Seaboard Corp. v. Marsh Inc., 284 P.3d 314

Seaboard filed a Kansas action against Marsh and AIG, asserting multiple tort, KRTA, and contract claims with varying statutes of limitation.
Seaboard claimed tolling due to defendants’ concealment and also relied on class-action tolling under K.S.A. 60-518.
MDL class action against Marsh, AIG, and others consolidated in the federal court in New Jersey, with Seaboard named as a putative class member.
MDL dismissal occurred in 2007, largely reversed on appeal, and Seaboard opted out of Marsh’s global settlement on Oct. 17, 2008.
Seaboard filed the present action on Oct. 16, 2009, within 6 months after the opt-out and tolling period began, seeking to save its claims under K.S.A. 60-518.
The district court held that K.S.A. 60-518 applies to cross-jurisdictional first actions and that Seaboard’s action was timely under the saving statute.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether K.S.A. 60-518 applies to an initial action filed in another state	Seaboard: statute applies to any action, not limited to Kansas filings	Defendants: cross-jurisdictional saving may be limited or improper	Yes, statute applies to any action filed in any jurisdiction.
Whether the MDL dismissal triggered the 6-month grace period	Seaboard: dismissal not a merit-based failure due to timely appeal	Defendants: dismissal triggers grace period	No, the dismissal plus timely appeal did not conclusively trigger the period; opt-out later initiated triggering event.
Whether Seaboard’s second action was filed within 6 months of the first-action failure	Seaboard: filing within grace period after opt-out tolling	Marsh/AIG: timing not met	Yes; Marsh timely within six months; AIG timely due to tolling and opt-out coinciding with filing.
Whether the second action and the MDL were substantially similar to permit saving under 60-518	Seaboard: same facts/notice; substantial similarity suffices	Defendants: only identical claims/parties guarantee saving	Yes; substantial similarity and notice is sufficient; not all MDL defendants must be named.
Whether Seaboard, as a putative MDL class member, qualifies as a plaintiff for 60-518 purposes	Seaboard: putative class member fits 60-518	Defendants: only named plaintiffs may qualify	Yes; putative class member qualifies under Waltrip and related authority.

Waltrip v. Sidwell Corp., 234 Kan. 1059 (1984) (safety of saving statute for putative class members; pendency preserves rights under 60-518)
Behen v. Street Railway Co., 85 Kan. 491 (1911) (saving statute applicable to cross-jurisdiction actions; remedial purpose)
Jackson v. Prairie Oil & Gas Co., 115 Kan. 386 (1924) (first action in another state; debate over commencement and saving statute scope)
Campbell v. Hubbard, 41 Kan. App. 2d 1 (2008) (forum law on when first action was commenced; saving statute applicability across fora)
Prince v. Leesona Corp., Inc., 720 F.2d 1166 (10th Cir. 1983) (cross-jurisdictional saving statute acknowledged; supports application across states)
Goldsmith v. Learjet, Inc., 260 Kan. 176 (1996) (borrowing statute and saving statute interaction; liberally construed saving statute)
Taylor v. International Union of Electronic Workers, 25 Kan. App. 2d 671 (1998) (substantial similarity approach to 60-518 claims; liberal notice notion)
Waltrip v. Sidwell Corp., 234 Kan. 1059 (1984) (see above; foundational for class-action/potential member preservation under 60-518)