STATUTE OF LIMITATIONS
- Personal Property2 YearsK.S.A. § 60-513
- Personal Injury/Death2 YearsK.S.A. § 60-513
- Breach of Contract/Written5 YearsK.S.A. § 60-511
- Breach of Contract/Oral3 YearsK.S.A. § 60-512
- Breach of Contract/Sale of Goods4 YearsK.S.A. § 84-2-725
- Statute of Repose/Products10 YearsK.S.A. § 60-3303(b)(1)*
- Statute of Repose/Real Property10 YearsK.S.A. § 60-513(b)**
- Breach of Warranty4 YearsK.S.A. § 84-2-725
- Workers’ Compensation2 YearsK.S.A. § 44-504
- Strict Product Liability2 YearsK.S.A. § 60-513
Statute of Limitations Exceptions
*10 years or after expiration of useful safe life as described by the Kansas Product Liability Act. K.S.A. § 60-3303(b)(1).
**There is a general 10-Year Statute of Repose for all tort cases. K.S.A. § 60-513(b).
Contributory Negligence/Comparative Fault
Modified Comparative Fault: 50% Bar. Damaged party cannot recover if it is 50% or more at fault. If 49% or less at fault, it can recover, although its recovery is reduced by its degree of fault. Plaintiff’s share of the fault will offset the defendant’s liability. K.S.A. § 60-258a(a).
Med Pay/PIP Subrogation
Med Pay: No. Where Med Pay coverage is not identified as PIP benefits in the policy, no subrogation of Med Pay benefits is allowed in Kansas. § 40-3113a(b); Kan. Admin. Regs. § 40-1-20.
PIP: Yes. Carrier can subrogate for PIP benefits which replace “economic damages” without limitation and can subrogate for PIP benefits which replace “non-economic damages” once the $2K no-fault threshold is met. K.S.A. § 40-3113a(b); Noon v. Smith, 829 P.2d 922 (Kan. App. 1992). If PIP benefits are paid as a substitute for lost wages or medical bills, subrogation recovery can be had regardless of the amount of the claim and without the no-fault threshold as an encumbrance. Section 40-3117 sets forth the threshold for an injured insured to recover damages for “pain, suffering, mental anguish, inconvenience, and other non-pecuniary loss.” These thresholds do not apply to lawsuits for medical bills or lost wages – only non-pecuniary damages. Kansas courts have confirmed that the failure to meet the no-fault threshold of $2,000 does not apply to or affect the tort recovery of economic damages. PIP carrier can sue third-party directly after 18 months. K.S.A. § 40-3113a(c). Subro recovery reduced by injured party’s percentage of negligence. K.S.A. § 40-3113a(c); State Farm v. Kroeker, 676 P.2d 66 (Kan. 1984). Subro recovery limited to those damages which are duplicative of PIP benefits paid. If the injured insured settles his total claim with tortfeasor, including elements of damage represented by the PIP benefits, the recovery is duplicative, since it includes the PIP benefits. Since the PIP carrier has a lien under the statute, it’s subrogated to and may recover the full amount of its PIP benefits paid out of any recovery made by the insured, subject only to the two statutory exceptions specifically provided for by subsections (d) and (e) of 40-3113a: (1) a reduction for attorney fees under subsection (e) and (2) a reduction under subsection (d) for the comparative negligence of the insured where the insured’s recovery is reduced by his own negligence. Russell v. Mackey, 592 P.2d 902 (Kan. 1992).
Kansas is a no-fault state. Monetary threshold. Pain and suffering recoverable only if (1) medical exceeds $2,000; (2) permanent injury; (3) fracture of weight-bearing bone; or (4) disfigurement. K.S.A. § 40-3117 (1988).
The two (2) year statute of limitations runs from the date of the insured’s accident. Farmers Ins. Co., Inc. v. Farm Bureau Mut. Ins. Co., Inc., 608 P.2d 923 (Kan. 1980).
Automobile and Property: No applicable statute, Administrative Code provision or case law exists.
Made Whole Doctrine
The Made Whole Doctrine in Kansas will be largely inapplicable in the area of health insurance subrogation due to the strong anti-subrogation statute in that state. Kan. Admin. Regs. § 40-1-20 (1987). However, if a Plan or policy is exempt from the anti-subrogation statute or the Plan or policy is “issued” in another state, the anti-subrogation statute may not be applicable and the issue of whether or not a Plan can subrogate when its Plan beneficiary is “made whole” may arise. There is little case law in Kansas to guide us. However, the Kansas Supreme Court has indicated that it is within the discretion of the trial court to apply equitable standards in assessing damages in order that the plaintiff may be made whole. Gillespie v. Seymour, 823 P.2d 782 (Kan. 1991).
Another Kansas Supreme Court decision, speaking about the duty of an insured to hold any third-party recovery in trust for the subrogated insurer, refers to a recovery “in excess of the amount of the balance of his loss and expenses of suit”, intimating that if pressed, Kansas would apply the Made Whole Doctrine. Shawnee Fire Ins. Co. v. Cosgrove, 116 P. 819 (Kan. 1911). This may be the case law from which future made whole decisions arise. There is authority for the proposition that a carrier may expand its equitable subrogation rights by contract, specifically negating the application of the Made Whole Doctrine in its policy’s terms. Unified School District No. 259 v. Sloan, 871 P.2d 861, 865 (Kan. 1994).
With regard to ERISA Plans, the 10th Circuit has held that the Made Whole Rule is the default rule which is preempted when the Plan language specifically negates the Made Whole Doctrine by its own terms. Alves v. Silverado Foods, Inc., 6 Fed. Appx. 694 (10th Cir. 2001). There is authority in Kansas to the effect that the Made Whole Doctrine can be overridden by contract terms in a Plan or policy. Unified School Dist. No. 259 v. Sloan, 871 P.2d 861, 865 (Kan. 1994).
Economic Loss Doctrine
Intermediate Rule. In Kansas, the ELD developed in the 1990s after the expansion of the doctrine in other jurisdictions. Koss Constr. v. Caterpillar, Inc., 960 P.2d 255 (Kan. App. 1998). Following Koss Construction, Kansas expanded the ELD to consumer product liability claims. In Jordan v. Case Corp., 993 P.2d 650 (Kan. App. 1999), a farmer’s insurer subrogated when a combine caught fire because of an engine defect. Claims against the manufacturer for breach of implied warranty, strict liability, and negligence were barred, despite the carrier’s argument that the engine was “other property” rather than a component part. The Court of Appeals extended the doctrine outside the business context and applied it to a consumer claim, and it was the beginning of the ELD’s expansion in Kansas. After Jordan, the ELD was applied in the construction context. Northwest Arkansas Masonry, Inc. v. Summit Specialty Products, Inc., 31 P.3d 982 (Kan. App. 2001). In Northwest Arkansas, the court considered whether the other property exception applied to the defective cement used by Northwest to build a cement wall, and found that in construction cases, an item must be distinguished as other property or part of an “integrated system” of a structure. If the item is part of an integrated system, then the ELD bars recovery of damages to the item itself.
After more than a decade of the ELD’s expansion in Kansas, three decisions provide limitations to the application of the ELD in the home construction, but provide confusion outside of this area. Later, the ELD was applied to residential home construction cases, regardless whether there was a service or a product, or whether it involved residential or business parties. Prendiville v. Contemporary Homes, Inc., 2001 WL 35911172 (Kan. Dist. Ct. Sept. 24, 2001). It wasn’t until 2011 that Kansas courts began to limit the expansion of the ELD, and it did so in three cases:
- David v. Hett, 270 P.3d 1102 (Kan. 2011). The ELD does not apply in residential construction cases. Homeowners brought breach of contract, negligence, fraud, fraudulent concealment, and violation of the Kansas Consumer Protection Act claims against their homebuilder after their house began settling. Up to this point, the ELD barred economic loss claims in construction cases. This court allowed the homeowners’ claims for negligence based on several policy reasons. First, the rule that warranty remedies are sufficient when the only damage is to a product itself do not work when a service, rather than a product, is involved. The court added that implied warranty to perform services in a workmanlike manner does not apply in Kansas to all services, such as professional services by a doctor or lawyer, so tort recovery for economic loss in this context is allowed. It also held that, because home defects are often discovered after the warranty time period has expired, warranty law offers little protection to homeowners.
- Coker v. Siler, 304 P.3d 689 (Kan. Ct. App. 2013). Created Independent Duty Rule in Kansas. This involved a claim by a homeowner after a water line separated and caused cracking in the home’s foundation and walls. The homeowner sued the seller of the home for breach of express warranty and sued the plumber who caused the damage for negligence. Because the plumber owed an independent duty to the homeowner, the tort claim against the plumber could proceed.
- Rinehart v. Morton Bldgs., Inc., 305 P.3d 622 (Kan. 2013). Economic loss recovery is allowed in tort in in negligent misrepresentation cases. Owners of a building sued their construction company on theories of breach of contract, breach of warranty, violation of the Kansas Consumer Protection Act, and negligent misrepresentation. The contractor misrepresented that the building complied with the plans and specifications.
The above three cases opened the door to tort liability in home construction economic loss cases in Kansas. It is unclear whether these limitations to the ELD might be applied outside the home construction context in the future.
The ELD still does not allow actions in tort where the only damages are to the defective product. Prendiville v. Contemporary Homes, Inc., 83 P.3d 1257 (Kan. App. 2004); Daitom, Inc. v. Pennwalt Corp., 741 F.2d 1569, 1581 (10th Cir. 1984) (unreasonable dangerousness); AgriStor Leasing v. Meuli, 634 F. Supp. 1208, 1216-18 (D. Kan. 1986), aff’d, 865 F.2d 1150 (10th Cir. 1988) (one must examine the nature of the defect, the type of risk, and the manner in which the injury arose to decide whether the safety-insurance policy of tort law or the expectation-bargain protection policy of warranty is applicable). Kansas has applied the “integrated systems approach” to the ELD. Northwest Arkansas Masonry, Inc. v. Summit Specialty Products, Inc., 31 P.3d 982 (Kan. App. 2001).
Absent an agreement by the landlord to allocate the risk of loss to the landlord and/or provide insurance for the tenant’s benefit, subrogation against a tenant appears to be allowed. Under a lease agreement providing that lessor would purchase fire insurance for adequate protection of improvements on leased premises and lessee would maintain premises in good repair “damage by fire or other casualty being expressly excepted,” lessor’s obligation to insure premises inured to benefit of both parties. The exemption from “damage by fire or other casualty” included all fires except those which, generally speaking, would be classified as arson, and the lessee was not liable for loss by fire resulting from its negligence. New Hampshire Ins. Co. v. Fox Midwest Theaters, Inc., 457 P.2d 133 (Kan. 1969). The court noted that the insurance provisions in that case were for the benefit of both the landlord and the tenant, especially given how any insurance payment for fire loss was to be applied. The lease in that case also required the landlord to repair or rebuild the theater within 60 days after any fire damage. However, in TMD Southglen II, LLC v. Parker, 2014 WL 2589768 (Kan. App. 2014), the lease was mutually beneficial. The tenants were relieved of liability to the landlord for fire damage to the space they leased or other parts of the mall. The premiums for that insurance would amount to an expense in leasing from TMD over and above the monthly rent. Therefore, this case came within the New Hampshire Insurance decision to the extent the court’s ruling actually required some mutual benefit to the fire-loss covenants. The lease requires the tenant to indemnify and to hold harmless the landlord for “any and all claims arising from the tenant’s use of the premises” or “from any breach or default” of the obligations imposed by the agreement. The landlord contends it should be able to recover under the indemnification clause regardless of the provisions regarding fire insurance and fire loss. However, the protections flowing under the indemnification clause are against third-party claims based on the wrongful conduct of the tenants. Id. Indemnification clauses are not commonly understood to apply to direct claims between the parties as opposed to third-party claims against the party entitled to be indemnified. Id.
Kansas also has a statute which governs the liability of tenants:
K.S.A. § 58-2555. Duties of Tenant. (f) be responsible for any destruction, defacement, damage, impairment or removal of any part of the premises caused by an act or omission of the tenant or by any person or animal or pet on the premises at any time with the express or implied permission or consent of the tenant.
Independent of the above statute and an express agreement to insure the tenant, Kansas law imposes an obligation on a tenant to return the premises to the landlord at the end of a rental term unimpaired by the tenant’s negligence. Salina Coca-Cola Bottling Corp. v. Rogers, 237 P.2d 218 (Kan. 1951).
A negotiated agreement to absolve a tenant from liability to the landlord for negligence for fire damage would seem to be no more or less compatible with public policy based on the number of entities leasing space on the premises. TMD’s argument would create an inexplicable rift in what could be legally enforced in leases for single-use commercial properties and what could be enforced as to multi-tenant premises. Had TMD wanted some different arrangement, it should have negotiated a different deal and crafted the lease language accordingly.
Tort of Spoliation: In Koplin v. Rosel Well Perforators, Inc., 241 Kan. 206, 734 P.2d 1177 (Kan. 1987), the Kansas Supreme Court considered the certified question of whether Kansas would recognize a common law tort action for intentional interference with a civil action by spoliation of evidence under the facts presented. The Supreme Court of Kansas concluded that absent some independent tort, contract, agreement, voluntary assumption of duty, or some special relationship of the parties, the new tort of spoliation of evidence should not be recognized in Kansas under the facts presented. Id at 215, 734 P.2d at 1177. Consequently, the U.S. District Court for Kansas held that the Supreme Court of Kansas would recognize the tort of spoliation under some limited circumstances. Foster v. Lawrence Memorial Hosp., 809 F. Supp. 831, 838 (Kan. 1992).
Adverse Inference Instruction: Kansas law generally provides that “failure to throw light upon an issue peculiar with any parties’ own knowledge or reach raises a presumption open to explanation, of course, that the concealed information was unfavorable to him.” Kansas utilizes a pattern jury instruction, K.P.J.I. § 102.73, borrowed from the Illinois Jury Instruction for “Inferences Arising from Failure to Produce Evidence.” The applicable jury instruction, K.P.J.I. § 102.73, provides: If a party to [the] case has failed to offer evidence within his power to produce, you may infer that the evidence would have been adverse to that party, if you believe each of the following elements: (1) The evidence was under the control of the party and could have been produced by the exercise of reasonable diligence. (2) The evidence was not equally available to an adverse party. (3) A reasonably prudent person under the same or similar circumstances would have offered if (he) (she) believed it to be favorable to him. (4) No reasonable excuse for the failure has been shown.
Willful Misconduct. Liability imposed on parents for willful or malicious damage to person or property. K.S.A § 38-120.
Minor’s Driving. If a vehicle owner permits a minor under the age of 16 to drive the vehicle, will be jointly and severally liable for any damages resulting from that minor’s negligence. K.S.A. § 8-222. The limits of liability are $5,000.00, plus court costs. If there is parental neglect, there are no limits. Child must be under 18-years-old.
Pure Several Liability. Each defendant only liable for its percentage of damages awarded. K.S.A. § 60-258a; Albertson v. Volkswagenwerk Aktiengesellschaft, 634 P.2d 1127 (Kan. 1981).
The “one-action rule” requires that all parties must have their fault determined in a single trial. All liable parties are joined in one action. No party is liable for the fault of others, so “the equitable need for contribution vanished,” and the Kansas Supreme Court abolished it. Teepak, Inc. v. Learned, 699 P.2d 35 (Kan. 1985). Defendant in comparative negligence action cannot settle claim on behalf of party or parties against whom plaintiff has not sought recovery and then seek contribution from those parties in proportion to percentage of causal negligence attributable to them. Ellis v. Union Pac. R. Co., 643 P.2d 158 (Kan. 1982).
Suspension of Drivers' Licenses
Administrative Suspension: After receiving a report from the police officer or driver/owner, the Director will suspend the license of any person failing to maintain financial security. K.S.A. § 40-3104(h). Suspension will remain until the driver has obtained insurance, paid a reinstatement fee, and has been released from liability or has entered into an agreement for the payment of damages. K.S.A. § 40-3104(j).
Judgment: When an uninsured driver enters into an installment agreement with the injured party, and defaults on the agreement, the party can notify the Director within sixty (60) days of default, and the Director will suspend the driver’s license of the uninsured driver. K.S.A. § 40-3104(k). Suspension will last until the Director receives notice that payments have been resumed, the driver now has insurance and the restatement fee is filed. K.S.A. § 40-31049(k).
Contact Information: Kansas Dept. of Motor Vehicles, Driver Control Division, P.O. Box 12021, Topeka, KS 66612-2021, (785) 296-3671, https://www.ksrevenue.org/dovindex.html.
The anti-indemnity statute limits statutory indemnity to contractually-required additional insured coverage as well as to indemnity. Statute voids contractual requirements in public and private projects to indemnify or provide liability coverage to another person as an additional insured for that person’s own negligence, acts or omissions. There are six exceptions. Kansas Stat. § 16-1803 (private) and § 16-1903 (public) nullify contract clauses that waive subrogation rights for losses covered by liability or workers’ compensation insurance with certain exceptions.
Diminution of Value
First Party: 10th Circuit decision (Kansas law) says that a commercial inland marine policy covers post repair diminution in value of dealer’s automobiles that were damaged by hail and such coverage was not defeated by “loss of market” exclusion. Boyd Motors, Inc. v. Employers Ins. of Wausau, 880 F.2d 270 (10th Cir. 1989).
Third Party: When the repair of an injury does not restore the property to its original condition and value but is a reasonable effort to make it as nearly usable as practicable, and as repaired is not as valuable as it was before the injury, the cost of the repair together with the difference in value of the repaired property and its value before injury might in some cases be a fair measure of the loss sustained. Broadie v. Randall, 216 P. 1103 (Kan. 1923).
Diminution in value damages are coverable if the value after repairs is less than it was before the accident. Venable v. Import Volkswagen, Inc., 519 P.2d 667 (Kan. 1974).
One-Party Consent: Kansas law bars the interception, recording and or disclosure of any oral or telephonic communication by the means of an electronic recording device without the consent of at least one party or if they are a party to said communication. Kan. Stat. Ann. § 21-6101(1); Kan. Stat. Ann. § 21-6101(4).
Kansas courts have determined that a defendant sentenced to imprisonment will not be required to also pay restitution, and that such restitution will only be ordered if a sentence is suspended, or if the defendant is given probation. State v. Bowers, 239 Kan. 417, 427, 721 P.2d 268, 276 (1986); K.S.A. § 21-6607; State v. Blaylock, 2017 WL 839522 (Kan. Ct. App. 2017).
Although case law states that a “victim” can extend to a secondary, aggrieved party, it also has been determined that “an insurer, who has assumed a contractual obligation to pay a sum of money in excess of the amount of damage suffered by the victim as a result of the criminal conduct, cannot recover.” State v. Hinckley, 13 Kan. App.2d 417, 418, 777 P.2d 857, 859 (1989). However, additional case law affirmed restitution awarded to organization which reimbursed insurers. State v. Bowers, 239 Kan. 417, 428, 721 P.2d 268, 277 (1986). A subrogated carrier is now considered an “aggrieved party” under § 21-6607 (Conditions of probation or suspended sentence). State v. Blaylock, 2017 WL 839522 (Kan. App. 2017).
Health and Disability Insurance
Statute of Limitations: 2 Years. K.S.A. § 60-513.
Subrogation of Medical and Disability Benefits are not allowed.* Kan. Admin. Regs. § 40-1-20 (1987). No subrogation unless benefits paid under Kansas PIP. Fid. State Bank v. McNeilus Truck, 23 F. Supp.2d 1204 (D. Kan. 1998). *Occupational accident benefits may be outside the scope of K.S.A. § 40-1-20 based upon its status as an “accident only policy.” K.S.A. § 40-1-20(c). Common Fund applies. Musse v. Garcia, 68 P.3d 165 (Kan. Ct. App. 2003).
Funeral Procession Traffic Laws
There are no state laws governing funeral processions.
Statute of Limitations: 2 Years. K.S.A. § 44-504.
Can Carrier Sue Third Party Directly: Yes, after 1 year. If death is involved, after 18 months.
Recovery from UM/UIM Benefits: Only to substitute payment.
Subrogation Against Medical Malpractice: Yes.
Subrogation Against Legal Malpractice: Undecided.
Recovery Allocation/Equitable Limitations: Lien extends only to the damages that duplicate medical and lost wages.
Employer Contribution/Negligence: Yes, Brabander Formula.
Attorney’s Fees/Costs: Apportionment, if active. No fee if gerrymandering.
Future Credit: Yes, it is reduced by employer’s negligence.
Auto No-Fault: Yes.
Dog Bite Laws
Dog owner will be liable if it is found that they had knowledge of the dog’s vicious propensities, or if they acted negligently. Mercer v. Fritts, 9 Kan. App.2d 232, 676 P.2d 150 (Kan. 1984); Restatement (Second) of Torts § 518.
Employee Leasing Laws
Neither statute nor case law has decided whether or not an employee leasing company and the client company are considered employers for purposes of the Exclusive Remedy Rule. However, if an employee becomes a borrowed servant, the special employer is immune to any third-party actions. Hollingsworth v. Fehrs Equip. Co., 729 P.2d 1214 (Kan. 1986).
Condominium Waiver of Subrogation Laws
Statute on condo insurance does not mention subrogation. K.S.A. § 58-3125.
Automobile Total Loss Thresholds
Percentage of Value: 75%
Cost to repair vehicle is 75% more than the fair market value at the time immediately before it was wrecked. K.S.A. § 8-197(b)(2)(B).
Sudden Medical Emergencies While Driving
No Sudden Emergency Instruction. However, sudden emergency circumstances are a proper matter for argument by counsel. Crowley v. Ottken, 578 P.2d 689 (Kan. 1978).
No cases dealing with sudden medical emergency.
State Sovereign Immunity And Tort Liability
Tort Claims Act: Kansas Tort Claims Act. K.S.A. §§ 75-6101 – 75-6120 (1979).
Governmental entity liable for negligence unless exception in Act. Harris v. Werholtz, 260 P.3d 101 (Kan. Ct. App. 2011).
Notice Deadlines: None.
ne case stretched the 120 day notice requirement for claims against municipalities to also apply for claims against the State. Christopher v. State ex rel. Kansas Juvenile Justice Auth., 143 P.3d 685 (2006).
Claims/Actions Allowed: Governmental entities shall be liable for damages caused by a negligent act or omission of any of its employees while acting within the scope of employment under circumstances where a private person, would be liable. K.S.A. § 75-6103.
Comments/Exceptions: No liability for:
(1) legislative functions;
(2) judicial functions;
(3) failure to enforce a law;
(4) failure to exercise or perform a discretionary function or duty on the part of a governmental entity or employee.
See K.S.A. § 75-6104 for more exceptions.
“Discretionary function” means more than use of judgment. Must involve element of policy formation.
Clark v. Thomas, 505 F.Supp.2d 884 (D. Kan. 2007).
Damage Caps: State’s liability shall not exceed $500,000 for claims arising out of a single occurrence or accident. A governmental entity or its employees acting within the scope of employment shall not be liable for punitive damages. K.S.A. § 75-6105.
Recovery of Sales Tax After Vehicle Total Loss
First-Party Claims: Insurer may (1) offer owner a comparable replacement vehicle, “with all applicable taxes, license fees, and other fees incident to transfer of evidence of ownership …” or (2) pay owner a cash settlement equal to the actual cost required to purchase a comparable vehicle “including all applicable taxes, license fees and other fees incident to transfer of evidence of ownership …” Sales tax is calculated by multiplying the ACV of the comparable vehicle by state and local income tax. Kan. Admin. Regs. § 40-1-34. http://www.ksinsurance.org/department/LegalIssues/bulletins/2013-1.pdf
Third-Party Claims: Kansas Insurance Department Bulletin 2013-01 states that insurers have an obligation to pay sales tax and fees for all total loss claims. http://www.ksinsurance.org/department/LegalIssues/bulletins/2013-1.pdf
Damage to Property Without Market Value
Service Value: “… we have concluded that the majority view [cost of replacement] is the least complicated in its application and is more likely to make the plaintiff whole, and as a result we adopt that view as the law in Kansas.” Kansas Power and Light Co. v. Thatcher, 797 P.2d 162 (Kan. Ct. App. 1990).
Intrinsic Value: “When the damaged personal property has no market value and it cannot economically be restored to its former condition the measure of damages is its real, actual or intrinsic value…” IBD, Inc. v. Enterprise Business Solution, LLC, 203 P.3d 1281 (Kan. Ct. App. 2009) (citing Pattern Instructions for Kansas Civil 4th 171.12)).
Sentimental Value: Where the property has no market value, other relevant factors must be considered such as cost of repair, the original value, the loss of use, any special value to the owner, the loss of expected profits, and the cost of replacement. Burgess v. Shampooch Pet Indus., Inc., 131 P.3d 1248 (Kan. App. 2006).
Municipal/County/Local Governmental Immunity and Tort Liability
Kansas Tort Claims Act: K.S.A. §§ 75-6101 – 75-6120 (1979). Governmental entity liable for negligence unless exception in Act. Liability is the rule, immunity the exception. “Governmental entity” includes state or municipality. K.S.A. § 75-6102(c).
Notice Deadlines: Notice of Claim must be filed with the clerk or governing body. Suit can be filed after denial or 120 days. Plaintiff has 90 days after denied even if Statute of Limitations runs. K.S.A. § 12-105b(d). “Substantial compliance” with essential elements is okay. Sleeth v. Sedan City Hospital, 317 P.3d 782 (Kan. 2014).
Claims/Actions Allowed: Governmental entities shall be liable for damages caused by a negligent act or omission of any of its employees while acting within the scope of employment under circum-stances where a private person, would be liable. K.S.A. § 75-6103.
Comments/Exceptions: No liability for: (1) legislative functions; (2) judicial functions; (3) failure to enforce a law; (4) failure to exercise or perform a discretionary function or duty on the part of a governmental entity or employee. See K.S.A. § 75-6104 for more exceptions. “Discretionary function” means more than use of judgment. Must involve element of policy formation. Clark v. Thomas, 505 F. Supp.2d 884 (D. Kan. 2007).
Damage Caps: Municipal liability shall not exceed $500,000 for claims arising out of a single occurrence or accident. A governmental entity or its employees acting within the scope of employment shall not be liable for punitive damages. K.S.A. § 75-6105.
No Pay, No Play Laws
Rule: If an injured person fails to maintain personal injury protection benefits required by law, that injured person has no cause of action to recover non-economic losses sustained as a result of an accident while operating an uninsured vehicle. Additionally, any person who is injured in an accident who was driving under the influence and convicted of this crime is barred from recovering non-economic damages.
Authority: K.S.A. § 40-3130
Laws Regarding using Cell Phones/Headphones/Texting While Driving
Cell Phone/Texting: Restricted license holders may not use wireless communication devices while driving, unless it is an emergency situation or reporting illegal activity. K.S.A. § 8-2-101. No driver may use cell phones to conduct written communication while driving a motor vehicle or motorcycle. Exceptions include emergency situations, emergency personnel acting in the course and scope of their employment, or receiving an emergency alert. K.S.A. § 8-15-111.
Other Prohibitions: No Applicable Laws.
Admissibility of Expert Testimony
Admissibility Standards: Daubert
Case/Statutory Law: K.S.A. § 60-465(b)
Workers’ Compensation Claims by Undocumented Employees
Statute: The statute is silent on “aliens”, and bears no mention of legal or illegal aliens. Kan. Stat. Ann. § 5-44-508(b).
Case Law: Doe v. State Dep’t of Human Res., 90 P.2d 940 (2004); Fernandez v. McDonald’s, 2013 Kan. LEXIS 14 (Jan. 25, 2013).
Comments/Explanation/Other: The statute broadly covers employee as any person who has entered into the employment of or works under any contract of service with an employer.
Doe held an illegal alien may collect workers’ compensation benefits, but because the claimant in this case used fraudulent means and information to secure employment, the claimant could not receive benefits.
Fernandez held that Kan. Stat. Ann. § 50-44-510(e) did not contain an exception based on immigration status. Thus, the claimant was able to receive benefits.
Product Liability Law
Statute of Limitations/Repose: 2 years for personal injury and wrongful death. K.S.A. § 60-513 (1996). Discovery Rule applies. Statute of Repose is 10 years. K.S.A. § 60-513 (1996).
Liability Standards: Negligence, Strict Liability, Warranty.
Fault Allocations: Modified Comparative. K.S.A. § 60-258a(a) (1987).
Non-Economic Caps/Limits On Actual Damages: Yes.
Punitive Y/N and Limits: Yes (Limits).
Heeding Presumption?: Yes. Wooderson v. Ortho Pharmaceutical Corp., 681 P.2d 1038, 1057-58 (Kan. 1984).
Innocent Seller Statute: Yes.
Joint and Several Liability: No. K.S.A. § 60-258a.
Available Defenses: Sophisticated User; Presumption; Misuse; Alteration; Learned Intermediary; Inherently Unsafe Products; Compliance With Government Standards; Assumption of Risk.
Restatement 2nd or 3rd?: Both.
Imputing Contributory Negligence of Driver to Vehicle Owner
Imputed Contributory Negligence Law: A driver’s contributory negligence is not imputed to an owner in the owner’s action against a third party for property damage to the vehicle. Hartley v. Fisher, 566 P.2d 18 (Kan. App. 1977).
Vicarious Liability/Family Purpose Doctrine: No Vicarious Liability Statute.
Kansas does not recognize the Family Purpose Doctrine. Mirick v. Suchy, 74 Kan. 715, 87 Pac. 1141 (1906); Hartley v. Fisher, 566 P.2d 18 (Kan. App.1977).
Sponsor Liability for Minor’s Driving: K.S.A. § 8-222: Any owner of a motor vehicle, parent or otherwise, who knowingly permits a minor under the age of 16 to drive the vehicle on a highway shall be jointly and severally liable with such minor for any damages caused by the minor’s negligence.
Owner Liability For Stolen Vehicles
Key In The Ignition Statutes: K.S.A. § 8-1573.
Common Law Rule: The act of leaving the keys in the ignition of a vehicle is not the proximate cause of a third party’s injury. Therefore, the owner of a stolen vehicle may not be held liable. George v. Breising, 477 P.2d 983 (Kan. 1970).
An insurer can have no right of subrogation against its own insured since its insured is not a third party but one to whom a duty to pay a loss is owed. Transamerica Ins. Co. v. Gage Plumbing and Heating Co., 433 F.2d 1051 (10th Cir. 1970) (applying Kansas law). Under the ASR, an insurer may not seek recovery against its insured on a claim arising from the risk for which the insured was covered. DeHerrera v. Am. Family Mut. Ins. Co., 219 P.3d 346 (Colo. App. 2009).
In addition, it is generally stated that no right of subrogation arises against a person who is not a named insured but holds the status of an additional insured under the policy since it must have been the intention of the parties to protect this additional insured from the consequences of his negligence by including him in the insurance coverage. Id. An auto dealership’s insurance contract did not include the bailee as an insured, and thus the insurer could assert a subrogation claim against the bailee to recover damages arising from the collision caused by bailee’s negligence. Western Motor Co. v. Koehn, 748 P.2d 851 (Kan. 1988). Colorado has an anti-indemnity statute (§ 13-21-111.5(6)) which prohibits one entity from contracting with another to obtain additional-insured coverage for liabilities arising from the former’s own negligence. Any promise to provide such additional insured coverage is unenforceable and the CGL Policy will not cover the second entity if the second entity’s negligence cause the loss. In such a case, the anti-subrogation rule is inapplicable. Higby Crane Services, LLC v. DCP Midstream, L.P., 2017 WL 3495478 (10th Cir. 2017).
An insurance carrier that insures both a physician and his professional corporation for medical malpractice cannot sue the negligent physician for indemnification for sums paid on behalf of the corporation. Obstetrics & Gynecology, Ltd. of Kansas City, Inc. v. Buckner, 795 P.2d 386 (Kan. 1990).
Use of Non-Original Equipment Manufacturer (OEM) Aftermarket Crash Parts in Repair of Damaged Vehicles
Authority: K.S.A. § 50-659 to 665.
Summary: The insured must receive written notification of what non-OEM parts are being used and include a disclosure statement that the part’s manufacturer warrants the parts, not the auto manufacturer. The installer is responsible for any damages if they install the part negligently. The requirements of the statute expire once a vehicle is more than ten years old.