Steve Coronado Selected as 2015 Super Lawyer

Steve Coronado has been selected for the Super Lawyer list for 2015 in both Kansas and Missouri.

Kansas Court of Appeals Extends Firefighter’s Rule to Law Enforcement Officers

A recent case of first impression before the Kansas Court of Appeals resulted in the extension of the application of the firefighter’s rule to law enforcement officers.

In Apodaca v. Willmore, et al., (Docket No. 111,987; Kan. App. May 15, 2015), Matthew Willmore was driving north on a four-lane highway separated by a grassy median when he fell asleep at the wheel and rolled the pickup across the median.  The truck eventually came to a stop on its wheels, blocking the southbound lanes of the highway.  David McGillis, who was also driving north, witnessed the accident and stopped to assist Willmore.  After Willmore exited his truck, he walked to the median where he spoke with McGillis.  Willmore then attempted to move the truck but found it would not start.  Although it was dark outside and there were no lights illuminating the highway, Willmore turned off the truck’s headlights.  Willmore called his parents to inform them of the accident and began picking up debris from the highway.

In response to a 911 call from McGillis, a dispatcher advised Riley County Police Department (RCPD) officers Juan Apodaca and Jonathan Dulaney – who were patrolling together – about the traffic accident.  The dispatcher informed the officers of the location of the accident, that the vehicle involved was in the southbound lanes of the highway, and that no one was injured in the accident.  Officer Apodaca drove the accident scene – with Officer Delaney in the passenger seat – at a high rate of speed with emergency lights and sirens activated.  Officer Apocada saw the headlights and flashers form McGillis’ vehicle – that was parked on the center-edge of the northbound lanes – from over a mile away, and he believed it was the scene of the accident.  Officer Apodaca did not see the disabled pickup in the southbound lanes and struck it while traveling 104 mph.  Both officers suffered serious injuries as a result of the second accident.

On October 17, 2011, the officers filed a joint petition in Shawnee County alleging Willmore’s negligence caused them to suffer personal injuries and related damages.  The officers also asserted a claim of negligent entrustment against Willmore’s father.   A few months later, Oak River Insurance Company (Oak River) – the liability carrier for the RCPD – intervened as a party to the lawsuit.  On March 22, 2013, both officers and Oak River filed a motion for partial summary judgment concerning the Willmores’ claims of comparative fault.  One week later, the Willmores also filed a motion for summary judgment.  Among other things, the Willmores argued that the firefighter’s rule barred all the officers’ claims.  Shortly thereafter, Officer Delaney dismissed his claims against the Willmores.  On March 13, 2014, the district court entered a memorandum decision and order denying the motion for partial summary judgment by the officers and Oak River, but granting summary judgment in favor of the Willmores.  In its decision, the district court found that the “fire fighters rule should be and is extended to law enforcement officers.”  Officer Apocada filed a motion for reconsideration and, for the first time, asserted that Willmore’s actions in causing the accident were willful, wanton, reckless, or intentional.  The district court denied the motion to reconsider.

Development of the Firefighter’s Rule

The rule, subject to exceptions, provides that a firefighter cannot recover for injuries caused by the wrong that initially required his or her presence at the scene in an official capacity. Calvert v. Garvey Elevators, Inc., 236 Kan. 570, 576, 694 P.2d 433 (1985). The firefighter’s rule is rooted in the law of premises liability and was originally recognized by the Illinois Supreme Court in Gibson v. Leonard, 143 Ill. 182, 32 N.E. 182 (1892), overruled by Dini v. Naiditch, 20 Ill. 2d 406, 170 N.E.2d 881 (1960). In Gibson, as well as most other early cases adopting the rule, firefighters were considered to be licensees to whom landowners or occupiers owed no duty other than to warn of known, hidden dangers and to refrain from inflicting intentional or willful harm.

The case of Krauth v. Geller, 31 N.J. 270, 157 A.2d 129 (1960) marked a change in rationale from basing the firefighter’s rule on premises liability to assumption of risk. Consequently, the Krauth court found that “for that risk, the fireman should receive appropriate compensation from the public he serves, both in pay which reflects the hazard and in workmen’s compensation benefits for the consequences of the inherent risks of the calling.” 31 N.J. at 274.

A more recent line of cases based the adoption of the firefighter’s rule on a public policy rationale. Although the specific policy reasons given vary from state to state, many courts focus on the nature of the relationship between firefighters and the public they are sworn to serve. For example, in Moody v. Delta Western, Inc., 38 P.3d 1139, 1142 (Alaska 2002), the Alaska Supreme Court found that the rule “reflects sound public policy” because “[t]he public pays for emergency responses of public safety officials in the form of salaries and enhanced benefits. Requiring members of the public to pay for injuries incurred by officers in such responses asks an individual to pay again for services the community has collectively purchased.”

Finally, several state legislatures have codified the firefighter’s rule. See, e.g., N.H. Rev. Stat. Ann. § 507:8-h (2010). On the other hand, other state legislatures have decided to abrogate the rule. See, e.g., Minn. Stat. § 604.06 (2010). To date, however, the Kansas Legislature has taken no action on the firefighter’s rule.

The Adoption of the Firefighter’s Rule in Kansas

The firefighter’s rule was adopted by the Kansas Supreme Court as a matter of public policy in Calvert v. Garvey Elevators, Inc. Specifically, our Supreme Court held in Calvert that “[i]t is a public policy of the State of Kansas that a fire fighter cannot recover for injuries caused by the very situation that initially required his presence in an official capacity and subjected the fire fighter to harm.” 236 Kan. 570, Syl. ¶ 1.

In Calvert, firefighters responded to an anhydrous ammonia leak at a grain elevator in Seward. Upon arriving at the scene, a fire captain spotted a man lying on the ground in the midst of ammonia vapors. Although there was little chance that the man was still alive, the captain and another firefighter clothed themselves in protective gear and attempted to save the man. Unfortunately, the captain inhaled some of the ammonia vapors and, as a result, suffered a heart attack. Although the captain received workers’ compensation benefits, he also filed a petition against the owners of the grain elevator seeking to recover monetary damages. Applying the firefighter’s rule, the district court granted summary judgment to the owners of the grain elevator. 236 Kan. at 571.

On appeal, the Kansas Supreme Court discussed the various rationales expressed by courts across the United States for adopting the firefighter’s rule, but ultimately sided with those jurisdictions that have adopted the firefighter’s rule based on the rationale that “[p]ublic policy precludes recovery against an individual whose negligence created the very need for the presence of the fire fighter at the scene in his professional capacity.” 236 Kan. at 575. In doing so, it reasoned that “[f]ire fighters are present upon the premises, not because of any private duty owed the occupant, but because of the duty owed to the public as a whole.” 236 Kan. at 576.

The Calvert court did, however, recognize three exceptions to the firefighter’s rule. Specifically, the Kansas Supreme Court found that the firefighter’s rule does not prevent recovery: (1) if a third party’s negligent or intentional misconduct results in an injury to the firefighter; (2) if the individual responsible for the firefighter’s presence engages in subsequent acts of negligence or intentional misconduct upon the arrival of the firefighter at the scene; and (3) if an individual fails to warn of a known, hidden danger on his or her premises or for misrepresentations of the nature of the hazard that harms the firefighter. 236 Kan. at 576. In conclusion, the Kansas Supreme Court made it clear that the firefighter’s rule in Kansas “is not to be based upon ‘premises law,’ or categorizing fire fighters as mere licensees when performing their duties, but upon public policy.” 236 Kan. at 577.

Fifteen years later, the Kansas Supreme Court considered the firefighter’s rule again in McKernan v. General Motors Corp., 269 Kan. 131, 3 P.3d 1261 (2000). In McKernan, the issue presented was whether the firefighter’s rule barred a product liability claim against a car manufacturer after a hood strut exploded and injured a firefighter attempting to extinguish an automobile fire. In ruling in favor of the firefighter, the Kansas Supreme Court found:

“Allowing products liability claims against parties whose negligence did not create the need for the firefighter at the scene does not frustrate the public policy basis of the Firefighter’s Rule as it was adopted in Kansas, but rather promotes the public policy of fixing responsibility for defective products on the party who introduces the product to the market place. The Kansas Firefighter’s Rule does not bar a products liability claim against a party whose negligence did not create the need for the firefighter at the scene.” 269 Kan. at 140-41.

Extension of Firefighter’s Rule to Law Enforcement Officers

In Buck v. B&W, Inc., No. 98-2405-GTV, 1999 WL 1007682 (D. Kan. 1999) (unpublished opinion), a Kansas Department of Transportation (KDOT) employee was called to direct traffic at the scene of an accident where a truck transporting cattle had overturned. While directing traffic at the scene, a steer escaped from the overturned trailer, charged the KDOT employee, and caused him to injure his knee. The Honorable G. Thomas VanBebber noted that although directing traffic at an accident scene was not a typical duty performed by KDOT employees, law enforcement officers often relied upon 11 KDOT employees to direct traffic when another officer was unavailable to assist. 1999 WL 1007682, at *1.

In Buck, Judge VanBebber wrote that although Kansas courts had not discussed the issue, other jurisdictions had “invariably” extended the firefighter’s rule to include law enforcement officers. 1999 WL 1007682, at *2. Similarly, Judge VanBebber concluded that the public policy expressed by the Kansas Supreme Court in Calvert applied equally to both firefighters and law enforcement officers. In doing so, he found the public should “be confident that in requesting the assistance of law enforcement officers to aid in situations where their own negligence has created a threat to public safety, they will not be held liable for injuries caused . . . as a result of the risks [they] created.” 1999 WL 1007682, at *2.

After mentioning other jurisdictions which extend the firefighter’s rule to law enforcement officers, the Court of Appeals also noted some states refer to the firefighter’s rule as the professional rescuer’s doctrine in order to encompass more professions than firefighters.  Moreover, like firefighters, law enforcement officers are employed at the taxpayers’ expense for the express purpose of dealing with such emergencies. The Court of Appeals reasoned it would be fundamentally unfair to allow a law enforcement officer to seek to recover damages from one who causes an automobile accident but deny this right to a firefighter injured while responding to the same accident. Thus, the Court of Appeals found that the public policy expressed in Calvert applies equally to firefighters and law enforcement officers when responding to a call for public safety functions.

Recognized Exceptions to the Firefighter’s Rule

Of the three exceptions to the firefighter’s rule recognized in Calvert, Officer Apodaca argued this case falls under two of them: (1) failure to warn of a known, hidden danger; and (2) engaging in a subsequent negligent or intentional act.  In addition, Officer Apodaca argued the Court should adopt a willful, wanton and reckless conduct exception to the firefighter’s rule not previously recognized by the Kansas Supreme Court.

Officer Apodaca argued Willmore failed to warn of a known, hidden danger by failing to inform the RCPD dispatcher that he had turned off the lights to the disabled pickup.  However, the record indicated that dispatch informed Officer Abodaca of the location of Willmore’s truck and that the vehicle was blocking the southbound lanes – the direction he was driving.  A review of the record also revealed the dispatcher informed Officer Abodaca that nobody at the scene was injured.  Thus, Officer Apodaca was adequately warned of the situation at the scene of the accident and there was no misrepresentation of the nature of the hazard, and thus, the exception of failing to warn of a known, hidden danger was inapplicable.

Officer Apodaca claimed Willmore engaged in a subsequent act of negligence by turning off the lights to his vehicle.  However, in discussing this exception to the firefighter’s rule in Calvert, the Kansas Supreme Court found that a firefighter is not barred from recovery “if the individual responsible for the fire fighter’s presence engages in subsequent acts of negligence or misconduct upon the arrival of the fire fighter at the scene.”  (Emphasis added.) Calvert, 236 Kan. at 576.  Here, Apodaca was arriving at the scene when he collided with Willmore’s vehicle, and Willmore had turned off his vehicle’s lights prior to the officers arriving on the scene.   Therefore, the Court of Appeals found the subsequent negligence exception was also inapplicable under the circumstances presented.

Willful, Wanton & Reckless Conduct

Officer Apodaca argued for the adoption of an additional exception to the firefighter’s rule not previously recognized by the Kansas Supreme Court.  Specifically, he asked the Court of Appeals to find that a firefighter or law enforcement officer is not barred from recovery if the person responsible for the act that required the presence of the officer at the scene engaged in willful, wanton, or reckless conduct.  Officer Apodaca raised this issue for the first time in his Motion for Reconsideration, and Officer Apodaca did not present any argument in an attempt to show that the district court abused its discretion in denying his motion to amend the judgment, nor did the record on appeal indicate Officer Apodaca ever alleged willful, wanton, or reckless conduct prior to the filing of his motion to amend judgment.  The Court of Appeals noted it may presume the Kansas Supreme Court would have mentioned such an exception in Calvert, since the decision appears to have offered a comprehensive list of exceptions found in other jurisdictions.  See 236 Kan. at 576-77.  Therefore, the Court of Appeals found the district court did not abuse its discretion in denying Officer Apodaca’s motion to amend judgment.

Conclusion

Finding the public policy underlying the firefighter’s rule in Kansas applied equally to law enforcement officers, the Kansas Court of Appeals extended application of the rule through its decision in Apodaca.  Though it would hardly be a surprise if Officer Apodaca files a Petition for Review by the Kansas Supreme Court, the reasoning set forth by the Court of Appeals appears sound.  Thus, short of subsequent reversal by the Kansas Supreme Court, or further legislative action to the contrary, it is fair to conclude Kansas has now joined the ranks of other states which have a professional rescuer’s doctrine by extending the application of the firefighter’s rule to law enforcement officers.

For a complete copy of the Apodaca opinion, click here.

— Lawrence E. Nordling

A Tale of a Felonious Father: Under Missouri Law Insurers Must Do It Right the First Time or Prepare To Pay Twice

When a court-approved ‘wrongful death’ settlement really isn’t a settlement, beware the children of a felonious father.  In Braughton v. Esurance Insurance Co., Case No. WD77686 (Mo.App. W.D. 2015), the Missouri Court of Appeals for the Western District of Missouri recently held that an insurance company could be held liable for breach of contract and required to pay damages under its uninsured motorist policy (“UM”), after it had settled the claim for policy limits under the policy, and received a release, and obtained court approval of the settlement.

In May 2010 Julie Braughton (Mother) was killed in a car accident with an uninsured motorist.  She was survived by her husband Joseph (Father), two minor children Keyen and Konnor (Minors), and her parents, the Gibbs (Grandparents).  At the time of the accident Mother had UM coverage in the total amount of $150,000 with Esurance.  In July 2010 Father settled with Esurance for the UM policy limits.  He executed the release of Esurance individually and as class representative of all persons entitled to recover for the wrongful death of Julie under Missouri Statute section 537.080. Grandparents also submitted affidavits agreeing with the terms of the settlement.  Esurance prepared a petition for court approval of a wrongful death settlement.  Father as class representative, the Minors and Grandparents were named as plaintiffs but not represented by counsel.  In addition, the Minors were not represented by an appointed next friend, guardian or conservator.

In August 2010, the court conducted the required approval hearing.  Father testified as to the terms of the settlement, that the Minors lived with him and under his care, and that the settlement was in the class’s best interests.  The Court approved the settlement agreement, entered judgment and authorized Father to execute the Release of all claims plaintiffs had against Esurance.  The policy limits were paid and a satisfaction of judgment filed in September 2010.

Father was indicted on multiple counts of statutory sodomy and jailed in November 2010.

David and Michelle Braughton were appointed Conservators for the Minors and filed a motion to set aside the settlement judgment in July 2011.  The Motion argued the Minors had not been given notice of the settlement hearing (even though they were in attendance), that no next friends or guardians were appointed to represent the Minors in the settlement in violation of Missouri Rule 52.10 (real party in interest rule), that Father had been out on bond from a previous felony indictment for various sex crimes at the time of the settlement hearing, and the settlement proceeds had not been used for the Minors’ care as represented.  The motion alleged the settlement had been procured by mistake, fraud or misrepresentation and should be set aside.

The trial court conducted a hearing on the motion in August 2011.  Esurance argued it had paid the UM policy limit, obtained a valid release and satisfaction of judgment.  The trial court set aside the settlement apportion and found the Father had a conflict of interest with the other class members and the judgment was obtained by fraud and misrepresentation.  Father was in jail and did not respond to the motion or appear at the hearing. In October 2011 the trial court entered a second judgment apportioning the wrongful death proceeds.  The second judgment apportioned the $150,000 between the Minors, with a small allocation to Father and an amount to satisfy a medical lien.  The second judgment made no reference to Esurance, other than their appearance at the hearing and did not order Esurance to pay anyone.  No reference was made to the UM policy, the executed release or the satisfaction of judgment. Esurance did not appeal this second judgment.

In November 2011, the Minors made demand for payment under the UM policy but took no action to execute on the second judgment.  The Minors then filed suit against Esurance for breach of contract and vexatious refusal pay.  The case was assigned to the same judge that handled the previous proceedings and the parties agreed to submit the case on stipulated facts, including: the policy limits of the UM coverage was $150,000, Father had entered into the release on behalf of the wrongful death class, the trial court approved the wrongful death settlement, and a satisfaction of judgment had been filed.  The trial court found Esurance had not paid the UM proceeds as ordered in the second judgment entered and was therefore in breach of contract.

Esurance appealed.  The Court of Appeals acknowledged the procedural and factual history of the case was “a Gordian knot,” however the only question to be answered was did the first settlement release and judgment bind the Minors?  After a lengthy analysis of Missouri contract law, the Appeals Court found it did not.  The Appeals court first ruled the trial court erroneously found Esurance breached the contract because it failed to pay insurance proceeds, as Esurance did in fact pay under the policy.  The trial court’s second judgment did not set aside the original release nor declare Esurance responsible for the second division of the settlement proceeds.

However, the Appeals Court decided they were constrained to uphold the trial court’s finding under any reasonable theory pleaded and supported by the evidence.  The Minors pleaded Esurance did not pay them any proceeds under the UM policy.  It was uncontested Esurance did not pay any of the proceeds directly to the Minors.  Esurance claimed the affirmative defense of payment and release.  The Appeals Court found Esurance did not meet its burden of proof on its affirmative defense of payment because it failed to prove the original settlement agreement and judgment was legally binding on the Minors.  Esurance failed in its burden because the Minors, who were named plaintiffs in the proceedings giving rise to the first settlement and judgment, were not represented by a duly-appointed next friend or guardian as required by Missouri Statute Sections 507.110, 507.115 and 507.184.  The Appeals Court found the trial court had no authority to approve a settlement for the Minors or authorize the execution of the original release because they were not represented by a duly-appointed next friend, guardian, or conservator.

The Appeals Court rejected Esurance’s argument Father adequately represented his children’s interests and thus bound them to the original settlement agreement, release and judgment.  The Minors were named parties to the proceedings and because of the conflict of interest found by the trial court, duly appointed representatives to protect their interests were required.

The Appeals Court also found the parties and the trial court erroneously characterized the settlement as a wrongful death proceeding.  It was a simple contract claim because it was not a claim against a tortfeasor that caused a death.  The Appeals Court stated there is nothing wrong with seeking court approval of a first-party UM insurance settlement, especially when the claimants are minors.  Minors however are still represented by next friends or conservators.

The Appeals Court affirmed the judgment finding Esurance breached the UM contract. In parting the Court stated “We recognize that Esurance will now be required to pay out an amount in excess of its UM coverage.  However, Esurance failed to insure that settlement with Father legally bound the Minors and, thus, created the risk of contract liability in excess of its policy limits.  We express no opinion regarding Esurance’s available recourse against Father.”

Other than the Courts’ obvious concern for the Minors’ potentially being left holding their Father’s bag with no compensation for the death of their Mother, what are the practical ramifications of this ruling?  In any Missouri claim where a Minor or person without legal capacity is a party or beneficiary of a settlement, it is advisable to have a court-appointed next friend, guardian, or conservator for that individual.  The extra paperwork for appointment of a next friend is negligible compared to the consequences of double payment, even potentially in excess of policy limits.

— Christopher L. Heigele

Recap of 2014 Jury Verdicts in Greater Kansas City Area

The purpose of this article is to provide an overview of the jury verdicts rendered in 2014 throughout the greater Kansas City metropolitan area which were reported by the Greater Kansas City Jury Verdict Service.[i]

Considerations for Comparison of Jury Verdicts in the Kansas City Area

When comparing jury verdicts rendered in the greater Kansas City area, it should be noted that significant differences between Kansas law and Missouri law can shape the outcome.  For instance, in Kansas, the jury determines whether punitive damages should be awarded, but the Court actually sets the amount at a later date.  Therefore, any punitive damages amounts ultimately set by the Court are not reflected in the totals reported by the Greater Kansas City Jury Verdict Service.  Contrastingly, in Missouri, the jury determines the amount of punitive damages.  Therefore, such amounts are included in the reported totals.

Another example of situations in which the differences between Kansas law and Missouri law impact the verdicts reported is considering how each state applies principles of comparative fault.  In Kansas, a plaintiff recovers nothing if the plaintiff’s fault is found to be 50% or higher, and thus, such situations are reported as defense verdicts.  In Missouri, plaintiffs can make a recovery if a defendant is found to bear any percentage of fault.

Plaintiff Verdicts in 2014

Over the last several years there has been a trend toward an increase in defense verdicts.  That trend appears to have continued in 2014.  However, the number of high verdicts (those over a million dollars) while increasing over 2013 remained below the level of 2012.  2014 brought a slight increase, over 2013, in the number of cases, or trials, reported in the Jury Verdict Service in the greater Kansas City area.  There were a total of 133 cases reported (122 in 2013).  Cases may consist of multiple claims with multiple verdicts, and of the 133 reported cases, 255 verdicts for claims were reported in 2014 (193 in 2013).  Of the 255 verdicts for claims, 98 were for the Plaintiff (38%).  The overall average of plaintiff’s verdicts was $350,730 in 2014 which was much lower than 2013’s average of $5,577,689.  However, the 2013 average was skewed by a $400,000,000 verdict and a $10,000,000 verdict.  In 2014, there were 10 verdicts of $1,000,000 or more compared to only 5 in 2013.

Seven-Digit Verdicts

The number of seven-digit verdicts somewhat evened out in comparison to the last two (2) years, and there were 10 verdicts of $1,000,000 or more in 2014 (compared to only 5 in 2013, but 19 in 2012).  Of those 10 verdicts, 2 were in Jackson County, MO (1 in Kansas City, MO and 1 in Independence, MO), while 3 were Wyandotte County, KS (located in Kansas City, KS) and 2 were in the U.S. District Court for the District of Kansas.  The remaining 3 verdicts were 1 each in the Missouri counties of Platte and Clay, and 1 in Johnson County, Kansas.

Six-Digit Verdicts

The number of six-digit verdicts was similar to the past two (2) years, with 2014 having 27 verdicts of $100,000 or greater (33 in 2013; 20 in 2012).  Of the 27 verdicts, a majority (17) were rendered by Missouri Courts (16 state Circuit Courts and 1 in the U.S. Dist. Court for the Western District of MO).

Type of Case

Remaining mindful of the considerations for comparison of jury verdicts in the greater Kansas City area, the percentage of plaintiff verdicts varied greatly depending on the type of case.  In 2014, there were a total 41 claims in automobile[ii] cases, with plaintiff verdicts returned in 28 of them (68.3%).  However, employment[iii] law cases resulted in a plaintiff verdict only 35.6% of the time (16 out of 45).   Interestingly, albeit a small sample size, cases bringing claims under the Missouri Merchandising Practices Act resulted in plaintiff verdicts 54.5% of the time (6 out of 11; 50% on claims under the act and 60% [3 out of 5] on claims for punitive damages).  Not surprisingly, plaintiff verdicts in medical malpractice, medical malpractice-wrongful death, and medical negligence cases were quite uncommon, occurring only once out of 11 claims which went to trial.

The outcomes of additional types of cases of interest were as follows:

Type of Case	Claims	Plaintiff Verdict	% for Plaintiff
General Breach of Contract	16	8	50%
Breach of Fiduciary Duty	4	3	75%
Breach of Fiduciary Duty (Punitives)	2	1	50%
Breach of Insurance Contract	3	1	33.3%
Excessive Force in Arrest	5	0	0%
Governmental Liability	6	4	67%
Products Liability	1	0	0%
Tortious Interference	4	0	0%
Vexatious Refusal to Pay	2	1	50%

Conclusion

Some general takeaways include that while defense verdicts in the Kansas City area have increased over the past several years, as indicated by the 2014 jury verdict statistics, this may in part be due to the type of cases being tried.  Cases going to trial may have moved away from tort based claims (i.e. traditional personal injury cases) to non-tort based claims such as breach of contract and employment cases.   Further while Kansas continues to be a defense friendly venue verdict amounts may be increasing.

Knowledge of previous verdicts in similar type cases can prove to be an important part in valuing current cases and claims.  It is important to consider not only the specific venue in which the case may be tried, but also how juries in a particular venue responded to a particular type of claim.  Coronado Katz LLC handles jury trials encompassing all types of claims in all venues located within the greater Kansas City metropolitan area, as well as across the entirety of Kansas and Missouri.

— Steven F. Coronado and Lawrence E. Nordling      

[i]  Summary and Statistics of Jury Verdicts Reported During The Year 2014 By The Greater Kansas City Jury Verdict Service, Greater Kansas City Jury Verdict Service, published January, 18, 2015.

[ii] An “automobile” case would include cases involving claims of: injury to a passenger; defendant violated right-of-way; minor impact soft tissue injury; lane change; loss of service – auto; object falling from vehicle; plaintiff hit from rear; plaintiff as a motorcyclist or bicyclist; plaintiff violated right-of-way; property damage only; or uninsured/underinsured motorist claims.

[iii] An “employment law” case would include cases involving claims of:  discrimination; retaliation; or retaliatory discharge, including separate punitive damage claims for each of those types of claims.

No Dorothy, It’s Not Forum Shopping — Don’t Count on Kansas Law Applying to a Kansas Injury Where the Parties are Missouri Residents

On January 13, 2015, the Missouri Court of Appeals for the Western District handed down an opinion in Rider v. The Young Men’s Christian Association of Greater Kansas City, WD76680, which provides an avenue for plaintiffs to avoid the Kansas non-economic damage cap, if the circumstances are right.

On December 16, 2003, Isaiah Rider was injured while attending a YMCA after-school daycare in Kansas.  Due to a congenital condition, his injuries were significant.  Before trial, the YMCA argued Kansas law should apply and Kansas jury instructions should be used for submitting the comparative fault of Rider and determining the damages recoverable by Rider.  The trial court ruled it would use the Missouri instruction for negligence and apply Missouri law on Rider’s right of recovery.  The trial court reasoned the YMCA had not established any differences between Missouri and Kansas law as it pertained to the elements of negligence and Kansas did not have any interest in limiting the recovery between two Missouri residents.  Rider lived in Missouri and the YMCA was a Missouri not-for-profit corporation with its principal place of business in Missouri.  After a two-week jury trial, Rider submitted a negligence claim to the jury, which found the YMCA was negligent and awarded damages of $5,906,525.00; however, the jury also found Rider was 90% at fault for failing to keep a careful lookout.  As a result, the trial court entered judgment in favor of Rider in the amount of $590,652.50.  Both Rider and the YMCA appealed.

On appeal, Rider argued the trial court erred in giving the comparative fault jury instruction because there was no substantial evidence supporting a finding he failed to keep a careful lookout.  The Court agreed, noting there was no evidence there was a plainly visible wet floor, as every witness present at the time of the fall, including Rider, testified he or she did not see the wet condition of the floor before Rider fell.  Without a plainly visible condition on the floor, there was no substantial evidence supporting the instruction.  Rather than remand the case for a new trial, the Court determined entry of a modified judgment of $5,906,525.00 with the YMCA being 100 percent at fault was appropriate.

Thereafter, the Court addressed the YMCA’s arguments the trial court erred in refusing to apply Kansas law on comparative fault and in refusing to apply the Kansas cap on non-economic damages.  The Court noted the comparative fault argument had been rendered moot with its’ determination there was no substantial evidence to support a finding Rider failed to keep a careful look out.  As for the Kansas cap argument, the Court noted it was subject to de novo review as the question of which state’s law should apply was a question of law.  In reaching its conclusion, the Court found its holding in Wilson v. Image Flooring, LLC, 400 S.W.3d 386, 391 (Mo. App. W.D. 2013) persuasive.

In Wilson, plaintiff was injured in Kansas when an Image Flooring box truck moved as it was being loaded which caused her to fall and break her leg.  Plaintiff, a Missouri resident, filed suit in Missouri against both Rapp, the truck driver and a Missouri resident, and Image Flooring, a Missouri corporation doing business in both Missouri and Kansas.  Claims of negligence and vicarious liability were submitted to the jury, which assessed damages in the amount of $1,565,625.00, with plaintiff being found 25% at fault.  Plaintiff appealed and Rapp and Image Flooring cross-appealed.  Rapp and Image Flooring argued the trial court erred in refusing to apply Kansas substantive law as it had the most significant contacts with the case and should control.  In its’ analysis, the Court discussed the Restatement (Second) of Conflict of Laws §§ 6, 145(a) and 146 (1971) and noted in personal injury actions, the presumption is that the state with the most significant relationship is the state where the injury occurred. Thereafter, the Court noted the pertinent differences in Missouri and Kansas law relate to 1) Missouri is a pure comparative fault state while Kansas is a modified comparative fault state, and 2) Kansas has a statutory cap on non-economic damages while Missouri does not.  After discussing the interest of each state in applying their own law, the Court noted that while the question of negligence should be determined by the law of the state where the tort occurred, the same could not be said of the right of recovery issues, including comparative fault and the statutory damage cap.  “Where the issue involves a right of recovery as opposed to a question of liability, the domicile of the parties becomes a highly significant contact, as states have a great interest in applying their own compensation-related laws to their own residents, but very little interest in applying those same laws to non-residents.” Id. at 398 (citation omitted).  The Court in Wilson concluded Missouri law was properly applied to the right of recovery or question of compensation issues.   After acknowledging Image Flooring does business in Kansas, the Court concluded this was not significant enough to overcome the other contacts Missouri had including plaintiff’s residence, Rapp’s residence and Image Flooring’s incorporation and principal place of business.

After finding the present case was not meaningfully distinguishable from Wilson, the Rider Court concluded the trial court did not err in application of Missouri law with respect to the right of recovery between Rider and the YMCA, two Missouri residents, even though the injury happened in Kansas.

The Court’s holding in Rider is significant as it allows plaintiffs, who are Missouri residents, to potentially avoid the Kansas damage cap for an injury that arises in Kansas and which should be governed by Kansas law.  In cases arising from a Kansas injury where the plaintiff and defendant are both Missouri residents, like in Rider, plaintiffs are sure to argue Missouri law should apply so they can avoid the Kansas damage cap.  What other contacts with Kansas would be sufficient for application of Kansas law is unclear, except we know doing business in Kansas is not enough based on Wilson.  In Wilson, the court noted the fact that Image Flooring did business in Kansas was not alone significant enough to overcome other contacts Missouri had through the plaintiff’s residence, the other defendant’s residence and the fact Image Flooring was incorporated and had its principal place of business in Missouri.  What is clear is allowing plaintiffs to recover under Missouri law for a Kansas injury may allow them to recover well in excess of what they could recover under Kansas law given the cap.

— Merry “Maggie” Tucker

Notice Requirement For Municipalities Under Kansas Tort Claims Act (KTCA) Does Not Apply to Suits Against Employees of Municipalities

A recent case from the Kansas Supreme Court styled Whaley v. Sharp addressed the issue of whether a plaintiff must provide the statutory notice required by K.S.A. 12-105b(d).

On May 15, 2008, Ann Krier sought treatment in the Emergency Department of Ashland Health Center (Ashland).  Dr. Chad Sharp, M.D. and Johnathan Bigler, a physician’s assistant, provided care to Ms. Krier.  The day after being admitted, Krier died in transit to Wichita for further treatment.  Jane Whaley (Whaley) was appointed executor for the estate.  On May 6, 2010, Whaley’s attorneys submitted a notice of claim to Ashland referencing K.S.A. 12-105b(d), asserting claims against the hospital for the alleged negligence of its employees, including nursing staff, Sharp and Bigler.  The notice alleged negligence by these hospital employees and claimed the hospital was negligent in hiring, credentialing, supervising and retaining Sharp.  Whaley demanded combined damages of $1,250,000.00.

On May 10, 2010, a mere four (4) days after submitting notice of the claim to the hospital, Whaley commenced two (2) lawsuits, each naming Sharp and Bigler as defendants.  The first was a wrongful death action filed in Whaley’s capacity as co-executor for Krier’s estate.  The second was a survivor action filed in her individual capacity.  The Hospital was not named as a defendant.  Both claims have a 2-year statute of limitation which was about to expire.

Sharp moved for summary judgment, arguing Whaley failed to comply with the notice requirements of K.S.A. 2013 Supp. 12-105b by not waiting to file the lawsuits until the statutorily required time had elapsed after submitting the written notice to the hospital.  Whaley responded that compliance with the 120-day rule was not necessary because the statute’s plain language did not require notice prior to suing a municipal employee, as distinguished from a municipality.  The District Court granted summary judgment to Sharp in both suits, ruling Whaley was required to comply with the notice requirements and the waiting period mandated by K.S.A. 2013 Supp. 12-105b(d).  In doing so, the District Court relied on King v. Pimental, 20 Kan. App. 2d 579, 890 P.2d 1217 (1995).  In King, a Court of Appeals panel held that compliance with the statutory requirements was a prerequisite to filing suit against a municipal employee for acts within the scope of employment.  King, 20 Kan. App. 2d at 590.  Whaley appealed.

A divided Court of Appeals panel affirmed the District Court.  The panel majority agreed King resolved the case, and rejected Whaley’s bid to overrule King, reasoning (1) the legislature had not acted in response to King and because numerous subsequent cases in state and federal courts had relied on King in suits against municipal employees; (2) King’s statutory interpretation served all litigants well because it gave litigants the benefit of the statute of limitations tolling provisions, as well as allowing municipalities an opportunity to review and investigate claims against their employees before being entangled in litigation; and (3) reversing King could require some plaintiffs to bring separate tort claims actions – one against the municipal employee and the other against the municipality.  Whaley, 2013 WL 1149750, at *4-5.  Chief Judge Malone dissented, arguing the plain language of K.S.A. 2013 Supp. 12-105b does not require notice before filing suit against a municipal employee.

In reversing the panel majority, the Kansas Supreme Court stated:

“We hold the jurisdictional bar in K.S.A. 2013 Supp. 12-105b(d) unambiguously applies only to lawsuits against municipalities.  Failure to comply with the statute does not deprive a district court of jurisdiction over a lawsuit against a municipal employee.”

…

“What is obvious about King is that is started out on the right path, following the rules of statutory interpretation.  The panel admitted the statute’s literal language exempts municipal employees from the notice requirement.  It then went astray by adopting a ‘broader interpretation’ of the statute based on the panel’s perceived public policy considerations.  20 Kan. App. 2d at 589.  But the plain language chose by the legislature governs unless there is an ambiguity, and we leave policy determinations to the legislature.  Appellate courts do ‘not decide nor weigh the beneficial results flowing from any particular legislative policy.’  Manzanares v. Bell, 214 Kan. 589, 603, 522 P.2d 1291 (1974).”

The Court in Whaley stated “[o]ur decision necessarily overrules King…” and the panel majority in this case “erred by continuing to follow King’s public policy-driven path.”

The take away from Whaley is that prior reliance on the holding in King was misplaced, and King is no longer good law.  The holding in Whaley conclusively establishes that the notice requirements found in K.S.A. 2013 Supp. 12-105b are not applicable to suits against employees of municipalities.

For a complete copy of the Whaley opinion, click here.

— Lawrence E. Nordling

Independent Contractor or Employee? Kansas Supreme Court Draws Distinction Between Cases Under the FLSA and the KWPA

A recent case came down from the KS Supreme Court on styled Craig v. FedEx Ground Package System, Inc. which examined whether workers were independent contractors or employees.  Delivery drivers across the country brought numerous class actions in federal court against the package delivery service provider alleging they were employees, not independent contractors.  Those federal class actions cases were consolidated for pretrial purposes, and the federal district court for the Northern District of Indiana entered an order in favor of the service provider.  The drivers appealed.  On appeal, the U.S. Court of Appeals certified questions to the Kansas Supreme Court.

The Kansas Supreme Court stated in applying the “economic reality test” used to determine whether an individual is an employee or independent contractor under the Fair Labor Standards Act (FLSA), courts generally look at the following factors:  (1) degree of control exerted by alleged employer over the worker; (2) worker’s opportunity for profit or loss; (3) worker’s investment in the business; (4) permanence of the working relationship; (5) degree of skill required to perform the work; and (6) the extent to which the work is an integral part of the alleged employer’s business.  The “economic reality test” also considers whether the alleged employer has the power to hire and fire employees, supervises and controls employee work schedules or conditions of employment, determines rate and method of payment, and maintains employment records.

When addressing state law claims under the Kansas Wage Payment Act (KWPA), Kansas Courts have used a “right to control” test and have examined a number of factors for determining whether a worker is an employee or an independent contractor.  Over time, the number of factors has expanded to 20.  These factors include:

(1) the employer’s right to require compliance with instructions;

(2) the extent of any training provided by the employer;

(3) the degree of integration of the worker’s services into the business of the employer;

(4) the requirement that the services be provided personally by the worker;

(5) the extent to which the worker hires, supervises, and pays assistants;

(6) the existence of a continuing relationship between the worker and the employer;

(7) the employer’s establishment of set work hours;

(8) the requirement that the worker devote full-time to the employer’s business;

(9) the degree to which the work is performed on the employer’s premises;

(10) the degree to which the employer sets the order and sequence of work;

(11) the requirement that the worker submit regular or written reports to the employer;

(12) the manner of payment to the worker, e.g., by the hour, day, or job;

(13) the extent to which the employer pays the worker’s business or travel expenses;

(14) the degree to which the employer furnishes tools, equipment, and material;

(15) the incurrence of significant investment by the worker;

(16) the ability of the worker to make a profit or suffer a loss;

(17) whether the worker can work for more than one firm at a time;

(18) whether the worker makes his or her services available to the general public on a regular and consistent basis;

(19) whether the employer has the right to discharge the worker; and

(20) whether the worker has the right to terminate the relationship at any time without incurring liability

In Craig, the Kansas Supreme Court noted the primary distinction between the “right to control test” used to determine whether individual is an employee or an independent contractor under the KWPA, and the “economic reality test”, used to determine whether the individual is an employee or independent contractor under the FLSA, is that under the FLSA, the right to control is not considered the single most important factor in determining the worker’s status.  In response to the certified questions posed in Craig, the KS Supreme Court held the drivers were employees, and NOT independent contractors.

For a complete copy of the Craig opinion, click here.

— Lawrence E. Nordling

Exceptions to Every Rule – Under Kansas Law, Parties Can Contractually Agree to Shorten the Statute of Limitations

What most everyone knows is there are fixed time periods in which you have to file a lawsuit. Further, what most everyone knows is if you don’t file your lawsuit within that time period, it is forever barred.  For example, Kansas law (K.S.A. 60-511) provides a five-year time limit for filing any lawsuit based on an agreement, contract or promise in writing.  So, if you have a dispute arising out of a written contract or agreement, the time to file any lawsuit is five years, right?  Not always.  If the written contract or agreement provides for a shorter time period, the lawsuit must be filed within that time.

In 2013, the Kansas Supreme Court handed down the case of Pfeifer v. Federal Express Corporation.  In that case, the Court held parties can enter into contracts which shorten the time period for filing lawsuits.  Prior to the Pfeifer case, it was unclear whether parties in Kansas could contractually agree to shorten the time period to file a lawsuit.  Shortly after Pfeifer, the United States District Court for the District of Kansas was faced with a question relating to enforcement of a provision in an insurance policy limiting the time in which to file a lawsuit in Infinity Energy Resources v. St. Paul Fire & Marine Ins. Co.  The insurance policy in that case required the lawsuit to be filed within two years.  Given the lawsuit was not filed within the two year time limit, the Court held the case was barred.  More recently, on May 27, 2014, the United States District Court for the District of Kansas handed down an opinion in B.S.C. Holding, Inc. v. Lexington Ins. Co.  In that case, the insurance policy required the lawsuit to be filed within one year.   Again, given the lawsuit was not filed within the required time period, the Court held the case was barred.

What these cases establish is there are exceptions to almost every rule.  So while Kansas law may specify a five-year time limit for filing a lawsuit based on a written contract or agreement, if the written contract or agreement contains a shorter time period, Kansas courts will enforce it and require the lawsuit to be filed within the shorter time period.

If you get into a dispute involving any type of written document, including a dispute with your insurance carrier arising out of your insurance policy, the first thing you should do is read the document thoroughly to determine if there is a specified time period in which any lawsuit must be filed.   If there is, based on recent Kansas law, the lawsuit must be filed within that time period or it is barred.  And, if you get into a dispute involving any type of written document, it would be prudent to consult an attorney to ensure you know when any lawsuit must be filed because if you miss that deadline, the consequences can be severe.

— Merry “Maggie” Tucker

Bullying and Other Off-Campus Student Speech — The Precious Position of School Districts

Growing up in the 1970’s, the kids I knew, including myself, felt safe at school.  It never crossed our minds a student might bring a gun to school.  We didn’t have metal detectors.  Back then, no one sent text messages or used social media to distribute inappropriate information because it simply didn’t exist.  The most we did was pass notes in class possibly talking about someone we didn’t like for one reason or another.  We didn’t make racial or sexual comments in our notes.   It just wasn’t something we did.  And, if such a note had been intercepted by a teacher, we would have been sent to the principal’s office for a spanking and our parents notified.   Back then, I wouldn’t have been able to tell you whether getting the spanking or my parents finding out I had done something like that would have been worse.  In retrospect, I know my parents finding out would have been worse.   At least the spanking would have been over and done.

Times have changed and not always for the better.  While school should be a place to feel safe and students should be able to learn in a secure environment free of bullying and harassment, we know that is becoming more and more difficult.   One reason is modern technology.

Over the last few years, there has been a great deal of media coverage about school-related incidents.  We have heard stories of young girls sending text messages containing risqué pictures to their boyfriends who then forward the messages and pictures to other students when they are no longer in the relationship, with the girls being subjected to taunts and other inappropriate and lewd comments by fellow students.  We have also heard stories of students using their social media accounts to rant and engage in inappropriate diatribes about fellow students, who are then mocked and teased at school.   And, we have too often heard stories of student-on-student school shootings with information coming to light after the fact about online harassment that may have led to the shooting.

What has become clear from the media coverage is bullying can take many forms.  What is equally clear from the coverage is the consequences of bullying are far reaching, including suicides by students who have been taunted and shootings perpetrated by students who have been mocked and teased.

In Missouri, bullying is defined to mean “intimidation or harassment that causes a reasonable student to fear for his or her physical safety or property.  Bullying may consist of physical actions, including gestures, or oral, cyberbullying, electronic, or written communication, and any threat of retaliation for reporting any such acts.” R.S.Mo. 160.775.2.  To address the problem of bullying in schools, the Missouri legislature has placed requirements on school districts.

Each school district in Missouri is required to have an anti-bullying policy.  The policy must be founded on the assumption all students need a safe learning environment.  The policy must treat students equally and cannot contain specific lists of protected classes of students who are to receive special treatment.   The policy must contain a statement of the consequences of bullying.  Additionally, the policy must require district employees to report any instance of bullying of which they have first hand knowledge and must address training of employees in the requirements of the policy.  R.S.Mo. 160.775.3 and 160.775.4.  Similarly, the board of education of each Kansas school district must adopt a policy to prohibit bullying on or while utilizing school property, in a school vehicle or at a school-sponsored activity or event.  Further, the board of education must adopt and implement a plan to address such bullying and the plan must include provisions for the training and education for staff and students.  K.S.A. 72-8256 (b) and (c).

What is clear is Missouri school districts are required to be both proactive and reactive.  They must act proactively to prevent bullying.  And, they must also be reactive if they become aware bullying is taking place.  But what happens if a school district becomes aware bullying or some other concerning behavior is occurring away from school?  Does the school district have the ability do anything about it at school?  In Missouri, it appears the answer is yes.

In S.J.W. v. Lee’s Summit R-7 School District, 696 F.3d 771 (8^th Cir. 2012), the Lee’s Summit R-7 School District issued 180 day suspensions for two brothers.  The brothers had created a website called NorthPress which contained a blog.  According to the brothers, the purpose of the blog was to discuss, satirize and vent about events that occurred at school.  While they used a Dutch domain site which prevented U.S. users from locating it via a google search, anyone could access it if they knew the website address.   The brothers made posts on the blog that contained a variety of offensive and racists comments as well as sexually explicit and degrading comments about a female classmate they identified by name.  The blog also discussed fights at school and mocked black students.  The parties disagreed as to the extent to which school computers were used to create, maintain or access the site and blog.  While the brothers testified they only intended their friends to know about it and only told a few friends, the student body at large learned about the website.  Once school administrators learned of it, they suspended the brothers for ten days.  Following a hearing, appeal and second hearing, the school district suspended them both but allowed them to enroll in another school during the suspensions.  As a result, suit was filed and the brothers moved for a preliminary injunction to lift the suspensions.  After a hearing, the district court granted the preliminary injunction and ruled the brothers could return to school.   The School District appealed.

On appeal, the brothers argued off-campus speech was protected and could not be the subject of school discipline, even if directed at the school or specified students.  In addressing this argument, the Court noted that in the school environment, some speech is not protected by the First Amendment and school officials may lawfully punish some forms of unprotected student speech.   “Under Tinker, conduct by the student, in class or out of it, which for any reason-whether it stems from time, place or type of behavior-materially disrupts classwork or involves substantial disorder or invasion of the rights of others is . . . not immunized by the constitutional guarantee of freedom of speech.”  “Thus, student speech that causes a substantial disruption is not protected.”  The Court noted the district court found NorthPress was “targeted at” the school and so Tinker was likely to apply.  Further, the Court noted the district court found the posts caused substantial disruption and so the brothers were unlikely to succeed on the merits under Tinker.  Later in the opinion, the Court noted, “the specter of cyber-bullying hangs over this case.  The repercussions of cyber-bullying are serious and sometimes tragic.  The parties focus their arguments on the disruption caused by the racist comments, but possibly even more significant is the distress the Wilsons’ return to Lee’s Summit North could have caused the female students whom the Wilsons targeted.”  In closing its opinion, the Court concluded the entry of the injunction was in error, vacated it and indicated it was leaving to the district court the unenviable task of fashioning a remedy several months after the entry of the judgment and the brothers return to school.

What the opinions makes clear is School Districts do have power to address off-campus speech and bullying under certain circumstances.  Even so, School Districts are in the no-win position of potentially being sued by students who claim their off-campus speech is protected such that they cannot be disciplined for it or being sued by the victims of such students when the School District does not take what they believe are appropriate steps to address the off-campus speech.

— Merry “Maggie” Tucker

Crash! What to do if you’re involved in a non-injury car accident.

Almost everyone understands the basics of what to do if you are involved in a non-injury car accident: (1) exchange insurance and contact information with the other driver, (2) make a police report, and (3) contact your own insurance carrier.  However, after doing all that, what else should you be doing?

In cases where the other driver is clearly at fault, and the accident only involved property damage to your vehicle, there are still things you should be doing.  First, even though you might initially feel as though you are not injured, it is not uncommon to have at least some mild soreness or aches within the hours or days following the accident.  If that is the case, you should seek medical attention as soon as possible.  Seeking medical treatment will at least document the symptoms you are experiencing, even if they ultimately resolve without further treatment.

Second, you need to secure your own repair estimates from repair shops you trust.  Often times, this can be accomplished even before the other driver’s insurance company has contacted you to set up a time to inspect your vehicle.  Obtaining this information early in the process gives you the benefit of knowing a general range of the amount of damage your vehicle sustained.  In cases where the amount of the damage may lead to the other driver’s insurance company declaring your vehicle “totaled”, knowing the general amount needed to repair the vehicle can also help you assess whether you need to develop additional evidence regarding the value of your vehicle. Additionally, you have the right to have your vehicle repaired by whomever you select, and you are not required to use the “preferred” or “partner” repair shop for a particular insurance company.

Third, you need to develop evidence regarding the value of your vehicle.  If the other driver’s insurance company is considering declaring your vehicle “totaled”, in addition to assessing the cost to repair your vehicle they will also establish a value for your vehicle.  Different insurance companies use different computer programs to establish this value, but you are not limited to what the other driver’s insurance company says your vehicle is worth.  There are many resources on the internet which can help you determine a value of your specific vehicle such as NADA (www.nadaguides.com), Kelley Blue Book (www.kbb.com), CarGurus (www.cargurus.com), as well as more common sites like www.cars.com and www.carmax.com.  Additionally, you can look at classified listings and Craigslist in your local area to see whether there is a vehicle similar to yours being offered for private sale.

Fourth, document your communications with the other driver’s insurance company.  Communicating by email where possible is quite helpful in that it creates a written record of your communications.  Even in situations where you have communicated in person or by telephone with the other driver’s insurance company or adjuster, send a follow-up email summarizing the main points of your conversation.  Doing so may prove extremely valuable in the future if the matter is not able to be resolved.

Finally, if you have questions about the process or your legal rights, you should consult with an attorney immediately to ensure you completely understand all issues involved.  In virtually all cases, the other driver’s insurance company will ultimately ask you to sign a document to either agree to a settlement amount and/or release any and all claims you may have arising from the accident.  It is critical that you fully understand your rights before you sign anything the other driver’s insurance company puts in front of you.

— Larry Nordling