Defendant's Attorney:
David J. Welder and Michael G. Norris
Description:
Topeka, KS - Personal Injury lawyer represented defendant with fil0ing an indemnification suit against K Building Specialties, Inc.
In July 2014, Great Plains and K Building were subcontractors working on a
construction project at the John Deere Regional Facility in Olathe, Kansas. Great Plains
and K Building had separate contracts with The Weitz Company (Weitz), the general
contractor. K Building's employee, Spencer Plumb, operated an aerial lift despite not
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having an aerial lift certification and not fully inspecting the lift before operating it.
While Plumb operated the lift, it tipped over. The K Building employee in the lift bucket,
Philip Andrew Trokey, suffered injuries including a fractured femur, hip, ribs, multiple
fractures to vertebrae, and a traumatic brain injury. Trokey sued the aerial lift's owner,
Great Plains, in Jackson County, Missouri. His claims against Great Plains were: (1)
supplying a dangerous chattel or product, (2) failure to warn, and (3) general negligence.
K Building's contract with Weitz instructed K Building to use the aerial lift owned
by Great Plains. K Building agreed that it would be responsible for the safe operation of
the aerial lift as follows: "Man lifts and scaffold will be provided by others for use by
[K Building]. [K Building] is responsible for the safe operation of equipment and also
responsible for repair costs for damages caused while operating the equipment." Under
the contract, K Building also "agrees and acknowledges that it has assumed full
responsibility and liability for safety precautions in connection with the construction
means, methods, techniques, sequences, supervision and procedures pertaining to
[K Building's] Work." K Building also agreed to the following: "No [K Building]
employee shall operate any equipment unless specifically authorized and trained to do
so." And K Building "shall take reasonable precautions (including, without limitation,
providing any and all necessary training) for the safety of and should provide reasonable
protection to prevent damage, injury, or loss to persons or property arising out of, relating
to or in connection with its use of the Equipment."
During depositions, Weitz asserted that if K Building "broke it, caused damages,
they were fully responsible for everything related to those damages, whether it be
equipment or people or anything." After the incident which injured Trokey, K Building
paid for the property damage to the aerial lift.
K Building's contract with Weitz also contained an indemnification provision,
which read as follows:
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"The undersigned Subcontractor or Supplier ('Subcontractor'), and for its officers,
directors, members, employees, agents and assigns, in consideration for its use of
equipment (including, but not limited to, scaffolding) ('Equipment') provided by
Contractor or others, hereby releases, waives and discharges Contractor and the Project
Owner, and each of their respective affiliates, agents, officers, employees, insurers,
sureties and other subcontractors and suppliers (collectively, the 'Released Parties') from
any and all claims, losses, costs including attorneys' fees, damages, injury, death,
expenses, and liability arising out of, relating to or in connection with the Subcontractor's
use of the Equipment. Subcontractor further agrees, to the maximum extent allowed by
applicable law, to defend, indemnify, and hold harmless the Released Parties from any
and all claims by whomsoever made, losses, costs including attorneys' fees, damages,
injury, death, expenses, and liability arising out of, relating to or in connection with any
acts or omissions of, or use of the Equipment by, the Subcontractor or the Subcontractor's
Agents, servants or employees, and regardless of the active or passive negligence or
contribution by the Released Parties. The Subcontractor represents and affirms that it has
or has caused the Equipment to be fully inspected and acknowledges that the Equipment
is in good and safe operating condition and repair and accepts the Equipment in its
present condition and repair including latent or hidden defects, if any. . . . In the event
any portion of this release and indemnity is held to be invalid, it shall be interpreted so as
to allow the fullest release and indemnity permitted by law."
Trokey filed his petition for damages in Jackson County, Missouri. In the Missouri
lawsuit, Trokey alleged that Great Plains was negligent for providing a lift with a flat tire
because the lift tilted toward the flat tire, causing it to tip over. Specifically, Trokey
alleged that Great Plains was negligent in the following ways:
"a. In failing to fix the underinflated tire on the Lift;
"b. In failing to warn [Trokey] that the Lift was dangerous and defective in its
current condition;
"c. In failing to properly maintain the Lift;
"d. In failing to properly repair the Lift despite knowing of a dangerous
condition;
"e. In representing that the Lift was safe for use;
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"f. In failing to properly inspect the Lift;
"g. In failing to properly supply the Lift in a safe condition;
"h. In affirmatively claiming that the Lift was safe for use;
"i. In supplying the Lift to an operator that was unqualified to operate the Lift."
Trokey's Missouri lawsuit also included claims against Plumb for negligently
operating the lift without training, but Trokey dismissed those claims with prejudice.
Great Plains filed a third-party petition against K Building and Weitz in the
Missouri lawsuit, asserting claims of indemnification and contribution. But then Great
Plains voluntarily dismissed its claims against K Building and Weitz without prejudice.
Nothing in the record explains why Great Plains dismissed its claims against K Building
and Weitz.
Great Plains settled with Trokey in October 2019.
While the Missouri lawsuit was ongoing, Great Plains filed a petition against
K Building in Johnson County, Kansas, alleging breach of contract and seeking a
declaratory judgment. Great Plains' second amended petition added claims for contractual
indemnity, comparative implied indemnity, and contribution. Great Plains and
K Building filed cross-motions for summary judgment, and the trial court granted
summary judgment to K Building.
Great Plains timely appeals.
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ANALYSIS
Did the contract's indemnity clause violate Kansas' anti-indemnity statute?
Great Plains argues that the trial court erred in holding that the indemnification
provision violated the Kansas anti-indemnity statute. Although Great Plains is correct and
the provision is valid, it is largely irrelevant. The one-action rule, not the Kansas antiindemnity statute, prevents Great Plains from prevailing here.
An appellate court exercises unlimited review over the interpretation and legal
effect of written instruments and is not bound by the lower court's interpretations or
rulings. Whether a written instrument is ambiguous is a question of law subject to de
novo review. Trear v. Chamberlain, 308 Kan. 932, 936, 425 P.3d 297 (2018).
If the relevant facts before the trial court were undisputed, fact questions may be
resolved by the appellate court de novo. Simpson v. City of Topeka, 53 Kan. App. 2d 61,
68, 383 P.3d 165 (2016) (whether a party has defaulted on a contractual obligation is
reviewed de novo if the relevant facts are undisputed); First Nat'l Bank of Omaha v.
Centennial Park, 48 Kan. App. 2d 714, 725, 729-30, 303 P.3d 705 (2013) (whether a
party has substantially performed under the contract or whether the implied duty of good
faith and fair dealing was violated are reviewed de novo if underlying facts are
undisputed); Inter-Americas Ins. Corp. v. Imaging Solutions Co., 39 Kan. App. 2d 875,
885-86, 185 P.3d 963 (2008) (interpreting reasonable time provisions of UCC contract is
a question of fact but becomes a question of law when facts are not in dispute).
Contracts are presumed legal. The burden lies on the party challenging the
contract to prove it is illegal. Frazier v. Goudschaal, 296 Kan. 730, 749, 295 P.3d 542
(2013) (co-parenting agreement); National Bank of Andover v. Kansas Bankers Surety
Co., 290 Kan. 247, 257, 225 P.3d 707 (2010) (bankers surety bond).
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The primary rule for interpreting written contracts is to ascertain the parties' intent.
If the terms of the contract are clear, the parties' intent should be determined from the
language of the contract without applying rules of construction. Trear, 308 Kan. at 936;
see Schmitendorf v. Taylor, 58 Kan. App. 2d 292, 302, 468 P.3d 796 (2020).
Additionally,
"'"[a]n interpretation of a contractual provision should not be reached merely by isolating
one particular sentence or provision, but by construing and considering the entire
instrument from its four corners. The law favors reasonable interpretations, and results
which vitiate the purpose of the terms of the agreement to an absurdity should be
avoided."' [Citations omitted.]" Waste Connections of Kansas, Inc. v. Ritchie Corp., 296
Kan. 943, 963, 298 P.3d 250 (2013).
"'It is the duty of courts to sustain the legality of contracts in whole or in part
when fairly entered into, if reasonably possible to do so, rather than to seek loopholes and
technical legal grounds for defeating their intended purpose. . . . [T]he paramount public
policy is that freedom to contract is not to be interfered with lightly.' [Citations omitted.]"
Idbeis v. Wichita Surgical Specialists, P.A., 279 Kan. 755, 770, 112 P.3d 81 (2005).
See Wasinger v. Roman Catholic Diocese of Salina, 55 Kan. App. 2d 77, 80, 407 P.3d
665 (2017).
"'In placing a construction on a written instrument, reasonable rather than
unreasonable interpretations are favored by the law. Results which vitiate the purpose or
reduce the terms of the contract to an absurdity should be avoided. The meaning of a
contract should always be ascertained by a consideration of all pertinent provisions and
never be determined by critical analysis of a single or isolated provision.' [Citations
omitted.]" Einsel v. Einsel, 304 Kan. 567, 581, 374 P.3d 612 (2016).
See In re Marriage of Gerleman, 56 Kan. App. 2d 578, 588-89, 435 P.3d 552 (2018).
10
Under K.S.A. 2020 Supp. 16-121(b), "[a]n indemnification provision in a contract
which requires the promisor to indemnify the promisee for the promisee's negligence or
intentional acts or omissions is against public policy and is void and unenforceable."
Great Plains argues that the trial court erred by holding that the contract's
indemnification provision was void and unenforceable. The trial court held that Great
Plains was a third-party beneficiary to the contract between K Building and Weitz.
K Building does not appeal this decision. The trial court also held that the contract was a
"construction contract" so that K.S.A. 2020 Supp. 16-121 applies, and both parties agree.
Thus, the sole disputed issue is whether the promisor, K Building, agreed to indemnify
the promisee, Great Plains, for Great Plains' own negligence.
K Building claims that the indemnification provision promises too much, making
it unenforceable. Again, section 0.5.21 of K Building's contract with Weitz states as
follows:
"The undersigned Subcontractor or Supplier ('Subcontractor'), and for its officers,
directors, members, employees, agents and assigns, in consideration for its use of
equipment (including, but not limited to, scaffolding) ('Equipment') provided by
Contractor or others, hereby releases, waives and discharges Contractor and the Project
Owner, and each of their respective affiliates, agents, officers, employees, insurers,
sureties and other subcontractors and suppliers (collectively, the 'Released Parties') from
any and all claims, losses, costs including attorneys' fees, damages, injury, death,
expenses, and liability arising out of, relating to or in connection with the Subcontractor's
use of the Equipment. Subcontractor further agrees, to the maximum extent allowed by
applicable law, to defend, indemnify, and hold harmless the Released Parties from any
and all claims by whomsoever made, losses, costs including attorneys' fees, damages,
injury, death, expenses, and liability arising out of, relating to or in connection with any
acts or omissions of, or use of the Equipment by, the Subcontractor or the
Subcontractor's Agents, servants or employees, and regardless of the active or passive
negligence or contribution by the Released Parties. The Subcontractor represents and
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affirms that it has or has caused the Equipment to be fully inspected and acknowledges
that the Equipment is in good and safe operating condition and repair and accepts the
Equipment in its present condition and repair including latent or hidden defects, if
any. . . . In the event any portion of this release and indemnity is held to be invalid, it
shall be interpreted so as to allow the fullest release and indemnity permitted by law."
(Emphases added.)
K Building argues that Weitz, the general contractor, was trying to obtain the
broadest indemnity possible from K Building, which ultimately violated the Kansas antiindemnity statute, K.S.A. 2020 Supp.16-121(b). It asserts that K Building would have to
indemnify all released parties from any claims arising from use of the equipment, no
matter who was at fault. K Building contends that the contract would require it to
indemnify Great Plains even if an accident occurred with the lift and K Building operated
the lift perfectly. For example, Great Plains could be entirely at fault by failing to
maintain the lift and parking it in a dangerous location, causing the accident. In that
event, K Building argues that it would still be liable because the accident arose out of its
"use of the Equipment" and the indemnification provision applies "regardless of the
active or passive negligence or contribution by" Great Plains.
While K Building's reading of the contract language is correct, Great Plains
counters with two arguments. One has merit and the other does not. Great Plains'
meritless argument is that the phrase "arising out of, relating to or in connection with any
acts or omissions of [K Building]" has a causative meaning. Great Plains asserts that the
phrase signals that the indemnification provision is only triggered if K Building's actions
or inactions cause injury. This argument is unpersuasive. The phrase is not causative in
meaning and, furthermore, this reading is belied by the later expression "regardless of the
active or passive negligence" of other parties. The language makes clear that K Building
is responsible, no matter who is at fault. If the analysis stopped there, the provision would
violate K.S.A. 2020 Supp. 16-121(b).
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But, as Great Plains correctly points out, the provision contains two clauses which
Great Plains calls "safe harbor" clauses. First, K Building "further agrees, to the
maximum extent allowed by applicable law, to defend, indemnify, and hold harmless"
Great Plains. Second, the provision ends by stating that if it is invalid, then the
indemnification provision "shall be interpreted so as to allow the fullest release and
indemnity permitted by law." Thus, this contract provision, when read in conjunction
with K.S.A. 2020 Supp. 16-121(b), limits K Building's indemnity obligations.
The contract is clearly a multi-state contract. For example, section 8.4.1 specifies
that it applies to projects located in the State of Arizona. Section 8.4.1(b) states that it,
and not subsections 8.4.1(a), (c)-(f), applies to projects in the State of California. Section
8.4.1(f) applies in several jurisdictions, including Kansas. With this in mind, other
provisions such as the one at issue here, section 0.5.21, were drafted with the knowledge
that they will apply to different projects across different jurisdictions. In jurisdictions
with no anti-indemnity statutes, K Building's liability may be larger, requiring it to
indemnify released parties even when K Building was not negligent. But the safe harbor
provisions allow K Building's liability to shrink to fit applicable law. Because Kansas law
does not allow K Building to indemnify Great Plains for Great Plains' negligence,
K Building's obligation is limited to indemnifying its own negligence. See St. Paul
Surplus Lines Insurance Co. v. International Playtex, Inc., 245 Kan. 258, 274, 777 P.2d
1259 (1989) (holding that the express terms of an insurance contract did not cover
punitive damages because it insured punitive damages "to the maximum extent allowed
by law" and Kansas law prohibited insurance on punitive damages).
Thus, K.S.A. 2020 Supp. 16-121(b) does not render the indemnification provision
void and unenforceable. Instead, the language of the contract caps K Building's liability
at the statutory limit. K Building's liability can only extend as far as its own share of
negligence in the underlying tort.
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At oral argument, Great Plains took care to note that it had a tort claim and a
contract claim. Great Plains argued that K Building, as a joint tortfeasor, had an
obligation to pay for its share of negligence under comparative implied indemnity. And
Great Plains further argued that K Building, as a contracting party, had an obligation to
pay beneficiaries for its share of negligence under the contract's indemnification
provision. But this is a distinction without a difference. Whether K Building would owe
because of a negligence tort or because of a contractual obligation, a fact-finder must still
determine K Building's share of negligence.
The difficulty Great Plains has with its contractual indemnification claim is that it
cannot show the extent of negligence which K Building has indemnity liability for. No
determination of liability exists, so Great Plains is asking for a remand to determine each
tortfeasor's share of liability. But the one-action rule bars this court from granting the
requested relief.
Is Great Plains barred from recovery under the one-action rule?
Great Plains and K Building miss the trees for the forest. That is, they argue a
mass of unresolved and overlapping issues. But focusing on each issue individually
shows that one is both dispositive and simple. Great Plains cannot prevail on
indemnification in this suit because the one-action rule bars its recovery. Because the trial
court was right for the wrong reasons, we affirm its grant of summary judgment to
K Building.
The principles of the summary judgment rule have been outlined as follows:
"Summary judgment is appropriate when the pleadings, depositions, answers to
interrogatories, admissions on file, and supporting affidavits show that no genuine issue
exists as to any material fact and the moving party is entitled to judgment as a matter of
law. The district court must resolve all facts and reasonable inferences drawn from the
14
evidence in favor of the party against whom the ruling [is] sought. When opposing
summary judgment, a party must produce evidence to establish a dispute as to a material
fact. In order to preclude summary judgment, the facts subject to the dispute must be
material to the conclusive issue in the case. Appellate courts apply the same rules and,
where they find reasonable minds could differ as to the conclusions drawn from the
evidence, summary judgment is inappropriate. Appellate review of the legal effect of
undisputed facts is de novo. [Citation omitted.]" GFTLenexa, LLC v. City of Lenexa, 310
Kan. 976, 981-82, 453 P.3d 304 (2019).
If a trial court reaches the correct result, its decision will be upheld even though it
relied on the wrong ground or assigned erroneous reasons for its decision. See Gannon v.
State, 302 Kan. 739, 744, 357 P.3d 873 (2015).
Great Plains argues in its brief that it has properly asserted a tort claim of
comparative implied indemnity. But Great Plains cannot recover on its claim. It comes
down to this:
"'[D]efendants seeking to minimize their liability in comparative fault situations not
involving a chain of distribution or similar commercial relationship [must] do so by
comparing the fault of other defendants in order to reduce their own share of liability and
damages. If a defendant chooses to settle and obtain release of common liabilities
involving other parties whom the plaintiff did not sue, the defendant does not have an
action for comparative implied indemnity or post-settlement contribution. This holding
recognizes that under Kansas comparative fault procedure such a remedy is not
necessary, and further recognizes that such an action defeats the policy of judicial
economy, multiplying the proceedings from a single accident or injury.'" Dodge City
Implement, Inc. v. Board of Barber County Comm'rs, 288 Kan. 619, 637, 205 P.3d 1265
(2009) (quoting and endorsing Dodge City Implement, Inc. v. Board of Barber County
Comm'rs, 38 Kan. App. 2d 348, 363, 165 P.3d 1060 [2007]).
This requirement, called the "one-action rule," traces its origin to Kansas' adoption
of comparative negligence. See Dodge City Implement, Inc., 288 Kan. at 625, 629. In
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1974, the Kansas Legislature implemented K.S.A. 60-258a, abolishing joint and several
liability and replacing it with comparative liability, in which each tortfeasor bears a loss
in proportion to its share of the total fault. K.S.A. 2020 Supp. 60-258a(d); Brown v. Keill,
224 Kan. 195, 203-04, 580 P.2d 867 (1978).
The joinder provision at K.S.A. 2020 Supp. 60-258a(c) reads as follows:
"Joining additional parties. On motion of any party against whom a claim is
asserted for negligence resulting in death, personal injury, property damage or economic
loss, any other person whose causal negligence is claimed to have contributed to the
death, personal injury, property damage or economic loss, must be joined as an additional
party."
The Legislature intended "to impose individual liability for damages based on the
proportionate fault of all parties to the occurrence." Brown, 224 Kan. at 207.
To give effect to this legislative intent, our Supreme Court interpreted K.S.A. 60-
258a(c) to require accounting for the liability of all tortfeasors, even those who might be
immune, unknown, or unavailable. See Dodge City Implement, Inc., 288 Kan. at 625. Our
Supreme Court distinguishes between parties to the occurrence and parties to the
litigation as follows:
"[W]e conclude the intent and purpose of the legislature in adopting K.S.A. 60-258a was
to impose individual liability for damages based on the proportionate fault of all parties to
the occurrence which gave rise to the injuries and damages even though one or more
parties cannot be joined formally as a litigant or be held legally responsible for his or her
proportionate fault." Brown, 224 Kan. at 207.
And when the parties are joined, tortfeasors must assert claims against each other
in that action rather than file a separate action.
16
"[A]ll persons who are named as parties and who are properly served with summonses
are bound by the percentage determination of causal negligence. Because the statute
contemplates that each party has a right to cross-claim against any or all other parties to a
lawsuit, . . . any party who fails to assert a claim against any other party in a comparative
negligence action is forever barred. A corollary rule naturally follows that a person who
has not been made a party to a comparative negligence case should not be bound by a
judgment therein, even though his causal negligence may have been determined." Eurich
v. Alkire, 224 Kan. 236, 238, 579 P.2d 1207 (1978).
In Kennedy v. City of Sawyer, 228 Kan. 439, 618 P.2d 788 (1980), cattle died from
an herbicide which contained arsenic. The cattle owners sued the City of Sawyer and a
city councilman for spraying the herbicide at the border of the city's land and the cattle
pasture. The city and the councilman filed a third-party complaint against the herbicide's
distributor who, in turn, sued the manufacturer. The trial court granted motions to dismiss
the distributor and manufacturer.
The city and the councilman appealed the third-party dismissals. During the appeal
process, the city settled with the cattle owners. The Kennedy court held that the city could
recover from the distributor and manufacturer a portion of the settlement that the city had
paid out. So the Kennedy court reversed the order dismissing the third parties, stating the
following:
"Of course, to satisfy the legislative intent of encouraging resolution of all issues
in a single action, the comparison of fault of all wrongdoers should be effected in the
original action. Eurich v. Alkire, 224 Kan. 236, 579 P.2d 1207 (1978). It must be
recognized that the procedural mechanism of K.S.A. 60-258a(c) exists to facilitate
joinder (and hence comparison) of all potential wrongdoers and may supersede the thirdparty mechanism which formerly provided the only means for securing a consideration of
the fault of a wrongdoer who plaintiff chose not to sue." 228 Kan. at 460.
17
The Kennedy court determined that the defendant/third-party plaintiff's claims
against the joined tortfeasors could exist independently of the original claims. "The
maintenance of a claim by plaintiff against a joined party is not a prerequisite to securing
comparison." 228 Kan. at 460. But the Kennedy court maintained that a defendant had an
obligation to assert its claims against third parties. The court held: "In the present case
where the amount of the damages were not fixed by judicial proceedings, but by
compromise and settlement between plaintiff and defendants, it will be the duty of the
defendants to bring into the action all tortfeasors against whom comparative liability
through indemnity is sought." 228 Kan. at 460-61. By holding that the trial court erred in
dismissing the third parties, the Kennedy court established that issues of liability and
indemnity should all be decided in one action comparing fault.
But Kennedy suffered from an idiosyncrasy which makes it unique. See Dodge
City Implement, Inc., 288 Kan. at 628 (calling Kennedy "awkward" because it straddled
across a statutory change). The comparative negligence statute, K.S.A. 60-258a, became
effective in 1974. Even though the cattle in Kennedy died of arsenic poisoning in 1975,
the change in the law was still relatively new. None of the parties mentioned comparative
negligence in any pleading or during later arguments on motions. And the trial court
dismissed the city's third-party indemnification claims based on principles set forth in
Russell v. Community Hospital Association, Inc., 199 Kan. 251, 428 P.2d 783 (1967).
The trial court erred in applying Russell because it predated the statutory change. Thus,
defendant City of Sawyer tried to join all tortfeasors but failed because the trial court
(wrongly) dismissed the third parties. The Kennedy court had to remand for the third
parties to be joined again.
Similarly, the parties here did not argue the one-action rule to the trial court.
K Building's summary judgment motion argued that Great Plains did not state a valid
claim for comparative implied indemnity. K Building even cited Kennedy. But the focus
of K Building's argument was that Great Plains failed to show that the settlement paid by
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Great Plains had benefited K Building. Great Plains responded that it had a claim of
comparative implied indemnity, also citing Kennedy. But the parties did not discuss
whether such a claim must be brought in the original action or whether it can be asserted
in a separate, second action. The trial court can hardly be faulted for failing to weigh an
argument never presented to it. Nevertheless, the trial court would have been correct to
grant summary judgment based on the one-action rule.
The one-action rule arose again a year after Kennedy, but without the question of
third-party defendants. Instead, a plaintiff tried to bring an action twice. Glynn Albertson
won a lawsuit against another driver for injuries that Albertson suffered in a car accident.
After the judgment was satisfied, Albertson filed a second suit against Volkswagenwerk
Aktiengesellschaft (Volkswagen) in federal court, alleging injuries and damages caused
by a defective product but arising from the same collision. In Albertson v.
Volkswagenwerk Aktiengesellschaft, 230 Kan. 368, 369, 634 P.2d 1127 (1981), our
Supreme Court answered the following certified question from the federal court:
"'Having once obtained a satisfied judgment for a portion of his injuries in a
comparative negligence action, may a plaintiff bring an action to recover damages for the
remaining portion of his injuries against a defendant not a party to the first action, such
second action being based on strict liability in tort?'"
The Albertson court answered with a firm "no" when it stated the following:
"The action is over. Volkswagen could have been sued in state court but plaintiff chose
not to join the corporation for strategic reasons. Albertson is bound by that decision.
Under the doctrine of comparative fault all parties to an occurrence must have their fault
determined in one action, even though some parties cannot be formally joined or held
legally responsible. Those not joined as parties or for determination of fault escape
liability." 230 Kan. at 374.
19
This court and our Supreme Court have cited the one-action rule as originating
with Albertson. See Mick v. Mani, 244 Kan. 81, 90, 766 P.2d 147 (1988); Tersiner v.
Gretencord, 17 Kan. App. 2d 551, 553, 840 P.2d 544 (1992). But Albertson itself is of
limited value here because it is procedurally different. Albertson, as the injured party,
was the plaintiff in the first suit against the other driver. Then, Albertson was again the
plaintiff in his suit against defendant Volkswagen.
Trokey, the injured party, is not part of this suit. Instead, the defendant in the
original negligence suit, Great Plains, now asserts a claim against another tortfeasor.
Therefore, one-action rule cases which are most helpful for review here are the cases
involving liable tortfeasors filing claims against other tortfeasors.
Union Pacific Railroad Company (Union Pacific) filed third-party claims in Ellis
v. Union Pacific R.R. Co., 231 Kan. 182, 643 P.2d 158 (1982). An automobile-train
collision killed three occupants of the automobile and injured the driver. In the ensuing
action for damages, defendant Union Pacific joined the City of Onaga, Mill Creek
Township, and Pottawatomie County, asserting that expert conclusions showed possible
liability from these government entities. The plaintiffs did not assert any claims against
these governmental third-party defendants. These defendants argued that they were
joined solely for determination of fault. The trial court agreed, finding that no one in the
lawsuit sought recovery of monetary damages from the government entities. This lack of
monetary damages is key to understanding the Ellis court's ruling.
After Union Pacific settled with the plaintiffs, it sought comparative implied
indemnity or contribution against the government defendants. The Ellis court clarified
that the correct term for the action is postsettlement contribution. 231 Kan. at 184. The
Ellis court ruled that the government entities would not have settled or contributed to a
settlement because they had no liability in the suit. Neither the plaintiff nor the
defendant/third-party plaintiff had sought monetary damages against these third-party
20
defendants. "The settling defendant cannot, however, create liability where there is none."
231 Kan. at 192. Union Pacific could not seek contribution for settling a claim on behalf
of the government entities because no one in the suit could have recovered from those
entities.
Similarly, the defendant railroad in Gaulden v. Burlington Northern, Inc., 232
Kan. 205, 654 P.2d 383 (1982), asserted a claim against another tortfeasor. Sylvester
Gaulden injured his right knee in a crossing accident when he jumped clear to avoid
being struck by a pickup truck. Gaulden brought an action in damages against the railroad
and the pickup truck driver. The railroad asserted a cross-claim against the driver.
Gaulden settled his claim with the driver, but the railroad did not settle its cross-claim
with the driver.
The Gaulden court held that the trial court erred in dismissing the railroad's crossclaim. Instead, it should have submitted the driver's fault to the jury. The Gaulden court
held as follows: "[T]he causal fault or negligence of all parties, including the
contributory negligence of the plaintiff and the negligence of the carrier and any third
parties, should be submitted to the jury and the percentage fault of each determined in
one lawsuit." 232 Kan. at 214. The right to seek contribution or comparative implied
indemnity "does not depend upon whether a claim is asserted against the third party by
the injured employee." 232 Kan. at 214. That is, one tortfeasor is not at the mercy of the
plaintiff's choice of defendants. Instead, K.S.A. 2020 Supp. 60-258a allows defendants to
join additional tortfeasors. In fact, the Gaulden court phrased it as a requirement:
"In order to assert its right against a third party, a carrier must bring the third party into
the lawsuit, by means of K.S.A. 60-258a(c) or otherwise (if the third party is not already
in the lawsuit), and must assert a claim for contribution or 'comparative implied
indemnity' against the third party before the running of the statute of limitations, so that
the third party will be aware that he or she may be subjected to monetary liability and can
appear and defend against such claim. Mere joinder of a third party under K.S.A. 60-
21
258a(c) is not enough, as pointed out in Ellis; in addition to joinder, a claim must be
asserted against the third party." 232 Kan. at 214.
And defendant Teepak, Inc. sought postsettlement contribution when a sausage
casing made by Teepak obstructed Carl Baise's small intestine. Teepak, Inc. v. Learned,
237 Kan. 320, 699 P.2d 35 (1985). Baise sought medical treatment and Dr. George
Learned performed surgery, removing two-thirds of Baise's small intestine. Baise sued
Teepak for its faulty sausage in the United States District Court for the Western District
of Missouri and Teepak settled. Teepak sought indemnity against Dr. Learned in Kansas,
alleging medical malpractice.
Teepak encountered the same problem that Union Pacific had in Ellis. It could not
create liability where there was none. Baise had never asserted a medical malpractice
claim against Dr. Learned, so Dr. Learned had no liability to the original plaintiff. And
Teepak served a third-party complaint against Dr. Learned but settled before he filed an
answer. The Teepak court stated the legal issue before it twice, back-to-back. Although a
bit redundant, the court's precise wording is useful for analyzing Great Plains' claim here:
"The basic question before us may be stated in general terms as follows:
Whether or not, under the principles of comparative negligence, a defendant tortfeasor
causing the initial injury to the plaintiff may settle with the injured plaintiff and then seek
indemnification, or contribution, in a separate action, from another person whom the
tortfeasor contends is a 'subsequent' tortfeasor causing part of the injured party's damages
even though the injured party never asserted a claim against the 'subsequent' tortfeasor.
"In specific terms the question may be stated as follows: Whether or not the
Kansas law of comparative negligence permits a tortfeasor causing physical injury to a
person to settle with the injured person and then proceed against a physician whom the
tortfeasor (but not the injured party) claims added to the injured party's damages through
negligent treatment of the injured party." (Emphases added.) 237 Kan. at 322.
22
The Teepak court held that Teepak's procedural choices barred it from recovery.
"Teepak could have brought Dr. Learned into the action as a party whose negligence
should be compared with that of Teepak . . . ." 237 Kan. at 325. But Dr. Learned's
liability was not at issue in the underlying case when Teepak settled with Baise. The
Teepak court held that this put Dr. Learned in the same position as the government
entities in Ellis—no judgment for monetary damages was possible so postsettlement
contribution was not possible either.
The Teepak court noted a difference between Teepak's claim and the original 1980
case to coin the term comparative implied indemnity, Kennedy. The sausage
manufacturer had no relationship with the doctor who removed the sausage casing from
the patient. But in Kennedy, the herbicide manufacturer and the distributor did have a
relationship. "Indemnification among those in the chain of distribution arises out of their
contractual relationship with each other and Kennedy must be read in the context of its
factual situation." 237 Kan. at 328. The Teepak court felt that the term of "joint
tortfeasors" in Kennedy did not adequately capture this relationship because it omitted
any concept of contractual obligations.
Read in isolation, the Teepak court's statement might imply that contracting parties
need not follow the one-action rule. Instead, they could maintain indemnification as a
separate action. But it is not so. "[K.S.A. 60-258a] comprehensively provides machinery
for drawing all possible parties into a lawsuit to fully and finally litigate all issues and
liability arising out of a single collision or occurrence . . . . " (Emphases added.) Eurich,
224 Kan. at 237. "It was the intent of the legislature to fully and finally litigate in a single
action all causes of actions and claims for damages arising out of any act of negligence."
(Emphasis added.) Mathis v. TG & Y, 242 Kan. 789, Syl. ¶ 2, 751 P.2d 136 (1988).
The Kennedy court remanded for a determination of comparative negligence in a
single action, whether the parties were merely joint tortfeasors or owed each other
23
contractual indemnification duties. When a contract requires one party to indemnify
another for its share of negligence, the underlying tort controls the party's liability. It
becomes impossible to determine the extent of the breaching party's contractual liability
without also determining its liability in the negligence action. For this reason, the oneaction rule applies to all cases comparing fault, whether the action is in tort or in contract,
as in Kennedy.
The defendant's responsibility to join third-party tortfeasors came up again in
Mathis. A loose door closure hit the plaintiff on the head as he was leaving a TG & Y
store in Wichita. TG & Y stated that it intended to compare its negligence with the
negligence of its landlord and a door repair company. But there was some confusion
about who the landlord was and who was responsible for the door. Initially, the plaintiff
added claims against Jacobs Construction Co., Inc. and G. & J. Investments, Inc. as
landlords and Hopper's Mirror and Glass, Inc. for its repair work on the door. When the
plaintiff discovered that the actual landlord, Vernon Jacobs, had hired Cheney Door
Company, Inc. to maintain the doors, he filed a new suit against Jacobs and Cheney Door
Company.
After dismissals in the original suit, TG & Y remained the only defendant. But
TG & Y did not join the new defendants of the new suit to compare their fault. Instead,
after the second case settled, TG & Y moved to dismiss the original case. TG & Y argued
that the plaintiff had split his cause of action by suing the store in one case and the store's
landlord and door repairer in a second case. TG & Y claimed that the plaintiff violated
the one-action rule. The Mathis court ruled that it was in fact TG & Y's responsibility to
join tortfeasors to the action. The Mathis court stated the one-action rule as follows:
"K.S.A. 60-258a allows all possible parties to be brought into a single lawsuit, to
fully and finally litigate all issues and liability arising out of a single occurrence, and to
apportion the amount of total damages among those parties against whom negligence is
24
attributable in proportion to each party's degree of fault. All who are named as parties and
who are properly served with summonses are bound by the adjudication of the percentage
of causal negligence. Because each party has a right to cross-claim against any or all
other parties to the lawsuit, any party who fails to assert a claim against any other party in
a comparative negligence action is forever barred." 242 Kan. at 791.
The Mathis court explained that because the plaintiff settled with or dismissed the
defendants in the second suit, those defendants were no longer responsible to the
plaintiff. But their percentage of fault could still be determined in the original suit. The
Mathis court remanded so that the plaintiff could pursue his claim against TG & Y. In
doing so, the Mathis court reminded TG & Y that it could join other defendants for the
purpose of comparing negligence at trial. 242 Kan. at 794.
This court succinctly summarized the central premise of the one-action rule in
Schaefer v. Horizon Building Corp., 26 Kan. App. 2d 401, 985 P.2d 723 (1999):
"In order to prevail on a claim for partial indemnity or contribution against a
third-party defendant, the settlor must show it actually paid damages on behalf of that
third party. If the third party was never at risk of having to pay for its own damages, the
settlor cannot show it benefited the third-party defendant, and the value of its contribution
claim is zero." 26 Kan. App. 2d 401, Syl. ¶ 2.
Thomas R. and Lisa Ann Schaefer sued housing development Horizon Building
Corporation (Horizon) after noticing problems with settling in the structure of their
house. Horizon sought comparative implied indemnity against building contractor The
Holland Corporation, Inc. (Holland). The Schaefer court held that Horizon had no claim
because Holland was not a named party or at risk of suit when Horizon settled with the
homeowners:
"As a result, Holland was not exposed to liability, and Horizon has not shown that any
portion of its settlement expense is attributable to Holland. Further, Horizon has refused
25
to explain why joinder under K.S.A. 60-258a was not available, which would have
protected Horizon without exposing Holland to more liability than it faced in the original
action. [Citation omitted.]" 26 Kan. App. 2d at 403-04.
The case most like Great Plains' claim here is Dodge City Implement, Inc. A
collision between a Burlington Northern and Santa Fe Freight (BNSF) train and a truck
owned by Dodge City Implement, Inc. (DCI) led BNSF to sue DCI in the United States
District Court for the District of Kansas. DCI settled with BNSF and the federal case was
dismissed. DCI then filed a second action in Kansas against defendants Barber County
and Moore Township under negligence and implied indemnity theories because of an
alleged failure to construct and maintain a safe grade crossing.
Our Supreme Court held that under the one-action rule, DCI could not bring a
comparative implied indemnity claim against the township and county after settling the
railroad's lawsuit when the township and county were not parties to the lawsuit. Such
actions would defeat the policy of judicial economy, multiplying the proceedings from a
single accident or injury. Our Supreme Court summarized its holding as follows:
"The fact that DCI and [its employee] chose to settle BNSF's claim did not entitle them to
status as a clearing house for comparison of fault among potential tortfeasors. They were
not entitled to bring a second action against the County and the Township, when the
County and the Township had no involvement in the federal case." 288 Kan. at 637.
Finally, Great Plains cites the explanation of comparative implied indemnity from
Watco Companies, Inc. v. Campbell, 52 Kan. App. 2d 602, 371 P.3d 360 (2016). Great
Plains incorrectly claims that if settlement occurs before a timely comparative fault
determination is made, then "'the settling tortfeasor may then and in that event file an
action in court to have the degrees of responsibility among joint tortfeasors determined,
damages assessed and apportionment decreed among them.'" 52 Kan. App. 2d at 611. But
Great Plains misreads the Watco court's statement of the one-action rule. The Watco court
26
held that if a tortfeasor settled before a "comparative negligence action has been filed,"
then the settling tortfeasor may file an action. (Emphasis added.) 52 Kan. App. 2d at 610-
11. That is, if an injured party settles with a tortfeasor rather than filing a claim, then that
tortfeasor may file a claim against other tortfeasors. Under this rule, either the injured
party files an action or the settling tortfeasor files an action. Both scenarios preserve the
one-action rule.
Significantly, the missing element in Dodge City Implement, Inc. was present in
Watco Companies, Inc. The Watco court held that Watco Companies, Inc. (Watco) had
preserved its claim for comparative implied indemnity. The Watco court would allow
Watco to proceed precisely because it made a timely claim against the third-party
defendants in the original negligence action. 52 Kan. App. 2d at 610-11, 614-16 (citing
the one-action rule and holding that Watco complied with it, but ultimately ruling that
Watco could not recover for separate reasons). The comparative fault of Watco and the
third-party defendants was not determined in the original action because the federal court,
in its discretion, declined to exercise supplemental jurisdiction over the claims. So, the
difference between Dodge City Implement, Inc. and Watco Companies, Inc. is that DCI
did not assert third-party claims in the original action, but Watco did assert its claims in
the original action.
Before the trial court, K Building cited Dodge City Implement, Inc., Schaefer,
Ellis, and Kennedy. But its citations were in service of its argument that Great Plains had
no valid claim of comparative implied indemnity, which would be a question
appropriately answered in the original suit. Conversely, Great Plains cited Kennedy, Ellis,
Schaefer, and Watco Companies Inc. But Great Plains did not anticipate the one-action
rule and present arguments to the trial court for why it should not be applied. The parties
had all the relevant precedents before them, but seemingly missed the issue. Again, the
trial court can hardly be faulted for failing to consider an argument that the parties never
raised.
27
In sum, Great Plains cannot settle a comparative negligence claim and then file a
new action to litigate comparative negligence with entities not part of the original suit.
Instead, the one-action rule required Great Plains to join tortfeasors to the original suit.
This is true regardless of the reason for comparing negligence. In Kennedy, some parties
had contractual relationships requiring indemnification. In more recent cases, parties had
no relationship other than they each contributed to the same tort. But the relevant
question is not whether an action derives from tort law or contract law. The relevant
question is whether the fact-finder must compare fault. If so, fault must be compared in
one action. Because the one-action rule bars recovery here, we affirm the trial court as
right for the wrong reasons.
Before turning to the next issue, it is important to discuss why the one-action rule
applies here despite complications. Great Plains' weakest argument comes in its reply
brief when it asserts that K Building could not have been a party to the underlying suit. In
fact, Great Plains claims that K Building told the trial court that it could not have been a
party because of workers compensation exclusivity. The record shows that this statement
is imprecise. Trokey was K Building's employee, and Trokey could not assert a claim
against K Building, which is what K Building told the trial court. But K Building could
be part of the suit as a third-party defendant, even if Trokey could not make a claim
directly against his employer. Great Plains' suggestion that K Building could not be a
party to the original suit is counter to the law.
Great Plains itself provides the citations necessary to refute its argument. Great
Plains argues that, when employees are barred from suing their employers for on-the-job
injuries, employees can seek damages from a third party and the third party can seek
indemnification damages from the employer. Kansas law enforces contractual indemnity
obligations between employers and third parties. Great Plains gives the example of Estate
of Bryant v. All Temperature Insulation, Inc., 22 Kan. App. 2d 387, 916 P.2d 1294
(1996).
28
John R. Bryant was injured in a construction accident while employed by Foley
Company (Foley). Bryant did not sue his employer Foley, but instead sued APACKansas, Inc. (APAC), alleging negligent operation of a crane. APAC joined Foley as a
third-party defendant, alleging that Foley was contractually bound to hold APAC
harmless. The Bryant court held that Bryant, as a Foley employee, could not have
recovered from Foley, but APAC could. The Bryant court held that workers
compensation exclusive remedy provisions did not bar third-party claims against an
employer when those claims were based on an express indemnification agreement. 22
Kan. App. 2d at 395-96.
In short, Bryant shows that Great Plains could have brought a claim against
K Building in the original action, even if Trokey could not sue K Building. Great Plains
also cites McCleskey v. Noble Corp., 2 Kan. App. 2d 240, 244, 577 P.2d 830 (1978), for
the holding that an employer can be liable to a third party if it has an independent
contractual duty to that party. But Great Plains only succeeds in arguing against itself.
The one-action rule bars Great Plains from bringing a second action to litigate
comparative negligence against a tortfeasor not a party to the original action.
In Bryant, the liable tortfeasor brought its contractual indemnity claim against the
employer in the original action. In McCleskey, the liable tortfeasor brought its indemnity
claim against the employer in the original action. In neither case did the liable tortfeasor
file a new action to assert its claim against the employer. Bryant, 22 Kan. App. 2d at 388;
McCleskey, 2 Kan. App. 2d at 246 (affirming the trial court's decision to dismiss the
employer "'except that [it] is to remain a party to this action in accordance with the
provisions of K.S.A. 60-258a for the purpose of assessment, determination and
comparison of the negligence attributable to the respective parties'"). As a result, the oneaction rule did not arise in Bryant or McCleskey because there was only one action. If
Great Plains was liable to Trokey, and K Building had to indemnify Great Plains for
K Building's share of negligence, then all such claims should have been determined in
29
one action through adjudication or settlement. In its briefs, Great Plains provided no legal
reason it could not bring its claims against K Building in the original action.
But at oral argument, Great Plains stated without citation that Missouri cases have
reached a different outcome from the Kansas cases Bryant and McCleskey. Great Plains
told the court that it dismissed the claims against K Building because Missouri courts
have interpreted workers compensation exclusivity as barring a suit from the injured
employee, like Trokey, and also third parties, like Great Plains. Thus, any claims that
Great Plains took to trial against K Building would be defeated by workers compensation
exclusivity. Assuming that this uncited difference between Kansas and Missouri law is
correct, then Great Plains' recourse is to the Missouri Court of Appeals and potentially
the Missouri Supreme Court. Instead, Great Plains, a Missouri corporation sued in its
home state, predicted an unfavorable outcome and sought refuge under the more
favorable law of a neighboring state.
But Kansas' one-action rule discourages multiplying proceedings from a single
occurrence even across jurisdictions. In Mick, our Supreme Court explained that the oneaction rule is statutory at its heart. "The one-action rule is not an extension of the doctrine
of res judicata but the result of legislation. In Eurich, we held that by the enactment of
[K.S.A.] 60-258a the legislature intended that henceforth all negligence claims arising out
of one occurrence must be determined in one action." 244 Kan. at 95. Despite the rule
arising from a Kansas statute, application of the rule is not limited to Kansas cases. That
is, the rule bars filing a second action in Kansas even when the first action was in another
jurisdiction. In Dodge City Implement, Inc., the original action was in the United States
District Court for the District of Kansas. 288 Kan. at 621. In Teepak, the original action
was in the United States District Court for the Western District of Missouri. 237 Kan. at
321. In both cases, the settling defendant could not file a new claim in Kansas against a
tortfeasor not subject to liability in the original case.
30
But the one-action rule does not demand the impossible. If a plaintiff cannot bring
all tortfeasors into the original action, then a new claim can be filed in Kansas. In
Anderson v. Scheffler, 242 Kan. 857, 752 P.2d 667 (1988), our Supreme Court allowed a
plaintiff to maintain a second suit. Jacob Anderson, age 19, was pouring poultry meal
into an auger pit at Badger By-Products (Badger), a division of Beatrice Companies, Inc.
(Beatrice). Anderson's leg slipped through the grate into the pit, where the auger severed
his leg above the knee. Anderson sued Badger for his amputated leg. Because Anderson
was a Missouri resident, Badger successfully removed the case to federal court on
diversity jurisdiction. Anderson moved to amend his petition to join additional defendants
including Beatrice and the Missouri company that sold the auger to Badger, Industrial
Bearing and Transmission Company, Inc. (IBT). Anderson also moved to remand the
case to state court. The federal trial court denied Anderson's motion to add IBT as a
defendant because to do so would destroy diversity jurisdiction. The federal court
allowed Anderson to add the other defendants and proceed with the case, which
eventually settled. Our Supreme Court allowed Anderson to bring a second suit against
IBT in Kansas because he "did everything he could to preserve his lawsuit against IBT
and [its employee]." 242 Kan. at 865; see also Rodina v. Castaneda, 60 Kan. App. 2d
384, 391-92, 494 P.3d 172 (2021) (holding that a plaintiff who was unable to recover on
a default judgment could bring a second suit against an additional tortfeasor because no
judicial determination of fault was made in the original suit). But Great Plains has not
shown that it was barred from joining K Building to the original suit legally.
Factually, Great Plains did join K Building to the original suit. Then Great Plains
voluntarily dismissed its claims against K Building. After K Building was no longer part
of the original action, Great Plains settled that original action with Trokey. Because Great
Plains could have compared the fault of all tortfeasors in one action but chose not to, the
one-action rule bars Great Plains from seeking to litigate comparative fault in a separate
action, whether fault must be compared under tort law or to determine the extent of
K Building's contractual indemnity liability.
31
Does public policy encourage this type of settlement?
Great Plains shows how important the one-action rule is when it argues that public
policy encourages settlements. But Great Plains cites Ellis, among other cases, for this
proposition. And the relevant language from Ellis is the following: "Settlements are
favored in the law. The settling defendant cannot, however, create liability where there is
none. [Citations omitted.]" 231 Kan. at 192. K Building could not have been liable in the
original suit because Great Plains dismissed its claims against K Building.
Great Plains argues that summary judgment here will have a chilling effect on
settlements. It asserts that parties will hesitate to settle any claims if they are barred from
seeking indemnification from a party separately at fault for causing injury. But this
discussion comes back to the trial court decision affirmed by the Dodge City Implement,
Inc. court. In that case, the trial court stated the following:
"'[T]he defendants herein were not named defendants or joined pursuant to K.S.A. 60-
258a(c) in the previous federal lawsuit brought by Burlington Northern and Santa Fe
Railway Co. and . . . it would be unfair to defendants herein to subject them to allegations
of fault now that were not asserted in the federal case.'" 288 Kan. at 623.
The Dodge City Implement, Inc. court agreed with the trial court, saying that such
an action would defeat the policy of judicial economy, multiplying the proceedings from
a single accident or injury. 288 Kan. at 637. Great Plains could have brought, and did
bring, all claims into a single proceeding. By dismissing its claims against K Building
and filing the current action after it settled with Trokey, Great Plains multiplied the
proceedings from a single accident or injury. And Great Plains does not explain why it
did so in either its initial brief or its reply brief.
In sum, Great Plains negotiated a settlement at a time when K Building would
have had no liability if the case had gone to trial. No action was pending against
32
K Building, and it did not participate in settlement negotiations. Now Great Plains seeks
postsettlement contribution from K Building based on K Building's share of liability.
Great Plains also asserts that a genuine issue of fact exists on the relative negligence of
Great Plains and K Building and seeks a remand to determine comparative negligence.
Throughout its brief, Great Plains intimates that K Building's share of negligence could
be as high as 100%, making K Building liable for the entire settlement amount. If Great
Plains is correct, then Great Plains negotiated a settlement with K Building's money.
Public policy does not encourage such settlements.
Did Great Plains seek indemnification for its own negligence?
Great Plains argues that the trial court was incorrect in saying that Great Plains
seeks indemnification for its own negligence. Great Plains states that the settlement
agreement did not contain an admission of liability and the trial court did not find that
Great Plains was negligent or liable. K Building contends that a finding of negligence is
irrelevant because Great Plains was the only defendant when it settled with Trokey. Thus,
according to K Building, the only issue resolved by the settlement was Great Plains'
potential liability on Trokey's negligence claim.
Great Plains cannot evade a judicial determination of fault by settling in the
original action, only to request a judicial determination of fault by filing a new action.
The Dodge City Implement, Inc. court rejected a similar move from DCI, stating the
following:
"'[A]s the one-action rule has evolved, the courts have seemingly developed a preference
for permitting plaintiffs to pursue a second suit against defendants not party to the
original action. . . . "[A] plaintiff may pursue separate actions against tortfeasors where
there has been no judicial determination of comparative fault. Thus, the exceptions to the
one-action rule arise when there has been no prior judicial determination of fault."'
(Emphasis added.)
33
"'. . . DCI cites no authority for its suggestion that this exception to the one-action
rule may be extended to defendants.' [Citations omitted.]" 288 Kan. at 635-36 (quoting
Mick, 244 Kan. at 93).
Great Plains similarly cites no authority for extending the one-action rule to
defendants. Instead, Great Plains faults K Building for not pointing to any rule requiring
Great Plains to bring all claims into Trokey's original negligence suit in Missouri. But the
one-action rule, with its self-explanatory name, is the rule requiring Great Plains to bring
all claims into the original action. By failing to bring its claims in the first suit, Great
Plains triggered the one-action rule which bars it from bringing a second suit in Kansas.
When 19-year-old Jacob Anderson could not join all potential tortfeasors for the loss of
his leg, the Anderson court allowed him to bring a second suit against tortfeasors not in
the original action. 242 Kan. at 865. When Curtis Rodina learned the identity of the
dentist who had caused $85,000 in economic damages and $200,000 in noneconomic
damages, the Rodina court allowed him to bring a second suit. 60 Kan. App. 2d at 391-
92. In both cases, the plaintiffs were entitled to a judicial determination of comparative
fault where there was no such determination in the original action. It is readily apparent
that those plaintiffs would have suffered an injustice if the courts had barred them from
seeking adequate recovery. But Great Plains fails to show that this exception should
allow it to bring a second suit, particularly when it brought and then voluntarily
dismissed the same claims in the original suit. Simply put, Great Plains is not a good
candidate for applying any exceptions to the one-action rule.
Also, Great Plains asserts that its right to indemnification would not begin to run
until it became obligated by judgment or settlement to pay the original plaintiff. Great
Plains cites Barbara Oil Co. v. Kansas Gas Supply Corp., 250 Kan. 438, 456, 827 P.2d
24 (1992). But Barbara Oil involved the purchase and sale of natural gas, with plaintiffs
claiming that the defendant breached "take or pay" contracts by not buying a minimum
amount of gas. Comparative negligence was not at issue, which is the crux of the one-
34
action rule. A fact-finder would need to determine K Building's comparative fault in
Trokey's accident to determine its indemnity liability, making this case unlike Barbara
Oil. Further, the Barbara Oil court stated when the statute of limitations would bar an
indemnity claim, not when the right to indemnity would begin. Finally, Great Plains in
fact did bring claims of indemnification and contribution against K Building in the
original Missouri suit. Great Plains' brief fails to expand on its statement and does not
explain how its indemnification claim would not have been ripe. Great Plains' argument
is inadequately briefed. Issues not adequately briefed are deemed waived or abandoned.
In re Marriage of Williams, 307 Kan. 960, 977, 417 P.3d 1033 (2018).
Great Plains claims that the effect of going to trial in Missouri as the only
defendant was that it could be obliged to pay a judgment which included its own
negligence, if any, and K Building's negligence, if any. Great Plains provides a long
discussion of the difference between Kansas comparative fault and Missouri comparative
fault. Great Plains includes select Missouri jury instructions in its brief and cites Teeter v.
Missouri Highway & Transp. Comm'n, 891 S.W.2d 817, 821 (1995). Great Plains asserts
that, in Missouri, fault is only apportioned between the parties at trial. Nonparties are
excluded.
Great Plains is incorrect that the defendant in Teeter bore the burden of the full
judgment because settlement credits reduced the judgment. In Teeter, parents brought a
wrongful death suit after a car accident killed their daughter. Two defendants settled,
leaving the Missouri Highway and Transportation Commission (MHTC) as the only
defendant. The jury returned a verdict of $500,000 and found MHTC to be 10% at fault.
As described by Great Plains, this would mean that MHTC should be liable for $500,000.
But Great Plains omits an important point. MHTC received a credit for the
settlement agreements of the other tortfeasors. Because they settled for $48,000, the
judgment was reduced to $452,000. The Teeter court also noted that MHTC failed to
35
protect its right to contribution from the tortfeasor who was 90% at fault. Missouri
maintains contribution actions between jointly and severally liable tortfeasors, whereas
Kansas claims of postsettlement contribution depend on comparative fault. The Missouristyle contribution claim died out in Kansas in 1974, with the shift to comparative fault.
See Kennedy, 228 Kan. at 451 (holding that "contribution among joint judgment debtors
is no longer needed . . . because separate individual judgments are to be entered"). MHTC
went to trial as the only defendant because Missouri law allows "'alleged tort-feasors to
buy their peace by good faith settlements with the claimant.'" 891 S.W.2d at 820 (quoting
Lowe v. Norfolk & Western Ry. Co., 753 S.W.2d 891, 892 [Mo. Banc 1988]). By settling,
the tortfeasor 90% at fault had essentially removed the question of her fault from the suit.
Thus, the Teeter court held that MHTC, as the lone defendant, was solely liable for the
remaining judgment, after deducting the $48,000 from settlements. 891 S.W.2d at 821
(holding that MHTC would pay the full $452,000 if it was an ordinary defendant, but a
statutory cap on damages limited the judgment to $100,000).
The distinction between settling and nonsettling tortfeasors was key to the Teeter
court's reasoning. The United States District Court for the Western District of Missouri
explained the distinction in Millentree v. Tent Restaurant Operations, Inc., 618 F. Supp.
2d 1072 (W.D. Mo. 2009). William Travis Stoner left a bar in Independence, Missouri,
and hit Leon Millentree with his pickup truck in the bar's parking lot. Millentree sued
Stoner for his injuries and sued the bar for serving a visibly intoxicated Stoner in
violation of Missouri's dram shop laws. Stoner settled and Millentree proceeded with his
claim against the bar.
The bar sought to have Stoner joined as a third-party defendant, arguing that the
most efficient way to allocate fault to Stoner would be to permit the jury to find his
percentage of fault without adding him as a liable party. The Millentree court reviewed
Teeter and concluded that Missouri law prohibits Stoner from being joined as a
defendant, even if only to compare his fault. 618 F. Supp. 2d at 1074-75; see also Beverly
36
v. Hudak, 545 S.W.3d 864, 876 (Mo. App. 2018) (holding that fault is only apportioned
among those at trial). Stoner had "bought his peace" and was dismissed from the action
for all purposes, including allocation of fault, because he had settled with Millentree.
The rule that Great Plains points to is that Missouri juries will not compare the
fault of tortfeasors who are not defendants because they settled. In Missouri, settling
defendants are shielded from any further action by statute. Here, K Building was not a
defendant or third-party defendant. But K Building's absence was because the claims
were dismissed, not because K Building settled. Great Plains fails to provide caselaw
which addresses tortfeasors who are not parties for reasons other than settlement, such as
unknown or unavailable tortfeasors. Great Plains' argument simply fails to address the
question.
Instead, Great Plains provides two Missouri cases favoring indemnity claims. In
Howe v. Lever Brothers Co., 851 S.W.2d 769 (Mo. App. 1993), a worker injured in a fall
sued the general contractor and the property owner. The general contractor sued the
worker's employer, its subcontractor. The Missouri Court of Appeals held that the
indemnity claims were proper. 851 S.W.2d at 773. In Lone Star Indus., Inc. v. Howell
Trucking, Inc., 199 S.W.3d 900 (Mo. App. 2006), after a worker was killed in Lone Star's
quarry, Lone Star settled with his widow. Lone Star sought indemnification damages
from Howell Trucking as a joint tortfeasor. The Missouri Court of Appeals allowed Lone
Star's indemnity suit to proceed, holding that an indemnity claim is separate and distinct
from the tort claim and may be brought as either a third-party claim or a separate suit.
199 S.W.3d at 907. But Great Plains' citations do little to support its arguments. Howe
reinforces the one-action rule since all actions were brought in the original suit. The Lone
Star court's statement that an indemnity suit for negligence may be brought separately
represents a difference between Kansas and Missouri law on comparative negligence.
And, as a statement from the Missouri Court of Appeals, does not bind Kansas appellate
courts.
37
But if Great Plains would have been liable at trial for Trokey's full damages as the
sole defendant, then there is more reason to keep K Building as a third-party defendant.
As K Building correctly argues: "[Great Plains] simply could have maintained its claims
against K Building in the Missouri lawsuit instead of voluntarily dismissing them. Had
[Great Plains] chosen this path, the Missouri jury would have been able to make a
determination as to whether K Building was negligent." To the extent that Great Plains
could have been liable to pay a judgment including K Building's negligence, this wound
was self-inflicted. Because the one-action rule bars Great Plains' attempt to litigate
negligence in a second action, we affirm the trial court's summary judgment
Outcome: Great Plains brought and then dismissed an indemnification claim against
K Building in the original action in Missouri. The one-action rule prevents Great Plains from bringing a second action. Because the trial court properly granted summary judgment for K Building, we affirm summary judgment as right for the wrong reasons.
Affirmed
Plaintiff's Experts:
Defendant's Experts:
Comments:
