The Court of Appeals first determined that the district court abused its discretion in refusing to admit the toxicology report. Judicial action constitutes an abuse of discretion if it is (1) arbitrary, fanciful, or unreasonable; (2) based on an error of law; or (3) based on an error of fact. K.S.A.2008 Supp. Menu. However, Selig acknowledged that he had no personal knowledge of whether the proper procedures were followed in Wiles' case. 106,661, 2012 WL 3171961, at *9 (Kan.App.2012) (unpublished opinion). After receiving Wiles' claim and the attached accident report indicating that alcohol contributed to the accident, AFLAC requested the hospital's toxicology report, which indicated that Wiles was intoxicated within 2 hours after the accident. K.S.A. It happened in the 18000 block of South Park View Drive. The district court admitted the blood test, and on appeal the Court of Appeals held there were sufficient facts and circumstances “to permit an inference the blood draw was taken in a medically reasonable manner.” 41 Kan.App.2d at 1041, 207 P.3d 281. Moreover, we are not persuaded by AFLAC's argument that identification of the person who drew Wiles' blood constitutes a near impossible burden. A driver in a car crash Friday night with a former local football star in Thousand Oaks has died as a result of his injuries. Approximately 2 hours later, Wiles left to drive to another friend's house. No evidentiary rule requires a foundation; rather, it is a “loose term for preliminary questions designed to establish that evidence is admissible.” A.I. “The rationale behind this exception is that business records ‘have a high degree of reliability because businesses have incentives to keep accurate records.’ “ United States v. Ary, 518 F.3d 775, 786 (10th Cir.2008) (quoting United States v. Gwathney, 465 F.3d 1133, 1140 [10th Cir.2006] ); see also United States v. Snyder, 787 F.2d 1429, 1433 (10th Cir.1986) (“The business records exception is based on a presumption of accuracy, accorded because the information is part of a regularly conducted activity, kept by those trained in the habits of precision and customarily checked for correctness.”). Video. Don't crash your car into a wall if you are going 70 mph even if the car has a huge spring on it. SUBSCRIBE NOW. denied, 225 Kan. 846 (1978) (holding that hospital records documenting results from blood draw and test to establish defendant's blood type was information recorded in hospital's regular course of business). HOUSTON (KTRK) -- One person is dead after an evening car crash in west Houston. Apparently, the district court determined that AFLAC did not do enough to ensure that the results of its initial investigation were indisputable. Lastly, the panel determined that AFLAC acted with just cause or excuse in denying Wiles' claim and therefore reversed the district court's award of attorney fees. 259, 261 (D.Kan.1995) (attorney fees not justified under K.S.A. As noted above, K.S.A.2008 Supp. In Davis, the defendant was arrested for DUI and consented to a blood test, which subsequently revealed a .12 blood alcohol content. Michael Shamus Wiles was born on October 27, 1955 in Everett, Washington, USA. In refusing to pay a claim, an insurance company has a duty to make a good faith investigation of the facts surrounding the claim. AFLAC's denial was based on the accident report and the hospital toxicology report. The Camry’s driver, 33-year-old Sean Higgins of Jacksonville, then collided with another vehicle. On the other hand, “[a]n insurance company seeking to avoid liability under an exclusionary clause in its policy for a loss which is otherwise covered has the burden of proving that the loss falls within the exclusion.” (Emphasis added.) Because of a breach of the hospital's own protocol that required the identification of the person who drew the blood, coupled with the hospital personnel's inability to independently recall the circumstances of the blood draw, AFLAC could not meet its burden. — A Reidsville man was found dead by police on Friday after a vehicle overturned in a crash, according to a Reidsville Police Department news release. Co., 274 Kan. 227, 242, 49 P.3d 511 (2002). Scott has been a tremendous asset both to other attorneys in the legal community and especially to his clients. In re Estate of Bernatzki, 204 Kan. 131, 134–35, 460 P.2d 527 (1969). However, the report documented an EMS worker's conversation with Wiles wherein Wiles admitted to drinking some alcohol earlier in the evening. Toggle navigation. But we are not in a position to reweigh the evidence presented to the trial judge. Angela Buisch, an emergency room (ER) nurse working on the night Wiles was admitted, testified about the hospital's blood-drawing procedures. Video. This statutory provision is similar to Fed.R.Evid. AFLAC does not explain why satisfying the requirements of a hearsay exception cures the failure to lay an adequate foundation for the evidence, but nevertheless, AFLAC fails to establish admissibility under the business records exception. In the latter situation, hospital personnel use a Betadine solution to prepare the draw site, rather than Chloraprep, which contains alcohol that could contaminate the blood sample. 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