Jefferies v. United Rotary Brush Corp. ( 2022 )

No. 124,140
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
JASON L. JEFFERIES,
Appellant,
v.
UNITED ROTARY BRUSH CORPORATION, et al.,
Appellees.
SYLLABUS BY THE COURT
1.
The dual capacity doctrine, first recognized in Kimzey v. Interpace Corp., 10 Kan.
App. 2d 165, 167, 694 P.2d 907 (1985), is a judicially recognized exception to the
exclusive remedy provision of the Workers Compensation Act. Under this exception, an
employer may be liable to its employee as a third-party tortfeasor if the employer has
obligations to the employee independent of those imposed on it as an employer.
2.
The dual capacity doctrine does not apply when a machine manufactured by the
employer injures the employee since the employer has a duty to its employees to maintain
a safe work environment.
1
Appeal from Johnson District Court; JAMES F. VANO, judge. Opinion filed July 1, 2022.
Affirmed.
Michael W. Blanton, of Gerash Steiner P.C., of Evergreen, Colorado, John M. Parisi, of Parisi
Law Firm, of Overland Park, and Jim Lemonds, of Brown & Crouppen, of St. Louis, Missouri, for
appellant.
Lee M. Baty and Morgan L. Simpson, of Baty Otto Coronado PC, of Kansas City, Missouri, for
appellees.
Before BRUNS, P.J., CLINE, J., and JAMES L. BURGESS, S.J.
CLINE, J.: Jason L. Jefferies received workers compensation benefits from his
employer, United Rotary Brush Corporation (URBC), after he was injured at work while
operating a convoluted press machine. He then filed a civil suit against URBC (and
several related entities) alleging negligent design and manufacture of the press machine.
Jefferies claimed URBC was civilly liable under the dual capacity doctrine, a judicially
recognized exception to the exclusive remedy provision of the Workers Compensation
Act. See Kimzey v. Interpace Corp., 10 Kan. App. 2d 165, 166-67, 694 P.2d 907 (1985).
Under this exception, an employer may be liable to its employee as a third-party
tortfeasor if the employer has obligations to the employee independent of those imposed
on it as an employer. 10 Kan. App. 2d at 167.
The district court dismissed Jefferies' case on summary judgment after finding
URBC manufactured the press machine. The dual capacity doctrine does not apply when
a machine manufactured by the employer injures the employee since the employer has a
duty to its employees to maintain a safe work environment. 10 Kan. App. 2d at 167-68.
As a result, Jefferies was barred from another recovery out of URBC. It also denied
Jefferies' untimely motion to amend his petition to add another party, which he filed
2
while the summary judgment motion was pending. Jefferies appeals both decisions. After
a careful review of the record, we find no error and affirm.
Jefferies' Civil Suit
On March 7, 2019, Jefferies filed a civil suit against URBC and five related
entities (Defendants). He alleged that on March 8, 2017, while operating a press machine
on the job for URBC in Lenexa, Kansas, a brush wafer became lodged. As he tried to
dislodge it, the machine activated and crushed his left arm and hand. He sued for
negligence, breach of warranty, and strict liability based on the design and manufacture
of the machine. He claimed Defendants were subject to civil tort liability for his injury
under K.S.A. 44-504(a) and the dual capacity doctrine because he alleged URBC had
acquired the entity that manufactured the machine "through an asset purchase, stock
purchase and/or merger with a predecessor corporation or business entity that designed,
manufactured, built, or assembled the machine."
Summary Judgment Motion
In August 2020, Defendants moved for summary judgment, on the basis that the
claims against URBC were barred by the exclusive remedy provision of the Workers
Compensation Act.
URBC merged with another company in 2008 (URB Sub., Inc.). Defendants
claimed the press machine was manufactured after the merger and Jefferies claimed it
was manufactured before the merger. The district court found this dispute immaterial
since it found URBC survived the 2008 merger, meaning it was the same company before
and after the merger. Thus, no matter when the press machine was manufactured, URBC
(Jefferies' employer) was the manufacturer, so the dual capacity doctrine did not apply.
3
The district court relied on Section 2.1 of the 2008 merger agreement to support
this finding:
"'The Merger. On the terms and subject to the conditions contained in this
Agreement, at the Effective Time, in accordance with this Agreement and the KGCC,
Merger Sub shall merge with and into the Company, the Company shall continue as the
Surviving Corporation and the separate corporate existence of Merger Sub shall cease.'"
The merger agreement defined URBC as the "Company."
Motion to Amend to Add URB of Canada
At the December 2, 2020 hearing on Defendants' motion for summary judgment,
Jefferies' attorney mentioned he had learned during depositions taken in August 2020,
that the individual who designed the press machine (Harry Vegter) was an employee of
URB of Canada, a wholly owned subsidiary of the holding company that also owns
URBC. The attorney mentioned he intended to file a motion to amend the complaint to
bring in URB of Canada. And, on December 23, 2020 (while the court's summary
judgment decision was still pending), Jefferies moved for leave to file his first amended
petition to add URB of Canada as a defendant under K.S.A. 2020 Supp. 60-215(a)(2) and
(c)(3). Defendants opposed the motion. The district court heard Jefferies' motion on
February 3, 2021, and took the matter under advisement. Jefferies then filed a new
motion on February 4, 2021, titled "Plaintiff's Motion for Leave to File First Amended
Petition to Add United Rotary Brush of Canada as a Party Out of Time." Defendants
opposed this motion as well.
The district court denied Jefferies' motions to amend on the same day it issued its
summary judgment order. The court determined that Jefferies' proposed amendment
would not relate back to the original pleading date because it did not find Jefferies
mistakenly named the wrong defendant when he filed his petition. And if he was
4
mistaken, the court found he should have moved to amend sooner. The case management
order deadline for amendments to pleadings was November 2, 2020, and Jefferies never
sought to extend it. The court pointed out that Jefferies received documents through
discovery referencing URB of Canada's existence and potential involvement long before
this deadline ran. Without relation back, the court found it would be futile to name URB
of Canada now as a defendant since the claims were barred by the statutes of limitations.
It also held that allowing the belated amendment would be prejudicial to URB of
Canada and the other defendants, since it would require more discovery regarding URB
of Canada's potential involvement in manufacturing the press machine years after the
injury occurred, when memories had faded. And, last, it denied Jefferies' claim that the
Kansas Supreme Court administrative orders suspending statutes of limitations and
statutory deadlines during the COVID-19 pandemic extended Jefferies' deadline to name
additional parties.
The district court correctly granted summary judgment to Defendants.
Jefferies argues the district court erred in granting summary judgment because he
claims URBC emerged from the 2008 merger a new company, so the dual capacity
doctrine applies. He claims the court misconstrued the 2008 merger documents when it
found URBC remained intact through the merger. He also contends Defendants admitted
in their summary judgment briefing that URBC emerged as a new company from the
merger.
To begin, URBC correctly notes that Jefferies did not object to the entry of
summary judgment as to the remaining defendants in his brief, and so he has abandoned
any such arguments. See Russell v. May, 306 Kan. 1058, 1089, 400 P.3d 647 (2017)
("Issues not adequately briefed are deemed waived or abandoned."). We will thus only
address the arguments against URBC.
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Standard of Review
We consider appeals from a district court's ruling on a motion for summary
judgment de novo, applying the same standards the district court applied:
"'Summary judgment is appropriate when the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, show that there is no
genuine issue as to any material fact and that 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 the 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 the dispute must be material to the conclusive
issues in the case. On appeal, we apply the same rules and where we find reasonable
minds could differ as to the conclusions drawn from the evidence, summary judgment
must be denied.' [Citations omitted.]" Hammond v. San Lo Leyte VFW Post #7515, 311
Kan. 723, 727, 466 P.3d 886 (2020).
In a negligence action, summary judgment is proper if the only question presented
is a question of law. Manley v. Hallbauer, 308 Kan. 723, 726, 423 P.3d 480 (2018)
("Generally, granting summary judgment in negligence cases must be done with caution.
But '[a]n exception . . . applies when the only question presented is one of law.'"). The
overall question here is a question of law—whether the dual capacity doctrine applies.
And this court exercises de novo review over questions of law. 308 Kan. at 726. We must
also interpret the 2008 merger agreement, which is another matter of law over which we
have unlimited review. See First Security Bank v. Buehne, 314 Kan. 507, 510, 501 P.3d
362 (2021) ("'Our review over the interpretation and legal effect of written instruments is
unlimited, and we are not bound by the lower courts' interpretations of those
instruments.'").
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The Exclusive Remedy Provision of the Workers Compensation Act
The exclusive remedy provision of the Workers Compensation Act, K.S.A. 2020
Supp. 44-501b(d), provides:
"Except as provided in the workers compensation act, no employer, or other
employee of such employer, shall be liable for any injury, whether by accident, repetitive
trauma, or occupational disease, for which compensation is recoverable under the
workers compensation act . . . ." (Emphasis added.)
Kansas courts interpret this provision to mean that an injured employee cannot
maintain a civil action against his or her employer or another employee for damages
based on common-law negligence if that injured employee could have recovered
compensation for their injury under the Workers Compensation Act. Hawkins v.
Southwest Kansas Co-op Svc., 313 Kan. 100, 103, 484 P.3d 236 (2021) (referencing
K.S.A. 2019 Supp. 44-501b[d], providing, "if an injured worker could have recovered
compensation for an injury under the Act, the worker cannot bring an action against the
employer or another employee for damages based on common-law negligence"); Endres
v. Young, 55 Kan. App. 2d 497, 500, 419 P.3d 40 (2018) ("K.S.A. 2015 Supp. 44-501b[d]
states clearly that no civil suit is permitted if 'compensation is recoverable under the
workers compensation act.'").
The Dual Capacity Doctrine
One exception to the exclusive remedy provision, permitting civil claims against
the employer, is the dual capacity doctrine. This doctrine was first recognized in Kansas
in Kimzey, 10 Kan. App. 2d 165.
In Kimzey, David Kimzey was injured while operating a pyramid roll machine in
the course of his employment with Interpace Corporation, Inc. After receiving workers
7
compensation benefits from Interpace, Kimzey then brought a products liability action
against Interpace based on the design and manufacture of the roll machine. He claimed
his injury was because of the machine manufacturer's negligence, design defect, and
breach of warranty in designing and manufacturing the machine. Interpace was not the
manufacturer of the machine—Lock Joint Pipe Co. was. But Kimzey claimed Interpace
was liable to him under the dual capacity doctrine because Lock Joint had dissolved and
merged into another corporation, which later merged into Interpace, and "[a]s a part of
the merger agreement, Interpace contracted to assume 'all debts, liabilities, restrictions,
duties, and obligations' of Lock Joint." 10 Kan. App. 2d at 165. The district court granted
Interpace's motion for summary judgment because Kimzey's exclusive remedy against his
employer was under the Workers Compensation Act. 10 Kan. App. 2d at 166.
The Court of Appeals began by discussing the dual capacity doctrine's origin. The
court explained that under the exclusive remedy provision, if an employee recovered
benefits under the act, he could not maintain a common-law negligence action against his
employer for damages. 10 Kan. App. 2d at 166. But the court noted that if the negligence
of a "third person not in the same employ as the injured worker" caused the injury, the
worker could pursue workers compensation and also pursue an action against the third
person. (Emphasis added.) 10 Kan. App. 2d at 167 (basing allowance of civil claim
against third person on K.S.A. 1983 Supp. 44-504[a]); see also K.S.A. 44-504(a) (current
version of the statute supporting same proposition). The allowance of third-party liability
under these circumstances led to the dual capacity doctrine:
"According to the dual capacity doctrine, an employer who is generally immune
from tort liability to an employee injured in a work-related accident may become liable to
his employee as a third-party tortfeasor if he occupies, in addition to his capacity as an
employer, a second capacity that confers upon him obligations independent of those
imposed upon him as an employer. It is in this second capacity that liability to an
employee may be imposed." 10 Kan. App. 2d at 167.
8
The Kimzey court then quoted a discussion from the Oklahoma Supreme Court on
when it was appropriate to apply the dual capacity doctrine:
"'This concept of duality, which confers third party status upon the employer, is more
meaningful when viewed in terms of an employer having a dual persona. An employer
may become a third person if he possesses a second persona so completely independent
from and unrelated to his status as an employer, that by established standards, the law
recognizes it as a separate legal person.'" 10 Kan. App. 2d at 167.
Significant here, the Kimzey court also noted:
"The [Oklahoma Supreme] [C]ourt, in accordance with the great weight of
authority in this country, rejected application of the dual capacity doctrine under a
products liability theory in cases where the employer manufactures, distributes or installs
a product used in the employee's work on the ground that the employer's duty to provide a
safe workplace for its employee and its duty as a manufacturer to make a safe product are
so inextricably intertwined that it cannot logically be separated into two distinct legal
persons." (Emphases added.) 10 Kan. App. 2d at 167-68.
The Kimzey court began its analysis by first noting: "If the roll machine involved
in this case had been manufactured by defendant Interpace, it is clear that workers'
compensation would be plaintiff's exclusive remedy." (Emphasis added.) 10 Kan. App. 2d
at 168. The court also noted that if Lock Joint was still in existence, the plaintiff could
sue it as a third-party tortfeasor. But the court held these were not the issues at hand,
because the plaintiff was asserting that his employer, Interpace, was liable based on the
tortious conduct of a third party, Lock Joint. 10 Kan. App. 2d at 168. Because this was an
issue of first impression in Kansas, the Kimzey court turned to a factually similar case
from New York, Billy v. Consolidated Mach. Tool Corp., 51 N.Y.2d 152, 432 N.Y.S.2d
879, 412 N.E.2d 934 (1980), which held:
9
"[W]here the employer's liability is alleged to arise solely by reason of its independent
assumption, by contract or operation of law, of the obligations of a third-party tortfeasor,
the exclusivity provisions of the workers' compensation law do not bar a common law
action by an employee against his employer for injuries sustained in the course of his
employment." (Emphasis added.) 10 Kan. App. 2d at 169 (citing Billy, 51 N.Y.2d at 156).
The Kimzey court held that applying the dual capacity doctrine would be
appropriate under certain exceptional circumstances, explaining:
"The doctrine should not be used for the purpose of simply evading the
exclusivity provision of the Workmen's Compensation Act. When properly applied, it
will be limited to those exceptional situations where the employer-employee relationship
is not involved because the employer is acting as a second persona unrelated to his status
as an employer, that confers upon him obligations independent of those imposed upon
him as an employer. As such, it will not defeat the purposes or policies of the act. Nor, in
our view, will it erode the employer's immunity under the exclusivity provision of the act
where the claim of liability is properly within the purview of the act. [Citations omitted.]"
(Emphasis added.) 10 Kan. App. 2d at 170.
After noting the "Plaintiff's action [was] essentially an attempt to recover from a
third-party manufacturer of a defective machine through a suit against its successor
corporation," the Kimzey court ultimately held:
"Interpace, the successor corporation, by reason of the merger and its agreement to
assume the liabilities of Lock Joint, the third-party manufacturer, stands in the shoes of
Lock Joint with respect to the question of liability. Since Lock Joint had no basis to
invoke the exclusivity provision of the Workmen's Compensation Act against plaintiff,
Interpace is similarly precluded here." (Emphases added.) 10 Kan. App. 2d at 170.
In total, there are only two Kansas cases in which an injured employee tried to use
the dual capacity doctrine in Kimzey to avoid the exclusive remedy provision—but in
both cases, the court declined to apply the doctrine. See Scott v. Wolf Creek Nuclear
10
Operating Corp., 23 Kan. App. 2d 156, 157-58, 161-62, 928 P.2d 109 (1996) (declining
to apply the doctrine to confer tort liability on employer and physician's assistants
employer hired to treat employees when physician's assistants negligently treated
employee for non-work-related injury); Hill v. Wenger Manufacturing, Inc., No. 71,288,
1995 WL 18252810, at *2-3 (Kan. App. 1995) (unpublished opinion) (declining to
extend doctrine to employer-manufactured product intended for sale to the public). Thus,
to date, we have found no cases where the Kansas courts have extended the dual capacity
doctrine to any factual situation other than that presented in Kimzey.
The district court correctly found the dual capacity doctrine does not apply.
Jefferies raises two arguments on why the dual capacity doctrine applied here: (A)
the 2008 transaction was a consolidation that created a new entity rather than a merger, or
the 2008 agreement was at best ambiguous as to whether the parties intended for the
transaction to be a merger or a consolidation, making it a question for the jury; and (B)
even treating the 2008 transaction as a merger, the dual capacity doctrine applies because
the key factor is not whether it was a merger or a consolidation, but whether the emerging
entity assumed the liabilities of the pre-existing entities, and here it was undisputed that
URBC assumed the liabilities of the merging entities.
The district court correctly found the 2008 transaction was a merger.
As to this first point, Jefferies presents three arguments on how the record shows
that a new entity was formed in the 2008 transaction: (1) one of Defendants' proposed
uncontroverted statements of fact is effectively an admission that a new entity was
formed in the 2008 transaction; (2) the entity that emerged from the 2008 transaction was
a new entity because it had different articles of incorporation, bylaws, directors, and
officers than the pre-merger URBC; and (3) there would have been no reason for the
2008 agreement's language conveying that the emerging corporation would assume the
11
liabilities of the pre-existing entities if the URBC that emerged was the same as the prior
URBC. Like the district court, we are unpersuaded.
1. Defendants' uncontroverted statement of fact
Jefferies claims URBC "admitted that a new company was formed as a result of
the 2008 transaction" in its summary judgment brief. Jefferies is referring to paragraph
five of Defendant's statement of uncontroverted facts: "5. On August 29, 2008, United
Rotary Brush Corporation merged with URB Merger Sub, Inc. to form United Rotary
Brush Corporation." But this statement does not support the notion that a new entity was
formed in the 2008 transaction. Quite the opposite since the post-merger company had
the same name as the pre-merger company. We agree with the district court that this
statement does not say or mean URBC ceased to exist or emerged as a new company.
And such a reading conflicts with the clear language of the 2008 merger agreement.
Thus, we agree Defendants did not make the admission Jefferies claims.
2. Different articles of incorporation, bylaws, directors, and officers
Second, Jefferies argues the post-merger entity was a new entity despite having
the same name because the post-merger entity had different articles of incorporation,
bylaws, directors, and officers than the pre-merger entity. First, he cites no legal authority
to support the proposition that the surviving entity from a merger is a different entity than
it was before the merger if it amended its articles of incorporation and bylaws and
changed its directors and officers in the merger. He has abandoned this argument by
failing to support it with any legal authority. See Russell, 306 Kan. at 1089 ("Issues not
adequately briefed are deemed waived or abandoned.").
Next, the district court correctly found that Kansas corporate law does not support
Jefferies' argument. The Kansas statute on mergers and consolidations provides that with
12
a merger, the agreement of merger must state: "such amendments or changes in the
articles of incorporation of the surviving corporation as are desired to be effected by the
merger, which amendments or changes may amend and restate the articles of
incorporation of the surviving corporation in their entirety." K.S.A. 2020 Supp. 17-
6701(b). In other words, the surviving corporation can change its articles of incorporation
while remaining the same entity following the merger—evident from the fact that it is
called the "surviving corporation" in the statute's language. (Emphasis added.) K.S.A.
2020 Supp. 17-6701(b). Again, we agree this change does not mean the parties intended
post-merger URBC to be a new entity.
3. Assumption of liabilities of pre-existing entities
Another reason why Jefferies claims the 2008 merger created a new entity is
because the post-merger entity agreed to assume the liabilities of the pre-existing entities.
The specific sections of the agreement the parties raised on this issue provide:
"2.1. The Merger. On the terms and subject to the conditions contained in this
Agreement, at the Effective Time, in accordance with this Agreement and the KGCC,
Merger Sub shall merge with and into the Company, the Company shall continue as the
Surviving Corporation and the separate corporate existence of Merger Sub shall cease.
"2.2 Effect of the Merger. Immediately following the Merger, the Surviving
Corporation shall, with the effect set forth in the KGCC and this Agreement, (a) possess
all the rights, privileges, immunities and franchises, both public and private, of the
Constituent Entities, (b) be vested with all property (whether real, personal or mixed), all
debts due on whatever account, all other causes of action and all and every other interest
belonging to or due to each of the Constituent Entities, and (c) be responsible and liable
for all the obligations and liabilities of each of the Constituent Entities."
Jefferies argues the language in Section 2.2(c) evidences the parties intended to
create a new entity because "[t]here would be no reason to include this language if the
corporation which emerged was the same as the prior corporation that shared the same
13
name." We disagree. It is reasonable to assume the parties included this provision to
clarify that URBC would still be liable for its pre-merger liabilities or obligations along
with any pre-merger liabilities and obligations of URB Merger Sub., Inc. That is, the
purpose of the merger was not to shed pre-merger liabilities and obligations of either
entity.
More importantly, when this provision is viewed in context, we do not find the
parties intended to create a new entity with the merger. We cannot read this contractual
provision in isolation; we must interpret it in the context of the entire 2008 merger
agreement. Russell v. Treanor Investments L.L.C., 311 Kan. 675, 680, 466 P.3d 481(2020) ("'[I]nterpretation of a contractual provision should not be reached merely by
isolating one particular sentence or provision, but by construing and considering the
entire instrument from its four corners.'"). To that end, we note the agreement is entitled,
"Agreement and Plan of Merger." The introductory paragraph of the agreement specifies
that URBC is known as "the 'Company'" throughout the agreement and that URB Merger
Sub., Inc. is known as "Merger Sub." And Section 2.1 specifies that "the Company
[URBC] shall continue as the Surviving Corporation." The statement in Section 2.1 that
"the separate corporate existence of Merger Sub shall cease" also supports this conclusion
because there is no equivalent statement providing that URBC's existence shall cease
after the merger.
When viewed in context, we do not find the parties intended post-merger URBC to
be a new entity, nor do we find the agreement ambiguous in that regard.
Jefferies misconstrues Kimzey and overstates the significance of the assumption of
liability language.
Jefferies contends that even if the 2008 transaction was a merger, the dual capacity
doctrine still applies because URBC assumed the liabilities of the merging entities. To
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support this contention, he claims "the key factor in applying the dual capacity doctrine is
not the nature of the underlying transaction (i.e., merger or consolidation), but the fact
that the emerging entity assumes the liabilities of the pre-existing entities." He gleans this
statement from Kimzey's discussion of a New York case, Billy v. Consolidated Mach.
Tool Corp.: "As a part of the merger, the defendant corporation contracted to assume the
liabilities and obligations of the predecessor corporations, including those of the
corporation that had designed and manufactured the defective machine." Kimzey, 10 Kan.
App. 2d at 169.
Jefferies misconstrues this statement and Kimzey's holding. As discussed earlier, it
is not enough for the employer to merely assume the liabilities of "the pre-existing
entities" to trigger application of the dual capacity doctrine. The employer had to assume
the liabilities of the third-party tortfeasor. And again, this is because the employer must
be sitting in the shoes of a third-party to get around the exclusive remedy provision in the
Workers Compensation Act. See Kimzey, 10 Kan. App. 2d at 170 ("Interpace, the
successor corporation, by reason of the merger and its agreement to assume the liabilities
of Lock Joint, the third-party manufacturer, stands in the shoes of Lock Joint with respect
to the question of liability." [Emphasis added.]); K.S.A. 44-504(a) (permitting injured
worker to take compensation under the act and pursue civil action against third party not
"in the same employ" that caused worker's injury). Under the facts here, the employer,
URBC, would have had to assume the liabilities of a third-party entity that manufactured
the machine. See Kimzey, 10 Kan. App. 2d at 168, 170 ("If the roll machine involved in
this case had been manufactured by defendant Interpace, it is clear that workers'
compensation would be plaintiff's exclusive remedy. . . . Nor, in our view, will [the dual
capacity doctrine] erode the employer's immunity under the exclusivity provision of the
act where the claim of liability is properly within the purview of the act."). But that did
not happen—URBC assumed its own liabilities and that of URB Sub. Inc. (which no one
identifies as a manufacturer of the press machine).
15
Jefferies continues down his misguided path by claiming that after Kimzey,
"Kansas Courts have continued to recognize that where a claim arises by virtue of 'an
independent contractual obligation voluntarily assumed' by the employer, the exclusivity
provisions do not apply to bar that claim," citing to Estate of Bryant v. All Temperature
Insulation, Inc., 22 Kan. App. 2d 387, 396, 916 P.2d 1294 (1996). But Jefferies
misrepresents the holding in Estate of Bryant by neglecting to include the second half of
the court's holding: "The 'exclusive remedy' provision of K.S.A. 44-501(b) does not bar
the enforcement of an independent contractual indemnification obligation voluntarily
assumed by a statutory employer in favor of a third party where the claim of liability is
outside the purview of and bears no relationship to the Workers Compensation Act."
(Emphasis added.) 22 Kan. App. 2d 387, Syl. ¶ 6. Unlike Estate of Bryant, the claim of
liability here is within the purview of the Act.
After the Estate of Bryant court determined the claim was not barred by the
exclusive remedy provision, it stated: "That statute is intended to protect employers from
liability while operating under the provisions of the Workers Compensation Act. In this
case, neither the claim of [the injured worker] nor the claim of [the third party] against
[the employer] have any relationship whatsoever to the Workers Compensation Act."
Estate of Bryant, 22 Kan. App. 2d at 396. That is not the case here, since URBC,
Jefferies' employer, operated under the Act, providing Jefferies with a settlement award
for his injury. Thus, according to Estate of Bryant, the situation here is exactly the one
the exclusive remedy was designed to protect against.
It was undisputed that URBC manufactured the convoluted press. The district
court correctly concluded the factual dispute about when the subject press machine was
manufactured was immaterial. There was thus no genuine dispute as to any material fact
and URBC was entitled to summary judgment as a matter of law: Under Kimzey, the
dual capacity doctrine does not apply because Jefferies' employer manufactured the
machine. The district court did not err in granting summary judgment to URBC.
16
The district court did not abuse its discretion in denying Jefferies leave to amend his
petition.
Jefferies bears the burden of showing the district court abused its discretion in
denying his motion for leave to file a first amended petition to add URB of Canada as a
party. Smith v. Philip Morris Companies, Inc., 50 Kan. App. 2d 535, 586-87, 335 P.3d
644 (2014). The court abuses its discretion if "'(1) no reasonable person would take the
view adopted by the trial judge; (2) the ruling is based on an error of law; or (3)
substantial competent evidence does not support a finding of fact on which the exercise
of discretion was made.'" Luckett v. Kansas Employment Security Board of Review, 56
Kan. App. 2d 1211, 1221, 445 P.3d 753 (2019).
The Kansas Supreme Court has recognized five valid reasons for denying a motion
to amend a pleading: "(1) undue delay, (2) bad faith or dilatory motive on the part of the
movant, (3) repeated failure to cure deficiencies by amendments previously allowed, (4)
undue prejudice to the opposing party by virtue of allowance of the amendment, and (5)
futility of [the] amendment." Smith, 50 Kan. App. 2d at 587 (citing Johnson v. Board of
Pratt County Comm'rs, 259 Kan. 305, 327, 913 P.2d 119 [1996]). Here, the district court
denied Jefferies' motion as futile. It also found Jefferies had unduly delayed in seeking to
amend and that the proposed amendment would unduly prejudice URB of Canada.
The district court found Jefferies' proposed amendment would be futile since the
statute of limitations on the claim against URB of Canada had run, and the amendment
would not relate back to the date of his original pleading. Under K.S.A. 2020 Supp. 60-
215(c)(3), Jefferies' amendment to his pleading would only relate back if, within the
statute of limitations on his claim against URB of Canada, Jefferies could show URB of
Canada "(A) [r]eceived such notice of the action that it will not be prejudiced in
defending on the merits; and (B) knew or should have known that the action would have
been brought against it, but for a mistake concerning the proper party's identity."
17
Kansas courts have repeatedly held the relation back doctrine under K.S.A. 2020
Supp. 60-215(c)(3) applies when "'the plaintiff intended from the outset to sue the correct
defendant but through some error did not actually have the exact name of the defendant.'"
In re CEC Entertainment, Inc., Shareholder Litigation, No. 120,234, 2019 WL 4725289,
at *9 (Kan. App. 2019) (unpublished opinion) (quoting Martindale v. Robert T. Tenny,
M.D., P.A., 250 Kan. 621, 642, 829 P.2d 561 [1992]). And regarding this holding, our
court recently noted:
"[F]or more than 25 years, Kansas courts—both state and federal—have looked to the
Martindale decision when addressing relation back issues under K.S.A. 2018 Supp. 60-
215(c). See Srivastava v. University of Kansas, No. 118,329, 2018 WL 1770325, at *9-10
(Kan. App. 2018) (unpublished opinion) (plaintiff cannot use the 'relation-back provision
because the provision does not exist to give relief to plaintiffs who make errant strategic
decisions'); Hoover v. St. Francis Health Center, No. 97,175, 2007 WL 2695840, at *4
(Kan. App. 2007) [(unpublished opinion)] (K.S.A. 60-215[c] does not provide relief for a
plaintiff who made a conscious decision not to sue a party); Pedro v. Armour Swift-
Eckrich, 118 F. Supp. 2d 1155, 1159 (D. Kan. 2000) (quoting Martindale in finding that
there is no support for the suggestion 'that Kansas courts would ignore the mistaken
identity requirement in applying K.S.A. § 60-215[c]'); Gardner By & Through Gardner
v. Toyota Motor Sales, U.S.A., Inc., 793 F. Supp. 287, 289 (D. Kan. 1992) (citing
Martindale in concluding that '[r]elation back to add an omitted party is appropriate only
where the party seeking the amendment was prevented from bringing the action against
the omitted party due to a mistake of identity')." In re CEC Entertainment, Inc.,
Shareholder Litigation, 2019 WL 4725289, at *9.
The district court found Jefferies pointed to no evidence in the record reflecting a mistake
about the proper identity of the defendants when he filed his lawsuit. Nor does Jefferies
claim on appeal that he was mistaken about URB of Canada's existence. Instead, he
argues that while he was aware of URB of Canada's existence, he was not aware it was
potentially liable for his injuries. But that is not the test. Indeed, if it were, the statute of
limitations would be meaningless because a potential defendant could be brought in at
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any time. That Jefferies did not know of URB of Canada's potential liability until after
the statute of limitations had run is of no consequence. See Osborn v. Kansas Dept. for
Children and Families, No. 122,662, 2022 WL 1511255, at *17 (Kan. App. 2022)
(unpublished opinion) (finding the plaintiff's "lack of knowledge of [a new party's]
involvement differs from a mistake about the identity of the proper party that a plaintiff
intended to name from the beginning of the case").
Similarly, Jefferies offers no evidence that URB of Canada "knew or should have
known that . . . but for a mistake concerning the proper party's identity," it would have
been sued. K.S.A. 2020 Supp. 60-215(c)(3)(B). While Jefferies argued he delayed in
joining URB of Canada because he relied on Defendants' denials of URB of Canada's
involvement, he offers no evidence to support URB of Canada's awareness of his claim.
Based on our review of the record, we conclude that it was reasonable for the
district court to find Jefferies made a deliberate choice not to sue URB of Canada when
he filed his lawsuit, which did not result from a mistake about the proper party's identity.
Since his amendment would not relate back, the district court did not abuse its discretion
in finding it to be futile. We need not address the rest of Jefferies' arguments, since
futility of amendment is a sufficient legal basis to deny the motion.
Jefferies has not indicated the district court's decision to deny his motion to amend
stemmed from a legal error or that substantial competent evidence does not support its
findings of fact. We also cannot say that no reasonable person would take the view
adopted by the district court. As a result, we find the district court did not abuse its
discretion in denying Jefferies' motion for leave to file an amended petition to add URB
of Canada as a party, nor did it err in granting summary judgment to URBC.
Affirmed.
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