Dodge City Implement v. Board of Com'Rs

• Decision Date: 24 April 2009
• Docket Number: No. 96,784.,96,784.
• Citation: 205 P.3d 1265
• Parties: DODGE CITY IMPLEMENT, INC., and Justin L. Slattery, Appellants, v. The BOARD OF COUNTY COMMISSIONERS OF the COUNTY OF BARBER and the Moore Township, Barber County, Kansas, Appellees.
• Court: Kansas Supreme Court

205 P.3d 1265

DODGE CITY IMPLEMENT, INC., and Justin L. Slattery, Appellants, v. The BOARD OF COUNTY COMMISSIONERS OF the COUNTY OF BARBER and the Moore Township, Barber County, Kansas, Appellees.

No. 96,784.

Supreme Court of Kansas.

April 24, 2009.

Mark A. Buck, of Fairchild & Buck, P.A., of Lawrence, argued the cause, and Clinton W. Lee, of the same firm, was with him on the briefs for appellants.

Stephen M. Kerwick, of Foulston Siefkin LLP, of Wichita, argued the cause and was on the briefs for appellee Board of County Commissioners of Barber County.

Edward L. Keeley, of McDonald, Tinker, Skaer, Quinn & Herrington, P.A., of Wichita, argued the cause and was on the briefs for appellee Moore Township.

The opinion of the court was delivered by BEIER, J.:

This case arises out of a collision between a Burlington Northern and Santa Fe Freight (BNSF) train and a truck owned by Dodge City Implement, Inc. (DCI). BNSF filed suit in federal court against DCI and its employee driver, Justin Slattery. After that action was settled, plaintiffs DCI and Slattery pursued this suit against defendants Barber County (County) and Moore Township (Township) under negligence and implied indemnity theories because of an alleged failure to construct and maintain a safe grade crossing. The district judge granted defendants' motion to dismiss. We granted plaintiffs' petition for review from a Court of Appeals decision affirming the district court result in Dodge City Implement, Inc. v. Board of Barber County Comm'rs, 38 Kan. App.2d 348, 165 P.3d 1060 (2007).

The issues before us are two: Did the district judge err in concluding that plaintiffs have no viable cause of action against defendants for comparative implied indemnity? And did the district judge err in concluding that plaintiffs did not substantially comply with K.S.A. 12-105b(d)?

Factual and Procedural History

The accident that led to this appeal occurred on September 8, 2003. The following February, BNSF filed suit against DCI and Slattery in the United States District Court for the District of Kansas.

Approximately 2 months later, the parties entered into a Mutual Release and Settlement Agreement under which DCI and Slattery paid $3 million to settle BNSF's claims "against all parties and persons." DCI and Slattery expressly reserved any right they had "to make a claim against or sue Barber County, Kansas, and/or any person or entity, other than [BNSF] ... for comparative implied indemnity and any other cause of action that may exist under Kansas law."

On August 23, 2004, counsel for DCI and Slattery sent a letter to the Barber County Clerk on behalf of their insurer, Continental Western Insurance Company, which purported to serve as a notice of the insurer's claims under K.S.A. 12-105b(d).

DCI and Slattery filed this suit against Barber County in June 2005. Their petition alleged that the County was responsible for maintaining the grade crossing and traffic controls at the site of the accident, that a warning sign was absent at the time of the accident, that earthen obstacles and vegetation obscured visibility, and that the angle of the road and an excessively short highway approach created a dangerous condition for crossing vehicles. The petition purported to include causes of action based on negligence, negligence per se, comparative implied indemnity, and implied indemnity. Plaintiffs later filed an amended statement of damages reflecting the $3 million settlement amount paid to BNSF plus $92,313.34 for damages sustained by DCI and Slattery.

The County answered, substantially agreeing with the factual allegations of DCI and Slattery but asserting that (1) the doctrine of implied comparative indemnity was inapplicable because the County was not a party to the federal lawsuit and no product's chain of distribution was involved in this action; (2) the doctrine of implied indemnity was inapplicable because there was no legal relationship between the County and the plaintiffs that obligated plaintiffs to enter into a settlement agreement and the plaintiffs were not without fault; and (3) it was immune under the Kansas Tort Claims Act. The County subsequently filed a K.S.A. 60-212(b)(6) motion to dismiss plaintiffs' claims of comparative implied indemnity and implied indemnity for failure to state claims upon which relief could be granted.

On September 9, 2005, DCI and Slattery sought to join the Township as a defendant, claiming discovery had revealed the Township bore responsibility for designing, constructing, maintaining and controlling the roadway and grade crossing at issue. Plaintiffs maintained that an August 12, 2005, letter, sent by plaintiffs' counsel to the clerk and trustee of the Township, provided sufficient notice of their claims under K.S.A. 12-105b(d). This letter was nearly identical to the letter sent to the County a year earlier.

The district judge heard the parties' arguments on the County's motion to dismiss on November 14, 2005, and took the matter under advisement. The judge granted plaintiffs' motion to join Moore Township on December 28, 2005, and the plaintiffs filed an amended petition including the Township as a defendant on the same day.

The County and the Township each filed an answer to the amended petition. The County maintained its affirmative defenses and asserted that the Township had jurisdiction over the portion of the road where the accident occurred. The Township asserted: (1) The August 12, 2005, letter did not constitute substantial compliance with the notice requirements of K.S.A. 12-105b(d), therefore depriving the district court of subject matter jurisdiction over plaintiffs' claims against it; (2) plaintiffs' claims were barred by applicable statutes of limitations, statutes of repose, and laches; (3) plaintiffs' claims of negligence, negligence per se, comparative implied indemnity, and implied indemnity failed to state claims upon which relief could be granted; (4) plaintiffs' claims were barred by the one-action or one-trial rule; (5) plaintiffs' claims were barred by the Kansas Tort Claims Act, K.S.A. 75-6101 et seq.; (6) plaintiffs' negligence claims were barred by comparative fault rules; (7) the Township was not negligent; and (8) plaintiffs' claimed damages were overstated and limited by statute.

On February 27, 2006, the Township filed a motion to dismiss. The County supplemented its earlier motion to dismiss, incorporating the arguments and authorities cited by the Township on the K.S.A. 12-105b(d) issue. Thereafter, the district judge heard arguments and ruled for the County and the Township on their pair of motions to dismiss. The judge made the following findings and arrived at the following conclusions:

"1. Defendants' motion to dismiss plaintiffs' comparative implied indemnity claim should be and hereby is sustained on the basis that the defendants herein were not named defendants or joined pursuant to K.S.A. 60-258a(c) in the previous related federal lawsuit brought by Burlington Northern and Santa Fe Railway Co. and that it would be unfair to defendants herein to subject them to allegations of fault now that were not asserted in the federal case. The Court adopts by reference the legal authorities cited by defendants in their brief, including the original and subsequent briefs filed by defendant Barber County.

"2. Defendants' motion to dismiss plaintiffs' negligence and negligence per se claims for property damage in the amount of $92,313.34 should be and hereby is sustained on the basis that plaintiffs' notice of claim filed with defendants did not substantially comply with K.S.A. 12-105b(d) regarding this claim and therefore the Court lacks jurisdiction over it.

"3. Defendants' motion to dismiss plaintiffs' implied contractual indemnity claim should be and hereby is sustained on the basis of the legal authorities cited in defendants' briefs."

The district judge treated the motions to dismiss as summary judgment motions, considering materials beyond the pleadings. See Perry v. Board of Franklin County Comm'rs, 281 Kan. 801, 806-07, 132 P.3d 1279 (2006).

Plaintiffs appealed the dismissal of their $3 million comparative implied indemnity claim as barred by the "single action" rule and the dismissal of their negligence and negligence per se claims as barred by failure to comply with the notice statute. They did not appeal the dismissal of their implied indemnity claim.

A panel of our Court of Appeals affirmed, Dodge City Implement, Inc., 38 Kan.App.2d 348, 165 P.3d 1060, closely examining several of our prior cases, including Teepak, Inc. v. Learned, 237 Kan. 320, 699 P.2d 35 (1985); Ellis v. Union Pacific R.R. Co., 231 Kan. 182, 643 P.2d 158, aff'd on rehearing 232 Kan. 194, 653 P.2d 816 (1982); and Kennedy v. City of Sawyer, 228 Kan. 439, 618 P.2d 788 (1980). The panel concluded that

"[A] defendant seeking to minimize its liability in a comparative fault situation not involving a chain of distribution or similar commercial relationship must do so by comparing the fault of other defendants pursuant to K.S.A. 60-258a in order to reduce its own share of liability and damages. If the defendant chooses to settle and obtain a 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 for damages caused by other tortfeasors." Dodge City Implement, Inc., 38 Kan.App.2d 348, Syl. ¶ 1, 165 P.3d 1060.

The panel also evaluated the letters sent to the County and the Township under K.S.A. 2006 Supp. 12-105b(d) and concluded they were fatally insufficient to support the negligence and negligence per se claims for more than $92,000. In the panel's view, the letters failed to indicate, as required, the name and address of the claimants or the claimants' attorney, the nature and extent of the injuries claimed, and the amount of damages sought. This conclusion led the...