On June 14, 2019, in the case of Hilburn v. Enerpipe, Ltd., the Kansas Supreme Court struck down the state’s statutory cap on noneconomic damages in personal injury cases. The court held that the damages cap deprives plaintiffs of the Constitutional right to have a jury decide damages.
By eliminating one of the key protections Kansas has traditionally extended to businesses, insurers, and other personal injury defendants, the decision dramatically increases both the unpredictability of civil litigation in the state and the risk of being surprised by a potentially devastating runaway verdict. Furthermore, because the Kansas Supreme Court has ruled the statutory damages cap “facially unconstitutional,” the ruling will affect not only future claims, but also those currently pending in Kansas courts.
I. The Judicial Invalidation of the Kansas Noneconomic Damages Cap
The Hilburn case arose out of a motor vehicle accident. Plaintiff Diana Hilburn was a passenger in a car that was rear-ended by a semi-truck owned by Defendant Enerpipe, Ltd. Enerpipe admitted liability but contested damages. After a trial solely on the damages question, the jury awarded Ms. Hilburn $33,490 for medical expenses and $301,510 for noneconomic losses. The trial court reduced the award of noneconomic damages to the noneconomic damages cap of $250,000, pursuant to K.S.A. §60-19a02.
Hilburn appealed on several bases, including a challenge to the constitutionality of the damages cap. The Supreme Court held that Section 5 of the Kansas Constitution provides that “the right of trial by jury shall be inviolate.” Courts have interpreted this language to preserve the right to a jury trial “in those causes of action that were triable to a jury under the common law extant in 1859, when the Kanas Constitution was ratified by the people of our state.” The plurality opinion emphasized that that “the determination of noneconomic damages was a fundamental part of a jury trial at common law” and, therefore, ought to be protected as “inviolate” under Section 5 of the state constitution.
“The cap’s effect,” Justice Beier concluded, “is to disturb the jury’s finding of fact on the amount of the award. Allowing this substitutes the Legislature’s nonspecific judgment for the jury’s specific judgment. The people deprived the Legislature of that power when they made the right to a trial by jury inviolate. Thus we hold that the cap on damages imposed by K.S.A. §60-19a02 is facially unconstitutional because it violates Section 5 of the Kansas Constitution Bill of Rights.”
Until recently, the cap on noneconomic damages seemed to be very well entrenched in Kansas law. The limits were codified in the statute books, and judges and practitioners had become familiar with their application and importance in personal injury cases. As recently as 2012, the Kansas Supreme Court, in Miller v. Johnson, affirmed the constitutionality of a very similar cap applicable in medical malpractice cases. The majority held that the legislature’s cap on noneconomic damages was “an adequate and viable substitute” to the common-law right to a jury trial on the question of damages. With its decision in Miller, Kansas had become the eighteenth state to affirm the constitutionality of some type of cap on noneconomic damages.
In Hilburn, the Kansas Supreme Court tossed out the same statutory cap that it had affirmed a mere 7 years ago. The recent case illustrates the importance a single judicial appointment can have. Justices Johnson, Beier, Biles, and Luckert remained consistent in their opinions from Miller (2012) to Hilburn (2019). Justices Rosen, who did not participate in the Miller decision, and Stegall, who was not on the Court in 2012, both sided with the plurality in Hilburn to hold the damages cap unconstitutional.
Kansas law still presents advantages to civil defendants. It follows a modified comparative fault rule that precludes any recovery by a plaintiff who bears more than 50% of the fault for an occurrence. It allows the comparison of fault of non-parties and has enacted a “one-action rule,” requiring that all parties have their fault determined in a single trial. It has abandoned joint and several liability, holding each defendant responsible only for its percentage of the damages awarded.
But make no mistake, the cap on noneconomic damages provided by K.S.A. §60-19a02 was one of the more important protections Kansas law offered to defendants in personal injury cases. That protection is now gone, and it seems unlikely to come back with the current court makeup.
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In Kansas, unless you are electronically filing your documents, the last day for filing ends “when the clerk’s office is scheduled to close.” K.S.A. 60-206(a)(4)(B). If you are electronic or fax filing, you have until “midnight in the court’s time zone.” K.S.A. 60-206(a)(4)(A).
In JPMorgan Chase Bank, N.A. v. Taylor, No. 117,774 (Kan.App. May 11, 2018), the Court of Appeals refused to consider the homeowner’s late-filed opposition to the confirmation of the sale, noting, “any response she would have to the motion needed to be filed by the close of business.”
In this case, JP Morgan initiated foreclosure proceedings and bought the property at the foreclosure auction for the full judgment amount. JP Morgan then filed a motion with the court to confirm the sheriff’s sale. The District Court confirmed the sale the same day without waiting for any objection and without notifying the homeowner. The District Court never served the homeowner with the Order.
Over one year later, the homeowner realized the District Court confirmed the sale and filed a motion for relief from that Order. The District Court denied the motion, and issued a minute sheet that included no findings of fact or conclusions of law.
The Court of Appeals in partially affirming and partially overturning the lower court noted that the rule requires that any “person that files a timely response objection to a motion to confirm a sheriff’s sale has the right to have that objection read and considered by the district court.” Id. at *6. Thus, “any procedure that allows for automatic approval of a sheriff’s sale without at least waiting to see if someone files an objection is subject to a later ruling that it is void as a violation of due process.” Id.
In this case, however, the Court of Appeals held that the Homeowner:
was served the motion by mail on November 13, 2015. She had seven days to respond, plus three days for mail service. K.S.A. 60-206 (a)(1)(d); Supreme Court Rule 133(b) (2018 Kan. S. Ct. R. 199). Accordingly, any response she would have to the motion needed to be filed by the close of business November 23, 2015. [Homeowner] did not file her response until November 24, 2015, so it was untimely. Therefore, even though the district court's order was premature, opening it up for a claim of violation of [Homeowner]'s due process rights, we cannot find error in the district court's failure to consider an untimely objection to confirmation of the sale.
Id. Thus, the Court of Appeals did not look at any of the arguments.
The Court of Appeals was unable to determine whether the District Court abused its discretion based solely on the minute order and remanded to the district court to make clear the findings of fact and conclusions of law.
On May 26, 2017, the Kansas Supreme Court in Lozano v. Alvarez, (No. 113,060) 2017 Kan. LEXIS 287 (May 26, 2017) tested the Kansas saving statutes, which states:
If any action be commenced within due time, and the plaintiff fail in such action otherwise than upon the merits, and the time limited for the same shall have expired, the plaintiff, or, if the plaintiff die, and the cause of action survive, his or her representatives may commence a new action within six (6) months after such failure.
Kan. Stat. Ann. § 60-518. The statute allows a case that has been dismissed for a reason other than the merits to be refiled within 6 months of the dismissal, notwithstanding that the statute of limitations has expired.
The Kansas Supreme Court held that the dismissal of an action that was filed during K.S.A. 60-518's 6-month grace period does not trigger another 6-month grace period. Thus, a third lawsuit does not relate back to the original filing and may be barred by the statute of limitations.
Lozano filed a civil action against the Alvarezes alleging injuries as a result of a battery. Lozano I was dismissed without prejudice by the Ford County District Court for lack of prosecution. Lozano refiled his case less than 6 months later using the Kansas savings statute. The district court dismissed Lozano II without prejudice on December 31, 2013, once again for a lack of prosecution.
Lozano refiled the action on June 18, 2014, attempting to invoke K.S.A. 60-518 a second time. (Lorenzo III). The Alvarezes moved to dismiss Lorenzao III with prejudice, claiming the savings statute did not permit the refiling.
The Kansas Supreme Court affirmed the dismissal of Lorenzo III with prejudice and declined to apply the saving statute in serial fashion, because “the 6-month grace period in the savings statute applies only to an action that was commenced during the statute of limitations period.” Id. at *12. The Court reasoned,
the dismissal of an action that was filed during K.S.A. 60-518's 6-month grace period does not trigger another grace period because it is not an "action" to which K.S.A. 60-518 applies. In short, a plaintiff is limited to one 6-month period of grace to get a determination on the merits; refilings beyond that 6-month period are barred by the statute of limitations. Id. at *12-13.
 See the full opinion at http://www.kscourts.org/Cases-and-Opinions/opinions/SupCt/2017/20170526/113060.pdf
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