The
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 tire 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 tire 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
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 tíre 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)
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 time after the initial act, then the period of limitation shall not commence until tire fact of injury becomes reasonably ascertainable to the injured party”). Consequently, Defendants asserted all tort claims were barred before this action was filed. Defendants also pointed out to the district court that K.S.A. 60-511, which applies to the contract-related actions, does not contain similar language regarding accrual upon the fact of injury becoming reasonably ascertainable and that “[a] cause of action for breach of contract accrues when a contract is breached . . ., irrespective of any knowledge on the part of the plaintiff or of any actual injury it causes.” Pizel v. Zuspann,
In reply to Defendants’ motion to dismiss, Seaboard argued its petition was timely filed because the action had been preserved by the filing of several class actions against Marsh and AIG that were filed around the time of the New York Attorney General’s civil action. To support its arguments, Seaboard filed an affidavit that incorporated pleadings and other documents related to some of the class action proceedings. Seaboard stated it was a putative class member in these class action suits against Defendants. At least one class action, which was not filed in Kansas, was filed within 2 years of November 30, 2002, the earliest of the possible accrual dates.
According to information provided to the Johnson County District Court, as many as 40 class actions against Marsh, AIG, and others were eventually filed in or removed to federal courts. These various class actions were consolidated by the federal Judicial Panel on Multidistrict Litigation; the consolidated case, which we will refer to as the MDL action, was captioned In Re Insurance Brokerage Antitrust Litigation, No. 04-5184, MDL No. 1663. The MDL action was transferred to the United States District Court of New Jersey (New Jersey federal court). This action named Marsh, AIG, and others—a total of more than 76 defendants from 22 different insurance/corporate groups—as defendants. The MDL action included causes of action that Seaboard has labeled as breach of contract, breach of fiduciary duty, misrepresentation, deceptive trade practices, unjust enrichment, federal racketeering, and federal and state antitrust violations, including violations of the KRTA. According to Defendants, the federal class action did not include six of the causes of action brought by Seaboard in the present action, including fraud, negligent misrepresentation, breach of implied duiy of good faith and fair dealing, breach of contract, tortious interference with a prospective business advantage or relationship, and civil conspiracy.
In a series of orders filed in August and September 2007, the New Jersey federal court dismissed with prejudice the MDL
The MDL plaintiffs timely appealed the orders of dismissal. In August 2010, the MDL appeal concluded. By that point, the appeal that we are now considering had already been docketed with this court. In the MDL appellate decision, the United States Court of Appeals for the Third Circuit vacated the dismissal of some, but not all, of the federal antitrust and racketeering claims, vacated the dismissal of the state law claims, and remanded the case to the New Jersey federal district court for further proceedings. In re Insurance Brokerage Antitrust Litigation,
In this present action, no party disputes that Seaboard was a putative class member of the MDL action. By the time of the Third Circuit’s decision, Marsh was no longer a party in the MDL action because it had entered into a settlement agreement with the MDL plaintiffs while the appeal was pending. The settlement agreement contained in the record is dated June 19, 2008. The United States District Court of New Jersey approved the settlement agreement and entered judgment against Marsh on February 17, 2009. AIG was still a defendant in the MDL action, however.
On October 17, 2008, Seaboard opted out of the MDL settlement with Marsh. On that same date, Seaboard entered into a tolling agreement with Marsh in which the parties agreed to toll all statutes of limitation and other time-related defenses and causes of action for 1 year. One day before the expiration of the tolling agreement with Marsh, Seaboard filed the petition in this case in Johnson County District Court. Up to the point in time when Seaboard filed this action, it remained a putative member of the class action against AIG.
Seaboard argued before the Johnson County District Court that its action against Marsh was timely because of the combined effect of tire saving statute and the tolling agreement. Although not abundantly clear, it appears Seaboard’s position was that the saving statute alone preserved Seaboard’s action against AIG on a theory that AIG was still a party to the MDL action in which Seaboard was a putative party on October 16, 2009, when this present action was filed.
Defendants made a multifaceted response arguing that cross-jurisdictional tolling should not be recognized and that there were several reasons the saving statute requirements were not satisfied.
The Johnson County District Court rejected these arguments. The court held that Seaboard’s “participation in the commencement of a class action suspended the applicable statute of limitation under K.S.A. 60-512(2) and K.S.A. 60-513(a) until that time when plaintiff opted out of that action on October 17,2008.” The district court then granted Defendants permission to petition tire Court of Appeals to allow an interlocutory appeal. Defendants filed a joint application to take an interlocutory appeal. This court transferred the case under K.S.A. 20-3018(c) and granted Defendants’ application to bring this interlocutory appeal.
District Court Standard and Appellate Standard of Review
On appeal, there is one aspect of the district court’s order with which no party overtly disagrees—the district court’s statement of the standard to be applied to its consideration of Defendants’ motion to dismiss. Yet, the parties seem to implicitly reject the district court’s standard because they all cite to a different standard than the one cited by the district court. Although they cite a different standard, none of the parties criticizes the district court’s choice of standard, explains the reason it relies on a different standard, or discusses the justification for the standard it cites. This lack of explanation is troubling because we cannot discern a basis for applying the case all parties cite for the applicable
The district court cited two Kansas Court of Appeals decisions for the standard it applied: Stark v. Mercantile Bank, N.A.,
In Ripley, this court held that dismissal for failure to state a claim under K.S.A. 60-212(b)(6) is justified only when the allegations in a petition clearly demonstrate a plaintiff does not have a claim. The court noted that factual disputes cannot be resolved in ruling on a motion to dismiss; instead, tire well-pleaded facts of the petition must be read in the light most favorable to the plaintiff. Ripley,
We have no quarrel with Ripley’s recitation of the standard that typically applies to consideration of a motion filed under K.S.A. 60-212(b)(6). The problem is that standard does not apply to the procedural circumstances of this case because the district court relied on facts that were not alleged in the petition or stated in other pleadings. In particular, the district court based its decision on the effect of the MDL action. The facts regarding the MDL action were presented in Seaboard’s response to the motion to dismiss. In the response, Seaboard stated facts in a summary judgment format with separately numbered paragraphs that were supported by citations to an affidavit and attachments to the affidavit. See Supreme Court Rule 141 (2011 Kan. Ct. R. Annot. 232).
Because the district court’s ruling on the motion to dismiss depended on the dates and other information gleaned from these documents rather tiran from information in the pleadings, at the time the motion in this case was submitted to the district court, K.S.A. 60-212(b) required the motion to be treated as one for summary judgment by stating:
“If, on a motion asserting the defense provided in subsection (6) to dismiss for failure of the pleading to state a claim upon which relief can be granted, matters outside the pleading are presented to and not excluded by the court, tire motion must be treated as one for summary judgment and disposed of as provided in K.S.A. 60-256 and amendments thereto, and all parties shall be given reasonable opportunity to present all material made pertinent to such motion by K.S.A. 60-256 and amendments thereto.”
See K.S.A. 60-207(a) (defining allowed “pleadings” as various forms of petitions and answers).
Before the district court, Seaboard argued the Defendants’ motion to dismiss should be treated as a motion for summary judgment. Defendants did not object to the court’s consideration of the additional information; in fact, Defendants used the additional information to build arguments as to why Seaboard’s action had not been preserved or tolled. Further, Defendants did not controvert any of the separately numbered statements of fact offered by Seaboard. Then, in the joint application for permission to take an interlocutory appeal, Defendants stated that “[t]he briefs filed by the parties . . . made clear that there are no disputed issues of fact in connection with Defendants’ statute of limitations arguments.”
Yet, in their brief to this court, Defendants cite to the motion to dismiss standard discussed in Wachter Management Co.,
Ultimately, however, this difference in the applicable standard does not impede our ability to review dre district court’s decision. The district court treated the additional facts just as they were presented by the parties—as uncontroverted—and considered issues of law based on these uncontroverted facts regarding the interpretation and application of the Kansas saving statute.
This is consistent with the standard that applies to motions for summary judgment:
“Summary judgment is appropriate when the pleadings, depositions, answers to interrogatories, and admissions on file, together with tire affidavits, show that there is no genuine issue as to any material fact and diat the moving party is entitled to judgment as a matter of law. The trial court is required to resolve all facts and inferences which may reasonably be drawn from the evidence in favor of the party against whom tire ruling is sought. When opposing a motion for summary judgment, an adverse party must come forward with evidence to establish a dispute as to a material fact. In order to preclude summary judgment, the facts subject to tire dispute must be material to the conclusive issues in the case. On appeal, we apply the same rulesf,] and where we find reasonable minds could differ as to the conclusions drawn from the evidence, summary judgment must be denied. [Citations omitted.]” Shamberg, Johnson & Bergman, Chtd. v. Oliver,289 Kan. 891 , 900,220 P.3d 333 (2009).
See Thomas v. Shawnee County Comm’rs,
Another consideration applies to our standard of review because our analysis requires us to interpret the Kansas saving statute, K.S.A. 60-518. Interpretation of a statute is a question of law over which this court has unlimited review. Thus, this court is not bound by the district court’s interpretation of K.S.A. 60-518. See Osterhaus v. Toth,
Kansas Saving Statute, K.S.A. 60-518
We begin our analysis by generally considering the provisions of the Kansas saving statute, K.S.A. 60-518, which is critical to the viability of Seaboard’s claims. The statute provides:
“If any action be commenced within due time, and the plaintiff fail in such action otherwise than upon tire 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.”
K.S.A. 60-518 is a saving statute. As this court explained in Denton v. Atchison,
In Waltrip, this court considered whether the Kansas saving statute applies in the circumstance where the first lawsuit was a class action and the second lawsuit was filed by a plaintiff not named in the class action but who had been putative members of the class. After the class action was dismissed by the Sedgwick County District Court because of a failure to meet the numerosiiy requirement of K.S.A. 60-223(a)(l), the second, individual action was filed in Comanche County District Court. The Comanche County District Court found the claims to be time barred under the applicable statutes of limitation and granted the defendants’ motion for summary judgment. The Waltrip plaintiffs appealed, arguing, among other claims, that the applicable statutes of limitation were tolled during the pendency of the class action. They maintained their individual action was timely filed under K.S.A. 60-518. Waltrip,
The Waltrip plaintiffs’ arguments were based on the United States Supreme Court’s holding in American Pipe & Construction Co. v. Utah,
The Waltrip court looked to these United States Supreme Court decisions for guidance “because of the substantial similarity between K.S.A. 60-223 [class actions] and Fed. R. Civ. Proc. 23 [class actions].” Waltrip,
The Waltrip court noted that Kansas does “not have any ‘tolling’ provisions which apply during the pendency of an action.” Waltrip,
“The generally accepted result of a tolling provision is that the statute of limitations does not begin to run, or if begun, is interrupted due to certain factual circumstances. See K.S.A. 60-517. On the other hand, K.S.A. 60-518 does not stop or toll the running of the statute but preserves or saves to the plaintiff six months to file a second action if the statute of limitations has run during the pendency of the first action and that action is dismissed otherwise than on the merits. Jackson v. Oil & Gas Co.,115 Kan. 386 ,222 Pac. 1114 (1924); Denton v. Atchison,76 Kan. 89 , 91,90 Pac. 764 (1907).” Waltrip,234 Kan. at 1064-65 .
Because of the differences between Kansas law and the judicial tolling provisions applied by the Supreme Court, the Waltrip court concluded putative class members could use the Kansas saving statute, but they could not take advantage of the tolling principles of American Pipe and Crown, Cork & Seal. Waltrip,
“To accomplish this purpose it is obvious that the rights of potential members of tire class must be preserved pending the determination of whether the court certifies the action as a class action under K.S.A. 60-223(c)(l). We hold that the right of all putative members of a proposed class in an action filed pursuant to K.S.A. 60-223 to file a separate action is preserved pending the determination of whether the initial case shall be maintained as a class action. If the court refuses to certify the class on the basis of a lack of numerosity (K.S.A. 60-223[a][l]),. . . then the potential members of the class are in the same position for the purposes of filing separate actions as if they had been named plaintiffs in the original action. ... As pointed out in both American Pipe and [Crown, Cork <b- Seal], the pendency of the initial action preserves the rights of potential class members under the applicable statute of limitations.” (Emphasis added.) Waltrip,234 Kan. at 1064 .
The Waltrip court also noted that interpreting the word “plaintiff’ in K.S.A. 60-518 to include putative members of a class was consistent with the purposes of statutes of limitation, which are “ Intended to put defendants on notice of adverse claims and to prevent plaintiffs from sleeping on their rights.’ ” Waltrip,
Under the facts in Waltrip, the court concluded the rights of the Waltrip plaintiffs were preserved under K.S.A. 60-518 during the pendency of the class action. The court stated: “The determination that the proposed class . . . would not be certified as a class was tantamount to a dismissal otherwise than on the merits as to these plaintiffs.” Waltrip,
Seeking application of the holding in Waltrip, Seaboard notes that Defendants have not disputed Seaboard’s status as a putative class member of the MDL lawsuit. Consequently, under the rationale of Waltrip, Seaboard asserts its action against Defendants was preserved during the pendency of the MDL lawsuit.
Defendants disagree, raising the issues we previously outlined: (1) The district court erred in concluding the Kansas saving statute applies even if the first action is filed in another state and (2) the district court erred in concluding the requirements of the Kansas saving statute were satisfied under the undisputed facts of this case.
K.S.A. 60-518 Applies to Any Action
First, Defendants argue this court should reject the application of the Kansas saving statute, K.S.A. 60-518, to situations where the first action was filed in a court other than a Kansas state court. To make this argument, Defendants look to cases from other jurisdictions addressing “cross-jurisdictional tolling,” meaning tolling of one jurisdiction’s statute of limitation under American Pipe where the first action, a class action, was filed in a different jurisdiction. Defendants assert there are three valid policy reasons for rejecting cross-jurisdictional tolling: (1) cross-jurisdictional tolling under American Pipe would undermine state sovereignty, see, e.g., Wade v. Danek Medical, Inc.,
Defendants also rely heavily on a local district court decision, Todd v. F. Hoffman-LaRoche, Ltd., No. 98CV4574 (Kan. D. Ct. 2004). There, the Wyandotte County District Court considered whether filing a class action in the District of Columbia Superior Court tolled die statutes of limitation in Kansas under Waltrip and American Pipe. The district court noted the decisions in Portwood, Ravitch, Maestas, and Wade and those courts’ policy reasons for rejecting cross-jurisdiction tolling. The district court opted to follow those courts’ lead and rejected cross-jurisdiction tolling. Todd, No. 98CV4575, at *7-9.
Defendants ask this court to “join the majority of jurisdictions that have considered this issue and . . . hold that K.S.A. 60-518 does not apply on a cross-jurisdictional basis.” Defendants further assert that “any decision to expand and import federal tolling principles into the Kansas saving statute should be a legislative, not judicial, one.’’
Seaboard, on the other hand, notes that several jurisdictions have adopted cross-jurisdictional tolling and, in doing so, have generally rejected the concerns expressed by those jurisdictions that have declined to apply cross-jurisdictional tolling and have relied instead on the efficiency and notice purposes the United States Supreme Court identified in American Pipe and Crown, Cork & Seal. See, e.g., Lee v. Grand Rapids Bd of Ed.,
More fundamentally, Seaboard stresses that “[djefendants’ reliance on cross-jurisdictional tolling decisions ... is nothing more than a red herring.” In making this argument, Seaboard points out that Todd and the other decisions upon which Defendants’ rely are based on cross-jurisdictional tolling under American Pipe, but tolling was not the basis for the decision in Waltrip. In fact, as noted, the Waltrip court rejected tolling as a rationale for its holding because it had not been provided for by the Kansas Legislature.
As Seaboard suggests, the issue before us is not how we will apply the court-created American Pipe tolling principle. Rather, the question we must determine is whether K.S.A. 60-518 allows an action to be preserved by commencing a legal action in another jurisdiction. The answer to this question lies in the wording of K.S.A. 60-518 and requires us to interpret tire statute.
As always, our statutory analysis must begin with the plain language of the statute. If that language is plain and unambiguous, we do not speculate as to the legislative intent behind it and will not add words to the statute that are not readily found in it. 143rd Street Investors v. Board of Johnson County Comm’rs,
As we examine the language of K.S.A. 60-518, the words that are critical to this issue are among the first: “If any action be commenced within due time.” (Emphasis added.) Defendants’ position requires us to add words to this phrase, malting it read: If any action filed in a Kansas state court be commenced within due time. . . . To justify the addition of these words, Defendants note that the Waltrip court recognized that “the right of all putative members of a proposed class in an action filed pursuant to KS.A. 60-223 to file a separate action is preserved pending the determination of whether the initial case shall be maintained as a class action.” (Emphasis added.) Waltrip,
While the Waltrip holding was narrowly worded, nothing in the decision suggests the court purposefully excluded cases filed in other jurisdictions from the operation of the
In the earliest of these cases, Behen, the plaintiff filed an action in Wyandotte County District Court. After the defendant removed the action to federal court, the plaintiff voluntarily dismissed the action without prejudice and then filed a new action in Wyandotte County District Court. Because the statute of limitation had expired before the second action was filed, the defendant challenged the application of the saving statute to the plaintiff s second action on the ground that the Kansas saving statute “has no application to an action which has been pending or been dismissed in any court except a court of this state.” Behen,
“True, the provisions of the Code [of Civil Procedure] relate generally to steps taken and to be taken in the courts of this state, and the [saving] statute does not attempt to govern the procedure of the courts of other states, nor that of the federal courts; but it by no means follows, as the defendant argues, that in order to toll the statute the action must be commenced and dismissed in one of the courts of the state. It was the evident purpose of the statute to extend the time within which an action might be brought, where for any reason the plaintiff had failed in a previous action otherwise than upon merits.” Behen,85 Kan. at 493-94 .
The court’s indication that the Kansas saving statute is not limited to actions “commenced and dismissed in one of the courts of the state” suggests the statute would apply to actions first filed in another state or jurisdiction. Yet, because the Behen plaintiff s first action was filed in a Kansas state court, we cannot say that Behen controls our decision.
The next time this court addressed the question was in dictum in Jackson,
The Oklahoma court that decided the case cited in Jackson—Herron v. Miller,
This rationale has several weaknesses. First, as the Fourth Circuit Court of Appeals concluded in rejecting the Herron holding, “it is simply untrue that the statute of limitations of a given state never controls the commencement of actions in foreign forums.” Stare v. Pearcy,
Campbell arose from an action first filed in Arizona and then filed in Kansas after the applicable statute of limitation had run. The issue was not whether the Kansas saving statute did or did not apply, because the first action had been filed in Arizona; rather the court considered whether Arizona or Kansas law determined if the first action had been “commenced” in due time as required by the saving statute. The Court of Appeals concluded that Arizona’s procedural law applied to this question, saving the plaintiffs action under K.S.A. 60-518 because Arizona law does not require service of process for an action to be “commenced.” Campbell,
“[K.S.A. 60-518] saves actions ‘commenced within due time/ and it does not explicitly say ‘commenced within due time under KS.A. 60-203.’ (Emphasis added.) Thus, it does not explicitly incorporate the requirement that a suit be served within 90 days to be timely commenced. In our mobile society, the possibility that a suit might be filed in one state, dismissed, and refiled in another is not so remote that no one has thought of it.... Yet the legislature has not explicitly limited the application of the savings statute to cases in which service of process was obtained within 90 days.” Campbell,41 Kan. App. 2d at 5-6 .
See Chatterton v. Roberts,
Although the context of the Campbell court’s consideration of the issue was different from that in Herron or this case, the difference in context does not justify reading words into K.S.A. 60-518. Hence, this court’s dictum in Jackson in reliance on Herron is contrary to choice of law principles, the remedial purpose of K.S.A. 60-518, and the plain meaning of K.S.A. 60-518.
Another reason for rejecting Herron and Jackson was discussed by the Tenth Circuit Court of Appeals in Prince,
“Absent compelling precedent from a state, we see no reason to follow old [dictum as stated in Jackson] when virtually every state has a savings statute and no significant policy would be advanced by holding such a statute inapplicable to actions originally filed in sister states. Defendant here was put on notice of the action in a timely manner and there was no more delay involved than if the action had been filed in the forum state and dismissed there for procedural reasons. Nor wouldholding that a savings statute is inapplicable to actions filed in sister states further any policy of the forum state to protect its citizens from discrimination by other states.” Prince, 720 F.2d at 1169 .
See Garcia v. International Elevator Co., Inc.,
The Tenth Circuit’s decision in Prince and this court’s decision in Jackson were discussed by this court in Goldsmith v. Learjet, Inc.,
In answering this question, the Goldsmith court noted the conflict between this court’s dictum in Jackson and the Tenth Circuit’s holding in Prince but did not resolve it. Ultimately, the Goldsmith court ruled the Kansas borrowing statute would not borrow the Colorado saving statute. Goldsmith,
“The first filing being timely, Kansas jurisdiction attaches at that time, and the timeliness of the subsequent filing is to be determined under the saving provision of K.S.A. 60-518, not K.S.A. 60-516. The original fifing in the Kansas district court was timely under both Colorado and Kansas statutory limitations; thus, under K.S.A. 60-518, the second fifing in the United States District Court was also timely. Therefore, the answer to Certified Question No. 1 is ‘no.’ ” Goldsmith,260 Kan. at 193 .
This view reflects the philosophy of liberally construing the Kansas saving statute to effect its remedial goals, a philosophy that is a consistent theme in this court’s application of the Kansas saving statute.
Sorting through these cases, we conclude there are several principles that control our decision. First, we apply the plain language of the statute rather than base this decision on the policy reasons that underlie the tolling principle of American Pipe & Construction Co. v. Utah,
We hold the Kansas saving statute, K.S.A. 60-518, applies even if the first action was not filed in a Kansas state court.
Seaboard’s Action Meets the Requirements of K.S.A. 60-518
Next, Defendants contend the district court erred in ruling that K.S.A. 60-518 renders Seaboard’s claims timely. In making this argument, Defendants focus on several, but not all, of the requirements that must be satisfied in order for K.S.A. 60-518 to apply.
The first requirement imposed in K.S.A. 60-518 is that the first action must have been “commenced within due time.” Defendants do not raise an issue regarding this requirement. In other words, there has been no suggestion that the earliest of the class actions in which Seaboard was a putative class member was barred by the applicable statutes of limitation.
Second, for K.S.A. 60-518 to apply, the first action must “fail. . . otherwise than upon the merits.” Defendants argue this requirement has not been satisfied. In making this argument, Defendants contend the New Jersey federal district court dismissed the MDL action on the merits when it ruled against the class action plaintiffs on the federal antitrust and racketeering claims and declined to retain jurisdiction over the supplemental state claims. In making this argument, Defendants present two alternatives. Under one, the dismissal—regardless of whether on the merits or not—triggered the beginning of the 6-month grace period of K.S.A. 60-518, making the present case untimely because it was not filed within that 6-month period. In the second alternative, Defendants argue the dismissal was on the merits, meaning Seaboard fails to satisfy the “fails . . . other than upon the merits” condition. In response, Seaboard argues the New Jersey federal district court’s action did not trigger the grace period in K.S.A. 60-518 because the decision was timely appealed and was not a dismissal on the merits of the potential state law claims raised in the present action. To resolve this issue we must consider what, if any, circumstances triggered the grace period of K.S.A. 60-518 and whether there was a failure on the merits. But first we continue our listing of the requirements of K.S.A. 60-518 and the parties’ arguments.
The third requirement of K.S.A. 60-518 is that the limitation period must have expired before the first action was filed. This requirement is not at issue on appeal.
The fourth requirement of K.S.A. 60-518 is that the second action must have been filed within 6 months of the failure of the first action in order for K.S.A. 60-518 to apply. Defendants contend Seaboard failed to satisfy this condition. Again, they rely on the date of the New Jersey federal district court’s dismissal of the federal claims as the date that triggered the 6-month grace period of K.S.A. 60-518.
Additionally, Defendants argue that Seaboard failed to satisfy two requirements that are implied in K.S.A. 60-518. They suggest that for K.S.A. 60-518 to apply a defendant must have been put on notice. Adequate notice, Defendants argue, requires that the claims in the first and second action be substantially similar and that there be an identity of parties. According to Defendants, neither of these requirements is met. Finally, Defendants argue K.S.A. 60-518 does not apply because Seaboard was not a named plaintiff in the MDL class action.
These arguments present five issues for our consideration: (a) Whether the dismissal of the MDL action triggered the running of the grace period of K.S.A. 60-518; (b) whether the MDL action failed “otherwise than upon the merits”; (c) whether this action— the second action—was filed within 6 months of the failure of the first action; (d) whether there is a requirement that Seaboard’s petition be “substantially similar” to the petition or complaint filed in the MDL action and name all the same defendants and, if so, whether these conditions are satisfied; and
As we noted, Defendants maintain the dismissal of the MDL action by the New Jersey federal district court in September 2007 is the event we must look to in determining when the 6-month grace period began to run—when it was triggered—and in determining if there was a failure “otherwise than upon the merits.” Conversely, Seaboard contends the dismissal was not a triggering event because of the timely appeal and the dismissal of the federal claims, which was largely reversed on appeal, was not a failure of the first action.
In arguing the MDL class dismissal by the New Jersey federal district court was the triggering event that began the grace period of K.S.A. 60-518, Defendants rely “by analogy” on numerous federal decisions addressing the effect of the denial of class certification on tolling under American Pipe. For example, in Culver v. City of Milwaukee,
“reliance on tlie possibility of a reversal of the court’s certification decision is ordinarily not reasonable. We dierefore conclude that continued tolling of the statute of limitations after the district court denies class certification is unnecessary to protect any reasonable reliance by putative class members on their former class representatives.” Armstrong v. Martin Marietta Corp.,138 F.3d 1374 , 1381 (11th Cir. 1998).
These cases are not persuasive because the Kansas saving statute does not use “dismissal” as the triggering point. Rather, the grace period of K.S.A. 60-518 is triggered when a plaintiff “fails” in the first action otherwise than on the merits. Thus, unlike these federal cases, it does not matter whether a plaintiff s reliance on an appeal is reasonable or whether class members usually file an appeal.
Also, we note that several federal courts have held that American Pipe tolling continues during the pendency of the class action, including While its certification status is on appeal. See Griffin v. Singletary,
Defendants rely, however, on the Waltrip court’s statement that the second action must be filed within 6 months “of the trial court’s ruling” to be timely. (Emphasis added.) Waltrip,
Defendants cite one other case applying K.S.A. 60-518 and holding that the determination of whether an action has failed under the statute is based on a dismissal at the trial court level, not the termination of an appeal. In that case, Augustine v. Adams,
The defendants again sought summary judgment, arguing in part that the action was barred under the applicable Kansas statute of limitation. The federal district court agreed, rejecting the plaintiff s argument that “ ‘[t]he continued pendency of [her] appeal to the Tenth Circuit tolled the statute of limitations’ so that the refiling of her complaint was not in violation of the statute of limitations.” Augustine,
Augustine is distinguishable from this case, which does not present an issue of whether an appellate court has jurisdiction. Further, in this case both the district court’s and appellate court’s rulings in the MDL action are merit based. Hence, in contrast to Augustine, there is not a question of whether a ruling otherwise than on the merits in an appellate court trumps the district court’s ruling on the merits.
Moreover, to the extent Augustine stands for the proposition that it is always the district court’s ruling that triggers the beginning of the 6-month period in K.S.A. 60-518, that holding is contrary to decisions of this court. For example, in New v. Smith,
Again, this ignores the plain meaning of K.S.A. 60-518; having options does not mean a plaintiff s action has failed as K.S.A. 60-518 requires. Additionally, Defendants’ position ignores the purpose of applying the saving statute to putative class members— avoiding multiple actions—and the repeated statements of this court that it is the pendency of the initial action that preserves the rights of potential class members under K.S.A. 60-518. E.g., Waltrip,
While these cases do not expressly address the present issue, the message that can be gleaned from them is that it is the pendency of the first action that preserves a plaintiff s claims. This interpretation comports with the language of the saving statute. K.S.A. GO-SIS provides that plaintiffs have 6 months from the date they “fail” in their first action “otherwise than upon the merits” to commence a new action. The statute says nothing about “dismissal,” the key word in the federal cases cited by Defendants, and does not expressly provide that it is failure in the district court that triggers the 6-month grace period.
b. Otherwise Than on the Merits
Defendants also cite to a few federal district courts that have concluded that dismissal of a class action on the merits ends tolling under American Pipe. See, e.g., Lloyd v. General Motors Corp.,
We disagree. For many of the same reasons we have discussed, the pendency of the appeal in the MDL action means there was not a failure otherwise than on the merits when the New Jersey federal district court dismissed the MDL class action plaintiffs’ federal claims and refused to retain supplemental jurisdiction over the state claims because a timely appeal was taken. Ultimately, it was established the New Jersey federal court’s ruling was erroneous, at least in large part, and the appellate court reinstated the state claims that overlap with the claims in the present case. In summary, while we do not address a situation such as presented in Augustine,
We further conclude the New Jersey federal district court’s dismissal of the MDL action does not mean Seaboard “fail[ed] in such action otherwise than upon the merits” at that point. See K.S.A. 60-518. Rather, the action continued—in other words, was pending—after a timely appeal was filed; the class action plaintiffs, including putative members of the class,- had not failed at .the point of dismissal because diat judgment was not final. The MDL action illustrates this point because the MDL action was ultimately reinstated on many, although not all, claims. Even if the plaintiffs had not succeeded on appeal, there would not have been a completed failure of the action until the appeal ended.
On appeal, Defendants do not take issue with the proposition that a decision to opt out of a class action can be a dismissal otherwise than on the merits that would trigger the beginning of the 6-month grace period of K.S.A. 60-518. Rather, they argue that circumstance does not apply in this case because the New Jersey federal district court’s dismissal of the MDL class action triggered the beginning of the 6-month period and that a decision to opt out of the class cannot start a new 6-month period. Because we have held the dismissal did not trigger the 6-month period and the appeal continued to preserve the rights of the class action plaintiffs, we find no merit to Defendants’ argument.
Because Defendants have waived any other arguments regarding the “otherwise than on the merits” requirement, we conclude the 6-month grace period of K.S.A. 60-518 began running as to Seaboard’s claims against Marsh when Seaboard elected to opt out of the global settlement and K.S.A. 60-518 can be utilized because this opt out was a failure “otherwise than upon the merits.” See State v. Raskie,
c. Within 6 Months of Such Failure
The next question we must resolve in determining whether Seaboard’s action meets the requirements of K.S.A. 60-518 is whether this present action was filed within 6 montírs of the failure of die class action. Seaboard exercised its right to opt out of Marsh’s global settlement on October 17, 2008. It was almost a year later before Seaboard filed diis second action. Consequently, the timeliness of Seaboard’s action depends on the combination of the opt out and the tolling agreement with Marsh in which Seaboard and Marsh agreed to toll all statutes of limitation and other time-related defenses and causes of action for 1 year from the date of the agreement. Seaboard filed its present action in district court on October 16, 2009, 1 day before the tolling agreement was set to expire. Defendants do not challenge the propriety of the tolling agreement or Seaboard’s combined use of the saving statute and the tolling agreement to make its action timely. Hence, we conclude the action against Marsh was timely filed.
A different analysis is required for AIG because AIG was not a party to the tolling agreement between Seaboard and Marsh. Likewise, AIG was not a party to the settlement agreement. Nevertheless, beyond one parenthetical in their brief, “(and it never entered into such an agreement with AIG),” and one statement in their reply brief, “Putting aside the fact that Seaboard does not explain how its opt-out from the Marsh settlement—as opposed to the September 2007 dismissal—could have constituted the relevant failure of the action as against non-settling AIG,” Defendants have solely relied on the New Jersey federal district court’s dismissal of the MDL action as being the triggering event for the 6-month grace period for both Marsh and AIG. They have presented no alternative argument in the event we decided, as we have, that the dismissal was not the triggering event. Consequently, AIG has abandoned any argument drat Seaboard’s filing of this action, while the MDL appeal involving AIG was still pending, was not a voluntary opting out of the class action against AIG and the equivalent of a voluntary dismissal. See Raskie,
Hence, Defendants’ argument that Seaboard’s action was not filed within the 6-month saving period of K.S.A. 60-518 is without merit.
Next, Defendants argue Seaboard’s action is not “substantially similar” to the complaint in the MDL lawsuit, as required for application of K.S.A. 60-518. Defendants maintain that counts III to VIII in Seaboard’s petition—fraud, negligent misrepresentation, breach of implied duty of good faith and fair dealing, breach of contract, tortious interference with a prospective business advantage or relationship, and civil conspiracy—were not asserted as causes of action in the MDL lawsuit. As such, Defendants maintain that K.S.A. 60-518 has “no application whatsoever” to Seaboard’s petition and, thus, “none of [Seaboard’s] claims are saved.” Additionally, Defendants argue that because the defendants in the MDL lawsuit and the present action are not “identical,” meaning because Seaboard has not named all 76 defendants that were named in the MDL lawsuit, the saving statute does not apply.
Seaboard counters that Kansas law does not require that the original suit and second suit be “identical” for application of the saving statute. Rather, Seaboard asserts that the district court correctly determined that because Seaboard’s action and the MDL lawsuit were “ ‘based upon the same factual occurrences and similar allegations’ ” Seaboard’s action is substantially similar to the MDL complaint.
Defendants rely on Johnson v. Railway Express Agency,
As Defendants point out, in a concurring opinion in Crown, Cork & Seal, Justice Powell cautioned that the tolling rule announced in American Pipe & Construction Co. v. Utah,
“It is important to make certain, however, that American Pipe is not abused by the assertion of claims that differ from those raised in the original class suit. . . . [W]hen a plaintiff invokes American Pipe in support of a separate lawsuit, the district court should take care to ensure that the suit raises claims that ‘concern the same evidence, memories, and witnesses as the subject matter of the original class suit,’ so that ‘the defendant will not be prejudiced.’ [Citation omitted.] Claims as to which the defendant was not fairly placed on notice by the class suit are not protected under American Pipe and are barred by the statute of limitations.” Crown, Cork & Seal,462 U.S. at 355 (Powell, J., concurring).
As with all other issues presented in this case, there is a split of authority among courts addressing what this passage was intended to mean and regarding how similar the two actions must be in order for American Pipe tolling to apply. Some courts have required exact identity of claims between the two causes of actions. In most of these
Again, the key to this issue is what our court has required under K.S.A. 60-518. Unfortunately, there is sparse guidance in Kansas on this issue. In Thompson v. Railway Co.,
The Court of Appeals addressed the issue, however, in Taylor v. International Union of Electronic Workers,
Despite the lack of clear guidance in our previous caselaw, we are persuaded that tire substantially similar test should be applied. There are several considerations that lead us to this conclusion.
First, applying the substantially similar doctrine rather than requiring identical claims is consistent with a liberal construction of K.S.A. 60-518 and furthers its remedial purpose. Under a liberal construction, the key to claim preservation is that both actions arise from the same factual occurrences and that the first action adequately puts a defendant on notice of a plaintiff s purpose. See, e.g., Griffen v. Big Spring Indep. School Dist.,
Second, a focus on whether there was adequate and fair notice is consistent with this court’s statement in Waltrip v. Sidwell Corp.,
Finally, imposing a substantial similarity test comports with notice pleading and places a defendant in essentially the same position a defendant would have been in if the plaintiff had filed the original action and then filed an amended petition. Cf. K.S.A. 60-215(c) (amended claims relate back if the new claims arise “out of tire conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading”).
Consequently, we hold that in order for K.S.A. 60-518 to apply, the second lawsuit need not be identical to the first action as long as the two actions concern the same conduct, transaction, or occurrence and the first action provides adequate notice to the defendant.
Next, we must determine if these requirements are met in this case. Seaboard raised eight causes of action in its petition filed with the Johnson County District Court: (1) violation of the KRTA, K.S.A. 50-101 et seq.; (2) faithless servant; (3) fraud based on Marsh’s false representation that it was working for Seaboard and in Seaboard’s best interests; (4) negligent misrepresentation based on Marsh’s false representation; (5) breach of implied duty of good faith and fair dealing by engaging in conduct that destroyed Seaboard’s rights to receive the benefits expected under the contract; (6) breach of contract; (7) tortious interference with a prospective business advantage or relationship that prevented Seaboard from receiving a legitimate insurance bid; and (8) civil conspiracy. The MDL lawsuit asserted six causes of action: (1) federal racketeering violations, pursuant to 18 U.S.C. § 1961 et seq. (2006); (2) violations of Section 1 of the Sherman Antitrust Act, 15 U.S.C. § 1; (3) violation of the antitrust laws of 48 states, including Kansas and the District of Columbia; (4) breaches of statutory and common-law-based fiduciary duties; (5) aiding and abetting breach of fiduciaiy duty; and (6) unjust enrichment. In re Insurance Brokerage Antitrust Litigation, Nos. 04-5184, 05-1079,
Seaboard argues: “Each and every cause of action pled by Plaintiff in this litigation
The district court concluded that because Seaboard’s action was based upon the same factual occurrences and similar allegations as the MDL lawsuit, claim preservation under K.S.A. 60-518 was appropriate. We agree. There is little question that both actions were based on the same underlying allegations of a bid-rigging conspiracy between Marsh and various insurance companies, including AIG. Moreover, while the claims raised in the complaints are not identical, Seaboard has pointed to a substantial similarity between the basic allegations raised in the MDL lawsuit and those raised by Seaboard in the present case to have put the Defendants on notice of the potential claims.
Finally, Defendants argue there is not substantial similarity between the actions because every defendant named in the MDL lawsuit was not named in the present action. To support their argument, Defendants cite Taylor,
We disagree with the conclusion that all defendants in the first action have to be named in the second action. The critical point is that both Marsh and AIG were named in the MDL action and had notice of the potential claims against them. To require a plaintiff asserting an individual action to name every defendant named in a class action, many of whom a plaintiff may have no complaint against, amounts to “court-ordered malicious prosecution.” Westerbeke & McAllister, Survey of Kansas Tort Law: Part I, 49 U. Kan. L. Rev. 1037, 1136 (June 2001). Moreover, such a requirement would contravene the purpose of tire application of K.S.A. 60-518 in the class action context. We conclude 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.
In this case, the second action is sufficiently similar to the MDL class action to have provided adequate notice to Defendants.
e. Plaintiff in First Action
Finally, seemingly spurred by Seaboard’s request that this court apply the plain language of K.S.A. 60-518, Defendants argue in their reply brief that K.S.A. 60-518 requires the plaintiff in both the original and the saved action to be the same and that Seaboard was not the plaintiff that commenced the original action.
This argument fails. First, Defendants raise this argument for the first time in their reply brief. “ ‘A new legal theoiy may not be asserted for the first time on appeal or raised in a reply brief. [Citation omitted.]’ ” Mynatt v. Collis,
Conclusion
In both American Pipe and Crown, Cork & Seal, the United States Supreme Court emphasized the necessity of balancing the competing policies of encouraging economy of litigation through class actions guaranteeing fairness to defendants through notice of claims and barring claims of plaintiffs who have slept on their rights. This court echoed those concerns in Waltrip. These policy considerations and the plain language of K.S.A. 60-518 support the district court’s conclusion in this case. Seaboard has satisfied the requirements of the Kansas saving statute, and its action against Defendants was timely filed.
Affirmed.