UNDERSTANDING THE LAW OF DAMAGES
By: David M. Mayer and Matt Rogers*
Understanding the law of damages is critical in every stage of representing a
client in Kansas. Due to the unique rules and limitations, it is important to consider these
limitations when your client first walks in the door. During the initial client consultation,
it is extremely important to explain the Kansas laws on damages with your client.
Depending on the nature of the case and the severity of injury, there are times when a
client will not recover the full value of their injuries. This is a difficult concept for many
clients to understand, especially in light of the large verdicts highlighted in the media.
Therefore, discussions regarding limitations on damages are necessary in order to
properly represent your client and properly inform them of “reasonable” settlements and
potential caps on jury awards.
This presentation is limited to the discussion of Kansas law and the effect of
recovering damages in three broad areas:
1) Economic Damages
2) Non-Economic Damages
3) Wrongful Death and Survival Claims
There are many other areas of the law that need to be considered in evaluating a
potential case and preparing your case for trial. This would include laying the proper
foundation for medical and wage loss, retaining qualified experts under Kansas law,
effect of liens, etc…. Considering these unique rules regarding damages, and fully
explaining the likely implications of these laws to a client upfront, are key elements in
providing proper legal advice in Kansas, and having a “happy” client at the resolution of
the case.
*David M. Mayer is a partner with the law firm of Monsees & Mayer, P.C. in Kansas City, Mo.
Matt Rogers is a second year law student at the University of Kansas, and law clerk at Monsees &
Mayer, who performed the majority of legal research for this presentation .
PATTERN INSTRUCTIONS KANSAS
I learned early in my career when evaluating a potential case, I needed to start
where I would ultimately end up. By that, I am referring to the use of the court’s jury
instructions. When initially reviewing a case, I will go to the jury instructions and look at
the likely verdict director for my case (which would set out the elements a jury would
need to find to return a verdict for my client) and examine the damage instructions which
would be submitted to the jury to determine the damage award.
I look at these
instructions early in the case to set up the deposition testimony that I need to establish in
order to make a submissible case on these issues.
In Kansas, the court uses the Pattern Instructions Kansas (PIK). With regard to
damages, PIK 171.02 is the general instruction given to the jury to determine damages in
a personal injury case. It is a fine instruction that does a nice job in setting out the
damages that a jury may consider. Specifically, P.I.K. 171.02 states:
TYPES OF DAMAGES ALLOWED-PERSONAL INJURY
“When determining the amount of damages sustained by the plaintiff, you must
allow the amount of money that will reasonably compensate plaintiff for his/her injuries
and losses resulting from the occurrence in question. These injuries and losses may
include any of the following shown by the evidence:
1. MEDICAL EXPENSES. Medical expenses include the reasonable
expenses of necessary medical care, hospitalization and treatment
received as a result of the plaintiff’s injuries to date (and the medical
expenses plaintiff is reasonably expected to incur in the future)
[reduced to present value].
2. ECONOMIC LOSS. Economic loss includes loss of time or income
and losses other than medical expenses incurred as a result of
plaintiff’s injuries to date (and the economic loss plaintiff is
reasonably expected to incur in the future) [reduces to present value].
3. NONECONOMIC LOSS. Noneconomic loss includes pain, suffering,
disabilities, disfigurement and any accompanying mental anguish
suffered as a result of plaintiff’s injuries to date (and the noneconomic
loss plaintiff is reasonably expected to suffer in the future).
When determining the amount of damages owed to the plaintiff you must consider
plaintiff’s age and condition of health before and after the occurrence in question.
Also, you must consider the nature, extent and duration of the plaintiff’s injuries.
There is no unit value and no mathematical formula the court can give you for
determine items such as pain, suffering, disability, and mental anguish. You must
establish an amount with will fairly and adequately compensate the plaintiff. This
amount resets within your sound discretion.
You must itemize the amounts of damages awarded in this case on the
verdict form that will be given to you.”
Additionally, P.I.K. 181.04 is the verdict form that will generally be submitted in
a personal injury comparative fault case. This verdict form is referred to as a “special
verdict form” because it requires specific findings regarding percentage of fault and an
itemization of damages. Specifically, P.I.K. 181.04 states:
VERDICT FORM-COMPARATIVE FAULT
“We, the jury, present the following answers to the questions submitted by the
court:
1. Do you find any of the parties to be at fault?
Yes __ No __
[Proceed to question 2 only if you answered ‘yes’ to question 1.]
2. Considering all of the fault at one hundred percent, what
percentage of the fault is attributable to each of the following
(parties) (persons)?
__________(0% to 100%)___%
_________(0% to 100%) ___%
__________(0% to 100%)___%
TOTAL FAULT 100%
[Proceed to remaining questions only if you found the fault of the party seeking
damages to be less than 50% of the total fault.]
3. Without considering the percentage of fault set forth in
question 2, what damages do you find were sustained by
plaintiff, _______?
[Nonecomic loss to date
[Future nonecomic loss
[Medical expenses to date
[Future medical expenses
[Economic loss to date
[Future economic loss
[Loss or impairment of service as spouse
TOTAL DAMAGES
$________]
$________]
$________]
$_______]
$_______]
$_______]
$_______]
$________
Agreement on each of the above questions was by ten or more jurors?
Yes____ No____
____________________________
Presiding Juror
It is important to note that these are the maximum number of categories a jury
may consider in awarding damages. However, depending on the evidence, this verdict
form may be modified to reflect the evidence submitted at trial. See, K.S.A. 60-249a(c).
For example, if the Plaintiff does not present evidence of future medical expense, then the
line of “future medical expenses” should be removed from the verdict form.
Further, as will be discussed in more detail below, the total amount of damages
awarded by the trier of fact will be reduced by any fault attributed to the Plaintiff before
judgment is entered against the Defendant. K.S.A. 60-258a(a). If the jury returns a
verdict finding the Plaintiff 50% at fault or more, then the Plaintiff will not be allowed to
recovery any amount from the Defendant. Id. If the case is submitted for wrongful death,
then the fault of the decedent will be submitted (if supported by the evidence). Id.
ECONOMIC DAMAGES
Although not well defined under Kansas law, economic damages are damages in
which a monetary loss can be calculated. Economic damages include the cost of medical
care, past and future, and related benefits, i.e., lost wages, loss of earning capacity, and
other such losses. McKissick v Frye, 255 Kan 566; 876 P.2d 1371 (1994) The plaintiff
must present evidence of a monetary loss suffered by him/her as a result of the
defendant’s negligence in order to recover for economic losses. The Plaintiff bears the
burden to prove the loss of such monetary benefits, and a reasonable method for the jury
to calculate the damages. McKissick at 592. If the alleged damages are too speculative to
form a basis for measurement, then the court should not allow such testimony in to
evidence.
To warrant recovery of such economic damages, there must be some
reasonable basis for the computation which will allow the jury to arrive at the amount of
the loss. Cerretti v Flint Hills Rural Electric Co-op Ass’n, 251 Kan. 347, 360, 837 P.2d
330 (1992).
Lost wages/Lost Earning Capacity
One clear area of economic damages a Plaintiff may submit is loss of income.
This would include both past wage loss and future wage loss. The submission of past
wage loss is fairly straight forward. Evidence simply needs to be presented of the wage
being earned at the time of the injury, and the amount of time missed from work. See
generally, Cott v Peppermint Twist Mgmt. Co., 856 P.2d 906, 922 (Kan. 1993). The
Plaintiff and other witnesses may testify to this loss, but additional supporting
documentation may be needed to support the lost wage claim. McCracken v Stewart, 223
P.2d 963 (Kan. 1950).
The Plaintiff may run in to a more difficult road in attempting to submit a future
lost wage claim. Essentially, the Plaintiff may present evidence of future loss of income.
Generally, the submission of this claim would need to be supported by medical
testimony, and evidence by the plaintiff, or the Plaintiff’s employer. Depending on the
lawsuit and the amount of future lost income, the attorney should consider hiring an
economist who can further lay the proper foundation for the future lost income. See
Kearney v. Kansas Public Service Co., 665 P.2d 757, 767-68 (Kan. 1983), Ryder v. Black
& Veatch Consulting Eng’rs., No. 63,854 1990 Kan. App. LEXIS 302 (Kan. Ct. App.
May 11, 1990). These future losses are also required to be reduced to present value.
P.I.K. 171.02. Gannaway v Missouri-Kansas-Texas Rld. Co., 2 Kan. App. 2d 81, 575
P.2d 566 (1978)
A Plaintiff’s attorney should also consider the submission of loss of earnings
capacity. In submitting loss of earnings capacity, the trier of fact is asked to consider
other factors such as future promotions, raises, and improvements in talent or skill. In
short, it is an attempt by the Plaintiff to make a calculated projection of how the injured
person’s entire career would have unfolded if they hadn’t been injured (with the current
employer/job or even a potential future employer/job). In order to properly submit the
loss of earnings capacity, the Court may require expert testimony since these calculations
are generally outside of the competency of an average juror. See Schwartz v. Abay, 43
P.3d 831, 834 (Kan. Ct. App. 2002).
Medical Expenses (Private Insurance v Medicare/Medicaid)
As set forth in PIK 181.04 and Kansas case law, a plaintiff may recover for both
past and future medical expenses. The medical expenses must be directly related to the
underlying claim for injury. Unless the parties stipulate to causation, the Plaintiff will be
required to present medical testimony that the medical treatment was caused or
contributed to be caused by the accident (or event). Martinez v Milburn Enters, 233 P.3d
205, 211 (Kan. 2010). Additionally, evidence will be required to prove the medial
expenses related to the medial treatment were fair and reasonable.
Medical Expenses Billed v Paid:
One of the most recent areas of legal contention involving medical expenses is the
disparity in medical expenses billed and the amount actually paid.
Generally, the
Plaintiff will attempt to submit the actual expenses billed as the fair and reasonable cost
of the medical expenses, as the bills are generally higher than the amount actually
accepted by the medical provider. The Defendant will counter that the amount accepted
is the fair and reasonable amount since that is the amount accepted by the provider. The
Kansas Supreme Court has rejected both positions and requires additional evidence on
this issue. Martinez, supra.
Other evidence relevant to determining the reasonable value of medical expenses
may include write-offs or other acknowledgments that something less than the charged
amount has satisfied, or will satisfy, the amount billed. Id. Accordingly, neither the
amount billed nor the amount actually accepted after a write-off conclusively establishes
the “reasonable value” of medical services. Id. When medical treatment expenses are
paid from a collateral source at a discounted rate, determining the reasonable value of the
medical services becomes an issue for the finder of fact. Id. The collateral source rule
bars admission of evidence stating that the expenses were paid by a collateral source,
however the rule does not bar the admission of evidence indicating that something less
than the charged amount has satisfied, or will satisfy, the amount billed. Id. at 222-23.
Essentially, the plaintiff can present evidence of the total amount billed, and the
defendant can “side-step” the collateral source rule issue in presenting evidence of writeoffs, but evidence of the source of any actual payments is inadmissible. Id. at 229.
Medicare/Medicaid:
The Kansas Courts have looked at the submission of reasonable medical expenses
a bit differently when Medicare and/or Medicare have paid a portion of the medical bills.
With regard to Medicaid, the court will just allow the submission of the amount actually
paid. Because a medical provider, by agreement and contract, may not charge Medicaid
patients for the difference between their customary charge and the amount paid by
Medicaid, the amount allowed by Medicaid becomes the amount due and is the
“customary charge.” Bates v. Hogg, 921 P.2d 249, 253 (Kan. App. 1996) reh’g denied,
260 Kan. 991 (Kan. Ct. App. 1996).
Therefore, the amount actually paid is the
reasonable value of the medical services, and the plaintiff is not entitled to present the
amount billed as evidence of damages. The court in Bates clarified that this decision was
specific to Medicaid insurance because:
“It would be unconscionable to permit taxpayers to bear the expense of providing
free medical care to a person and then allow that person to recover damages for
medical services from a tortfeasor and pocket the windfall.” Id.
The Court has taking a slightly different stance when looking at Medicare
payments. The Kansas Supreme Court in Rose I, Rose v. Via Christi Health Sys., 78 P.3d
798, 800 (Kan. 2003) modified, 113 P.3d 241 (Kan. 2005), distinguished Medicare and
Medicaid cases on the basis of the recipient’s contribution for Medicare coverage, finding
Medicare to be akin to private insurance. Id. at 806. The court unanimously concluded
that the collateral source rule applied to Medicare write-offs. Id. However on rehearing
the court modified the decision. The court affirmed the post-verdict reduction of the trial
court which reduced damages to the amount paid, however it noted that “we do not reach
the issue . . . of whether evidence of medical charges that are written off by a health care
provider pursuant to a contract with Medicare is admissible at trial as evidence of
economic damages.” Rose v. Via Christi Health Sys., 113 P.3d 241, 248 (Kan. 2005)
(“Rose II”).
In addition to the straight medical expenses, depending on the severity of the
injuries, a Plaintiff may consider retaining a life care planner. Life care planning experts
share their medical expertise regarding loss of income, creation of life care plans,
cost/benefit analysis of durable medical goods, comprehensive home assessment to
collect subjective and objective data, cost projections for mediation settlement purposes,
and analysis and assessment of medical and non-medical needs. The life care plan puts
together a comprehensive plan in caring for the injured party, and the continued expenses
in properly doing so.
NON-ECONOMIC DAMAGES
As set forth in P.I.K. 171.02 and Kansas case law, non-economic damages
includes pain, suffering, disabilities, disfigurement and any accompanying mental
anguish suffered as a result of Plaintiff’s injuries. To summarize, it is simply “losses that
cannot be easily expressed in dollars and cents”. McKissick v Frye, 255 Kan 566, 588,
876 P2d. 1371 (1994)
Non-Economic Caps:
Since 1988, non-economic damages in a personal injury action have been limited
to a maximum recovery of $250,000. K.S.A. 60-19a02. Essentially, the trier of fact will
make a determination of past and future non-economic loss and report the amount in the
verdict. 60-19a02(c) If the jury returns a combined award in excess of $250,000.00, the
Court will reduce this amount to $250,000 and the judge enters the Judgment. However,
the jury is not told of the reduction or cap prior to deliberations. 60-19a02(d) The cap
applies to each Plaintiff and is set at $250,000 regardless of the number of Defendants.
The statutory cap has been challenged on several Constitutional grounds. In
Miller v Johnson, 289 P.3d 1098 (Kan. 2012), the court considered two main arguments
asserted by the Plaintiff: (1) the right to a jury trial, and (2) the right to remedy by due
course of law.
In regard to the right to jury trial, Miller argued that the cap unconstitutionally
supplants the jury's role in assessing damages according to the evidence adduced at trial
with an arbitrary number picked by legislators. Id. at 1109.. However, in Bair v. Peck,
811 P.2d 1176, 1186 (Kan. 1991), the court declared that the constitutional right to trial
by jury does not guarantee that every jury damage award will be collectible or guarantee
any source for payment of such an award. Bair v. Peck, 811 P.2d 1176, 1186 (Kan.
1991). The duty of the jury is to determine liability and determine the amount of
damages suffered and has nothing to do with the collection of the damages. Id.
In Miller, the plaintiff grounded her violation of section 18 claim argument in
regard to the adequacy of the $250,000 cap. The challenges were subject to the quid pro
quo test: (1) the modification must be reasonably necessary in the public welfare, and (2)
the legislature must substitute the viable statutory remedy of quid pro quo to replace the
loss of the right. Miller at 1114. When analyzing whether the $250,000 cap was still an
adequate substitute of the lost common law right, (part 2 of quid pro quo test) the court
expressed concerns with the legislature's failure to increase the $250,000 cap on
noneconomic damages over the more than 20 years since it first set that amount. Id. at
1118. However, the court noted that the statute was constructed more narrowly than
some sister states, by only capping non-pecuniary damages. Id.
In an apparent response to the courts concern in Miller, the Kansas legislature
recently passed S.B. 311, which modified Kan. Stat. Ann. § 60-19a02. The changes
raised the non-economic damages to the following:
(1) $250,000 for causes of action accruing on or after July 1, 1988 and before July
1, 2014,
(2) $300,000 for causes of action accruing on or after July 1, 2014 and before
July 1, 2018,
(3) $325,000 for causes of action accruing on or after July 1, 2018 and before July
1, 2022, or
(4) $350,000 for causes of action accruing on or after July 1, 2022.
Damages reduced after Percentage of Fault:
The Court is to consider the reduction after applying any fault the jury may have
assessed against the Plaintiff. 60-19a02(d) Therefore, fault is applied to the actual jury
award of non-economic loss, as opposed to the cap of $250,000. If, after the application
of fault, the non-economic damage award would exceed $250,000, the judge would enter
a Judgment for $250,000.00. See, McCart v. Muir, 641 P.2d 384 (Kan. 1982), Gann v.
Joeckel, 884 P.2d 451, 454 (Kan. App. 1994).
For example, if a jury determines the non-economic damages to be $1,000,000
but determines the Plaintiff to be 25% at fault, the court would reduce the $1,000,000
non-economic damages by 25% to $750,000 and then enter judgment for $250,000, due
to the caps. The court would not reduce the award to $250,000 and then apply the 25%
fault of the plaintiff, which would reduce the award below $250,000.
Settlement Effecting Caps:
Additionally, a settlement with one defendant will not be applied to the statutory
cap if the case proceeds to trial against a remaining Defendant. Kansas’s comparative
negligence statute, K.S.A. 60-258a, will not permit a jury verdict to be reduced by any
amount plaintiff may have received in settlement from other defendants. Adams v. Via
Christi Reg’l Med. Ctr., 19 P.3d 132 (Kan. 2001). The right of contribution among joint
judgment debtors disappeared when Kansas adopted its comparative fault statute. Glenn
v. Fleming, 732 P.2d 750, 755 (Kan. 1987).
In Kansas, the Defendant has a right to compare the fault of non-parties (assuming
the Defendant can establish that the non-party owed a legal duty to the Plaintiff). K.S.A.
60-258a(c) allows a defendant to join as parties, or as phantom parties, other defendants.
Glenn v. Fleming, 732 P.2d 750, 756 (Kan. 1987).
This prevents a plaintiff from
circumventing proportionate liability by suing only one of several tortfeasors.
Id.
However, it is a permissive provision and a defendant is not required to join other parties.
Id. In Glenn, the defendant failed to allege or prove the fault of other settling defendants
as phantom parties. Id. His failure to do so resulted in a jury determining the proportion
of fault only against the one remaining defendant and the plaintiff, which ultimately
increased the remaining defendants liability. Id.
Even an immune party may be joined by the defendant as a “phantom party” for
comparison purposes. Anderson v. National Carriers, Inc., 695 P.2d 1293, 1298 (Kan.
App. 1985) aff’d on other grounds, 727 P.2d 899 (Kan. 1986).
Additionally, a Defendant is only responsible for paying the percentage of fault
attributed to that entity (excluding intentional acts described below).
Therefore, in
Kansas, the Defendant is not entitled to a set-off for prior settlements.
In Adams, a decedent’s heirs brought a wrongful death claim against a hospital
and doctor. Adams at 133. The plaintiff settled with the hospital for an amount in excess
of the statutory cap, but went to trial against the doctor. Id. After a jury attributed 90% of
the fault to the doctor, the trial court reduced the damages per the statutory cap and
allowed a set-off of the settlement amount. Id.at 133, 139. This resulted in no recovery
for the plaintiff against the doctor. Id. at 133. The Supreme Court of Kansas overturned,
noting that the plaintiff’s settlement with the hospital had “no effect” on their right of
recovery from the doctor. Id. at 138. The plaintiff’s were entitled to keep the benefit of
their bargain, and were awarded the full statutory cap amount. Id. at 139.
In Hale v. Mr. Handy Man, Inc., the plaintiff settled her personal injury action
with one defendant, but went to trial against a second tortfeasor. Hale v. Mr. Handy
Man, Inc., No. 63,181, 1989 Kan. App. LEXIS 672, at *1 (Kan. App. Sept. 29, 1989).
The settling amount was in excess of plaintiff’s total damages, and the defendant argued
that the settlement amount should bar plaintiff’s recovery. Id. The trial court denied the
defendants argument, and the appellate court affirmed. Id. at *1, *6.
When intentional torts are concerned, and K.S.A. 60-258a is not implicated, the
sum of the settlement amount is appropriately reduced from the total damages for any
remaining tortfeasors. K.S.A. 60-258a did not change the common-law rule of joint and
several liability for defendants in intentional tort actions. York v. InTrust Bank, N.A., 962
P.2d 405, 431 (Kan. 1998). Anything received on account of the injury inures to the
benefit of all and operates as a payment pro tanto. Id. at 432 (quoting Jacobsen v.
Woerner, 89 P.2d 24 (Kan. 1939)). The plaintiff is entitled to only one satisfaction from
whatever source it may come. Id. In order for a windfall to be avoided, it is necessary for
pro tanto credit to be awarded for the amounts received by the plaintiff from their
settlements. York at 433. However, a defendant is not entitled to apply a pro tanto credit
to any amount awarded as punitive damages or apply a pro tanto credit of any amount
previously recovered which was specifically allocated as punitive damages. Id.
In York, the plaintiff had settled with two of three defendants.
One of the
settlements disclosed the settlement amount, and the other did not. On remand, the court
ordered for a setoff of the disclosed amount and also for a setoff of the non-disclosed
amount from the total damages.
The application of this rule regarding settlements is extremely important to
consider prior to going to trial. In many cases, a Plaintiff’s attorney can maximize the
recovery for the client if a settlement can be reached with one or more defendants. This
is especially true in cases involving large non-economic losses. For example, in a case
which has a non-economic value of $1,000,000 and two Defendants (who are 50/50 at
fault), if the case proceeds to trial against both defendants, the non-economic award will
be reduced to $250,000. However, if the plaintiff is able to settle the case before trial
against one defendant and still achieve the same result at trial, the Plaintiff will receive
the $250,000 cap PLUS the amount of the settlement with the other Defendant.
PUNITIVE DAMAGES
Punitive damages are permitted whenever the elements of fraud, malice, gross
negligence, or oppression mingle in the controversy. Kan. Stat. Ann. § 60-3702(c)
(2013), Wooderson v. Ortho Pharm. Corp., 681 P.2d 1038 (Kan. 1984). No tort claim or
reference to a tort claim for punitive damages shall be included in a petition or other
pleading unless the court enters an order allowing an amended pleading that includes a
claim for punitive damages to be filed. Kan. Stat. Ann. § 60-3703 (2013). The Plaintiff
must file a motion to amend to include punitive damages with supporting affidavits
establishing the probability that the Plaintiff will prevail on the claim. Id. Plaintiff must
file the motion to amend prior to the final pretrial conference. Id.
Factors Considered for Punitive Award:
In any civil action in which exemplary or punitive damages are recoverable, the
trier of fact shall determine, concurrent with all other issues presented, whether such
damages shall be allowed. Kan. Stat. Ann. § 60-3702(a) (2013). If such damages are
allowed, a separate proceeding shall be conducted by the court to determine the amount
of such damages to be awarded. Id. The law establishes no fixed ratio between actual
and exemplary damages by which to determine excessiveness. Wooderson at 1061. At a
proceeding to determine the amount of exemplary or punitive damages to be awarded, the
court may consider:
(1) the likelihood at the time of the alleged misconduct that serious harm would
arise from the defendants misconduct; (2) the degree of the defendant’s awareness
of that likelihood; (3) the profitability of the defendant’s misconduct; (4) the
duration of the misconduct and any intentional concealment of it; (5) the attitude
and conduct of the defendant upon discovery of the misconduct; (6) the financial
condition of the defendant; and (7) the total deterrent effect of other damages and
punishment imposed upon the defendant as a result of the misconduct, including,
but not limited to, compensatory, exemplary and punitive damage awards to
persons in situations similar to those of the claimaint and the severity of the
criminal penalties to which the defendant has been or may be subjected . . . . Kan.
Stat. Ann. § 60-3702(b) (2013).
Punitive Cap:
Except as provided by subsection (f), no award of exemplary or punitive damages
pursuant to this section shall exceed the lesser of:
(1) The annual gross income earned by the defendant, as determined by the court
based upon the defendant’s highest gross annual income earned for any one of the
five years immediately before the act for which such damages are awarded, unless
the court determines such amount is clearly inadequate to penalize the defendant,
then the court may award up to 50% of the net worth of the defendant, as
determined by the court; or
(2) $ 5 million. Id. at 3702(e).
However, if the court finds that the profitability of the defendant’s misconduct
exceeds or is expected to exceed the limitation of subsection (e), the limitation on the
amount of exemplary or punitive damages which the court may award shall be an amount
equal to 1 ½ times the amount of profit which the defendant gained or is expected to gain
as a result of the defendants misconduct. Id. at 3702(f).
At the conclusion of the proceeding, the court shall determine the amount of
exemplary or punitive damages to be awarded and shall enter judgment for that amount.
Id. at 3702(b). Because the amount of exemplary or punitive damages was historically
determined by the jury, this provision was subjected to constitutional challenges in Smith
v. Printup, 866 P.2d 985 (Kan. 1993). There are no constitutional rights to punitive
damages. Id. at 998. The legislative change from jury to judge in the determination of
the amount of punitive damages does not, therefore, affect a common-law right, a
common-law cause of action, or a remedy by due course of law at common law. Id. The
legislative change from jury to judge in the determination of the amount of punitive
damages does not affect plaintiff’s right to trial by jury under the Kansas Constitution.
Id. The legislature was free, therefore, to choose the method of determining punitive
damages without implicating plaintiffs’ due process rights. Id.
WRONGFUL DEATH AND SURIVIOR CLAIMS
Essentially, a wrongful death claim allows the statutory heirs to recover for the
damages they have suffered as a result of the death of the deceased. Whereas, a survivor
claim is brought by the estate of the deceased and allows the estate to recover for
damages suffered by the deceased while they were living.
Wrongful Death Claim:
Kan. Stat. Ann. § 60-1901 allows for recovery from a wrongful act or omission
resulting in the death of another, only if the decedent could have maintained an action
had he lived. Kan. Stat. Ann. § 60-1901 (2013). In interpreting K.S.A. § 60-1901, the
court has explained the statutory phrase “if the decedent could have maintained the action
had he lived” as a qualifying condition precedent to both a wrongful death and survival
claim, which is different from the accrual of the claim. In Mason, the court explained
that the qualifying condition meant “that where the injured party could not have brought
an action for his personal injuries because the statute of limitations had run against his
claim prior to his death, a wrongful death action cannot be maintained." Mason v. Gerin
Corp., 647 P.2d 1340, 1342 (Kan. 1982). The application of the qualifying condition is a
different question than the accrual of the cause of action for wrongful death. Martin v.
Naik, 300 P.3d 625, 631 (Kan. 2013). Thus, if when the injured party dies he had no right
to maintain an action, no wrongful death action can be brought. However, if he did have
a right to maintain an action, the wrongful death action accrues on the date of death
unless information regarding the fact of death or the wrongful act indicates that the death
was concealed, altered, falsified, inaccurate, or misrepresented. Id. at 626.
Recoverable damages in a wrongful death claim are not those suffered by the
deceased but are the pecuniary and non-pecuniary damages incurred by an heir at law,
including such things as bereavement, loss of society, loss of marital care, loss of filial
care, loss of parental care, and reasonable funeral expenses that result from the decedent's
death. Kan. Stat. Ann. § 60-1903, 1904. This list is not exhaustive. Kan. Stat. Ann. § 601904. Under these statutes, it is the decedent's death that gives rise to the cause of action
and it is the heir's injury that must be ascertainable. Martin at 630.
There are three categories of damages for wrongful death claims: (1) nonpecuniary; (2) expenses for care of the deceased caused by the injury; and (3) pecuniary.
Kan. Stat. Ann. § 60-1903 (2013). Pecuniary damages incurred by heirs at law are
potentially unlimited (subject to production of evidence), however all other damages are
capped at $250,000. Id. Similar to K.S.A. 60 § 19a02, the jury is not told of the cap and
the verdict must be itemized. Id. Pecuniary loss or damages in a wrongful death case
should be equivalent to those pecuniary benefits or compensation that reasonably could
have been expected to have resulted from the continued life of the deceased.
701 P.2d at 943.
Wentling
The McCart court held that when the pecuniary loss allowed is
substantial in amount, evidence in support thereof must have some reasonable basis in
fact and can no longer be supported solely by an implication of pecuniary loss . . . .
McCart v. Muir, 641 P.2d 384, 392 (Kan. 1982).
However, Wentling, adopted a more generous approach with future pecuniary or
non-pecuniary losses in personal injury actions and other pecuniary damages which are
hard to prove. Wentling at 945. The plaintiffs in wrongful death actions are not required
to prove their losses with mathematical certainty. Id. What is necessary is that each claim
for a specific element of damage be supported by evidence sufficient to permit the trier of
fact to determine (1) that the claimant in fact suffered a compensable loss or injury; and
(2) a fair and reasonable monetary award for that loss or injury. Damages may be
withheld where such proof is lacking and thus where the award would have to be based
entirely on conjecture or speculation. Id. In many instances, however, the burden of
proof can be satisfied simply through a showing of the nature and extent of the loss
asserted. Id.
In Howell v. Calvert, the court rejected a plaintiff’s attempt to include infant care,
clothing, support, and education of a deceased child under the “lost investment theory,”
citing the weight of authority and inconsistency with § 60-1903. Howell v. Calvert, 1
P.3d 310, 217 (Kan. 2000). Losses such as "continued family relationship" and "loss of
enjoyment and entertainment" have been rejected as pecuniary due to their similarities
with non-pecuniary counterparts. Id. at 317.
K.S.A. § 60-1903 probably avoids the same Constitutional challenges as K.S.A.
19a02, because the non-pecuniary cap has been adjusted. In 1998, the cap was raised
from $100,000 to its current limit of $250,000. Miller at 1118.
Survival Claim:
In addition to the causes of action which survive at common law, causes of action
for an injury to the person, or to real or personal estate, or for any deceit or fraud, or for
death by wrongful act or omission, shall also survive; and the action may be brought
notwithstanding the death of the person entitled or liable to the same. Kan. Stat. Ann. §
1801 (2013). ). A survival action allows the personal representative to recover damages
accrued by the injured party between the date of injury and death for the benefit of the
decedent’s estate. Mason v. Gerin Corp., 647 P.2d 1340, 1343 (Kan. 1982). Essentially,
a survival action preserves a claim that the decedent would have had prior to his death,
and is not a new cause of action. Most courts which have addressed the issue have held
that the two actions do not allow a double recovery to the heirs due to the difference
between the claims. Ingram v. Howard-Needles-Tammen & Bergendoff, 672 P.2d 1083,
1092 (Kan. 1983) (Schroeder, C.J., dissenting).
Argument for Two Statutory Non-economic Caps:
A cause of action for wrongful death is a separate and distinct type of action from
a survival action authorized by KSA 60-1801 et seq. Mason v. Gerin Corp., 647 P.2d
1340, 1343 (Kan. 1982). A survival action allows the personal representative to recover
damages accrued by the injured party between the date of injury and death for the benefit
of the decedent’s estate. Id. On the other hand, the wrongful death action authorized by
60-1901 et seq. is for the exclusive benefit of the heirs and allows them to recover
damages accruing after death for such things as loss of support, companionship and
mental anguish. Id. Most courts which have addressed the issue have held the two actions
do not allow a double recovery to the heirs, as the survival action compensates the
decedent for the injuries for which he could have recovered had he survived, whereas the
wrongful death action compensates the heirs for such things as loss of support,
companionship and comfort. Ingram v. Howard-Needles-Tammen & Bergendoff, 672
P.2d 1083, 1092 (Kan. 1983) (Schroeder, C.J., dissenting). K.S.A. 60-1903 and K.S.A.
60-19a02 contain mandatory language that require application of the caps and other trial
procedures directed toward the trial court. McGinnes v. Wesley Med. Ctr., 224 P.3d 581,
591 (Kan. App. 2010). A cap of $250,000 applies to the total of non-economic damages
in a personal injury action and a separate cap of $250,000 applies to the wrongful death
claim. McCormick v. Burnham, LLC, No. 04-CV-2405, 2013 U.S. Dist. LEXIS 13614, at
*3 (E.D.N.Y. Jan. 31, 2013) (applying Kansas statutes).
In McGinnes, the family of the decedent brought a claim alleging wrongful death
and a surviving personal injury claim. The trial court reduced the jury award by applying
both the $250,000 wrongful death cap under 60-1903 and the $250,000 survival damages
cap under K.S.A. 60-19a02. The plaintiffs contested the application of the statutory caps,
alleging that they were unconstitutional, however the appellate court affirmed; noting that
the caps were in fact constitutional. The precise issue of whether one cap supplants the
other was not raised. However, the trial court’s separate application of each cap, coupled
with the express statement in Mason that the claims were “separate and distinct,”
indicates that both statutory caps are recoverable. Moreover, in McCormick, the New
York district court expressly declared that the caps are applied separately while
interpreting and applying Kansas statutes.
In Hoover v. Innovative Health of Kan., the court declared that K.S.A. 60-19a02
“mandates that noneconomic damages awarded for each of Hoover’s independent claims
be aggregated under one statutory cap on noneconomic damages.” Hoover v. Innovative
Health of Kan., 988 P.2d 287, 292 (Kan. Ct. App. 1999).
However this case is
distinguishable. In Hoover, The plaintiff was arguing that four separate slip-and-fall
events, because they could be brought in four separate claims, were entitled to four
different statutory cap limitations under 60-19a02. Id. Hoover was not a case about how
statutory caps from different causes of action interact.
In fact, the Hoover court
distinguished itself from a case cited by the plaintiff, Sander v. Geib, Elston, Frost Pro
Ass’n, 506 N.W.2d 107 (S.D. 1993) (where a statute limiting recovery for personal injury
or death applied separately to a cause of action for personal injury and a cause of action
for wrongful death).
Finally, in Ingram, the parties did not raise the issue of statutory caps because
they were not yet enacted. However, in the dissenting opinion the court was concerned
with “double recovery” and called on the legislature to resolve the issue. The dissent
cited a number of states which specifically exclude recovery for the decedent’s pain and
suffering in their survival statutes. Seemingly, the legislature responded by enacting
statutory caps, however the legislature did not amend K.S.A. 60-1801 to include any such
limitations. It appears that the statutory caps were an effort to limit the recovery for pain
and suffering, without completely taking them away.
CONCLUSION
It is important to research and understand the law of damages in a Kansas case.
The limitations on the right to recover damages must be explained to the client upfront,
and considered throughout the entire litigation process. These limits can have a drastic
effect on client expectations and settlement negotiations, especially when there is more
than one defendant.