my phone. I need to get ahold of my mom, because he's on the phone with 911. And she found my phone in my passenger floorboard, under the dash, inside my purse still, and she called my mom and told my mom what had happened."

When Riffel spoke to Warnke about how the accident happened, she told him "the trailer was down in the ditch and it was coming up on the road and she couldn't stop." According to Riffel, that is not what he saw.

Trooper Cole McGee from the Kansas Highway Patrol responded to Riffel's 911 call. The 911 call came in at 3:34 p.m. When McGee arrived at the scene, he found the triangular slow-moving vehicle emblem on the ground under the hay trailer. Warnke's vehicle had "struck the rear of that hay trailer, directly in the center of it."

McGee spoke with Riffel who told him that the boys' buggy was directly in its lane of travel. The boys also stated that they were directly in their lane. Riffel told McGee that he saw brake lights on Warnke's vehicle only at the time of the impact.

McGee also spoke to Warnke. McGee had no indication that Warnke was impaired in any way by drugs or alcohol. No alcohol was found in her car. This was Warnke's first automobile accident. Warnke told McGee that she was driving north from Enterprise on K-43 when she saw the horse and trailer coming out of the ditch and onto the highway in front of her. But in her written statement Warnke said that when she saw the buggy and trailer "[t]hey were off the road a little." She told McGee that she slowed down to pass them but when she saw an oncoming vehicle traveling south she had to get back in her lane and could not stop in time. According to the police report, Warnke stated that she was going 55 miles per hour at the time of the impact.

Trooper McGee testified that Warnke's story did not match his investigation. McGee observed only 13 feet of brake marks leading up to the point of impact, indicating that if Warnke was traveling 55 miles per hour, she applied her brakes approximately .16 seconds before the collision. Further, McGee found no evidence that the buggy and trailer had been pulled through the ditch. The ditch had very tall and unmaintained grass that was undisturbed. The ditch was very steep, and it would have been difficult for a horse and buggy to get through it.

McGee checked the text messages and phone call record on Warnke's cell phone and found a text message sent at 3:29 p.m. which stated "Leaving Enterprise now." The phone showed an incoming text message from Christina Bartlett, the babysitter, at 3:31 p.m. That message was, "Do you have my kid?" Warnke's phone log showed an outgoing phone call at 3:31 p.m. that lasted for 46 seconds.

A few days before trial, McGee conducted a test to determine how long it took to drive from the northwest corner of the school parking lot to the accident scene. He did not start from the parking stall at the United Methodist Church, but the church is "directly west" of and "very close" to the school.

McGee made three separate trips from the school parking lot to the accident scene. The average time was two minutes and six seconds. So, according to McGee, if Warnke sent her first text message while at the school at 3:29 p.m., the second text message at 3:31 p.m. "[w]ould have been right around the time of the crash."

McGee apparently made no calculation of the time and distance from the stop sign where Warnke stopped before entering K-43 to the point of impact.

At the close of the State's case the court denied Warnke's motion for a judgment of acquittal. Then, at the close of all the evidence, Warnke renewed her motion for a judgment of acquittal. The court asked, "Has anyone thought to look for the witness that got the purse out of the defendant's car when she said the purse was underneath the dash and the cell phone was in the purse? That's uncontroverted at this point, folks. Not refuted." The court then declared a recess and did not explicitly rule on Warnke's motion, but it appears that the motion was denied.

The court instructed the jury on the various iterations of battery and included in Instructions No. 3, 5, 6, 7, and 9 the following:

"A defendant acts recklessly when the defendant consciously disregards a substantial and unjustifiable risk that a result of the defendant's actions will follow.
"This act by the defendant disregarding the risk must be a gross deviation from the standard of care a reasonable person would use in the same situation."

In instructing the jury on the charge of criminal damage to property, the court instructed that the defendant must have acted knowingly in damaging the subject property.

Instruction No. 10 stated: "A defendant acts knowingly when the defendant is aware that her conduct was reasonably certain to cause the result complained about by the State."

After the court instructed the jury, the parties presented their final arguments with regard to the two charges of felony reckless aggravated battery and the charge of misdemeanor criminal damage to property.

The State argued that Warnke engaged in reckless behavior. The horse-drawn buggy and trailer never left the roadway, and there was no oncoming vehicle as Warnke claimed. Warnke did not slow down as she approached the boys, and she did not apply her brakes until a fraction of a second before impact. Moreover, the State argued that based on the various phone calls and text messages, the accident occurred "at 3:32 or approximately 3:32. This would have been after the call ended, but when she was still-she still would have been distracted by the phone." The State did not address the misdemeanor criminal damage to property charge.

Warnke's argument focused on her version of how the accident occurred and the State's requirement to prove recklessness. "Did Bridgette Warnke act recklessly when she had this accident? ... Recklessly is a gross, extreme deviation from the standard of care a reasonable person would use in the same situation." Warnke's counsel only addressed the misdemeanor criminal damage to property charge in passing.

After the jury withdrew, the court heard the separate closing arguments of the parties on the two charged traffic infractions which were being tried to the court rather than to the jury. The court found Warnke guilty of following another vehicle too closely based on the obvious fact that she collided with the rear of the boys' vehicle.

With regard to the charge of using an electronic device while operating a motor vehicle, the court observed: "If this were alleged at the time of the incident, I would find you not guilty, because there is no evidence, in this Court's opinion, as to the time of this incident." But the court found Warnke guilty based on the fact that she was reading Christina's text message while stopped in her car with the engine running at the stop sign before turning onto K-43.

It is apparent that the jury was persuaded by the State's closing argument and rejected Warnke's explanation that she had seen the slow-moving buggy and trailer, tried to pass it, but had to return to her lane because of an oncoming truck. The jury found Warnke guilty on the two charges of felony reckless aggravated battery and the charge of misdemeanor criminal damage to property.

Before sentencing Warnke again moved for a judgment of acquittal and moved for a new trial based upon the insufficiency of the evidence. The court denied Warnke's motions, stating:

"[T]his Court had some issue with in regards to whether or not the State proved that you were on that cell phone at the time. However, the officer's testimony and the witness testimony, there was no slowing down of that vehicle. The vehicle was driven directly into a-a horse and buggy that was not off in the ditch. The evidence indicates it was on the roadway and you hit it in the back without braking. There was substantial damage done. The charge is a reckless charge. This Court finds that the jury had sufficient evidence to make that finding under that statute, under that reckless, causing harm to another. Driving a motor vehicle at that speed without-without due caution. So the Court's going to deny both the motion for [judgment] of acquittal and the motion for a new trial."

Warnke's appeal brings the matter to us.

SUFFICIENCY OF THE EVIDENCE FOR AGGRAVATED BATTERY

Warnke argues that her actions amounted only to inattentive driving, which cannot constitute a gross deviation from the standard of care which a person would observe under the same circumstances in order to convict her of reckless aggravated battery.

She contends further that there is no evidence that she acted knowingly-with an awareness that her conduct was reasonably certain to cause the collision-to support her criminal damage of property conviction.

Standard of Review

When the sufficiency of the evidence is challenged in a criminal case, the standard of review is whether, after reviewing all the evidence in a light favoring the State, we are convinced that a rational fact-finder could have found the defendant guilty beyond a reasonable doubt. In doing so, we do not reweigh evidence, resolve evidentiary conflicts, or make determinations of witness credibility. State v. Chandler , 307 Kan. 657, 668, 414 P.3d 713 (2018).

Analysis

Warnke argues that in the light favoring the State, "the record only contains at most evidence of inattentive driving, which cannot support findings of reckless or knowing acts."

Warnke was convicted of felony reckless aggravated battery under K.S.A. 2016 Supp. 21-5413(b)(2)(A) (for the injuries to Malachi) and K.S.A. 2016 Supp. 21-5413(b)(2)(B) (for the injuries to Micah). Each of these statutory provisions requires the State prove Warnke acted recklessly. The court instructed the jury that a defendant acts recklessly when he or she consciously disregards a substantial and unjustifiable risk, and the defendant's act disregarding the risk must be a gross deviation from the standard of care a reasonable person would use in the same situation.

Warnke was also convicted of misdemeanor criminal damage of property which requires proof that Warnke acted knowingly.

The Facts Supported by the Evidence

Our first task is to determine which factual assertions are supported by the record and which are not. Then we will consider the legal consequences of those acts which are supported by the record.

Under the unique facts of this case, we must determine not only whether the evidence supports the State's contentions about how the accident happened, but also when the accident happened. We first look at the evidence as to how the accident happened.

Viewing the evidence in the light favoring the State, the evidence supports the State's contention, reflected in the jury's verdict, that Warnke did not attempt to pass the boys' slow-moving buggy and trailer and then, at the last moment, pull back into the northbound lane to avoid a head-on collision with an oncoming southbound vehicle, thereby causing her to collide with the boys' vehicle. The boys saw no approaching southbound vehicle. Neither did witness Riffel. The jury apparently believed the State's evidence on this point and not Warnke's.

Further, there is substantial evidence to support the State's contention that Warnke did not initially think it was safe to pass because the boys' vehicle was either off the road in the ditch or on the shoulder of the road. The boys testified that they were always within the northbound lane of travel and never crossed the fog line. This is confirmed by what Riffel saw. Moreover, investigating Trooper McGee found no evidence that the buggy and trailer had been pulled through the tall grass in the steeply sloped ditch.

Warnke stated that she was traveling 55 to 57 miles per hour as she headed north on Highway K-43. According to the police report, she said she was traveling the speed limit-55 miles per hour-at the time of impact. McGee computed from the tire marks leading to the point of impact that at Warnke's speed she applied her brakes only .16 seconds before impact. The impact was not a glancing blow as she attempted to return to the northbound lane. She struck the empty trailer full-on in the rear center of the trailer.

It is uncontested that the weather that day was cloudy or overcast and that there was no rain. The road was flat and straight with no visual obstructions. The collision obviously was not an intentional attack on the boys. So what caused the collision? The testimony presents two alternatives: Warnke being distracted by her cell phone or by simple inattention.

We know that Warnke used her cell phone as she drove between the school and the accident scene. So when was Warnke using her phone in relation to the accident?

The district court was not the fact-finder with respect to the felony charges against Warnke. Nevertheless, in deciding the traffic infraction of texting while driving in violation of K.S.A. 2016 Supp. 8-15,111, the judge commented: "I don't see the evidence to show beyond a reasonable doubt, that you were texting at the time of this collision." The judge based this on the fact that the State failed to establish exactly when the accident occurred. Nevertheless, Warnke was convicted of texting while driving based on her texting to Christina while stopped at the stop sign before entering Highway K-43 and well before the collision.

Viewing the evidence in the light favoring the State, the evidence does not establish that Warnke was using her phone to text at the time of the collision. The uncontested evidence establishes that the only text message Warnke sent during the relevant time period was as she left the school-a considerable distance from the accident scene. After that, she received a text message from Christina and then placed a 46-second phone call to Christina. If the accident happened while Warnke was reading Christina's second text message, that 46-second phone call would never have occurred. So the phone call to Christina had to have occurred after Christina's text message and before the accident.

We have the benefit of exact times for certain events in this case. The last text was from Christina at 3:31, followed by a 46-second phone call from Warnke at 3:31 which would have ended at about 3:32.

The 911 call came it at 3:34:27. Riffel placed this 911 call after arriving at the accident scene. He had been traveling behind Warnke at a speed of 55 miles per hour and at a distance he estimated to be about an eighth of a mile when the accident occurred. Using Trooper McGee's speed/distance/time computations, the accident occurred about eight seconds or so before Riffel arrived at the scene.

If Riffel placed the 911 call a few seconds after arriving at the accident scene, his final testimony on that point, that places the time of impact at somewhere around 3:34 p.m. But if Riffel waited a couple of minutes after arriving at the scene before calling 911-the evidence viewed in the light favoring the State-that would place the time of impact around 3:32, about the time Warnke ended her call to Christina.

Christina testified at trial. There was no evidence educed from her testimony that Warnke's 46-second call to her was cut off or ended abruptly, which would be the case if they were engaged in conversation at the time of impact. Thus, viewing the evidence in the light favoring the State, there is substantial evidence that Warnke had just completed her call to Christina when the accident occurred.

This conclusion required the jurors to disregard Warnke's testimony that she received Christina's last text message while she was stopped at the stop sign before entering Highway K-43 and that she placed her 46-second call to Christina before turning onto Highway K-43. Given Warnke's unsupported and independently contradicted testimony about the boys being off the road and the oncoming vehicle, this is apparently what the jurors did. In this regard, the jurors were the sole arbiters of the facts regarding the reckless aggravated battery and the criminal damage charges. They were not bound by the district court's finding on the texting-while-driving charge-which, by the way, was never communicated to them-that Warnke read Christina's text while she was "sitting at the stop sign, in the city of Enterprise, getting ready to turn onto K-43."

As between the two-using a cell phone while driving and sending or reading a text message-texting obviously is more of a distraction to a motorist than placing or receiving a cell phone call. Creating or reading a text requires attention to the mobile device itself and not to the road ahead. Thus, it is unlawful under K.S.A. 2018 Supp. 8-15,111 for a motorist to send or read a text while driving. But it is not unlawful in this state to use a cell phone to make a phone call while operating a motor vehicle.

Immediately after the accident Warnke's phone was found in her purse on the passenger floorboard of her car, where it very well could have fallen from the passenger seat during the rapid deceleration in the collision. As the district court noted, this evidence is uncontested.

The phone could have been found in Warnke's purse on the floor as a result of one of two scenarios. First, Warnke could have completed her 46-second phone call to Christina, returned the phone to her purse, and placed her purse on the seat before the impact. As an alternative, Warnke could have been using the Bluetooth capabilities of her Nissan Versa automobile to make the call through her car's audio system while the actual phone remained in her purse. But the State presented evidence on neither of these alternatives. So the jury was simply left with evidence regarding the close proximity of ending the phone call and the subsequent impact.

The Legal Consequences Arising from the Facts Supported by the Evidence

Reckless Aggravated Battery

This brings us to consider the legal consequences of these facts. Warnke was convicted of reckless aggravated battery under K.S.A. 2016 Supp. 21-5413(b)(2)(A) and K.S.A. 2016 Supp. 21-5413(b)(2)(B), each of which requires the State prove Warnke acted recklessly.

K.S.A. 2018 Supp. 21-5202(j) states:

"A person acts 'recklessly' or is 'reckless,' when such person consciously disregards a substantial and unjustifiable risk that circumstances exist or that a result will follow, and such disregard constitutes a gross deviation from the standard of care which a reasonable person would exercise in the situation." (Emphases added.)

It is interesting to note that our vehicular homicide statute, K.S.A. 2018 Supp. 21-5406, does not require proof of reckless or intentional misconduct. Conduct characterized as something between ordinary negligence and gross negligence will suffice for a conviction. Vehicular homicide is predicated on operating a vehicle "in a manner which creates an unreasonable risk of injury to the person or property of another and which constitutes a material deviation from the standard of care which a reasonable person would observe under the same circumstances." (Emphasis added.) K.S.A. 2018 Supp. 21-5406(a). The vehicular homicide statute defines a "material deviation" as "conduct amounting to more than simple or ordinary negligence but not amount[ing] to gross negligence." K.S.A. 2018 Supp. 21-5406(c). A culpable material deviation is something less than recklessness. State v. Randol , 226 Kan. 347, 354, 597 P.2d 672 (1979).

This contrasts with our reckless aggravated battery statute which requires a showing of reckless conduct-the conscious disregard of a substantial and unjustifiable risk-which amounts to a gross deviation from the standard of care. Thus, it takes more egregious conduct to convict Warnke under our aggravated battery statute for conduct that results merely in bodily harm than it does to convict a defendant of vehicular homicide.

What constitutes a gross deviation from the standard of care for a motorist driving down a clear, dry, straight, level, relatively traffic-free, two-lane highway during daylight hours? We know what the negligence standard is under these circumstances. We expect a driver on a public highway to "keep a proper lookout for other vehicles and objects in (his ) (her ) line of vision that may affect (his ) (her ) use of the highway." PIK Civ. 4th 121.03. To convict Warnke of a gross deviation from this standard, the State had to prove substantially more. It had to prove that Warnke's conduct exhibited a conscious disregard of a substantial and unjustifiable risk that by talking on her cell phone she would collide with a slow-moving vehicle ahead.

Our reported cases on this subject is rather sparse. They deal with our negligent homicide statute, which requires less egregious conduct for a conviction than in Warnke's case. Here are three of the more recent cases.

State v. Trcka , 20 Kan. App. 2d 84, 884 P.2d 434 (1994), is a vehicular homicide case. In Trcka , the defendant, a professional driver operating a semitrailer truck, drove past several signs warning of a construction zone. He proceeded at a speed of 50 to 55 miles per hour in a 45-miles-per-hour construction zone and collided with the rear of a highway worker's pickup truck. The pickup truck had a flashing light and its hazard lights on and a man at the rear of the pickup "frantically motioning to the truck to go around." 20 Kan. App. 2d at 85, 884 P.2d 434. The court upheld the defendant's vehicular homicide conviction, stating: "[F]or a professional driver to be oblivious to his surroundings while propelling a semitrailer truck down a highway at 50 to 55 miles per hour is closer to reckless and wanton conduct than to simple negligence." 20 Kan. App. 2d at 88, 884 P.2d 434.

State v. Krovvidi , 274 Kan. 1059, 58 P.3d 687 (2002), is another vehicular homicide case that required less egregious conduct than was required to support Warnke's conviction. In Krovvidi , the defendant driver ran a red light, killing a passenger in another vehicle. Following a court trial, the court found the defendant guilty of vehicular homicide based on running the red light alone, without any indication of recklessness or impairment.

On appeal, our Supreme Court gave examples of conduct which could constitute a material deviation from the ordinary negligence standard of care: drinking, drug use, ignored warnings from a passenger, reckless driving, accelerating while approaching an intersection, and speeding. 274 Kan. at 1075, 58 P.3d 687. The court reversed the defendant's vehicular homicide conviction, holding that insufficient evidence supported his conviction because his action of running the red light, without any aggravating circumstances, was not a material deviation from the standard of care as required by K.S.A. 21-3405. 274 Kan. at 1075, 58 P.3d 687.

More recently, a panel of our court decided State v. Butts , No. 117883, 2018 WL 2748511 (Kan. App. 2018) (unpublished opinion). Butts is another vehicular homicide case. There, the defendant was driving a commercial poultry semitrailer truck on U.S. Highway 24. He was following another poultry semitrailer truck and " 'he was trying to stay on the vehicle.' " 2018 WL 2748511, at *2. He approached an intersection controlled by four overhead traffic signals regulating through-traffic on Highway 24. He was familiar with the intersection and previously had to come to an abrupt stop at the intersection.

Before reaching the intersection the defendant proceeded at a speed of at least 55 miles per hour, the speed limit. He passed two warning signs of the signals ahead-one sign a half mile from the intersection, the other .3 miles before the intersection-each warning drivers, " 'BE PREPARED TO STOP.' " 2018 WL 2748511, at *1. He failed to slow down or stop at the red light and struck the driver's side of the victim's crossing vehicle.

The investigation that followed disclosed that the defendant only applied his brakes once he was in the intersection. The defendant's truck needed almost the length of a football field to stop at a speed of 55 miles per hour. Moreover, three of the brakes on the defendant's trailer were out of adjustment. A witness following behind the defendant's truck saw the truck speed up before reaching the intersection. She saw that the defendant was following another semitrailer truck and she thought the defendant was trying to keep up with that other truck. She did not see any brake lights on the defendant's trailer until after the collision.

The court in Butts affirmed the vehicular homicide conviction because of the presence of one or more of the aggravating factors identified in Krovvidi .

In Warnke's case, none of the facts that supported a vehicular homicide conviction in these other cases-for which the standard for a conviction is lower-are found here. Warnke was a mother and paraprofessional driving home after working at the school. She was not a professional driver. She was driving a compact Nissan automobile, not a loaded semitrailer truck. She was not speeding. She did not accelerate as she approached the point of impact. There were no flashing lights or warning signs to alert her to the danger ahead. No one on the vehicle ahead was waving for her to go around them. She was not impaired by drugs or alcohol.

The district court found Warnke guilty of the traffic infraction of following too closely, but that was premised on the collision itself. The court also found her guilty of texting while driving, but that was premised on her reading a text from Christina while Warnke was sitting behind the wheel of her car with the engine running at the stop sign before turning onto K-43. There is no evidence that before the collision Warnke committed any traffic infraction as she proceeded down highway K-43 other than the breach of her common-law duty to keep a proper lookout of the road ahead. Speaking on a cell phone while driving is not a violation of our traffic laws. There is no evidence of conduct that constitutes a gross deviation from the standard of care which a reasonable person would exercise in the situation.

Besides, to convict under our reckless aggravated battery statute the defendant must consciously disregard "a substantial and unjustifiable risk that circumstances exist or that a result will follow." K.S.A. 2018 Supp. 21-5202(j). We do not conclude that a motorist traveling on a straight, flat, dry, rural highway with little traffic during daylight hours with unobstructed visibility ahead disregards a substantial risk that she will collide with some vehicle ahead if she places a cell phone call. The evidence does not support the "conscious disregard" element of the statute.

Obviously, this is not to say that Warnke was without fault. We can speculate that she probably allowed her mind to wander as she spoke to Christina on the phone. She may have been distracted while ending the call. She clearly was at fault applying the standard of ordinary negligence. She failed to maintain a proper lookout ahead. But her misconduct did not reach the high threshold for a felony criminal conviction for reckless aggravated battery. Accordingly, we reverse Warnke's two convictions for reckless aggravated battery.

Misdemeanor Criminal Damage to Property

The State charged Warnke with criminal damage to property under K.S.A. 2016 Supp. 21-5813(a)(1), (c)(3), a class B misdemeanor. The conduct this charge addresses includes "[k]nowingly damaging, destroying, ... or substantially impairing the use" of another's property without consent. K.S.A. 2018 Supp. 21-5813(a)(1). The State did not address this charge in its closing argument. All the defense said about this charge in closing was that the State alleged "that she knowingly, intentionally damaged that trailer when she hit it with her car in a rear end accident. That's not proven." On appeal, Warnke argues:

"Criminal negligence is a lower culpable mental state than a reckless (or knowing) culpable mental state.... If inattentive driving cannot support criminal negligence, it certainly cannot support a finding of reckless or knowing acts. As a result, this Court should reverse the convictions for recklessly committing aggravated battery and knowingly committing criminal damage to property and remand with directions to discharge Ms. Warnke from further liability on those charges."

We agree. Under K.S.A. 2018 Supp. 21-5202(b), the culpable mental states are listed from the highest to the lowest relative degree as follows: (1) intentionally, (2) knowingly, and (3) recklessly. Under K.S.A. 2018 Supp. 21-5202(c), proof that a person acted knowingly, for example, also is proof that a person acted recklessly, a lower degree of culpability. But it does not work in the other direction. Proof of reckless conduct does not also constitute proof that a person acted knowingly.

Under K.S.A. 2018 Supp. 21-5202(i) :

"A person acts 'knowingly,' or 'with knowledge,' with respect to the nature of such person's conduct or to circumstances surrounding such person's conduct when such person is aware of the nature of such person's conduct or that the circumstances exist. A person acts 'knowingly,' or 'with knowledge,' with respect to a result of such person's conduct when such person is aware that such person's conduct is reasonably certain to cause the result." (Emphasis added.)

Here, Warnke obviously was aware that she was talking on her cell phone as she drove down the highway, thus satisfying the first part of the statute. But under the factual analysis above, the evidence does not support the requirement of the second part of the statute: that she was aware that talking on her cell phone while driving down the highway was reasonably certain to cause the collision she had with the boys' vehicle that day.

Accordingly, we reverse Warnke's conviction for criminal damage to property.

THE CONSTITUTIONALITY OF K.S.A. 2018 SUPP. 21-5413(b)(2)(B)

Aggravated battery under K.S.A. 2018 Supp. 21-5413(b)(2) can be committed by "recklessly causing bodily harm to another person ... with a deadly weapon, or in any manner whereby great bodily harm, disfigurement or death can be inflicted." (The parties brief this issue based on K.S.A. 2018 Supp. 21-5413 [b][1][B] which relates to "knowingly causing" rather than "recklessly causing." Warnke was not charged under this subsection of the statute.)

Warnke argues that the phrase "can be inflicted" in the statute is unconstitutionally vague. But because we have reversed Warnke's two aggravated battery convictions, this issue is now moot and we need not address it. See State v. Williams , 298 Kan. 1075, 1082, 319 P.3d 528 (2014).

Warnke's two felony reckless aggravated battery convictions and her misdemeanor criminal damage to property conviction are reversed. Warnke's constitutional issue is dismissed as moot.


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    In the MATTER OF A.F.
    No. 120,400
    Court of Appeals of Kansas.
    Opinion filed May 31, 2019
    Affirmed.


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    Court of Appeals of Kansas.
    Opinion filed May 24, 2019.
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    Napoleon VASQUEZ-MEJIA, Appellee, v. William GARRISON, Appellant.
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    Court of Appeals of Kansas.
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    Court of Appeals of Kansas.
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    STATE of Kansas, Appellee, v. Henry E. PARKER, Appellant.
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    Court of Appeals of Kansas.
    Opinion filed May 31, 2019
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    Daniel DETWILER, Appellant, v. Thomas OVERTON, Appellee.
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    Court of Appeals of Kansas.
    Opinion filed May 31, 2019
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    Court of Appeals of Kansas.
    Opinion filed May 31, 2019
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    Court of Appeals of Kansas.
    Opinion filed May 31, 2019
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    STATE of Kansas, Appellee, v. Kim P. VALENTINE, Appellant.
    No. 119,164
    Court of Appeals of Kansas.
    Opinion filed May 31, 2019.
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    STATE of Kansas, Appellee, v. Jordan R. LEWIS, Appellant.
    No. 118,881
    Court of Appeals of Kansas.
    Opinion filed May 31, 2019
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    In the INTEREST OF P.R., a Minor Child.
    No. 119,745
    Court of Appeals of Kansas.
    Opinion filed May 31, 2019.
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    Miranda M. CAIN, Appellant, v. STATE of Kansas, Appellee.
    No. 119,434
    Court of Appeals of Kansas.
    Opinion filed May 31, 2019
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    STATE of Kansas, Appellee, v. James Robert HAY, Appellant.
    Nos. 119 405 119,406
    Court of Appeals of Kansas.
    Opinion filed May 31, 2019.
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    STATE of Kansas, Appellee, v. Nathanial Joseph Alan BOST, Appellant.
    No. 120,493
    Court of Appeals of Kansas.
    Opinion filed June 7, 2019
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    STATE of Kansas, Appellee, v. Kelvin H. TURNER, Appellant.
    No. 119,105
    Court of Appeals of Kansas.
    Opinion filed May 31, 2019.
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    In the INTERESTS OF A.L. and L.L., Minor Children.
    No. 120,313
    Court of Appeals of Kansas.
    Opinion filed May 31, 2019
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    No. 118,925
    Court of Appeals of Kansas.
    Opinion filed May 31, 2019
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    No. 75105
    Supreme Court of Nevada.
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    No. 73074
    Supreme Court of Nevada.
    FILED MAY 31, 2019
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    No. 74306
    Supreme Court of Nevada.
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    Supreme Court of Nevada.
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    Supreme Court of Nevada.
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    Supreme Court of Nevada.
    FILED MAY 31, 2019
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    Yele GLASTER, Individually, Appellant, v. DOLLAR TREE STORES, INC., a Foreign Corporation, Respondent.
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    Supreme Court of Nevada.
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    No. 74787
    Supreme Court of Nevada.
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    Supreme Court of Nevada.
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    Supreme Court of Nevada.
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    In the MATTER OF the ESTATE OF Anne BRANCH-GARNER, a/k/a Anne E. Branch-Garner, Deceased.
    Geraldine Kirk-Hughes, Appellant, v. Estate of Anne Branch-Garner; Christina E. Donaldson; and Melody L. Moses, as Co-administrators of the Estate of Anne Branch-Garner, Respondents.
    No. 77831
    Supreme Court of Nevada.
    FILED JUNE 03, 2019
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