1 No. 115,882

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

A LLIANCE I NDEMNITY C O ., Appellee ,

v.

W ILLIAM K ERNS and C HERITY K ERNS , Appellant s

.
SYLLABUS BY THE COURT

1. Whether the district court ha s 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. Wh en 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 situat ion of the parties, the nature of the subject matter, and the purpose to be2

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 r ule 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 Jud gment s Act, K.S.A. 60

- 17 11 in particular, provides that in proceedings under the Act court s 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, abse nt express statutory authority. T he plain language of the Uniform Declaratory Judgments Act does not authorize a district court to award fees to parties to a declaratory judgment action. Whe n the legislature uses the word

" costs, " it means the fees and cha rges 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 judg ment for a loss covered by the policy in excess of the amount tendered by the insurance company before commencement of the action.3

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

9.
Under the facts presented, t here 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; P AUL C

. G URNEY , judge. Opinion filed June 2 , 2017.
Affirmed.

Michael S. Mogenson , of Mogenson & Branson, LLC, of Mission , for appellant s

.

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

Before A RNOLD

- B URGER , C.J., G REEN and M C A NANY , JJ.

M C A NANY , 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
Kerns es ' auto insurance policy.

Facts

The coverage issue was precipitated by an auto accident i n 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 w as driving a n Enterprise rental vehicle4

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 B ra ndon Anderson.

The Kerns es 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 th at 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 Kerns es apparently settled for their son's injuries
so his claim i s 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, t he Kernses filed suit in the C ircuit C ourt of Jackson County, Missouri, for breach of contract and various theories of indemnification . They
claimed Ch erity 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 self

insured. The Kernses asked the Missouri court to determine , among other things, that they were entitled to stack the UM benefits i n 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.5

The Kernses moved to dismiss Allianc e's declaratory judgment action. They
contended that this declaratory judgment action was not the appropriate vehicl e for deciding issues presently being litigated in Missouri

. On th at same day, Alliance moved for summary judgment on the coverage issue raised by the Kernses

.

In October 2014, t he district court denied the Ker nses' 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

no thing under the policy beyond the $100,000 already paid

. The Kernses appealed to our

court

.

I n May 2015, b efore our court decided the Kernses' appeal, the c ircuit c ourt 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

stac king 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 brie fly address this matter in their reply brief in our present case,6

they did not raise the matter in their opening brie f , 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 d istrict 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

. T he y 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, the y asserted that their attorney fees should be

co nsidered "costs" unde r the Uniform Declaratory Judgment s Act (UDJA), thus entitling
them to attorney fees.

Alliance argued that in their request for fees the Kernses mis applied Upland
Mutual Insurance v. Noel , 214 Kan. 145, 519 P.2d 737 (1974), which involved a
d eclaratory judgment action to det ermine whether the insurer had the duty to d efend and indemnify an insured against a third

- party liability claim

. Alliance also argued that the
district court did not have authority to award f ees 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 l acked authori ty to award those fees

.

In May 2016, t he 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

.7

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 Kerns es ' appeal again brings the matter to us. They c on tend that the district court erred in finding they were not entitled to attorney fees u n der the UDJA, K.S.A. 40

- 908, or the insurance policy.

Review Standards

Whether the district court ha s 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 n ot 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).

I nterpretation 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:8 " 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

pur pose 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 A ward of Attorney Fees

Kansas applies the traditional American r ule 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." G eorge 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

gr anting fees. K.S.A. 60

- 1703 states:

" Further relief based on a declar atory 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, shall9

require any adverse party whose ri ghts 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 again st the declaratory judgment action.

The Kernses rely on decisions from other states in which fees were awarded in
declarato ry judgment actions. In the non insurance 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 award ed 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 Nor th 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 co urt 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. 2 d 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.)10

The part ies 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 cl aims for coverage under their policies of insurance. But here,

t he Kernses merely obtained a dismissal without prejudice of Alliance ' s declaratory judgment action. The y did not obtain a judgment declaring that Alliance owed them
additional benefits under t he UM provision of the Alliance policy. Indeed, a t the time of dismissal, the y 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 kno ws 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 violati ng 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 m ay be taxed as

costs " ); K.S.A. 26

- 509 (in eminent domain proceedings whe n 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 i njunction action for unfair trade practices relating to dairy products, the court shall assess against the defendant " the costs, including reasonable attorney ' s fees " ).11

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, 7 00, 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 wor d 'costs,' it mean s 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 h ave 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 n o provisio n 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 d oes 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 an y 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 in12

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 a llowed. "

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 ' non

owned 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 lo sses to the insured auto caused by hail, water, or flood, t he 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 entitl e the Kernses to attorney fees.13

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 t o 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, o ur S upreme 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 jud gment 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, provid ing 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 i nsured must demonstrate that a judgment was rendered against an insurance company on any policy that insu res 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 simply14

dismissed the action without prejudice

. T he 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
determin ed 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 insur er

. Th is did not happen here.

Based on the foregoing analysis, we f ind 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 lia bility, 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 defend15 any suit or settle any claim for ' bodily in jury ' 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 p olicy:

" 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 f or a third

- party liability
claim

. On appeal, the Kernses assert that the insurance policy entitled them to att orney 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 th is assertion.

I n Upland M utual , the insurance policy provided liability coverage and obligated
the insurer t o pay on behalf of the i nsured all sums which the i nsured shall become legally obligated to pay as damages because of bodily injury or property damage. The policy also provi ded that with respect to liability coverage, the insurer was required to16

pay all reasonable expense s incurred by the insured at the insurer ' s request. The insurer brought a n 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 ju dgment 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
declarat ory judgment action did not involve an interpretation of the duty to defend and
indemni fy 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 Kerns es rely on Great West Casualty Company v. See , 185 F. Supp. 2d 1164 (D. N e v. 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 a nd do not apply to a controversy over first

- party coverage for UM benefits.17

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. " The y 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
Alli ance 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 t hat the district court in Kansas was the proper forum for the insurer and insu red 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 o f 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 a ttorney fees for Alliance's counsel on appeal in the sum of $6,908.

Affirm ed

. Appell ants' m otion for attorney fees on appeal is denied. Appell ee 's motion for attorney fees on appeal is granted. Alliance is awarded attorney fees on appeal
in the sum of $6,908.