Kansas

Automobile Total Loss Thresholds

Total Loss Threshold (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).

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).

Deductible Reimbursement

Automobile and Property: No applicable statute, Administrative Code provision or case law exists.

Diminution of Value

First Party: 10^th 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 (10^th 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).

First Come, First Served: Subrogating Multiple Claims in Excess of Policy Limits

In Kansas, a liability insurer owes a duty to the insured to act in good faith and without negligence in defending and settling claims against the insured. Castoreno v. Western Indem. Co., Inc., 515 P.2d 789 (Kan. 1973). However, a liability insurer may in good faith settle part of multiple claims arising from the negligence of its insured even though such settlements deplete or exhaust the policy limits of liability so that the remaining claimants have little or no recourse against the insurer. Id. 

Funeral Procession Traffic Laws

There are no state laws governing funeral processions.

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.

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.

Loss Of Use

Loss of Use: Yes. Loss of use is limited to the period reasonably necessary to complete the repairs (when feasible), but in any case, the amount recovered may not exceed the value of the vehicle before the injury. Venable v. Imperial Volkswagen, Inc. 519 P.2d 667 (Kan. 1974). Damages for loss of use of a motor vehicle may be measured by the cost of renting a substitute vehicle while repairs are being made. 8 Am. Jur.2d, Automobiles and Highway Traffic § 1047, p. 608; Nelson v. Hy-Grade Construction & Materials, Inc., 527 P.2d 1059 (Kan. 1974). Property owner need not actually rent a substitute vehicle to use the value as a measure of loss of use. Warren v. Heartland Auto. Services, Inc., 144 P.3d 73 (Kan. App. 2006). Generally, loss of use damages not available on totally destroyed vehicles; however, courts have found that some special circumstances may exist where recovery is available for loss of use, such as when the vehicle was specially constructed for the performance of a particular service and a substitute vehicle is not available. Peterson v. Bachar, 392 P.2d 853 (Kan. 1964). Therefore, in the absence of additional authority, loss of use should be pursued even on completely destroyed vehicles.

Lost Profits: Yes. Loss of profits from earnings or the use of the vehicle may be allowed as an element of damages for the complete demolition of the vehicle if they are not too speculative…but it must be shown that the owner could not obtain a suitable substitute vehicle, or that there was a loss of time in their ability to obtain a substitute vehicle. Peterson v. Bachar, supra.

Comments: Loss of use damages should not be allowed if the plaintiff could provide evidence of the reasonable rental value of similar property but fails to do so. Warren v. Heartland Auto. Servs., Inc., supra.

Med Pay/PIP Subrogation

Med Pay: 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: 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).

Made Whole: Can be overridden with Plan language. Unified School Dist. No. 259 v. Sloan, 871 P.2d 861, 865 (Kan. 1994).

Statute of Limitations: 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).

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

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).

Payment 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.

https://insurance.ks.gov/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. https://insurance.ks.gov/department/LegalIssues/bulletins/2013-1.pdf

Pedestrian and Crosswalk Laws

Statute:

K.S.A. § 8-1533: Vehicles must stop for pedestrians on or near vehicle’s half of crosswalk. Pedestrians must not leave curb when cars are too close to stop in time.

K.S.A. § 8-1534: Pedestrians must yield to cars when outside of crosswalks. No crossing diagonally. At intersections with traffic signals, pedestrians must use crosswalk to cross.

Summary: Plaintiff lost control of her vehicle, slid into snowbank, and while trying to exit her vehicle was struck and injured by the defendant. Judge instructing jury that pedestrian outside crosswalk must yield the right-of-way to vehicles on the road and that vehicles must exercise due care to avoid pedestrians, was a proper statement of law. Reeve v. McBrearety, 8 Kan. App.2d 419, 660 P.2d 75 (1983).

Rental Car Company Physical Damage and Loss of Use Claims

Recovery From Renter: Not prohibited. Terms of CDW must be prominently displayed in rental agreement. K.S.A. § 50-657. CDW must appear in rental agreement in 10-pt. font and recite language found in statute. K.S.A. § 50-657. Car rental employee may not make false, misleading statements, suggest CDW is mandatory, or fail to state at time of sale that CDW may duplicate renter’s own personal auto coverage. K.S.A. § 50-658.

Recovery From Third-Party: Loss of use generally allowed in Kansas. Nothing specifically for car rental companies. Owner may recover loss of use for damage to a vehicle for the period necessary for the vehicle to be repaired. The following Kansas case stand for such a proposition: Nolan v. Auto Transporters, 597 P.2d 614 (Kan. 1979); Warren v. Heartland Automotive Services, 144 P.3d 73 (Kan. App. 2006).

Rental Car Company’s Liability Insurance Primary or Excess

Summary: A car rental company can exclude liability coverage from rental vehicles. Kan. Stat. § 40-3107(h). The car rental company’s liability coverage is primary where the renter’s personal policy excludes coverage for vehicles rented from a “car business.” State Farm v. Winney, 923 P.2d 517 (Kan. 1996). If both policies provide “excess” coverage, the loss will be prorated equally up to the limit of the lower policy. Western Cas. & Sur. v. Universal Underwriters Ins. Co., 657 P.2d 576 (Kan. 1983). Also, a car rental company which self-insures will not be considered primary if the renter’s policy is an excess policy. Farm Bureau v. Enterprise Leasing, 58 P.3d 751 (Kan. App. 2002).

Slower Traffic Keep Right

Statute: K.S.A. § 8-1522 and K.S.A. § 8-1514.

Summary: Kansas requires all vehicles to be driven in the right lane except when passing another vehicle; when an obstruction exists in the right lane; upon a roadway divided into three marked traffic lanes; or on a roadway restricted to one-way traffic. Slower traffic must keep right. Any vehicle proceeding slower than the normal speed of traffic must travel in the right lane.

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.

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.gov/dovindex.html

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.

Municipal/County/Local Governmental Immunity and Tort Liability

Legal Authority: 

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.

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.

Anti-Indemnity Statutes

Prohibits Intermediate Indemnity. Prohibits Additional Insureds. Applies to Construction Contracts. Kansas Stat. § 16-121.

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.

Contribution Actions

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).

“Comparative implied indemnity,” is generally not recognized. Kansas does not generally recognize post-settlement contribution claims. Dodge City Implement, Inc. v. Board of County Comm’rs, 205 P.3d 1285 (Kan. 2009). However, under the doctrines of strict liability and implied warranty, a party in the chain of a product’s distribution may seek contribution from other such parties. Id. The court will bar any lawsuit by a joint tortfeasor against another tortfeasor if (1) an injured party has previously sued one tortfeasor, but not others; (2) that tortfeasor has settled with the injured party; (3) the injured party has given a full release of all claims held by it, and (4) the settling tortfeasor claims the other tortfeasors caused all or part of the injured party’s damages. Id. Claims are subject to a two-year statute of limitations, running from the date when the party seeking contribution knew of facts giving rise to a potential contribution claim. Med James, Inc. v. Barnes, 61 P.3d 86 (Kan. App. 2003) (applying Kan. Stat. Ann. § 60-513).

Possible claim for “implied contract of indemnity” or “implied contractual indemnity.” Kansas recognizes three types of indemnity claims: (1) express contractual indemnity; (2) implied contractual indemnity; and (3) comparative implied indemnity. Express contractual indemnity arises where there is a contract of indemnity, such as a hold harmless agreement. Implied contractual indemnity arises when one is compelled to pay what another party ought to pay; generally, when a party without fault is made to pay for a tortious act of another and seeks indemnity from the party at fault. Schaefer v. Horizon Building Corp., 985 P.2d 723 (Kan. App. 1999). It is usually used in cases involving an employer/employee relationship or principal/agent relationship.

The statute of limitations period for implied indemnity claim is three (3) years from the date of payment. Med James, Inc. v. Barnes, 61 P.3d 86 (Kan. App. 2003) (applying Kan. Stat. Ann. § 60-513).

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.

Henkel was a “dog fright” case in which the plaintiff was frightened by a pesky pup while riding his bike, and fell, suffering injuries. The court did not focus on the “vicious propensity” standard that would be applicable to a “dog bite” case, but rather applied a more general foreseeability standard (defendants knew the dog had frightened people several times before). The court affirmed a jury award in favor of the plaintiff. Henkel v. Jordan, 644 P.2d 1348 (Kan. App. 1982).

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 of 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:

1. 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.
2. 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.
3. 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 (10^th Cir. 1984) (unreasonable dangerousness); AgriStor Leasing v. Meuli, 634 F. Supp. 1208, 1216-18 (D. Kan. 1986), aff’d, 865 F.2d 1150 (10^th 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).

Parental Responsibility

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.

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 2^nd or 3^rd?: Both.

Spoliation

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.

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’ Comp Third Party Case2 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).

Health and Disability Insurance

Statute of Limitations:  2 Years. K.S.A. § 60-513.

Subrogation of Medical Benefits is not allowed. Kan. Admin. Regs. § 40-1-20 bars subrogation for “medical, surgical, hospital, or funeral expenses.” *Exception for PIP benefits. K.S.A. § 40–3113a(b). Occupational accident benefits may be outside the scope of Kan. Admin. Regs. § 40-1-20 based upon its status as an “accident only policy.” K.S.A. § 40-4602(c). Subrogation of Disability Benefits is allowed. Kan. Admin. Regs. § 40-1-20 does not reference disability benefits within its prohibition on subrogation. Exception for PIP benefits. K.S.A. § 40–3113a(b). 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).

The Made Whole Doctrine does not apply. The Kansas Supreme Court has not adopted the Made-Whole Doctrine. The Tenth Circuit previously predicted that Kansas would not apply the “made whole” rule. Copeland By & Through Copeland v. Toyota Motor Sales U.S.A., Inc., 136 F.3d 1249, 1257 (10^th Cir. 1998). Common Fund Doctrine applies. Musse v. Garcia, 68 P.3d 165 (Kan. Ct. App. 2003) (PIP Benefits).

Admissibility of Expert Testimony

Admissibility Standards: Daubert

Case/Statutory Law:  K.S.A. § 60-465(b)

Pre-Suit Disclosure of Liability Policy Limits in Third-Party Claims

Duty To Disclose: No.

Failure To Disclose A Basis for Bad Faith: No Information.

Recording Conversations

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).

“Matching Regulations” And Laws Affecting Homeowners Property Claims

Statute/Regulation: None.

Caselaw: None.

Condominium/Co-OP Waiver of Subrogation Laws

Statute on condo insurance does not mention subrogation. K.S.A. § 58-3125.

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 4^th 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).

General Contractor Overhead And Profit Payments In First-Party ACV Property Damage Claims

Payment And Depreciation Of GCOP/Sales Tax: No applicable case law, statutes, administrative rules, or other guidance with regard to the calculation and/or depreciation of GCOP. The Kansas Insurance Department (“KID”) defines “actual cash value” as “the amount which it would cost to repair or replace damaged property with material of like kind and quality, less allowance for physical deterioration and depreciation.” KID Bulletin 1983–19, Doc. 15–4, p. 2. In Graves v. Am. Family Mut. Ins. Co., No. 14-2417-EFM-JPO, 2015 WL 4478468 (D. Kan. July 22, 2015), aff’d, 686 F. App’x 536 (10^th Cir. 2017), the court granted the defendant insurance company’s motion for summary judgment where an insurer depreciated the cost of labor when calculating the ACV for a covered partial loss, where the policy’s definition of “actual cash value” specifically provides for depreciation.

Landlord/Tenant Subrogation

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.

Anti-Subrogation Rule

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).

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).

Criminal Restitution

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).

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 10^th 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 (10^th 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).

Medical Expenses, Insurance Write-Offs, and The Collateral Source Rule

Collateral Source Rule: Kansas has followed that common law CSR for 100 years. Berry v. Dewey, 172 P. 27 (Kan. 1918). It prohibits a defendant from introducing evidence of collateral sources, and allows plaintiffs to recover the reasonable value of their medical expenses. Kansas follows Restatement (Second) of Torts § 920(A)(2). Martinez v. Milburn Enterprises, Inc., 233 P.3d 205 (Kan. 2010). Kansas legislature has tried three times to modify the CSR. Each time the Supreme Court held them unconstitutional.

Recovery Of Medical Expenses Rule:

Private Insurance: Evidence of (1) the original amount billed, and (2) the amount accepted by the hospital in full satisfaction of the amount billed is admissible. However, evidence of the source of any actual payments is inadmissible because of CSR. From the evidence jury determines the reasonable value of medical expenses. Martinez v. Milburn Enterprises, Inc., 233 P.3d 205 (Kan. 2010).

Medicare/Medicaid: Attempts to clarify Medicare and Medicaid CSR have led to confusion. In Bates v. Hogg, 921 P.2d 249 (Kan. App. 1996), court said only amounts paid can be recovered. In Rose v. Via Christi Health System, Inc., 78 P.3d 798 (Kan. 2003) (Rose I), modified on reh’g, 113 P.3d 241 (Kan. 2005) (Rose II), Supreme Court said plaintiffs are entitled to receive Medicare write-offs because Medicare charges premiums to its beneficiaries. Before new opinion in Rose, two new decisions rendered. Fisher v. Farmers Ins. Co., 2005 WL 400404 (Kan. App. 2005); Liberty v. Westwood, 2005 WL 1006363 (Kan. App. 2005). Currently, evidence of write-offs allowed. Per Bates, amount due is the actual amount paid because the medical service provider cannot charge Medicaid patients for the write-off. Similarly, under Rose II, evidence of write-offs allowed only if tortfeasor is both the defendant and the health care provider. While Rose I appeared to limit Bates to Medicaid cases, Rose II brings to question the precedential value of this distinction.

Related Law/Comments: Rationale in Martinez for Kansas approach:

“When medical treatment expenses are paid from a collateral source at a discounted rate, determining the reasonable value of the medical services because an issue for the finder of fact. Stated more completely, when a finder of fact is determining the reasonable value of medical services, the collateral source rule bars admission of evidence stated that the expenses were paid by a collateral source. However, the rule does not address, much less bar, the admission of evidence indicating that something less than the charged amount has satisfied, or will satisfy, the amount billed.” Martinez v. Milburn Enterprises, Inc., 233 P.3d 205, 222 (Kan. 2010).

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).

Hospital Lien Laws

Statute: K.S.A. §§ 65-406 – 409. Lien of Operator.

Perfecting Lien: To protect a lien in Kansas, a provider must:

(1) Provide written notice setting forth amount of all of the hospital’s claims, name of injured person, date of accident and name and location of hospital shall be filed in the office of the clerk of the district court of the county in which such hospital is located, prior to the payment of any moneys to such injured person, such person’s attorneys, or legal representatives, as compensation for such injuries. § 65-407.

(2) Such hospital shall also send, by registered or certified mail, a copy of such notice to such patient upon whom emergency medical or other service has been performed, if the address of such patient shall be known to the hospital or can with reasonable diligence be ascertained. § 65-407.

Comments: The lien does not attach to workers’ compensation benefits. § 65-406(b). In the event the claimed lien is for the sum of $5,000 or less, it shall be fully enforceable as contemplated by subsection (a) of this section. In the event the claimed lien is for a sum in excess of $5,000, the first $5,000 of the claimed lien shall be fully enforceable as contemplated by subsection (a) of this section, and that part of the claimed lien in excess of $5,000 shall only be enforceable to the extent that its enforcement constitutes an equitable distribution of any settlement or judgment under the circumstances. In the event the patient or such patient’s heirs or personal representatives and the hospital or hospitals cannot stipulate to an equitable distribution of a proposed or actual settlement or a judgment, the matter shall be submitted to the court in which the claim is pending, or if no action is pending then to any court having jurisdiction and venue of the injury or death claim, for determination of an equitable distribution of the proposed or actual settlement or judgment under the circumstances. § 65-406(c).

OCIP/CCIP Subrogation In Workers’ Compensation Construction Cases

OCIP Law: If CGL coverage is included for all participants on a project, then project participants are not required to carry CGL coverage. Parties to OCIP may not be required to waive rights of recovery for claims covered by OCIP against other participants in the program. K.S.A. § 40-5403(b)(4)-(5).

Statutory Employer Law: Section 44-503 says owner or general contractor responsible for workers’ compensation payments to any employee on the project, even if he is employed by a subcontractor. Such employees are referred to as “statutory employees.” A statutory employer is immune from third-party liability, even though the subcontractor, and not the principal, had secured the workers’ compensation benefits for the employee. Robinett v. Haskell Co., 12 P.3d 411 (Kan. 2000).

Comments: Kansas does not have any case law specifically dealing with whether subcontractors included within a wrap-up program are considered statutory employees under Kansas law as they would be under the law of some other states. Waivers of Subrogation in construction contracts are prohibited in a consolidated or wrap-up insurance program under § 16-1803.

Recovery Of Increased Workers’ Compensation Premiums By Employer

Recovery For Increased Premiums? Undecided, but increased premiums are not recoverable as “restitution” from a criminal.

Statute/Case Law: State v. Caldwell, 84 P.3d 636 (Kan. App. 2004).

Rule Summary: There is no authority or precedent allowing or prohibiting the attempted recovery of damages for increased workers’ compensation insurance premiums by an employer from a third-party tortfeasor. However, damage for increased premiums is not allowed as restitution in a criminal proceeding. The court in State v. Caldwell held that as a matter of law, increased insurance premiums for fleet insurance are indirect or consequential damages not intended to be recouped under that as a matter of law, increased insurance premiums for fleet insurance are indirect or consequential damages not intended to be recouped under Kansas Restitution laws.

Which Workers’ Compensation “Benefits” Can Be Subrogated?

There is no precedent or discussion in case law regarding whether nurse case management fees or other allocated costs which may benefit the employer and/or employee can be recovered in subrogation. Section 342.700 describes a workers’ compensation carrier’s subrogation interest as follows:

… the employer shall be subrogated to the extent of the compensation and medical aid provided…

Section 44-504(f) defines “compensation and medical aid” as follows:

(f) As used in this section, “compensation and medical aid” includes all payments of medical compensation, disability compensation, death compensation, including payments under K.S.A. 44-570 and amendments thereto, and any other payments made or provided pursuant to the workers compensation act.

As of January 1, 2008, Kansas requires compliance with ODG Guidelines. See the State of Kentucky and the Preamble above for an argument that the subrogated carrier can recover the “case manager’s” fee for development of a “treatment plan,” utilizing the ODG guidelines.

Workers’ Compensation Subrogation Waiver Endorsements

Subrogation Statute: K.S.A. § 44-504

Waiver Allowed? Yes. Deffenbaugh Industries, Inc. v. Wilcox, 11 P.3d 98 (Kan. App. 2000). However, waiver of subrogation requirement in private construction contract is void.

Effect Of Waiver Endorsement on Carrier’s Right To Assert A Lien On Claimant’s Recovery: The effect of a waiver of subrogation on the carrier’s rights, including its right to enforce its statutory lien, has not yet been decided. However, courts have distinguished subrogation and reimbursement. Wishon v. Cossman, 991 P.2d 415 (Kan. 1999).

Other Applicable Law: Kansas statute declares that any waiver of subrogation in a private construction contract is void and against public policy. Exceptions: (1) Wrap-up insurance; (2) Owner/ contractor protective liability insurance; and (3) Project mgmt. protective liability insurance. K.S.A. § 16-1803(b)(3).

Workers’ Compensation

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.

Right to Intervene:    Yes.

Recovery from UM/UIM Benefits:  Possibly only to substituted 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.

Workers’ Compensation Claims by Undocumented Employees

Y/N/U:  Y

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.