STATE LAW SUMMARY Overview of the State of Kansas Updated 2013

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1 STATE LAW SUMMARY Overview of the State of Kansas Updated 2013 Preparer: Roger W. Warren Sanders Warren & Russell LLP Overland Park, Kansas Table of Contents Overview of the Kansas Court System A. Trial Courts B. Appellate Courts Procedural A. Venue B. Statute of Limitations C. Time for Filing an Answer D. Dismissal Re-Filing of Suit Liability A. Negligence B. Negligence Defenses C. Gross Negligence, Recklessness, Willful and Wanton Conduct D. Negligent Hiring and Retention E. Negligent Entrustment F. Dram Shop G. Joint and Several Liability H. Wrongful Death and/or Survival Actions I. Vicarious Liability J. Exclusivity of Workers Compensation Damages A. Statutory Caps on Damages B. Compensatory Damages for Bodily Injury C. Collateral Source D. Pre-Judgment / Post Judgment Interest E. Damages for Emotional Distress F. Wrongful Death and/or Survival Action Damages G. Punitive Damages H. Diminution in Value of Damaged Vehicle I. Loss of Use of Motor Vehicle Evidentiary Issues A. Preventability Determination

2 B. Traffic Citation from Accident C. Failure to Wear a Seat Belt D. Failure of Motorcyclist to Wear a Helmet E. Evidence of Alcohol or Drug Intoxication F. Testimony of Investigating Police Officer G. Expert Testimony H. Collateral Source I. Recorded Statements J. Prior Convictions K. Driving History L. Fatigue M. Spoliation Settlement A. Offer of Judgment B. Liens C. Minor Settlement D. Negotiating Directly With Attorneys E. Confidentiality Agreements F. Releases G. Voidable Releases Transportation Law A. State DOT Regulatory Requirements B. State Speed Limits C. Overview of State CDL Requirements Insurance Issues A. State Minimum Limits of Financial Responsibility B. Uninsured Motorist Coverage C. No Fault Insurance D. Disclosure of Limits and Layers of Coverage E. Unfair Claims Practices F. Bad Faith Claims G. Coverage - Duty of Insured H. Fellow Employee Exclusions Overview of the State of Kansas Court System A. Trial Courts Jurisdiction is the power of the court to hear and determine the case. Kansas trial courts have general jurisdiction over all criminal and civil cases, unless otherwise provided by law. K.S.A Civil jury trials in Kansas consist of varying numbers of jurors. The parties may stipulate that the jury consist of any number less than twelve. K.S.A (a). When there are twelve jurors, ten jurors in agreement is sufficient to reach a verdict. In

3 circumstances where the parties stipulate to less than twelve jurors, all of the jurors must be in agreement to reach a verdict. K.S.A (g). B. Appellate Courts The Court of Appeals has jurisdiction to hear appeals from district courts. K.S.A A district court s final decision in any action may be appealed as. K.S.A The Supreme Court of Kansas is the highest court in the state. K.S.A (b). Appeals as of right to the Supreme Court occur in narrow instances; generally review by the Supreme Court is discretionary. K.S.A (b). Procedural A. Venue Venue is the geographic location of the trial. Venue is a procedural matter designed for the convenience of parties, fairness for the litigants, and judicial economy. K.S.A et seq. Venue is proper against a resident of Kansas in the county in which: (1) the defendant resides; (2) the plaintiff resides if the defendant is served therein; (3) the cause of action arose; (4) the defendant has a place of business/employment if the defendant is served therein; (5) the estate of the deceased person is being probated (under certain conditions); or (6) the tangible personal property which is the subject of the cause of action is located. K.S.A Where there are multiple plaintiffs, properly joined, venue is determined by the residence of one of the plaintiffs, as long as that particular plaintiff s claim is a substantial part of the action. K.S.A If there are several defendants, venue is determined at the election of the plaintiff as to any one of the defendants against whom a substantial claim exists. K.S.A B. Statute of Limitations The statute of limitations for bodily injury and personal property damage claims is two years. K.S.A (a)(2), (4). If the plaintiff is legally disabled, including incapacitation or minority status, such person can bring an action within one year of the removal of the legal disability. However, no such action may be commenced by a legally disabled person more than eight years after the time of the act giving rise to the action. K.S.A (a). The statute of limitations for a wrongful death action is two years. K.S.A (a)(5). The plaintiff is charged with constructive notice of the death and the statute of limitations commences at the time of death unless the death was concealed or misrepresented. Davidson v. Denning, 259 Kan. 659, 679, 914 P.2d 936, 948 (1996). The statute of limitations for intentional acts, like assault, battery, malicious prosecution, and false imprisonment, is one year. K.S.A (b). The statute of limitations for a breach of an oral contract is three years. K.S.A (1). For a written contract, the statute of limitations is five years. K.S.A (1).

4 C. Time for Filing An Answer The Kansas Rules of Civil Procedure are patterned after the Federal Rules of Civil Procedure, with some minor differences. The Kansas rules were enacted by statute instead of being promulgated by the Kansas Supreme Court. K.S.A et seq. These rules govern the method and practice of civil litigation in Kansas state courts. A defendant must serve an Answer to a Petition within 21 days after being served with the summons and Petition. K.S.A The initial time to plead any petition may be extended once by the clerk of the court for up to fourteen days. Kan. Sup. Ct. R D. Dismissal Re-Filing of Suit A plaintiff may dismiss a cause of action in two ways: (1) Plaintiff may file a notice of dismissal before the adverse party files an answer or motion or summary judgment, whichever occurs first; or (2) Plaintiff may file a stipulation of dismissal signed by all parties who have appeared. K.S.A (a). In both instances, unless otherwise stated in the filing, the dismissal is without prejudice. K.S.A (a). Kansas adheres to the two-dismissal rule, which states that a second voluntary dismissal by plaintiff operates as adjudication on the merits of the case. K.S.A (a)(1)(B). A third filing of the same lawsuit is subject to a dismissal on the bar of res judicata. Crockett v. Medicalodges, Inc., 247 Kan. 433, 436, 799 P.2d 1022, 1025 (1990) (reversed on other grounds). A defendant may move for a dismissal of an action or of any claim against the plaintiff when the plaintiff fails to prosecute or follow an order by the court. K.S.A (b). An involuntary dismissal, unless otherwise specified by the court or for lack of jurisdiction, improper venue, or failure to join a party, operates as adjudication on the merits. K.S.A (b). Liability A. Negligence Under Kansas Law, negligence is the lack of due care or lack of that care which a reasonable person would exercise given a particular set of circumstances. OMI Holding, Inc. v. Howell, 260 Kan. 305, 334, 918 P.2d 1274, 1293 (1996). A plaintiff must show duty, breach, proximate cause and injury to recover on a negligence claim. Id. To establish a negligence per se claim, a plaintiff must prove: (1) the defendant violated a statute, ordinance or regulation; (2) the violation was the proximate cause of his or her resulting damages; and (3) the ordinance was designed or adopted to protect the class of persons in which the plaintiff is included and to protect against the risk of the type of harm which has in fact occurred as a result of its violation. Id. at 339. The test to determine whether an individual right of action exists is whether the legislature intended to create such a right. Id. at 340. Absent express statutory provisions, legislative intent is determined primarily from the language and purpose of the statute. Id. In Kansas, comparative fault principles apply to strict liability as well as negligence theories. Kennedy v. City of Sawyer, 288 Kan. 439, 451, 618 P.2d 788, 798 (1980). All

5 types of fault, regardless of degree, are to be compared with that of defendant, whether the fault is characterized as contributory negligence, assumption of the risk, or another type of fault. Id. at A plaintiff is barred from recovery if his negligence is greater than the combined fault of all defendants. K.S.A a(a). This means a plaintiff is entitled to recover damages if his fault is less than 50 percent of the total fault of all the parties. However, if a plaintiff s fault is 50 percent or more, the plaintiff shall not recover damages. Pattern Inst. Kan. 4 th Civil When a plaintiff is at fault but less than 50 percent, the amount of damages recovered is reduced by his or her percentage of fault. K.S.A a(a) B. Negligence Defenses Under the doctrine of assumed risk, one who voluntarily exposes himself or his property to a known or appreciated danger due to the negligence of another may not recover [for] the injury sustained thereby. Schoof v. Byrd, 197 Kan. 38, 52, 415 P.2d 384, 395 (1966). In Kansas, the common law defense of assumption of risk doctrine is limited to employer-employee relationships. Tuley v. Kansas Power & Light Co., 252 Kan. 205, 211, 843 P.2d 248, 253 (1992). The following defenses will be waived if not pled in the answer or by motion prior to filing an answer: (1) lack of jurisdiction over the subject matter; (2) lack of jurisdiction over the person; (3) improper venue; (4) insufficiency of process; (5) insufficiency of service of process; (6) failure to state a claim upon which relief can be granted; (7) failure to join a necessary party under K.S.A. section K.S.A (b). Other possible affirmative defenses include: (1) accord and satisfaction; (2) arbitration and award; (3) assumption of risk; (4) contributory negligence; (5) discharge in bankruptcy; (6) duress; (7) estoppel; (8) failure of consideration; (9) fraud; (10) illegality; (11) injury by fellow servant; (12) laches; (13) license; (14) payment; (15) release; (16) res judicata; (17) statute of frauds; (18) statute of limitations; (19) waiver; and (20) any other matter constituting an avoidance or affirmative defense, such as the plaintiff failing to mitigate damages. K.S.A (c). The statute of limitations must be analyzed to determine if the cause of action was filed within two years of the accrual of the action. K.S.A (a)(4). Contributory negligence is no longer a complete bar to a plaintiff s recovery if the plaintiff s negligence was less than the combined negligence of all defendants. A plaintiff s damages will be reduced, however, in proportion to the amount of negligence attributed to the plaintiff. K.S.A a(a). In addition, Kansas does not allow the pleading of punitive damages in the initial petition, but requires a motion and hearing with the court prior to the final pretrial conference. K.S.A The court must find there is a probability that the plaintiff will prevail before a claim for punitive damages can be asserted. K.S.A C. Gross Negligence, Recklessness, Willful and Wanton Conduct In Kansas, recklessness is defined as conduct done under the circumstances that show a realization of imminent danger to another person and a conscious and unjustifiable disregard of that danger. Robbins v. City of Wichita, 285 Kan. 455, 469, 172 P.3d 1187, 1197 (2007).

6 To constitute wanton conduct, the act must indicate that the actor has a realization of the imminence of danger and a reckless disregard and complete indifference for the probable consequences of the wrongful act. Saunders v. Shaver, 109 Kan. 699, 701, 378 P.2d 70, 71 (1963). D. Negligent Hiring and Retention Kansas recognizes actions for negligent hiring and retention. Plains Res., Inc. v. Gable, 235 Kan. 580, 590, 682 P.2d 653, 662 (1984). To establish liability under the theory of negligent hiring and retention, the plaintiff must prove: (1) the employer hired and retained an employee when the employer knew or should have known of the employee s dangerous propensity or quality; and (2) the employer s negligence in hiring and retaining the employee was the proximate cause of the plaintiff s injuries. Hollinger v. Jane C. Stormont Hosp. & Training Sch. of Nurses, 2 Kan. App. 2d 302, 308, 578 P.2d 1121, 1128 (1978). Although the plaintiff s injury must be within the risk created by the employee s dangerous propensity or quality, it is not necessary to show that the employer should have foreseen the precise injury. Id. at E. Negligent Entrustment Kansas law recognizes negligent entrustment claims, finding liability when the owner of an automobile allows a third party to drive it knowing that the driver is incompetent, careless, or reckless. Grimmett v. Burke, 21 Kan. App. 2d 638, 650, 906 P.2d (1995). F. Dram Shop Kansas is in the minority of states that does not have a dram shop act. Ling v. Jan s Liquors, 237 Kan. 629, 637, 703 P.3d 731, 737 (1985). G. Joint and Several Liability Joint and several liability no longer exists in Kansas. The liability of each defendant for payment of damages is based upon that particular defendant s proportionate fault. K.S.A a(d) The conduct of intentional tortfeasors cannot be compared in a negligence claim. Gould v. Taco Bell, 239 Kan. 564, 571, 722 P.2d 511, 517 (1986). However, the common law rule that intentional tortfeasors are jointly and severally liable still exists in Kansas. Lynn v. Taylor, 7 Kan. App. 2d 369, 373, 642 P.2d 131, (1982). H. Wrongful Death and/or Survival Actions A wrongful death action may be commenced by any heir-at-law who has sustained a loss by reason of the death. K.S.A I. Vicarious Liability Under Kansas law, an employer is vicariously liable under the theory of respondent superior for torts committed by an employee or agent acting within the scope and course of his employment. Williams v. Cmty. Drive-in Theater, Inc., 214 Kan. 359, 366, 520 P.2d 1296 (1974).

7 In Kansas, the term independent contractor is defined as one who, in exercising independent employment, contracts to do certain work according to his or her own methods, without being subject to the control of the employer, except as to the results or product of his or her work. Falls v. Scott, 249 Kan. 54, 64, 815 P.2d 1104, 1112 (1991). The primary test to determine whether the employer-employee relationship exists is whether the employer has the right to control and supervise the work of the alleged employee. Id. This includes the right to direct the manner in which the work is performed and the results to be accomplished. Id. The actual exercise of control is not important, but instead the employer s right or authority to control renders the person a servant or employee. Id. Kansas courts have not addressed the issue of placard liability. However, several cases in the Tenth Circuit have held a licensed carrier liable for personal injuries resulting from an accident in which the carrier s placard was displayed on the truck. Rodriguez v. Ager, 705 F.2d 1229 (10th Cir. 1983); Dietrich v. Albert Sons Inc., 57 F.3d 1080 (10th Cir. 1995); Joyce v. Pedersen, No GTV, 2003 WL at *5 (D. Kan. Feb. 14, 2003). J. Exclusivity of Workers Compensation In Kansas, workers compensation is the exclusive remedy for injuries arising out of, and in the course of, an employee s job duties. K.S.A (b). Many states have an exception to this general rule when an employer commits an intentional tort against an employee. Although no Kansas state court has adopted this exception, the United States District Court in Kansas adopted such an exception in belief that the Kansas Supreme Court would as well. Stapp v. Overnite Trans., Inc., 995 F. Supp. 1207, 1216 (D. Kan. 1998). Damages A. Statutory Caps on Damages All injuries that are a natural and probable result of a wrongful act are recoverable under Kansas law. Foster v. Humburg, 180 Kan. 64, 68, 299 P.2d 46, 50 (1956). These damages include pain, suffering, disabilities, disfigurement, present and future mental anguish, reasonable medical expenses, loss of income and aggravation of a pre-existing condition. Albin v. Munsell, 189 Kan. 304, 311, 369 P.2d 323, (1962). Kansas has placed a $250,000 cap for non-economic damages in personal injury actions. K.S.A a01(b). Non-pecuniary losses are presently capped at $250,000 in wrongful death actions. K.S.A a. Punitive damages are capped pursuant to statute. K.S.A (e), (f). No award of punitive damages shall exceed the lesser of: (1) the annual gross income of the defendant based on the defendant s highest income earned in any one of the five years before or after the act for which damages are awarded; or (2) five million dollars. K.S.A (e). However, if the court finds that the defendant s profit from the misconduct exceeds the limitations above, then the amount of damages is limited to 1½ times the amount of profit the defendant gained or is expected to gain as a result of his misconduct. K.S.A (f).

8 B. Compensatory Damages for Bodily Injury Kansas courts recognize damages for the pain and suffering of a deceased person between the accident and the death of the person. Pape v. Kansas Power & Light Co., 231 Kan. 441, 448, 647 P.2d 320, 325 (1982). These non-pecuniary damages are presently capped at $250,000. K.S.A a01. C. Collateral Source The collateral source rule in Kansas does not prevent parties from introducing evidence of the amount ultimately accepted as payment by a hospital in addition to the amount billed. Martinez v. Milburn Enterprises, 290 Kan. 572, 612, 233 P.3d 205, 229 (2010). Medicaid write-offs are not considered a collateral source. Bates v. Hogg, 22 Kan. App. 2d 702, 706, 921 P.2d 249, 253 (1996). Concerning Medicare write-offs, where the Medicare provider is the defendant and the health care provider of the services forming the basis of an economic damages claim, a setoff may be given against the portion of the economic loss attributable to medical expenses in an amount of the Medicare write-off. Rose v. Via Christi Health Sys., 279 Kan. 523, 533, 113 P.3d 241, 248 (2005). D. Pre-Judgment/Post-judgment Interest The allowance of pre judgment interest rests in the discretion of the trial judge and is typically only awarded in contract cases. Miller v. Botwin, 258 Kan. 108, 119, 899 P.2d 1004, 1011 (1995). In Kansas, the general rule is that pre judgment interest is allowable for liquidated claims. McGinnes v. Wesley Medical Center, 43 Kan. App. 2d 227, 243, 224 P.3d 581, 592 (2010). When awarded pre judgment interest, the statutory interest rate is 10 percent per annum. K.S.A The statutory rate is used when no other rate is agreed upon by the parties. Id. Any judgment rendered by a Kansas court on or after July 1, 1986, shall bear interest per annum. K.S.A (d). The interest rate on judgments is fixed by statute unless the parties agree on a different rate. Producers Equip. Sales, Inc. v. Thomason, 15 Kan. App. 2d 393, 403, 808 P.2d (1991). The statutory interest rate is four percentage points above the discount rate (the discount rate is the charge on loans to depository institutions by the New York Federal Reserve Bank as reported in the money rates column of the Wall Street Journal) as of July 1 st preceding the date of judgment. K.S.A (e). Additionally, judgments rendered pursuant to the Code of Civil Procedure for limited actions shall be 12% per annum. K.S.A (e)(2). In claims arising from a person s duty to support another person, the presumed interest rate is ten percent. K.S.A (e)(3). E. Damages for Emotional Distress The general rule in Kansas is that a plaintiff may not recover damages for emotional distress caused by the defendant s negligence unless it is accompanied by or results in physical injury. Humes v. Clinton, 246 Kan. 590, 598, 792 P.2d 1032, 1038 (1990). Further, a plaintiff cannot recover for aggravation of an existing mental condition caused by a negligent damaging of property. Fusaro v. First Family Mortg. Corp., 257 Kan. 794, 807, 897 P.2d 123, 132 (1995).

9 F. Wrongful Death and/or Survival Action Damages Non-pecuniary losses are presently capped at $250,000 in wrongful death actions. K.S.A (a). In wrongful death cases the jury is instructed to itemize damages in three categories: (1) non-pecuniary losses, which are damages that cannot be measured monetarily; (2) expenses for the care of the deceased caused by the injury; and (3) any other pecuniary damages not covered. K.S.A (c). Case law has expanded pecuniary loss beyond normal lost income claims. See Wentling v. Med. Anesthesia Servs., 237 Kan. 503, 509, 701 P.2d 939, 944 (1985). Additionally, when a plaintiff shows loss of services, attention, care, advice, protection, or educational, physical, moral training or guidance that would have come from the deceased, a jury may consider such items in determining pecuniary damages even though no actual dollar evidence of value is presented. Id. Such services are valuable per se and pecuniary in nature. Id. Punitive damages may not be attached to a wrongful death action in Kansas, but may be asserted as a portion of any survival action. Smith v. Printup, 254 Kan. 315, , 866 P.2d 985, (1993). G. Punitive Damages In order to recover punitive damages, a plaintiff must establish by clear and convincing evidence at the initial phase of the trial that the defendant acted with willful conduct, wanton conduct, fraud or malice. K.S.A (c). The jury decides whether punitive damages shall be allowed. K.S.A (a). If the jury determines that punitive damages are allowed, a separate proceeding is conducted by the court to determine the amount of punitive damages. Id. The United States District Court of Kansas, however, has held that punitive damages are substantive in nature. Capital Solutions, LLC v. Konica Minolta Bus. Solutions U.S.A., Inc., 695 F. Supp. 2d 1149, 1152 (D. Kan. 2010). The court recently held that the Seventh Amendment guarantees the right to have the entirety of a punitive damages claim, including determination of the amount, decided by jury. Id. The dichotomy between the State and Federal courts in Kansas may impact any decision to remove cases to Federal Court. A corporation does not have punitive damage exposure for the acts of its employees unless: (1) the principal or a managerial agent authorized the doing and the manner of the act; (2) the agent was unfit and the principal or a managerial agent was reckless in employing him; (3) the agent was employed in a managerial capacity and was acting in the scope of employment; (4) the principal or a managerial agent of the principal ratified or approved the act. K.S.A (d)(1); See Preston v. Income Producing Mgmt., Inc., 871 F. Supp. 411, 413 (D. Kan. 1994). H. Diminution in Value of Damaged Vehicle Kansas courts have not directly addressed the issue of diminished value as a measure of damages. One Kansas court approved an award of a vehicle s diminished value in a conversion case, but did not discuss the award in detail because the party did not dispute its correctness in the choice of the measure of damages. Sells v. Muncie Auto Salvage, Inc., 178 P.3d 688 *6 (Kan. App. 2008). Regardless, claims for

10 damages that are conjectural and speculative... may not form a sound basis for an award. Id. I. Loss of Use of Motor Vehicle [T]he measure of damages for the loss of use sustained is the rental value of property similar to that damaged for the time reasonably necessary to make repairs or, if the property has no rental value, the value of its use to the deprived party for the time reasonably necessary to make repairs. Warren v. Heartland Auto. Servs., Inc., Kan. App. 2d 758, 765, 144 P.3d 73, 79 (2006) [L]oss-of-use damages are not precluded merely because the automobile owner has not sustained actual rental costs, reasonable rental value is the appropriate measure of damages in the absence of actual rental; and loss-of-use damages should be limited to a reasonable period of time needed to make repairs. Id. When a vehicle is completely destroyed, loss-of-use damages may not be recovered where they are not too speculative and where it is shown that the owner could not obtain a suitable substitute vehicle or that there was a necessary lapse of time between the date of the accident and the time in which the owner was reasonably able to obtain a suitable substitute vehicle. Peterson v. Bachar, 193 Kan. 161,167, 392 P.2d 853, (1964). Evidentiary Issues A. Preventability Determination There is no specific Kansas precedent addressing preventability determinations. B. Traffic Citation from Accident A driver s past traffic citations or criminal charges are not admissible to show that the driver has a disposition to commit a crime or civil wrong on another occasion. K.S.A (a); See Hampton v. State Highway Comm., 209 Kan. 565, 579, 498 P.2d 236, 248 (1972). However, such evidence may be admissible to prove motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident. K.S.A (b). A guilty plea is admissible in a civil case as an admission. See K.S.A (g). C. Failure to Wear a Seat Belt In Kansas, evidence of failure to use a safety belt shall not be admissible in any action for the purposes of determining comparative fault or mitigation of damages. K.S.A (c). Evidence of failure to use a safety belt can be admitted if it is used for purposes other than comparative fault or mitigation of damages. Floyd v. Gen. Motors Corp., 25 Kan. App. 2d 71, 72, 960 P.2d 763, 765 (1998) (holding that failure to wear a seatbelt was admittable in products liability action); Pleas v. First Student, Inc., 837 F. Supp. 2d 1250, 1252 (D. Kan. 2011) (allowing evidence for failure to fasten a safety restraint to prove direct negligence). D. Failure of Motorcyclist to Wear a Helmet In Kansas, only people under the age of eighteen have to wear a helmet while riding a motorcycle. K.S.A (a).

11 E. Evidence of Alcohol or Drug Intoxication In Kansas, any person who operates a motor vehicle within the state thereby consents to submit to one or more tests of the person s blood, urine, breath, or any other bodily substance to determine the presence of alcohol or drugs. K.S.A (a). See also K.S.A. 8-2,137, (8-1001(a)) (alcohol test pertaining to persons operating commercial vehicles). Additionally, if a law officer requests a person to submit to such testing and the person refuses, the refusal is admissible evidence against the person for any charge arising out of the alleged operation of a motor vehicle under the influence. K.S.A (n). The admissibility of blood alcohol and drug testing is not limited to criminal cases, but where properly obtained and accurately defined, may be admitted in civil action matters where pertinent to the issues involved in the case. Divine v. Groshong, 253 Kan. 127, 129, 679 P.2d 700, 706 (1984). F. Testimony of Investigating Police Officer An officer may testify as to their observations of a defendant's acts, conduct, and appearance, and also to give an opinion on the defendant's state of impairment based on those observations. Objective observations based on observable signs and conditions are not classified as scientific and thus constitute admissible testimony. State v. McHenry, No. 93,872, 2006 WL (Kan. App. Jun. 30, 2006). However, an officer may not assert or imply a specific level of BAC, for example, without an appropriate scientific opinion foundation. State v. Shadden, 290 Kan. 803, 824, 235 P.3d 436, 451 (2010). G. Expert Testimony Kansas, following the Frye test, conditions the admissibility of expert testimony about new or experimental scientific techniques to ones generally accepted as reliable in the relevant scientific community. Kuxhausen v. Tillman Partners, 40 Kan. App. 2d 930, , 197 P.3d 859, 863 (2008). H. Collateral Source The collateral source rule in Kansas does not prevent parties from introducing evidence of the amount ultimately accepted as payment by a hospital in addition to the amount billed. Martinez v. Milburn Enters., 290 Kan. 572, 612, 233 P.3d 205, 229 (2010). Medicaid write-offs are not considered a collateral source. Bates v. Hogg, 22 Kan. App. 2d 702, 706, 921 P.2d 249, 253 (1996). Concerning Medicare write-offs, where the Medicare provider is the defendant and the health care provider of the services forming the basis of an economic damages claim, a setoff may be given against the portion of the economic loss attributable to medical expenses in an amount of the Medicare write-off. Rose v. Via Christi Health Sys., 279 Kan. 523, 533, 113 P.3d 241, 248 (2005). I. Recorded Statements Communications to an insurance adjuster are discoverable unless a lawyer has been retained to do the investigation, in which case it becomes work product. Since

12 there is no insurer-insured privilege in Kansas, these recorded statements are unprotected. Alseike v. Miller, 196 Kan. 547, , 412 P.2d 1007, 1016 (1966). J. Prior Convictions Evidence of prior convictions not involving dishonesty or false statement is inadmissible. K.S.A Such evidence may be admissible with limited application, such as to prove motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident. K.S.A (b). K. Driving History Evidence that a person committed a crime or civil wrong on a specified occasion, is inadmissible to prove such person's disposition to commit crime or civil wrong as the basis for an inference that the person committed another crime or civil wrong on another specified occasion. K.S.A (a). Therefore, an individuals driving history is generally inadmissible, except it may be admissible in particular cases such as in a negligent entrustment claim or for punitive damages. Fogo v. Steele, 180 Kan. 326, 328, P.2d 451, 453 (1956). L. Fatigue Where relevant, hours-of-service logs are admissible. Smith v. Printup, 262 Kan. 587, 594, 938 P.2d 1261, 1268 (1997). M. Spoliation Spoliation is the intentional destruction, mutilation, alteration, or concealment of a document that may be used as evidence. In Kansas, absent some independent tort, contract, agreement, voluntary assumption of duty, or special relationship of the parties, the independent tort of spoliation is not recognized. Koplin v. Rosel Well Perforators, Inc., 241 Kan. 206, 215, 734 P.2d 1177, 1183 (1987). Settlement A. Offer of Judgment Offers of judgment may be made at any time up until 21 days before trial, and if within 14 days after service of the offer the adverse party serves written notice that the offer is accepted, either party may then file the offer and notice of acceptance. K.S.A (b). An unaccepted offer of judgment is inadmissible into evidence except in a proceeding to determine costs. K.S.A (b). If the final judgment is not more favorable to the offeree, then the offeree must pay the costs incurred after the making of the offer. K.S.A (b). The term costs ordinarily means the fees and charges of the court filing fees, fees for service of process and the like. K.S.A (b). A reporter's or stenographer s fee for the taking of depositions can be included only if the depositions are used as evidence at trail. K.S.A (5). Costs do not provide for the payment of all of the expenses such as expert witnesses or attorneys fees incurred by the opposing party after the making of the offer. Divine v. Groshong, 235 Kan. 127, 141, 679 P.2d 700, 711 (1984).

13 B. Liens Hospitals in the State of Kansas are currently entitled to assert a lien up to $5,000 against personal injury damages recovered by their patients. K.S.A If a lien is over $5000, the first $5000 shall be fully recoverable, but the amount in excess of $5000 will only be enforceable to the extent that its enforcement constitutes an equitable distribution of any settlement or judgment under the circumstances. K.S.A (c), see also Kearny Cnty. Hosp. v. Allstate Ins. Co., 38 Kan. App. 2d 641, 653, 170 P.3d 900, 909 (2007) (remanding case to trail court to determine hospital s equitable share of patient s personal injury settlement, when the hospital s lien was more than the patient s total award). Workers Compensation carriers and employers are also entitled to assert liens against recovery from negligent third parties. K.S.A (b).Pursuant to federal statutes, Medicare can assert a lien. A Medicare lien does not carry a notice requirement. 42 C.F.R Where Medicaid payments have been made, the State of Kansas has a statutorily-created subrogation right. K.S.A a. Medicaid may assert a lien against property after notice and an opportunity for a hearing. K.S.A (g)(4). Kansas gives personal injury protection ( PIP ) insurance liens to insurers. K.S.A a, Richards v. Etzen, 231 Kan. 704, 647 P.2d 1331 (1982) K.S.A (a) (b). Within 18 months of an accident, PIP insurers do not have a right to a direct lawsuit against the negligent party. K.S.A (a)-(c). They do have a right to recover from the insured that brings the action. Id. If the insured does not bring suit within 18 months, that assigns to the PIP insurer the right to file for PIP benefits. Id. There is also a right to subrogate for duplicative PIP benefits; if all claims are resolved within a settlement or judgment, a PIP insurer can obtain a lien from that settlement or judgment. Id. C. Minor Settlement In Kansas, minors may settle as plaintiffs subject to a court s approval of the settlement agreement. White v. Allied Mut. Ins. Co., 29 Kan. App. 2d 797, , 31 P.3d 328, 330 (2001). The public policy behind the requirement of court approval is for the protection of the minor s interests, not those of the minor s opponent. However, a minor may escape a settlement agreement, even after court approval, if the review hearing was inadequate to protect the minor s interests. Id. Generally, a settlement agreement is a type of contract and, therefore, governed by contract law. See Marquis v. State Farm Fire & Cas. Co., 265 Kan. 317, 324, 961 P.2d 1213, 1219 (1998). To create a valid contract, the contracting parties must have the legal capacity to contract. Aetna Life & Cas. v. Ams. Truckway Sys., Inc., 23 Kan. App. 2d 315, 318, 929 P.2d 807, 810 (1997). Therefore, parents or guardians may negotiate settlement offers for minor children, so long as it is in the best interest of the child. The settlement is still subject to court approval. White, 31 P.3d at 330. If a settlement does not exceed $10,000, a conservatorship is not required under Kansas law. K.S.A (c). If a settlement exceeds $10,000, a conservator may be required and the Kansas Uniform Transfers to Minors Act may apply. K.S.A (c).

14 D. Negotiating Directly With Attorneys Kansas has mostly adopted the National Association of Insurance Commissioners: Unfair Claims Settlement Practices Model Regulation, Jan. 1981, ed. Exceptions to the Model Regulations are outlined in Kansas Administrative Regulations, In particular, the regulation requires that Insurers shall not continue negotiations for settlement of a claim directly with a claimant who is neither an attorney nor represented by an attorney when the claimant's rights may be affected by a statute of limitations or a policy or a contract time limit, without giving the claimant written notice that the time limit may be expiring and may affect the claimant's rights. K.A.R (i). E. Confidentiality Agreements Confidentiality agreements are permitted. See Howarth v. Olivier, 30 Kan. App.2d 961, 966, 52, P.3d 911, 915 (2002). F. Releases Kansas follows the specific identity rule. Cobb v. Corbett, 32 Kan. App. 2d 1184, 1190, 95 P.3d 1028, 1032 (2004). The plaintiff can settle with any single defendant with out that settlement affecting claims the plaintiff may have with other defendants stemming from the same cause of action. Id. Any party not released by an action should be so named. Id. G. Voidable Releases Within 14 days of an accident that causes injury requiring care by a doctor, no negotiation for a settlement nor attempt to obtain a release may occur. K.S.A (a)(1)(2). Any such settlement or release is voidable within 14 days of discharge. K.S.A (b). Transportation Law A. State DOT Regulatory Requirements Kansas has adopted the Federal Motor Carrier Safety Regulations. K.A.R to Requirements in excess of the federal regulations are found in oversize vehicle regulations and special vehicle combination regulations. K.A.R to Kansas has specific size, weight, and dimension requirements for oversize or overweight vehicles. K.S.A Kansas has special requirements in order to obtain certain permits. One such permit is the Special Vehicle Combinations ( SVC ). A special vehicle combination means truck-tractor semitrailer-trailer-trailer combination of vehicles. K.A.R Under Kansas law, SVC drivers must: (1) possess a Class A drivers license, (2) have two years of truck-tractor semitrailer combination driving experience, (3) have at least one year of multiple trailer combination driving experience, and (4) complete a supervised SVC driving program and a road test provided by the employer. K.A.R (a). In addition to the federal regulations, all equipment on a SVC must comply with the additional Kansas regulations. These regulations include, but are not limited to the following: hitch connections, engine power, convex mirrors, and trailer/semitrailer requirements. K.A.R

15 Kansas has additional operational requirements for SVCs. These include, but are not limited to the following: loading and hauling cargo, movement of hazardous cargo, following distances, and stability requirements. K.A.R B. State Speed Limits Some Kansas highways have 75 mph speed limits. This includes areas of I-35, U.S. 69, I-70, I-135, and U.S. 81. Aside from the 75 mph zones, almost all highway speed limits are 65 mph. Some smaller highways on the eastern half of the state have 60 mph limits, and others as low as 55 mph. There is no listed rural highway in Kansas with lower than a 45mph speed limit. A current speed limit map may be obtained from There is no separate speed limit for trucks. C. Overview of State CDL Requirements In order to receive a CDL in Kansas, a driver must be 21 or older (or 18 and older if driving solely intrastate), must pass written exams specific to the type of commercial vehicle, and must pass three driving skills tests. The manual is obtainable from the Kansas Department of Revenue website at Insurance Issues A. State Minimum Limits of Financial Responsibility Kansas law requires every automobile insurance policy to include at least $25,000/$50,000 in bodily injury liability coverage, $10,000 in property damage liability coverage, and $25,000/$50,000 in uninsured/underinsured motorist coverage. K.S.A B. Uninsured Motorist Coverage Uninsured/Underinsured motorist insurance is available in Kansas. K.S.A Under Kansas law, an insured can purchase coverage for their own protection equal to that which they purchase to pay damages to others caused by their negligence. Gerald W. Scott, Uninsured/Underinsured Motorist Insurance: A Sleeping Giant, 63-May J. Kan. B. Ass n. 28 (1994). The Kansas statute allows an insurer to limit the coverage if: (1) the insured is struck by an uninsured automobile provided for the insured s regular use; (2) the uninsured automobile is owned by a self-insurer or any governmental entity; (3) there is no evidence of physical contact with an uninsured vehicle, coupled with a lack of any other disinterested reliable evidence; (4) worker s compensation benefits apply; (5) if a suit is filed against an uninsured motorist without notice to the insurance carrier; and (6) to the extent that personal injury protection benefits apply. K.S.A (e). With respect to the effect of workers compensation benefits on availability of coverage, duplicative payments may be offset only to the extent that such payments have been received by the injured party. Kilner v. State Farm Mut. Auto. Ins. Co., 252 Kan. 675, 681, 847 P.2d (1993). C. No Fault Insurance Kansas has enacted a no-fault statute entitled the Kansas Automobile Injury Reparations Act. K.S.A to The payment of personal injury

16 protection benefits creates a lien against any recovery from the tortfeasor. K.S.A a(b). D. Disclosure of Limits and Layers of Coverage A party may obtain discovery of the existence and contents of any insurance agreement under which any person carrying on an insurance business may be liable to satisfy part or all of a judgment which may be entered in the action or to indemnify or reimburse for payments made to satisfy the judgment. K.S.A (b)(3). E. Unfair Claims Practices Kansas adopted the National Association of Insurance Commissioners Unfair Claims Settlement Practices Model Regulation with few exceptions and additions. K.A.R These regulations outline minimum standards that insurance companies shall follow when disclosing policy provisions to the insured, responding to claims, and settling automobile insurance claims. K.A.R F. Bad Faith Claims The tort of bad faith is not recognized in Kansas and cannot be utilized as [an] independent tort giving rise to punitive damages in [an] action for breach of insurance contract. Guarantee Abstract & Title Co., Inc. v. Interstate Fire & Cas. Co., Inc., 232 Kan. 76, 78-79, 652 P.2d 665, 667 (1982). However, an insurer can be held liable if it refuses in bad faith to defend or settle claims against its insured. Glenn v. Fleming, 247 Kan. 296, 305, 799 P.2d 79, 85 (1990). The insurer s liability can exceed the amount of the policy. Id. The determination of liability is fact specific and will depend on the particular facts of each case. Id. Moreover, the settlement demand must be reasonable in order for bad faith to be established. Id. G. Coverage Duty of Insured Duty to cooperate provisions are given force, but the specificity of such a provision is important. For example, a provision requiring an insured to assist us in... getting witnesses to attend hearings and trials did not create an absolute duty to produce anyone for testimony. Bennett v. State Farm Mut. Auto. Ins., No. 89, WL at *2 (Kan. App. Oct. 31, 2003). H. Fellow Employee Exclusions Fellow employee exclusions are protected by statute. An insurer may exclude coverage for bodily injury to any fellow employee of the insured arising out of and in the course of such employee s employment. K.S.A (i)(9).