The case of Fusaro v. First Family Mtg. Corp., 257 Kan. 794, 897 P.2d 123 (1995) exemplifies the importance of the discovery process and the timing of a motion to amend a petition to add punitive damages in the state of Kansas. Because K.S.A. § 60-3703 does not permit a plaintiff to include a claim for punitive damages in the original petition, but instead provides that a motion to amend the pleadings to add a claim for punitive damages must be made on or before the date of the final pretrial conference in the matter, a defendant in a matter may not know until after discovery is closed that the plaintiff will seek punitive damages. This could potentially create a difficult situation for the unaware defense attorney.
In Fusaro, plaintiff filed an action against the defendant mortgagee claiming trespass, conversion and intentional infliction of emotional distress. Plaintiff’s home was damaged by a fire and she moved out while the home was being repaired. During that time, defendant, who held a note and mortgage on the home, hired a company to inspect, preserve, maintain and provide other service. In this process, one of the individuals performing the work was advised by the defendant that the home was in foreclosure and, as a result, some of plaintiff’s belongings were discarded. Plaintiff asserted that the incident caused her great distress and exacerbated her depression and anxiety.
During the course of the case, plaintiff filed a motion to amend her petition to permit punitive damages, which the court denied stating there was not sufficient evidence in support of the motion. Following the denial, plaintiff filed a motion to compel the defendants to answer discovery questions, which was denied on the ground that the information sought was no longer relevant since plaintiff’s motion to amend to allow punitive damages was denied.
The Kansas Supreme Court acknowledged that the plaintiff correctly argued that any evidence the defendants entered her property intending to dispossess her would be relevant to the issue of punitive damages and, under normal circumstances, the information would be discoverable. However, the Supreme Court upheld the trial court’s ruling on the motion stating as follows:
The problem with Fusaro's argument in this case is that she filed her motion to amend prior to her motion to compel discovery. The trial court correctly ruled on the motion to amend based on the evidence presented by Fusaro. Once that motion was denied, evidence on the issue of punitive damages was no longer relevant.
If Fusaro is caught in a "Catch-22" situation, it is one of her own making. She determined the proper time to file her motion to amend and took the risk that her evidence in support of the motion would be deemed insufficient. Because Fusaro's motion to amend was denied, the evidence she sought through her motion to compel was not relevant, and the district court did not abuse its discretion in denying the motion.
This language demonstrates the importance of obtaining discovery pertaining to the issue of punitive damages prior to the filing of the motion to amend. For this reason, plaintiff must seek sufficient evidence supporting a claim for punitive damages during the discovery process and, conversely, the defense must anticipate and should assume such a motion will be brought in an action where punitive damages are available.
It is imperative that the defense anticipates this possibility and develops a defense to any such claim early in the discovery process. In support of this defense, the defendant should both seek and produce evidence, if possible, which will defeat a motion to amend a claim to add punitive damages. This could include requests for written discovery on the subject of good faith and/or testimony during depositions or responses to discovery requests showing that the defendant in the matter acted in good faith. If opposing counsel objects to such discovery request or response on the ground that punitive damages are not relevant since it is not a pending claim, the parties should resolve this issue as quickly as possible. The party seeking the discovery can and should argue that any evidence is discoverable if it is relevant to the subject matter of the cause of action and not privileged. K.S.A. § 60-226(b)(1); See, Wallace, Saunders, Austin, Brown & Enochs, Chtd. v. Louisburg Grain Co., 250 Kan. 54, 59, 824 P.2d 933 (1992).
The holdings in Kansas courts show that, in any action involving a claim for which punitive damages could be sought, both plaintiff and defendant should proceed through the discovery process seeking evidence in support of their respective positions on punitive damages.
 The court need not issue a ruling on such a motion at any given time, and may in fact wait until after the trial has concluded to review the evidence presented to determine if a plaintiff has met its burden to amend and add punitive damages to the petition. All that is required is that the plaintiff move to amend to add punitive damages prior to or at the pretrial conference. Burrowwood Assocs., Inc. v. Safelite Glass Corp., 18 Kan.App. 2d 396, 853 P.2d 1175 (1993).