dissenting: My view of this case differs from that of the majority.
On June 16, 1975, a 1963 Ford was involved in an accident in McPherson that resulted in damage to two other automobiles, one of which was owned by Rebecca Hobson and Tom Hobson, Jr. The driver of the Ford was Patricia Frickey, the plaintiff in the *169case before us. She was fourteen years of age and had no driver’s license. Bradley Holm was an occupant of the Ford. He was involved in assisting plaintiff in her driving.
The certificate of title to the Ford was issued in the name of Arlie Holm, Bradley’s father. In response to interrogatories, Bradley and Arlie stated that the car was purchased by Arlie in 1974 for the primary use of Bradley; Bradley was nineteen years of age at the time of the accident; “the car was Bradley’s to use at all times”; Bradley was responsible for the day-to-day maintenance and upkeep of the automobile; they “can’t remember any” restrictions Arlie had placed upon Bradley prior to the accident date in regard to driving of the automobile by anyone other than Bradley; and they denied that Bradley was expressly prohibited by Arlie to permit anyone other than their immediate family to drive the automobile. It is assumed Bradley paid for the purchase of the Ford. Plaintiff stated this as fact in her trial brief and defendants have not refuted that statement.
The majority opinion sets forth relevant language of the automobile liability insurance policies issued by Equity and Farmers.
By a letter sent to plaintiff on July 25, 1975, Equity made a complete denial of coverage for plaintiff. The asserted ground for denial was that plaintiff was not a permissive user of the Holm automobile.
Farmers wrote plaintiff’s counsel on October 30,1975. Farmers took the position that Arlie was the “owner” as that term is used in its non-owned automobile clause; plaintiff was not driving with the permission of Arlie; if Equity has no coverage, neither does Farmers; and if there is coverage, Equity’s is primary and Farmers’ is excess. The record reflects that in fact Farmers refused to assume any obligation under its policy for the benefit of plaintiff. Although not explicitly, by its letter and conduct Farmers effectively made a complete denial of coverage.
On November 24, 1975, the Hobsons filed suit in county court against plaintiff, as a co-defendant, for property damage arising out of plaintiff’s use of the Holm automobile. The defendants in the Hobson suit were plaintiff, Bradley, and his parents, Mr. and Mrs. Arlie Holm. It was alleged that the plaintiff was negligent in her operation of the Holm automobile; Bradley negligently entrusted the automobile to plaintiff, failed to control or direct *170plaintiff in her operation of the automobile, and allowed plaintiff to operate the automobile negligently; and Arlie was vicariously liable for the negligent entrustment of the automobile to plaintiff by Bradley, Arlie’s alleged agent. No allegations of negligence on the part of Mrs. Holm were made.
The case before us was commenced on December 3, 1975. Plaintiff’s petition alleged:
“. . . [P]laintiff Patricia Frickey has suffered damages [1] by reason of incurring expenses for the investigation of said accident and insurance coverage, [2] by reason of incurring attorneys’ fees to protect her interest and to defend all claims against her, [3] by reason of any judgment granted against her for damages and/or attorneys’ fees as claimed in the McPherson County Court action . . . and [4] for mental anguish and worry by reason of the actions and activities of the defendant insurance carriers. Further, the plaintiff Patricia Frickey alleges that the actions and activities of the defendant insurance carriers, in denying claims for coverage and their failure to adequately investigate the facts, were willful, malicious and intentional and that such conduct should be discouraged by awarding her [5] exemplary damages.”
Therefore, the elements of damage sought in this case are:
1. Attorney fee expense for defense of the Hobson lawsuit;
2. Attorney fee expense for prosecution of this lawsuit against the insurers;
3. Damages for mental anguish;
4. Punitive damages.
Under the Equity policy the Holm automobile was the owned automobile; Arlie was the named insured; and plaintiff was not a resident of the named insured’s household. Under the Farmers policy, the Holm automobile was a non-owned automobile; James H. Frickey, plaintiff’s father, was the named insured; and plaintiff was a relative of the named insured. Under Equity’s policy, plaintiff was an insured if she was a permissive user, that is, a second permittee of Arlie, the named insured. Under Farmers’ policy, plaintiff was an insured if her use was with the express or implied permission of the “owner” of the Holm automobile.
Plaintiff was driving with the express permission of Bradley.
Whether plaintiff was a permissive user under Farmers’ policy requires resolution of a preliminary issue. Who was “owner” of the Holm automobile as that word is used in Farmers’ policy? Arlie, because title was in his name? Or Bradley? Or both? If Bradley was the, or an, “owner,” plaintiff was a permissive user. *171If Arlie was the “owner,” then the question is whether plaintiff had Arlie’s implied permission to drive the automobile, that is, was she a second permittee.
If plaintiff was an insured, the insurers under the terms of their policies each owed her (1) the duty to defend the Hobson suit; and (2) the duty to pay such damages as she might be found to be legally obligated to pay. If plaintiff was an insured, the duty to defend was owed by the two insurers severally; their “other insurance” clauses did not affect this duty; and any primary-excess question as to payment of a possible judgment awarded the Hobsons would involve the insurers and not plaintiff. See Maryland Cas. Co. v. American Family Insurance Group, 199 Kan. 373, Syl. 9, 386, 429 P.2d 931 (1967); United States Fidelity & Guar. Co. v. Tri-State Ins. Co., 285 F.2d 579, 582 (10th Cir. 1960).
Because of the insurers’ denials of coverage, plaintiff retained counsel who defended the Hobson suit. Plaintiff has not been determined to be legally obligated to pay damages to the Hob-sons, but she incurred attorney fees for services rendered in the defense of their suit. These attorney fees are plaintiff’s cost of defense.
Apparently Equity paid the Hobsons the full amount of their property damage on May 7, 1976. Counsel for Equity has stated on the record that Equity paid “on the basis that Bradley Holm was negligent in lending the car to a minor driver.” The trial court, on May 18, 1976, entered an order of dismissal of the Hobson claim with prejudice as to the three Holms. The order was submitted by agreement of counsel for the Hobsons and counsel for Equity acting as counsel for the Holms. Neither counsel for plaintiff nor counsel for Farmers participated in any way in this dismissal activity.
There has been no final judicial determination of nonliability of plaintiff to the Hobsons. As a part of the journal entry of judgment sustaining defendants’ summary judgment motions, filed December 3, 1976, it is recited that the Hobson suit was dismissed as to plaintiff without prejudice, a disposition otherwise than on the merits. The benefit to plaintiff of the May 18, 1976, dismissal is that there then arose the additional defense to the Hobson suit that the Hobsons had been made whole for their loss.
The cause of action before us is plaintiff’s claim against the *172insurers on their policies, an action for breach of contract. I agree with the majority that plaintiff, as a matter of law, may not recover for mental anguish or punitive damages. Hass v. Preferred Risk Mutual Ins. Co., 214 Kan. 747, 750, 522 P.2d 438 (1974); Moffet v. Kansas City Fire & Marine Ins. Co., 173 Kan. 52, 57-58, 244 P.2d 228 (1952). To this extent, the trial court did not err. However, the majority is mistaken with regard to plaintiff’s claim for damages for the cost of defense of the Hobson suit.
The allowance or denial of attorney fees under K.S.A. 40-256 is a matter relating only to attorney fees for services in a suit on a policy, in this case, to plaintiff’s claim on the insurers’ policies. The statute’s wording makes it applicable to “actions ... in which judgment is rendered against any insurance company ... on any policy ... of insurance . . .” The statute has application only to her claim for attorney fees for representation and prosecution of this breach of contract suit against the insurers. Her breach of contract claim for damages by reason of expense incurred for defense of the Hobson suit, consequential damages for breach of contractual duty to defend, does not come under K.S.A. 40-256. The duty to defend is dependent upon the issue of coverage. The contractual right to a defense is a benefit of coverage. Spruill Motors, Inc. v. Universal Underwriters Ins. Co., 212 Kan. 681, 688-689, 512 P.2d 403 (1973). Whether plaintiff was an insured of either or both defendants is a question not decided by the trial court and not before us. That question is determinative of plaintiff’s right to recover her cost of defense.
Equity states in its brief that “plaintiff is seeking attorney’s fees, based upon Equity Mutual’s failure to tender a defense for her. This is certainly a novel request.” It is not. See, for example, Spruill Motors, Inc. v. Universal Underwriters Ins. Co., supra, p. 688.
That the question of coverage, whether plaintiff was an insured, is not before us is explicitly acknowledged in Equity’s brief which includes the representative statement that “the question is not whether Patricia Frickey was an additional insured, the question is whether Equity Mutual acted in good faith in denying coverage.”
The trial court erroneously denied plaintiff’s claim on the consequential damages (attorney fees for defense of the Hobson *173suit) element of her claim against the insurers by its entry of summary judgment on the ground the insurers had not denied coverage without just cause or excuse and that by reason of the just cause or excuse language of K.S.A. 40-256 she is entitled to no attorney fees for whatever reason incurred. The trial court was erroneously led to this determination by defense counsel. Counsel did so at the risk of treatment such as that afforded the insurer in Thompson Transport Co. v. Middlestates Construction Co., 194 Kan. 52, 59-60, 397 P.2d 368 (1964), and Thompson Transport Co. v. Middlestates Construction Co., 195 Kan. 172,403 P.2d 999 (1965).
The trial court determination that the insurers’ refusal of coverage was not without just cause or excuse was premature and not decisive. The majority’s affirmance of this determination is likewise premature and not decisive. If there is no coverage, the just cause or excuse question does not arise. Again, whether a fourteen-year-old unlicensed driver cannot be a second permittee was not decided by the trial court, has not been briefed or argued on appeal, and is not before us. The majority of this court does not purport to decide the question. I do not now venture an opinion. Whether Bradley Holm was the, or an, “owner” under the Farmers’ policy was not argued to or decided by the trial court, has been neither briefed nor argued on appeal, and neither the majority nor I undertake to make that determination.
The trial court’s summary judgment should be reversed as to denial of plaintiff’s claim for cost of defense of the Hobson suit; the case should be remanded for trial on the issue of coverage, that is, whether plaintiff was an insured of either or both defendants, and the ascertainment of consequential damage for breach of contract (reasonable cost of plaintiff’s defense of the Hobson suit) if coverage is found; and the summary judgment should be affirmed as to denial of plaintiff’s claims for mental anguish and punitive damages. The denial of allowance of attorney fees to plaintiff under K.S.A. 40-256 for prosecution of her claim against the insurers on the policies is premature and should not now be either affirmed or denied.
Presentation to the trial court of the question of Equity’s coverage without an evidentiary hearing should be possible. It is undisputed that plaintiff was a fourteen-year-old unlicensed driver operating the Holm automobile with the express permis*174sion of Bradley, a first permittee, at the time of the accident. Equity’s expressed position simply is that no fourteen-year-old unlicensed driver can be found to have implied permission to drive. Resolution of that contention should not be allowed to involve unjustifiable time and expense to the parties and more unnecessary judicial time and attention.
In this litigation, Farmers has ridden along on Equity’s coattails with regard to Equity’s erroneous argument that plaintiff is not entitled to recover her cost of defense if coverage denial was not without just cause or excuse. Tactically this is not subject to criticism. The trial court and a majority of this court have been swayed. However, a review of the record and arguments reveals that Farmers’ counsel has not stood foursquare in Equity’s corner. On oral argument, Farmers faced up to Spruill and argued alternatively that if the just cause or excuse argument did not hold up, still Equity was the primary insurer and Farmers was not obligated because its coverage was excess. Equity declined to deal with Spruill in either its brief or at oral argument. Additionally, Farmers suggested to the trial court that the approach to analysis of the facts and coverage issues should be comparable to that demonstrated in United States Fidelity & G. Co. v. Safeco Ins. Co. of Am., 522 S.W.2d 809 (Mo. 1975), and that said case also is authority for finding plaintiff had Arlie’s implied permission.
Although there are distinctions, it would behoove the parties and the trial court to consider the approaches and principles found in United States Fidelity & G. Co. v. Safeco Ins. Co. of Am., supra, the other cases cited above, Jones v. Smith, 1 Kan. App. 2d 331, 564 P.2d 574, rev. denied, 221 Kan. 757, (1977), United States Fidelity & Guaranty Co. v. Continental Ins. Co., 1 Kan. App. 2d 722, 573 P.2d 1106 (1977), and the cases cited therein.
Because it is neither relevant nor appropriate at this time, I express no opinion as to whether the denials of coverage were without just cause or excuse. The majority should not have done so for the same reason. The mere non-existence of precise Kansas authority is not sufficient. What two cases in this or any other area of the law are precisely alike? Many questions are determinable as a matter of law without precise case precedent. See Thompson Transport Co. v. Middlestates Construction Co., 194 Kan. 52, 397 *175P.2d 368 (1964). Conclusions in particular cases in particular foreign jurisdictions that give rise to a claim of “split of authority” do not close the door to the possibility of Kansas judicial determination that there was no just cause or excuse in this case.
In summary, the trial court findings that:
“3. There is a good faith controversy of first impression in Kansas as to whether the scope of implied permission as applied to omnibus clauses under automobile liability insurance policies should be extended to a minor, incompetent [sic] and unlicensed driver operating a vehicle without the express permission of the named insured or title owner.
“4. Where, as here, there is a good faith legal controversy as to the question of policy interpretation and coverage which is of first impression in this jurisdiction and where authorities from other jurisdictions appear divided, attorney fees are not allowable to the third-party plaintiff pursuant to K.S.A. 40-256.”
do not support its summary judgment against plaintiff on her breach of contract claim for recovery of her cost of defense.
The majority chooses to publish. Rather than extend this too long dissent, I believe it better to simply say that my view of this case and applicable law is as I have set forth above.