Seaboard Corp. v. Marsh Inc.

Decision Date31 August 2012
Docket NumberNo. 104,294.,104,294.
Citation284 P.3d 314,2012 Trade Cases P 78045
PartiesSEABOARD CORPORATION, Appellee, v. MARSH INC., Marsh USA Inc., and American International Group, Inc., Appellants.
CourtKansas Supreme Court


Syllabus by the Court

1. If a district court considers matters outside the pleadings when ruling on a motion to dismiss filed under K.S.A. 60–212(b)(6), K.S.A. 60–212(b) requires the motion to be treated as one for summary judgment under K.S.A. 60–256.

2. Under K.S.A. 60–518, the Kansas saving statute, if any action is timely commenced but fails otherwise than on the merits after the statute of limitation for the action has expired, the plaintiff or a deceased plaintiff's representative is allowed 6 months to refile the action without being barred by the statute of limitation. The saving statute applies even if the first action was not filed in a Kansas state court.

3. A district court's dismissal of a class action does not trigger the beginning of the 6–month grace period of K.S.A. 60–518 if a timely appeal is filed, because a plaintiff's action has not failed if the district court's ruling is under appellate review.

4. Under the facts and legal arguments presented in this appeal, plaintiff's decision to opt out of a class action, either formally or through filing an individual action, triggered the 6–month grace period of K.S.A. 60–518, and a second action was filed within that period.

5. In order for K.S.A. 60–518 to apply, the second action need not be identical to the first as long as the two actions concern the same conduct, transaction, or occurrence and the first action provides adequate notice to the defendants.

6. A plaintiff who files an individual action after a failure of a class action otherwise than on the merits can rely on K.S.A. 60–518 even if the plaintiff does not sue every defendant in the class action.

7. A new legal theory may not be asserted for the first time on appeal or raised in a reply brief.

J. Nick Badgerow, of Spencer Fane Britt & Browne LLP, of Overland Park, argued the cause, and Douglas M. Weem, of the same firm, and John J. Milleri, of Swanson Midgley, LLC, of Kansas City, Missouri; Mitchell J. Auslander, Christopher J. St. Jeanos, and Joanna Rotgers, of Willkie Farr & Gallagher LLP, of New York, New York; Daniel J. Leffell and Andrew C. Finch, of Paul, Weiss, Rifkind, Wharton & Garrison LLP, of New York, New York; and Kenneth A. Gallo, of Paul, Weiss Rifkind, Wharton & Garrison LLP, of Washington, D.C., were with him on the briefs for appellants.

Patrick J. Stueve, of Stueve Siegel Hanson LLP, of Kansas City, Missouri, argued the cause, and Rachel E. Schwartz and Richard M. Paul III, of the same firm, were with him on the brief for appellee.

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

The primary question raised in this appeal is whether the Kansas saving statute, K.S.A. 60–518, applies and saves the plaintiff's action from being barred by the applicable statute of limitation. Under the Kansas saving statute, a plaintiff who timely files a legal action that is dismissed otherwise than on the merits after any applicable statute of limitation has run may file a second legal action within 6 months of the dismissal of the first action without being barred by the statute of limitation.

In this case, the plaintiff argues the saving statute preserved the plaintiff's right to bring this action because the plaintiff was a putative member in a class action that was timely filed against the defendants in another state and all requirements of K.S.A. 60–518 are met. The district court agreed and denied a motion to dismiss in which the defendants had asserted this action was barred by the statute of limitation and not saved by K.S.A. 60–518.

On appeal, the defendants raise two issues. First, they argue the district court erred in concluding the Kansas saving statute applies if the first action is filed in another state. Second, they argue the district court erred in concluding the requirements of the Kansas saving statute were satisfied under the undisputed facts of this case. Rather, the defendants contend: (a) The class action failed when a federal district court entered an order of dismissal and a subsequent appeal is of no consequence; (b) the dismissal was on the merits, meaning plaintiffs have not satisfied the requirement of K.S.A. 60–518 that the first action “fail[s] ... otherwise than upon the merits;” (c) this case—the second action—was not filed within 6 months of the dismissal of the class action; (d) the claims and parties in this case are not substantially similar to those in the class action; and (e) the plaintiff was not the named plaintiff in the class action.

We conclude the district court did not err. First, we hold the Kansas saving statute applies even if the first action was filed in another jurisdiction because, among other reasons, the Kansas Legislature drafted the statute to apply to “any action” and did not limit the statute to actions filed in a Kansas state court. Second, we hold the district court correctly concluded the class action met all of the requirements of K.S.A. 60–518, the Kansas saving statute, and the defendants' five subissues are without merit.

Facts and Procedural Background

On October 16, 2009, Seaboard Corporation filed this legal action in the District Court of Johnson County, Kansas, against Marsh Inc., Marsh USA, Inc. (collectively Marsh), and American International Group, Inc. (AIG) (collectively Defendants). Seaboard's allegations against Marsh arose from Marsh's conduct as Seaboard's insurance broker, a relationship that began as early as 1990. Seaboard alleges that in the mid–1990's Marsh began entering side agreements with multiple insurance companies that financially rewarded Marsh for steering insurance business to those companies. This practice eventually led to “bid rigging” and, according to Seaboard, inflated noncompetitive premiums for the insurance purchased by Seaboard.

Based on this conduct, Seaboard asserted eight causes of action in its petition against Defendants. These claims can be divided into three categories: (1) tort claims, including claims of faithless servant, fraud, negligent misrepresentation, tortious interference with a prospective business advantage, and civil conspiracy; (2) a statutory claim based on the Kansas Restraint of Trade Act (KRTA), K.S.A. 50–101 et seq.; and (3) contract-related claims, including breach of contract and breach of an implied duty of good faith and fair dealing. The district court determined a 2–year statute of limitation applied to the various tort claims, a 3–year statute of limitation applied to the KRTA claims for damages, and a 5–year statute of limitation applied to the contract-related claims. See K.S.A. 60–513(a) (2–year period of limitation applies to various enumerated actions, including an action for fraud and an action for injury to the rights of another, not arising out of contract); K.S.A. 60–512(2) (3–year period of limitation applies to [a]n action upon a liability created by a statute other than a penalty”); K.S.A. 60–511(1) (5–year period of limitation applies to [a]n action upon any agreement, contract or promise in writing”).

In Seaboard's petition, it did not allege the date on which these various claims accrued but stated that “Marsh, AIG and other insurance carriers, from at least 1998 through at least the end of 2004 ... engaged in systematic manipulation of bids for insurance.” Seaboard also included information in the petition about a civil complaint filed by the New York Attorney General and about criminal indictments arising from the scheme. Regarding the civil complaint, Seaboard noted the allegation was that Marsh, AIG, and others participated in the bid-rigging scheme from 2001 to 2004. According to Seaboard, the criminal indictments against executives and employees of Marsh and AIG arose from conduct during the period of November 1998 to September 2004.

Seaboard addressed the timeliness of its action by alleging that all applicable statutes of limitation had been tolled by Defendants' fraudulent concealment of their unlawful conduct. As a result of this concealment, according to Seaboard, it “did not discover, nor could it have discovered through reasonable diligence, that Defendants and their co-conspirators were violating Kansas law.”

Defendants responded to the petition with a joint motion to dismiss. The motion raised several issues, only one of which—the bar of the applicable statutes of limitation—is at issue on appeal. Regarding the statutes of limitation issue, in various briefs and arguments related to the motion to dismiss, Defendants eventually suggested three time periods during which Seaboard's causes of action accrued: (1) November 2002, the beginning of a policy period for excess casualty insurance that Seaboard purchased after AIG submitted an allegedly rigged bid; (2) October 14, 2004, the date on which the New York Attorney General filed a civil complaint alleging that Marsh participated in bid-rigging schemes with insurance companies, including AIG; and (3) May 2005, when Seaboard chose to pursue its own claim rather than accept a settlement from Marsh that was offered as part of Marsh's global settlement of the New York Attorney General's civil action.

Defendants argued that based on any of these dates, Seaboard's case was barred by the applicable statutes of limitation when this action was filed on October 16, 2009. According to Defendants, even if Seaboard's claim of fraudulent concealment was given credit, Seaboard's tort claims were reasonably ascertainable no later than May 2005, the date Seaboard opted out of Marsh's global settlement. See K.S.A. 60–513(b) (tort claims covered by that statute “shall not be deemed to have accrued until the act giving rise to the cause of action first causes substantial injury, or, if the fact of injury is not reasonably ascertainable until some...

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