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No. 115,882

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

ALLIANCE INDEMNITY CO.,

Appellee,

v.

WILLIAM KERNS and CHERITY KERNS,

Appellants.

SYLLABUS BY THE COURT

1.

Whether the district court has authority to award attorney fees is a question of law 

over which an appellate court has unlimited review.

2.

Interpretation of a statute is a question of law over which an appellate court has 

unlimited review. In examining a statute courts look for the intent of the legislature in 

enacting it. The intent of the legislature governs if that intent can be determined. Courts

look for legislative intent by examining the words used by the legislature, giving common 

words their ordinary meaning. When the words are clear and the statute is unambiguous, 

courts do not speculate about the legislative intent behind the statute's clear language, nor 

do courts read something into the statute that is not readily found in its words. 

3.

Interpretation of an insurance policy presents a question of law over which an 

appellate court has unlimited review. In doing so courts consider the policy as a whole 

and endeavor to ascertain the intention of the parties from the language used, taking into 

account the situation of the parties, the nature of the subject matter, and the purpose to be 
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accomplished. Insurance policy language is tested by what a reasonably prudent insured 

would understand the language to mean. If an insurance policy is ambiguous, the 

ambiguity is construed against the insurer. 

4.

Kansas applies the traditional American rule for attorney fees: our courts will not 

assess attorney fees absent a statute authorizing an award of fees or an agreement 

between the parties. 

5.

The Kansas Declaratory Judgments Act, K.S.A. 60-1711 in particular, provides 

that in proceedings under the Act courts may make such award of costs as may seem 

equitable and just. But "costs" under the Act do not include attorney fees.

6.

Attorney fees are not a part of costs, absent express statutory authority. The plain 

language of the Uniform Declaratory Judgments Act does not authorize a district court to 

award fees to parties to a declaratory judgment action. When the legislature uses the word 

"costs," it means the fees and charges of the court such as filing fees, fees for service of 

process, and the like. If the legislature intends to provide for the recovery of attorney 

fees, it knows very well what language to use in the statute to achieve that end. 

7.

K.S.A. 40-908, which provides for attorney fees in certain instances to a prevailing 

plaintiff in an action against an insurance company on a policy that insures property 

against loss by fire, tornado, lightning, or hail, does not apply when the insured fails to 

obtain a judgment for a loss covered by the policy in excess of the amount tendered by 

the insurance company before commencement of the action.
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8.

Upland Mutual Insurance, Inc. v. Noel, 214 Kan. 145, 519 P.2d 737 (1974), is 

discussed and distinguished.

9.

Under the facts presented, there is no agreement between an insurer and its insured 

for the payment of attorney fees in connection with a first-party claim for uninsured 

motorist benefits because the uninsured motorist provisions of the policy make no 

provision for the payment of such fees.

Appeal from Johnson District Court; PAUL C. GURNEY, judge. Opinion filed June 2, 2017. 

Affirmed.

Michael S. Mogenson, of Mogenson & Branson, LLC, of Mission, for appellants. 

Mark B. Schaffer, of Frischer & Schaffer, Chtd., of Overland Park, for appellee.

Before ARNOLD-BURGER, C.J., GREEN and MCANANY, JJ.

MCANANY, J.: In this appeal William and Cherity Kerns challenge the district 

court's denial of attorney fees they incurred in connection with a declaratory judgment 

action brought by Alliance Indemnity Co. (Alliance) to determine coverage under the 

Kernses' auto insurance policy. 

Facts

The coverage issue was precipitated by an auto accident in July 2011 when

Cherity and her minor son were involved in a head-on collision in Coffey County with a 

vehicle driven by Matthew Tucker. Cherity was driving an Enterprise rental vehicle 
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which was rented for her by her employer. Cherity and her son were injured and Tucker

was killed. Tucker was driving a vehicle owned by Brandon Anderson. 

The Kernses were insured under an auto policy issued by Alliance. Cherity's 

employer also carried a policy issued by Federal Insurance Company, and Cherity 

claimed she was covered by that policy as well. Tucker and Anderson were uninsured.

The Kernses sued Tucker's estate and Anderson in Johnson County for negligently 

causing Cherity's personal injuries. (The Kernses apparently settled for their son's injuries 

so his claim is no longer at issue.) The Kernses obtained default judgments in excess of 

$1.4 million against Tucker's estate and against Anderson. Because both Tucker and 

Anderson were uninsured at the time of the collision, Alliance paid uninsured motorist 

(UM) benefits of $100,000 to Cherity, the per-person policy limit under the Alliance 

policy. 

Thereafter, in May 2013, the Kernses filed suit in the Circuit Court of Jackson 

County, Missouri, for breach of contract and various theories of indemnification. They 

claimed Cherity was covered under the policies issued by Federal Insurance and Alliance. 

They also claimed Cherity was entitled to UM benefits from Enterprise, the owner of the 

rental car Cherity was driving. It is unclear whether Enterprise was insured or was selfinsured. The Kernses asked the Missouri court to determine, among other things, that 

they were entitled to stack the UM benefits in the Alliance policy based on the number of 

vehicles insured under the policy and the number of tortfeasors involved in the accident.

In August 2014, while the Missouri case was still pending, Alliance filed a petition 

for a declaratory judgment in Johnson County, seeking a determination of its applicable 

coverage under the policy and under the Kansas anti-stacking statutes.
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The Kernses moved to dismiss Alliance's declaratory judgment action. They 

contended that this declaratory judgment action was not the appropriate vehicle for 

deciding issues presently being litigated in Missouri. On that same day, Alliance moved 

for summary judgment on the coverage issue raised by the Kernses. 

In October 2014, the district court denied the Kernses' motion to dismiss.

In November 2014, the district court granted Alliance's motion for summary 

judgment, finding that with respect to the auto accident, Alliance owed the Kernses 

nothing under the policy beyond the $100,000 already paid. The Kernses appealed to our 

court. 

In May 2015, before our court decided the Kernses' appeal, the circuit court in 

Missouri granted Alliance's motion for summary judgment and found that (1) Kansas law 

governed the interpretation of the insurance policy and (2) K.S.A. 40-284(d) prohibits 

stacking of UM coverage. 

Given the circuit court's ruling, our court concluded in November 2015 that the 

issue presented in the appeal of the district court's ruling in the declaratory judgment 

action had become moot because of the Missouri court's May 2015 ruling on the same 

issue. We vacated the district court's decision granting Alliance's motion for summary 

judgment and remanded with directions that the district court dismiss the action without 

prejudice. Alliance Indemnity Co. v. Kerns, No. 112,871, 2015 WL 7434692, at *2 (Kan. 

App. 2015) (unpublished opinion).

At this point we note in passing that the Kernses did not request attorney fees in 

accordance with Supreme Court Rule 7.07 (2017 Kan. S. Ct. R. 50) for this first appeal. 

Although the Kernses briefly address this matter in their reply brief in our present case, 
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they did not raise the matter in their opening brief, so we need not address it. See 

Seaboard Corp. v. Marsh Inc., 295 Kan. 384, 422, 284 P.3d 314 (2012).

On remand, the Kernses moved the district court for an order awarding them 

attorney fees and expenses. They argued that they were entitled to attorney fees under the 

insurance policy because they successfully defended against Alliance's declaratory 

judgment action. They also claimed that because they prevailed in the action and the 

Alliance policy covered "damage to property by hail, etc.," they were entitled to attorney 

fees under K.S.A. 40-908. Finally, they asserted that their attorney fees should be 

considered "costs" under the Uniform Declaratory Judgments Act (UDJA), thus entitling 

them to attorney fees.

Alliance argued that in their request for fees the Kernses misapplied Upland 

Mutual Insurance v. Noel, 214 Kan. 145, 519 P.2d 737 (1974), which involved a 

declaratory judgment action to determine whether the insurer had the duty to defend and 

indemnify an insured against a third-party liability claim. Alliance also argued that the 

district court did not have authority to award fees under K.S.A. 40-908 because the 

Kernses had not obtained a judgment against Alliance or proved that Alliance owed 

additional benefits under the policy's UM coverage. Further, Alliance asserted that the 

district court lacked authority to award the Kernses attorney fees under the UDJA

because the UDJA did not provide for fees and the Kernses had not obtained a judgment 

against Alliance under the Act. Finally, Alliance contended that the Kernses failed to 

preserve the right to appellate attorney fees and the district court lacked authority to 

award those fees. 

In May 2016, the district court held a hearing on the Kernses' motion, dismissed 

the declaratory judgment action as mandated by our court, and denied the Kernses'

motion for attorney fees. 
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In July 2016, the circuit court in Missouri entered judgment in favor of Alliance, 

against the Kernses, again holding that they were not permitted to stack UM coverage 

under the Alliance policy.

The Kernses' appeal again brings the matter to us. They contend that the district 

court erred in finding they were not entitled to attorney fees under the UDJA, K.S.A. 40-

908, or the insurance policy. 

Review Standards

Whether the district court has authority to award attorney fees is a question of law 

over which our review is unlimited. Rinehart v. Morton Buildings, Inc., 297 Kan. 926, 

942, 305 P.3d 622 (2013). Interpretation of a statute is also a question of law over which 

our review is unlimited. Neighbor v. Westar Energy, Inc., 301 Kan. 916, 918, 349 P.3d 

459 (2015). 

In examining a statute we look for the intent of the legislature in enacting it. The 

intent of the legislature governs if that intent can be determined. State, ex rel. Schmidt v. 

City of Wichita, 303 Kan. 650, 659, 367 P.3d 282 (2016). We look for legislative intent 

by examining the words used by the legislature, giving common words their ordinary 

meaning. When the words are clear and the statute is unambiguous, we do not speculate 

about the legislative intent behind its clear language. We also refrain from reading 

something into the statute that is not readily found in its words. Ullery v. Othick, 304 

Kan. 405, 409, 372 P.3d 1135 (2016).

Interpretation of an insurance policy presents a question of law over which we 

have unlimited review. National Bank of Andover v. Kansas Bankers Surety Co., 290 

Kan. 247, 257, 225 P.3d 707 (2010). In interpreting the Alliance policy, we apply the 

following rules of construction:
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"In construing an insurance policy, a court should consider the instrument as a 

whole and endeavor to ascertain the intention of the parties from the language used, 

taking into account the situation of the parties, the nature of the subject matter, and the 

purpose to be accomplished. [Citation omitted.] Insurance policy language is tested by 

what a reasonably prudent insured would understand the language to mean, not by what 

the insurer intended the language to mean. [Citation omitted.]" Iron Horse Auto, Inc. v. 

Lititz Mut. Ins., 283 Kan. 834, 839, 156 P.3d 1221 (2007).

If an insurance policy is ambiguous, the ambiguity is construed against the insurer. See

Lee Builders, Inc. v. Farm Bureau Mut. Ins. Co., 281 Kan. 844, 858, 137 P.3d 486 

(2006). 

Bases for an Award of Attorney Fees

Kansas applies the traditional American rule for attorney fees: our courts will not 

assess attorney fees absent a statute authorizing an award of fees or an agreement 

between the parties. Snider v. American Family Mut. Ins. Co., 297 Kan. 157, 162, 298 

P.3d 1120 (2013); Unruh v. Purina Mills, 289 Kan. 1189, 1200, 221 P.3d 1130 (2009). 

Providing a statutory basis for the recovery of fees "is the legislature's prerogative, and it 

is not [the] court's place to change these rules." George v. Capital South Mortg. 

Investments, Inc., 265 Kan. 431, 459, 961 P.2d 22 (1998).

By Statute

The Kernses rely on K.S.A. 60-1703 and K.S.A. 60-1711 as statutory authority for 

granting fees. K.S.A. 60-1703 states: 

"Further relief based on a declaratory judgment may be granted whenever 

necessary or proper. The application shall be by petition to a court having jurisdiction to 

grant the relief. If the application is sufficient, the court, on reasonable notice, shall 
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require any adverse party whose rights have been adjudicated by the declaratory 

judgment, to show cause why further relief should not be granted." (Emphasis added.)

K.S.A. 60-1711 states: "In any proceeding under [the UDJA] the court may make such 

award of costs as may seem equitable and just." The Kernses assert that "costs" referred 

to in K.S.A. 60-1711 include attorney fees and expenses incurred in defending against the

declaratory judgment action. 

The Kernses rely on decisions from other states in which fees were awarded in 

declaratory judgment actions. In the noninsurance cases cited by the Kernses, the party 

claiming fees prevailed in the declaratory judgment action. In the sole insurance case they 

cite, R.D. Offutt Co. v. Lexington Ins. Co., 494 F.3d 668, 675 (8th Cir. 2007), the insured 

prevailed on an issue of coverage for property losses under North Dakota law which 

provided that attorney fees may be awarded against an insurance company in a 

declaratory judgment action when coverage exists under the insured's policy. The court in 

Offutt cited State Farm Fire & Cas. Co. v. Sigman, 508 N.W.2d 323, 326-27 (N.D. 

1993), wherein the North Dakota Supreme Court explained:

"Litigation between an insurance company and its insured to determine coverage presents 

a unique situation. The insured pays premiums to receive protection, not a lawsuit from 

its insurer. When the insured gets that policy protection only by court order after 

litigating coverage, it is both 'necessary' and 'proper' to award attorney fees and costs to 

give the insured the full benefit of his insurance contract." (Emphasis added.)

A similar holding was obtained in Elliott v. Donahue, 169 Wis. 2d 310, 324-25, 

485 N.W.2d 403 (1992), in which the Wisconsin Supreme Court concluded that 

"supplemental relief under [the Wisconsin declaratory judgment statute] may include a 

recovery of attorney fees incurred by the insured in successfully establishing coverage 

under an insurance policy." (Emphasis added.) 
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The parties moving for fees in all of the Kernses' cited cases had their rights 

adjudicated in the declaratory judgment action and prevailed. In the insurance cases, the 

insureds prevailed in their claims for coverage under their policies of insurance. But here, 

the Kernses merely obtained a dismissal without prejudice of Alliance's declaratory 

judgment action. They did not obtain a judgment declaring that Alliance owed them 

additional benefits under the UM provision of the Alliance policy. Indeed, at the time of 

dismissal, they readily admitted that the issue of UM coverage was still pending in 

Missouri, and that issue was ultimately decided against them by the circuit court in 

Missouri. K.S.A. 60-1703 is predicated upon a party's rights having been adjudicated in 

the declaratory judgment action. No such adjudication occurred here in the Kansas case. 

The case was merely dismissed without prejudice.

Further, the plain language of the UDJA does not authorize a district court to 

award fees to parties who successfully defend against a declaratory judgment action. We 

find no reference in the UDJA to attorney fees. When the legislature intends to provide 

for the recovery of attorney fees, it knows very well what language to use in the statute to 

achieve that end. 

Although K.S.A. 60-1711 states that "costs" are permitted, statutes that allow for 

attorney fees state it explicitly. See, e.g., K.S.A. 16-1305 (in an action for violating a 

lawn and garden dealership agreement, the supplier will be liable to the retailer for "the 

actual costs of the action, including attorney, paralegal and expert witness fees"); K.S.A. 

23-9,313 (under Uniform Interstate Family Support Act, "[a]ttorney fees may be taxed as 

costs"); K.S.A. 26-509 (in eminent domain proceedings when the jury's verdict is greater 

than the appraiser's award, "the court may allow as court costs an amount to be paid to 

the landowner's attorney as attorney fees"); K.S.A. 50-505 (in injunction action for unfair 

trade practices relating to dairy products, the court shall assess against the defendant "the 

costs, including reasonable attorney's fees").
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Further, our Supreme Court has explicitly rejected the notion that "costs" include

attorney fees. Legislative Coordinating Council v. Stanley, 264 Kan. 690, Syl. ¶ 5, 957 

P.2d 379 (1998).

"Attorney fees are not a part of costs, absent express statutory authority. See Wolf 

v. Mutual Benefit Health & Accident Association, 188 Kan. 694, 700, 366 P.2d 219 

(1961). Attorney fees may be chargeable as costs where specific statutory provisions 

allow recovery. See Allison v. Board of Johnson County Comm'rs, 241 Kan. 266, 269, 

737 P.2d 6 (1987). Where the legislature uses the word 'costs,' it means the fees and 

charges of the court such as filing fees, fees for service of process, and the like. See 

Divine v. Groshong, 235 Kan. 127, 141, 679 P.2d 700 (1984)." Legislative Coordinating,

264 Kan. at 703.

Kansas does not stand alone in this holding. Other states have held that "costs" do not 

include attorney fees. See Nat'l Union Fire Ins. Co. of Pittsburgh, P.A. v. Dixon, 141 

Idaho 537, 112 P.3d 825 (2005) (holding Idaho UDJA does not provide authority to 

award attorney fees in a declaratory action); Trs. of Ind. Univ. v. Buxbaum, 315 Mont. 

210, 69 P.3d 663 (2003) (holding Montana UDJA provision allowing court to make 

award of costs does not authorize an award of attorney fees); Pub. Entity Pool v. Score, 

658 N.W.2d 64 (S.D. 2003) (holding no provision in South Dakota's Declaratory 

Judgment Act allows for an award of attorney fees to the prevailing party); Soundgarden 

v. Eikenberry, 123 Wash. 2d 750, 871 P.2d 1050 (1994) (holding that "costs" under the 

UDJA does not include attorney fees).

But the Kernses also look to K.S.A. 40-908 as a statutory basis for an award of 

fees. K.S.A. 40-908 provides:

"That in all actions now pending, or hereafter commenced in which judgment is 

rendered against any insurance company on any policy given to insure any property in 

this state against loss by fire, tornado, lightning or hail, the court in rendering such 

judgment shall allow the plaintiff a reasonable sum as an attorney's fee for services in 
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such action including proceeding upon appeal to be recovered and collected as a part of 

the costs: Provided, however, That when a tender is made by such insurance company 

before the commencement of the action in which judgment is rendered and the amount 

recovered is not in excess of such tender no such costs shall be allowed."

In their motion for attorney fees, the Kernses contended that the insurance policy 

covered loss by "fire, tornado, lightning, or hail and, thus, K.S.A. 40-908 entitled them to 

attorney fees."

"PART D—COVERAGE FOR DAMAGE TO YOUR AUTO" of the Alliance

policy stated:

"INSURING AGREEMENT

"A. We will pay for direct and accidental loss to 'your covered auto' or any 'nonowned auto', including their equipment, minus any applicable deductible shown 

in the Declarations. If loss to more than one 'your covered auto' or 'non-owned 

auto' results from the same 'collision', only the highest appli-cable deductible will 

apply. We will pay for loss to 'your covered auto' caused by:

"1. Other than 'collision' only if the Declarations indicate that Other Than 

Collision Coverage is provided for that auto.

. . . .

"Loss caused by the following is considered other than 'collision':

. . . .

"6. Hail, water or flood."

While the Alliance policy covered losses to the insured auto caused by hail, water, 

or flood, the district court found that the Kernses did not obtain a judgment against 

Alliance and, therefore, the court concluded that K.S.A. 40-908 did not entitle the 

Kernses to attorney fees.
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On appeal, the Kernses argue that it makes no difference whether a money 

judgment was entered against Alliance or whether a judgment of dismissal was entered 

against Alliance. They mistakenly equate the dismissal without prejudice of the 

declaratory judgment action with a victory for them on the merits.

In Hamilton v. State Farm Fire & Cas. Co., 263 Kan. 875, 953 P.2d 1027 (1998), 

the Kansas Supreme Court considered the application of K.S.A. 40-908 in a case in 

which the insurer denied coverage for property damage to the insured's home. The

insured successfully sued the insurer on the policy. When the district court denied the 

insured's motion for attorney fees, the insured appealed. In reversing the district court's 

denial of fees, our Supreme Court held:

"We conclude K.S.A. 40-908 is designed to provide for attorney fees for the 

homeowner upon successful suit under the policy absent a tender by the insurance 

company. Fees shall be allowed as a part of the costs under the statute where the 

homeowner obtains judgment for a covered loss under the homeowner's policy, which 

judgment is in excess of any amount tendered by the insurance company before 

commencement of the action. Application of the statute is not dependent upon the type of 

loss incurred. Rather, providing all conditions of the statute are met, costs, including 

reasonable attorney fees, are awarded where policy coverage for the loss incurred by the 

insured homeowner exists." (Emphasis added.) 263 Kan. at 882.

The Kernses rely on Bussman v. Safeco Ins. Co. of Am., 298 Kan. 700, 729, 317 

P.3d 70 (2014), in which the Kansas Supreme Court reiterated that to recover attorney 

fees under K.S.A. 40-908, an insured must demonstrate that a judgment was rendered 

against an insurance company on any policy that insures property against loss by fire, 

tornado, lightning, or hail. 

But in our present case, the district court did not render a judgment against 

Alliance on the nature and extent of UM coverage under its policy. The court simply 
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dismissed the action without prejudice. The Kernses did not obtain a judgment against 

Alliance, and the district court's ruling did not affect the substantive right of the parties. 

The only ruling on the merits of the issue was by the circuit court in Missouri, which 

determined that the Kernses had no claim for additional benefits under the Alliance 

policy beyond the amount already paid.

Besides, the dismissal of the declaratory judgment action did not result in the 

Kernses' recovery of a judgment in excess of Alliance's pre-suit tender of $100,000. 

K.S.A. 40-908 specifically requires an insured seeking fees to show that the insured 

obtained a judgment for an amount in excess of a pre-suit tender by the insurer. This did 

not happen here. 

Based on the foregoing analysis, we find no statutory basis to support the Kernses' 

claim for attorney fees.

By Agreement

The Kernses argue that the district court erred in finding the insurance policy did 

not entitle them to attorney fees incurred in defending against Alliance's declaratory 

judgment action. They based their claim for fees before the district court on "PART A—

LIABILITY COVERAGE" of the policy. 

"INSURING AGREEMENT

"A. We will pay damages for 'bodily injury' or 'property damage' for which any 

'insured' becomes legally responsible because of an auto accident. Damages 

include pre-judgment interest awarded against the 'insured'. We will settle or 

defend, as we consider appropriate, any claim or suit asking for these damages. 

In addition to our limit of liability, we will pay all defense costs we incur. Our 

duty to settle or defend ends when our limit of liability for this coverage has been 

exhausted by payment of judgments or settlements. We have no duty to defend 
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any suit or settle any claim for 'bodily injury' or 'property damage' not covered 

under this policy.

. . . . 

"SUPPLEMENTARY PAYMENTS 

"We will pay on behalf of an 'insured':

. . . .

"5. Other reasonable expenses incurred at our request."

The Kernses also relied on a provision found in "PART E—DUTIES AFTER AN 

ACCIDENT OR LOSS" of the policy: 

"B. A person seeking any coverage must:

"1. Cooperate with us in the investigation, settlement or defense of any claim 

or suit."

The district court denied the Kernses' motion for fees, finding that the insurance policy 

did not entitle the Kernses to attorney fees incurred in defending against Alliance's 

declaratory judgment action. 

Alliance did not bring its declaratory judgment action to determine whether it had 

a duty to defend the Kernses against or indemnify the Kernses for a third-party liability 

claim. On appeal, the Kernses assert that the insurance policy entitled them to attorney 

fees because, regardless of the purpose, they successfully defended against Alliance's 

declaratory judgment action. The Kernses rely on Upland Mutual Insurance, Inc. v. Noel, 

214 Kan. 145, 519 P.2d 737 (1974), to support this assertion. 

In Upland Mutual, the insurance policy provided liability coverage and obligated 

the insurer to pay on behalf of the insured all sums which the insured shall become 

legally obligated to pay as damages because of bodily injury or property damage. The 

policy also provided that with respect to liability coverage, the insurer was required to
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pay all reasonable expenses incurred by the insured at the insurer's request. The insurer 

brought an action to have the court declare that the insurer owed no duty to defend 

against a specific third-party claim against its insured. The district court determined that 

the insured was entitled to fees for defending against the declaratory judgment action, and 

our Supreme Court agreed.

"In this case the trial court ruled that Upland Mutual is obligated to pay the Noels'

attorney fees incurred in the declaratory judgment suit . . . because the filing of this suit 

constituted a 'request' by Upland and therefore the company is obligated under its policy 

to reimburse the insured Noels for all reasonable expenses incurred at the company's 

request." 214 Kan. at 152.

But in our present case, contrary to the situation in Upland Mutual, Alliance's 

declaratory judgment action did not involve an interpretation of the duty to defend and 

indemnify against a third-party claim under PART A of the policy. To the contrary, the 

declaratory judgment action here involved Cherity's first-party claim for additional 

benefits under the UM coverage found in PART C of Alliance's policy. There is no 

"request" language found in PART C to support the recoupment of fees as is found in 

PART A.

The Kernses rely on Great West Casualty Company v. See, 185 F. Supp. 2d 1164 

(D. Nev. 2002); Standard Accident Ins. Co. of Detroit, Mich. v. Hull, 91 F. Supp. 65 

(S.D. Cal. 1950); Occidental Fire and Casualty Co. v. Cook, 92 Idaho 7, 435 P.2d 364 

(1967); Security Mutual Casualty Co. v. Luthi, 303 Minn. 161, 226 N.W.2d 878 (1975),

as support for an award of fees under the policy. But those cases all involved fees 

incurred by an insured in a declaratory judgment action to determine whether the insurer 

had the duty to defend the insured against a specific third-party liability claim. Those 

cases address a different insuring agreement of the policy and do not apply to a 

controversy over first-party coverage for UM benefits. 
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As a final argument, the Kernses assert in their reply brief that, "[w]hen the 

insurance company sues for declaratory judgment and is unsuccessful, the insured 

shouldn't be 'out' anything." They argue that "there was never any reason whatsoever for 

the Declaratory Judgment action to have been filed because all of the issues were pending 

in another Court." Ironically, that other court ultimately ruled against the Kernses. But

Alliance contended in that suit that it did not engage in business in Missouri and, 

consequently, the circuit court in Missouri did not have jurisdiction over it. Alliance 

contends that the district court in Kansas was the proper forum for the insurer and insured 

to litigate their coverage dispute. The coverage issue arose under a Kansas policy issued 

by a Kansas company to Kansas residents and involved a collision in Kansas between 

Kansas drivers. Thus, there was a sound basis for Alliance to seek to litigate the coverage 

question in Kansas rather than in Missouri.

Based upon this analysis, we find neither a statutory basis nor an agreement 

between the parties for the payment of attorney fees under the circumstances of this case. 

Accordingly, the district court did not err in denying the Kernses' motion for attorney fees 

incurred in defending against Alliance's declaratory judgment action. 

Following oral argument of this case, the Kernses filed their motion pursuant to 

Supreme Court Rule 7.07(b) (2017 Kan. S. Ct. R. 50) for attorney fees incurred in 

connection with this appeal. Under the circumstances, and in view of the outcome of this 

appeal, that motion is denied. Alliance has also moved for fees. Their fee application is 

based on Supreme Court Rule 7.07(c). We find that Alliance is entitled to attorney fees 

pursuant to this provision of our Supreme Court's rules, and we award attorney fees for 

Alliance's counsel on appeal in the sum of $6,908.

Affirmed. Appellants' motion for attorney fees on appeal is denied. Appellee's 

motion for attorney fees on appeal is granted. Alliance is awarded attorney fees on appeal 

in the sum of $6,908.