Dupass v. Kansas Insurance

NOT DESIGNATED FOR PUBLICATION
No. 122,926
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
EDWARD R. DUPASS,
Appellant,
v.
KANSAS INSURANCE, INC., et al.,
Appellees.
MEMORANDUM OPINION
Appeal from Douglas District Court; AMY J. HANLEY, judge. Opinion filed July 23, 2021.
Affirmed.
Richard A. Gullette, pro hac vice, of Phoenix, Arizona, and Frederick J. Patton, II, of Patton and
Patton, Chartered, of Topeka, for appellant.
Patric S. Linden, Kevin D. Case, and Jacqueline M. Duvall, pro hac vice, of Case Linden, P.C., of
Kansas City, Missouri, for appellees Kansas Insurance, Inc., Thomas County Insurance Agency, Inc., and
Tim Moeder.
Todd N. Thompson, of Thompson-Hall P.A., of Lawrence, for appellee Jim McGinnis.
Before ARNOLD-BURGER, C.J., GARDNER and ISHERWOOD, JJ.
PER CURIAM: Donald Woofter collided with Edward Dupass, and Dupass sued
Woofter as a result. Woofter thought his vehicle was covered by a $1,000,000 liability
policy, but later discovered it was only covered by a $100,000 liability policy. The
district court entered a judgment of over $500,000 against Woofter. Dupass and Woofter
agreed to settle for $120,000, accompanied by an assignment to Dupass of Woofter's
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claims against his insurance agents. Dupass then sued Kansas Insurance, Inc. (Kansas
Insurance), Thomas County Insurance Agency, Inc. (Thomas County), Jim McGinnis,
and Tim Moeder (collectively Defendants), alleging a failure to procure insurance. The
district court found that Woofter's tort claims were not assignable, which left Dupass
limited to the pursuit of a breach of contract claim as a potential avenue of recovery. The
district court dismissed the case upon finding that the breach of contract claim accrued at
the time of the breach and that the three-year statute of limitations barred Dupass from
proceeding. We affirm the district court's conclusion.
FACTUAL AND PROCEDURE BACKGROUND
On January 3, 2013, Woofter was operating his 2011 Buick in Phoenix, Arizona,
when he collided with Dupass. Dupass sustained serious injuries which, in turn, prompted
substantial medical expenses. Dupass filed an action against Woofter in Arizona after the
collision. Woofter believed that the Defendants, who had fulfilled his insurance needs for
approximately 40 years, had procured insurance for his 2011 Buick under a $1,000,000
umbrella liability policy between Allied Insurance and Farmers Alliance designed to
cover his personal automobiles, as well as his farm policies. During the course of
discovery, however, Woofter became aware that the 2011 Buick he was driving at the
time of the accident was only covered by an Allied Insurance motor vehicle liability
policy with a limit of $100,000. In December 2016, the Arizona court entered a judgment
against Woofter in the amount of $504,518.20.
Dupass and Woofter later entered into a written settlement agreement under which
Dupass agreed to settle for $120,000 and, in consideration thereof, Woofter assigned
Dupass "all rights, claims, and causes of actions against the agents, or other persons or
entities relating to or arising out of the procurement of the subject policy, including but
not limited to all statutory rights, contractual rights, and rights arising in tort or otherwise
relating to the procurement of [the policy]."
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On December 7, 2018, Dupass filed a petition in Douglas County alleging that
"Woofter agreed to purchase, and Defendants agreed to procure, insurance policies
providing adequate coverage on his vehicles, machinery, and property." He further
asserted that Woofter had engaged in an annual review of his policies with the
Defendants for over 40 years. It was Dupass' position that "Defendants breached their
agreement with Woofter by failing to procure the desired coverage and by failing to
advise him of the adequacy of the coverage provided by the various policies purchased by
him." Dupass also alleged that the "Defendants were negligent in failing to provide the
coverage requested by [Woofter]" and "[a]s a direct and proximate result of Defendants'
aforesaid breach, Woofter has been damaged in the amount of $404,518.20."
On January 23, 2019, McGinnis moved for judgment on the pleadings. In support
of his request, he advised the court that he left the Thomas County agency in 1997, long
before the collision between Woofter and Dupass occurred. He also asserted that
Woofter's tort claims were not assignable and that McGinnis owed no duty of care to
Dupass for the purchase of insurance by Woofter. Dupass responded and denied that the
case involved an assignment of any tort claims. Rather, the only matter at issue was a
contractual claim that applied a tort standard of care.
The district court requested additional briefing from the parties addressing the
contractual duties owed to Dupass by the Defendants, as well as the applicable statute of
limitations governing such claims. Dupass honored the court's request and argued that
there was an unwritten contract between McGinnis and Woofter under which McGinnis,
acting as Woofter's agent, agreed to procure vehicle insurance for Woofter. According to
Dupass, McGinnis failed to follow Woofter's directive to place the 2011 Buick under the
same policy that covered Woofter's other property. Dupass asserted that the statute of
limitations on this breach did not, and could not, begin to run until December 2016, when
the Arizona judgment was entered against Woofter for $504,518.20. In support of this
contention, Dupass argued that "[w]hile the duty arises from contract, the tort standard of
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care applies to this case and once damages are established the cause of action accrues
starting the statute of limitations."
McGinnis likewise filed a brief in response to the court's request and noted that
Dupass' petition defined the alleged oral contract as one to procure liability insurance
with an "adequate" coverage limit. According to McGinnis, the term "adequate" is vague,
but still under any interpretation of that term, the $100,000 liability policy the Defendants
provided to Woofter was adequate. McGinnis also asserted that the statute of limitations
period surrounding the claim that Defendants failed to procure adequate liability
coverage began to run when Woofter had his annual insurance policy review with the
Defendants which, at the latest, would have been by January 2014. Thus, according to
McGinnis, the petition filed by Dupass in December 2018 fell outside the three-year
statute of limitations for oral contract claims. McGinnis directed the district court to
K.S.A. 60-512 as authority for his contention.
In October 2019, the district court issued a memorandum decision granting
McGinnis' motion for judgment on the pleadings. The court first held that "[i]nsurance
contract duties are duties arising under or imposed by agreement, and if breached, the
action lies in contract." Thus, the action against McGinnis could be brought as a contract
claim and was properly assigned. Whether the agreement to provide "adequate" coverage
was breached involved questions of fact, however, and was not appropriately decided in a
motion on the pleadings. The district court agreed with McGinnis that the statute of
limitations began to run when Woofter had an annual policy review, which was more
than three years before Dupass filed his petition against the Defendants. That is, the
contract claim arose immediately when the breach occurred. The court also found that
Dupass' case against Woofter, assessing the amount of damages arising out of the
accident, did not toll the statute of limitations because that case was not a prerequisite to
pursuing a claim against McGinnis. Thus, the court granted McGinnis' motion for
judgment on the pleadings.
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Soon after, Kansas Insurance, Thomas County, and Moeder (Kansas Insurance
Defendants) filed a joint motion for judgment on the pleadings and advanced arguments
mirroring those presented by McGinnis. Specifically, they argued that the statute of
limitations had expired on Dupass' breach of contract claim before he filed his petition
and "that the alleged breach occurred at the time of Defendants' alleged failure to procure
the desired coverage, which would have occurred in advance of the policy being in effect
on January 3, 2013."
Dupass responded to the Kansas Insurance Defendants' joint motion and also
submitted a motion seeking reconsideration of the ruling on McGinnis' motion. Dupass
reiterated his earlier argument that the cause of action did not accrue until the damages
were determined by the entry of judgment for damages in Arizona.
The district court granted the Kansas Insurance Defendants' motion upon finding
that they were similarly situated with McGinnis. The court adopted the same findings of
fact and conclusions of law set forth in its decision granting McGinnis' motion for
judgment on the pleadings.
Dupass appealed from the district court's order granting the Kansas Insurance
Defendants' motion for judgment on the pleadings and denying Dupass' motion for
reconsideration regarding McGinnis' motion.
ANALYSIS
Dupass argues that the statute of limitations for his breach of contract claim did
not begin to accrue until the litigation between him and Woofter, for the precise amount
of damages sustained, was settled. Alternatively, Dupass argues that the statute of
limitations was tolled during the pendency of that underlying litigation. Under either
argument, his petition would have been filed within the statute of limitations. Both points
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arise out of the same foundational premise: The breach of contract action could not be
prosecuted until damages were determined in the underlying litigation. The flaw in
Dupass' arguments, however, is that when a breach of contract is alleged, a claim can
proceed immediately following that breach whether actual damage has resulted, and the
claimant would have a right to recover nominal damages if nothing more. We will
address each argument in turn.
DID THE DISTRICT COURT ERR IN DETERMINING THAT DUPASS' CONTRACT CLAIM
ACCRUED ON THE DATE OF THE ALLEGED BREACH?
In the first of his two claims of error, Dupass challenges the district court's
decision to grant the Defendants' motions for a judgment on the pleadings under K.S.A.
60-212(c), because the date of the breach is the point at which the statute of limitations
began to run. It is his contention that this conclusion is erroneous, and that the time could
not commence until entry of a judgment for damages in the Arizona case, because his
cause of action could not begin to accrue until that precise figure was established.
Standard Legal Principles
This court exercises unlimited review in determining whether a district court
properly granted a motion for judgment on the pleadings. Mashaney v. Board of
Indigents’ Defense Services, 302 Kan. 625, 639, 355 P.3d 667 (2015).
"'A motion for judgment on the pleadings under 60-212(c), filed by a defendant,
is based upon the premise that the moving party is entitled to judgment on the face of the
pleadings themselves and the basic question to be determined is whether, upon the
admitted facts, the plaintiffs have stated a cause of action. The motion serves as a means
of disposing of the case without a trial where the total result of the pleadings frame the
issues in such manner that the disposition of the case is a matter of law on the facts
alleged or admitted, leaving no real issue to be tried. The motion operates as an
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admission by movant of all fact allegations in the opposing party's pleadings.' [Citations
omitted.]" 302 Kan. at 638.
Dupass contends that his breach of contract action for failure to procure insurance
which, he notes, involved application of a tort standard of care, accrued only when the
full extent of Woofter's specific liability was decided, rather than when the contract was
breached.
In resolving Dupass' claim, we turn first to this court's opinion in Marshel
Investments, Inc. v. Cohen, 6 Kan. App. 2d 672, 634 P.2d 133 (1981), another case that
involved an action by an insured against an insurance agent and his firm. The insured
requested complete insurance coverage on a leased oil well, and the agent acquired a
comprehensive general liability coverage policy. A subsequent fire caused a loss not
covered by the policy, so the insured sued the agent for failure to procure a policy that
would have covered the loss. The insured claimed that the agent was liable to him
because he failed to procure certain coverages which would have provided for payment
by the insurer for the value of the equipment destroyed and the firefighting costs. In
discussing the insured's cause of action, this court found that "an insurance agent or
broker who undertakes to procure insurance for another owes to the client the duty to
exercise the skill, care and diligence that would be exercised by a reasonably prudent and
competent insurance agent or broker acting under the same circumstances." 6 Kan. App.
2d at 683. The court referred to this as the "exercise care duty" and explained:
"It has been explicitly stated an action for the breach of this duty may be brought
in contract or in tort. Although no Kansas cases reveal particular exposition of legal
analysis for the ability to bring the action on these alternative theories, it might be said
the duty is both an implied contractual term of the undertaking (contract duty) and a part
of the fiduciary duty owed the client by reason of the principal-agent relationship arising
out of the undertaking (tort duty). Despite all too familiar usage of the term 'negligent
breach of contract,' if there is a breach of contract, there is a breach of contract, whether
because of intentional conduct, inability to perform, accident, negligence, or whatever. It
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is inappropriate to denominate the available contract cause of action as one for negligent
breach of contract." 6 Kan. App. 2d at 683.
Dupass' cause of action here is much like that in Marshel, although Dupass' claims
arose from an assignment. As the district court properly noted here, "tort claims are
generally not assignable." See Stechschulte v. Jennings, 297 Kan. 2, 30, 298 P.3d 1083(2013). Thus, only Dupass' breach of contract claim remained. Again, this claim
presumes that Woofter requested and received motor vehicle coverage from the
Defendants, but the resulting coverage fell far short of what he bargained for. An
assignee stands in the shoes of the assignor. Therefore, the obligations and defenses
which burden the assignor will equally burden the assignee. This includes the statute of
limitations, which the district court properly found barred Dupass' claims against the
Defendants.
K.S.A. 60-512 provides a three-year statute of limitation for causes of action based
on unwritten contracts. "As a general rule, a cause of action accrues when the plaintiff
could have first filed and prosecuted his [or her] action to a successful conclusion."
Edward Kraemer & Sons, Inc. v. City of Overland Park, 19 Kan. App. 2d 1087, Syl. ¶ 1,
880 P.2d 789 (1994). "In most contract cases, that means the cause of action accrues
when the contract is breached." 19 Kan. App. 2d at 1091; see also Pizel v. Zuspann, 247
Kan. 54, 74, 795 P.2d 42 (1990) ("A cause of action for breach of contract accrues when
a contract is breached by the failure to do the thing agreed to, irrespective of any
knowledge on the part of the plaintiff or of any actual injury it causes."). Accordingly, the
district court's conclusion here that Dupass' cause of action accrued when the contract
was breached adheres to these long-standing principles.
Dupass advances two separate arguments on appeal and mainly relies on the same
three cases as justification for relief with respect to both claims. Those cases include
Price v. Holmes, 198 Kan. 100, 422 P.2d 976 (1967), Keith v. Schiefen-Stockham
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Insurance Agency, Inc., 209 Kan. 537, 498 P.2d 265 (1972), and Nungesser v. Bryant,
283 Kan. 550, 153 P.3d 1277 (2007). Under his first claim of error, Dupass asks that we
analyze these cases under the proposition that the statute of limitations for a breach of
contract simply does not accrue until damages are determined. As for his second claim,
he asks that we consider those authorities as persuasive support for the notion that the
statute of limitations for his breach of contract claim was tolled until the related litigation
assessing damages concluded.
After careful review, we conclude that the cases cited by Dupass are readily
distinguishable from the matter before us and do not provide a solid foundation to sustain
his claims of error. To the contrary, our analysis of the cases cited, and the governing
legal principles articulated therein, reflect that the district court properly granted the
Defendants' motions for judgment on the pleadings. That ruling is affirmed. We will
address each of Dupass' issues, as well as the authorities relied on, in turn. It is important
to address those cases in order to thoroughly explain why they do not impact the outcome
of his case.
First, Dupass cites Price, 198 Kan. 100. In that case, Henry Weber requested that
Harold Holmes prepare a will leaving one half of his estate to his wife and the other half
to his niece, Lillian Price. Weber passed away a few short days later, and the will
prepared by Holmes was offered for probate. But Weber's widow contested the will,
alleging that it had not been legally executed. Her claim was rejected, and she pursued an
appeal to this court. While that appeal was pending, Lillian Price passed away.
Von Price was appointed as the administrator of Lillian's estate and promptly
brought an action to recover damages which purportedly arose out of a host of
transgressions Holmes' committed in preparing Weber's will. Specifically, Price's petition
alleged that Holmes failed to properly execute the will, that he negligently supervised and
directed the execution of the will, and that he failed to exercise the necessary degree of
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care. The petition pled "twin causes of action," one sounding in contract for breach of
implied warranty and the other in tort for negligence. 198 Kan. at 103-04. The Supreme
Court reiterated that the cause of action for breach of warranty arose at the time of the
breach, i.e., the drafting of Weber's will. However, before Price could pursue an action
against Holmes for breach of warranty, it first had to be determined whether Weber's will
was truly invalid. It was only if the will turned out to be invalid that Price would have a
foundation on which to frame a cause of action. 198 Kan. at 105. The same cannot be
said for Dupass' case. A similar, preliminary finding was not required here.
The second case to which Dupass directs our attention is Keith, 209 Kan. 537. As
will become apparent though, that case bears the same infirmity as Price as it relates to
Dupass' argument. The plaintiffs in Keith were the surviving spouses and minor children
of two people killed while employed by Leslie Johnson. The widow and surviving
children of one of the deceased individuals instituted a workers compensation proceeding
against Johnson and his alleged insurance carrier. The case was decided adversely to the
claimants, in part, because Johnson had not secured workers compensation coverage or
filed an election to come under the Workers Compensation Act. See Otta v. Johnson, 204
Kan. 366, 461 P.2d 758 (1969). The plaintiffs then sued the alleged insurance agency
claiming that the agency had failed to procure workers compensation insurance at
Johnson's direction and also failed to cause an election for Johnson to be filed with the
workers compensation commission. This failure, the plaintiffs asserted, caused the
plaintiffs to suffer damages equal to the sums they would have been entitled to had the
insurance been procured and the election filed. The district court dismissed the petition
but did not specify the reasons for its ruling.
On review, the Kansas Supreme Court noted that "the theory of plaintiffs' petition
appears to be that because of defendants' alleged breach of contract in failing to procure
the insurance and to cause an election to be filed as promised, the plaintiffs are entitled to
recover at common law either in contract or tort." 209 Kan. at 539. The court again stated
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that, much like Price, the plaintiffs' cause of action likewise arose when the breach
occurred, specifically, at that point when the insurance was not secured as promised. 209
Kan. at 543-44. Keith is likewise notable for the added common thread it shares with
Price. That is, just as Price required a preliminary determination to ascertain whether the
will was valid, the plaintiffs in Keith were under a similar obligation to secure an initial
determination of whether the insurance at issue truly "had not been procured, nor an
election caused to be filed" before their path was cleared to proceed with an action to
address the breach. 209 Kan. at 544.
Despite Dupass' persistent efforts, in his written brief, as well as his argument
before us, to synthesize these cases with the matter at hand, we are not persuaded. To the
contrary, we find that Price and Keith stand in stark contrast to the case we are now
tasked with considering as both necessitated a preliminary level of inquiry that is not
required here. To the contrary, it is without question that the automobile Woofter was
operating at the time of the accident was excluded from the more substantial umbrella
policy. The sole question here is simply whether the degree to which the vehicle was
insured constituted a breach by the Defendants.
Dupass contends that those preliminary determinations are properly interpreted as
a signal that the point of accrual for the statute of limitations governing breach of contract
claims is the point at which those initial matters are resolved. The plain language of the
rulings articulated by the Price and Keith courts lead us to the opposite conclusion.
Neither case undermines the principle that a cause of action for breach of contract accrues
on the date of the breach. To the contrary, both courts held steadfast to that rule. Price,
198 Kan. at 106; Keith, 209 Kan. at 543-44.
The final case that Dupass relies on heavily in support of his first claim of error is
Nungesser, 283 Kan. 550. In that case, Josh Bryant ran a stop sign and collided with
Jimmy Nungesser, resulting in serious injuries to Nungesser. The parties' attempt to settle
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ultimately proved fruitless, so Nungesser sued Bryant for damages, seeking an amount
which far exceeded the liability limits in Bryant's automobile insurance policy. Bryant
filed a third-party petition against his insurance provider, EMCASCO Insurance
Company, seeking full indemnity from EMCASCO because EMCASCO negligently, or
in bad faith, failed to settle Nungesser's claim within the policy limit, thereby prompting
him to sue Bryant. EMCASCO moved for dismissal, arguing that it was not a proper
party to Nungesser's tort action against Bryant unless judgment was entered against
Bryant, but the district court denied the motion. On review, the Kansas Supreme Court
held that the district court erred in denying EMCASCO’s motion to dismiss:
"Simply put, an insured's action against his or her insurer for negligent or bad faith failure
to settle a case must wait for the liability of the insured to be decided. A defendant in an
auto liability case may not sue his or her insurer on such claims until the tort claim
against him or her has been reduced to judgment." 283 Kan. at 558.
The Nungesser court explained that a cause of action for bad faith failure to settle
does not accrue until conclusion of the underlying litigation because, if a judgment is not
entered against the insured, then the insurer has not acted in bad faith in refusing to settle.
283 Kan. at 562-64. While the Nungesser opinion aligns with Kansas' law on the accrual
of claims arising out of a negligent or bad faith failure to settle, it does not advance
Dupass' position because his case does not involve such a claim.
In contrast, a claim for breach of contract, the only claim at issue, begins to accrue
when the contract is breached, "irrespective of any knowledge on the part of the plaintiff
or of any actual injury it causes." Pizel, 247 Kan. at 74. A fair reading of K.S.A. 60-512,
which sets the statute of limitations for unwritten contract claims, reflects that it lacks any
language like that found in K.S.A. 60-513(b), which delays accrual of a tort claim until
substantial injury occurs and the injury is reasonably ascertainable. See Jones v. Hyatt
Insurance Agency, 356 Md. 639, 741 A.2d 1099 (1999) (holding that statute of
limitations on automobile accident victims' third-party beneficiary breach of contract
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claim against insurance agent for failure to procure insurance began to run when agent
breached contract, not when the victims obtained a judgment against the insured).
The district court properly concluded that Woofter's breach of contract claim,
assigned to Dupass, accrued at the time of breach and because the breach occurred more
than three years before Dupass filed his petition, his claims were barred by the statute of
limitations. The district court's decision is affirmed.
IS THE STATUTE OF LIMITATIONS FOR A BREACH OF CONTRACT CLAIM BASED ON
FAILURE TO PROCURE INSURANCE TOLLED BY LITIGATION BETWEEN THE INSURED AND
ACCIDENT VICTIM?
In those instances where "a person is prevented from exercising his legal remedy
by the pendency of legal proceedings, the running of the statute of limitations applicable
to the remedy is postponed, or if it has commenced to run, is suspended or tolled, during
the time the restraint incident to the proceedings continues." Keith, 209 Kan. 537, Syl. ¶
5. The district court here held that nothing prevented Dupass from exercising his legal
remedy against the Defendants by the pendency of the legal proceedings for the collision
between him and Woofter. Thus, the statute of limitations was not tolled. It is this finding
which gives rise to Dupass' second claim of error.
This rule was applied in both Keith and Price, but, again, both cases are readily
distinguishable. In Keith, the proceeding that tolled the statute of limitations on the
plaintiffs' breach of contract for the failure to procure insurance was necessary in order to
determine whether the employer even had workers compensation insurance. That
preliminary finding was critical because if the employer did have insurance, then the
plaintiffs would have no foundation for a claim that the agency failed to procure
insurance. A similar situation arose in Price where the claimant was first required to
establish that the will was invalid before a claim for faulty preparation and execution of a
will could be brought.
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Dupass' case is distinguishable because the litigation between him and Woofter
did not affect whether Defendants failed to procure the insurance requested by Woofter.
Even if that litigation resulted in a judgment below Woofter's $100,000 policy limit,
Woofter would still have had the same claim for breach of contract against the
Defendants. Dupass argues that no actionable claim would have arisen if the Arizona
court awarded Woofter an amount less than the policy limits on his vehicle. Yet under
this interpretation of the law, a person whose insurance agent has failed to provide the
bargained-for motor vehicle insurance would first need to be involved in a collision and
have a judgment entered against him or her, in excess of any policy limits, before that
person could bring a breach of contract suit against the agent. Such an interpretation is
unreasonable.
Dupass further contends that the district court's holding does not square with the
principle "that a broker or agent who undertakes to procure insurance for another and
thereafter the broker neglects or fails to do so, he will be held liable for any damage
resulting therefrom." Keith, 209 Kan. at 540-41. He reasons that one cannot hold an agent
liable for the necessary damages if the damages are not ascertainable at the time of filing.
While it is true that agents are liable for losses resulting from their failure to procure
insurance, it does not necessarily follow that damages must be determined before a
breach of contract claim for failure to procure may be litigated. Rather, when a breach of
contract occurs, a claim can "proceed[] immediately following that breach whether or not
actual damage had resulted," and the claimant "would [be] entitled to recover nominal
damages, if nothing more." In re Estate of Talbott, 184 Kan. 501, 508, 337 P.2d 986(1959). Again, this situation is distinguishable from a tort action which "does not accrue
until actual damage has resulted from the alleged negligence." 184 Kan. at 504. This
distinction is why, in cases like Nungesser, the insured's tort action against the insurer for
bad faith failure to settle had to await a determination that the insured was liable. If the
insured is not liable in the underlying litigation, then the insured does not sustain
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damages from the insurer's failure to settle. Without damages, no cause of action in tort
accrues.
Finally, Dupass argues that the need for "[c]onsistency and certainty underlie the
policy requiring resolution of the tort damages in the underlying case prior to accrual [of]
claims arising from implied contractual duties." Essentially, Dupass' concern is that had
Woofter pursued this breach of contract action before the litigation was complete, any
remedy from the suit "would be hollow and leave [Woofter] exposed to the damages later
awarded in the Dupass case." Dupass notes that damages must be established with a
reasonable certainty and here, before the litigation was complete, the damages were too
uncertain to be recoverable. See Source Direct, Inc. v. Mantell, 19 Kan. App. 2d 399, Syl.
¶ 11, 870 P.2d 686 (1994) ("One who claims damages on account of a breach of contract
must not only show the injury sustained but must also show with reasonable certainty the
amount of damage suffered as a result of the injury or breach."). Further, if the Arizona
court had awarded an amount less than the policy limits on Woofter's vehicle, then no
actionable claim would have arisen, which would lead to a waste of judicial time and
resources.
Again, the uncertainty of actual damages does not preclude a contract action from
accruing. As recognized by the Restatement (Second) of Contracts (1981) and Kansas
caselaw, every breach gives rise to a claim for damages, and "[e]ven if the injured party
sustains no pecuniary loss or is unable to show such loss with sufficient certainty, he has
at least a claim for nominal damages." Restatement (Second) of Contracts § 236, cmt. a;
see In re Estate of Talbott, 184 Kan. at 508.
Additionally, there are forms of relief other than damages or declaratory relief.
The Restatement (Second) of Contracts § 346, cmt. a recognizes that "[a]lthough a
judgment awarding a sum of money as damages is the most common judicial remedy for
breach of contract, other remedies, including equitable relief in the form of specific
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performance or an injunction, may also be available, depending on the circumstances."
The Restatement recognizes:
"The exact performance that is promised in a contract may be, in whole or in part, very
difficult of enforcement, or it may have become unreasonably burdensome or unlawful.
Nevertheless, by exercising its discretion in fashioning the order, the court may be able to
substantially assure the expectations of the parties, without undue difficulty of
enforcement, unreasonable hardship to the party in breach, or violation of the law. It may
command a performance by the party in breach that is not identical with the one that he
promised to render." Restatement (Second) of Contracts § 358, cmt. a.
It also states that "[i]n addition to specific performance or an injunction, damages
and other relief may be awarded in the same proceeding and an indemnity against future
harm may be required." Restatement (Second) of Contracts § 358(3). In some cases, an
indemnity against future harm "may be the only remedy that is necessary." Restatement
(Second) of Contracts § 358, cmt. c.
Finally, a person injured by an insurance agent's failure to procure insurance may
still accrue a tort claim after the damages in the underlying litigation are determined.
While this claim is not assignable, which precludes Dupass from bringing such a claim,
its availability to an injured party simply reveals that there is an alternative to bringing a
breach of contract claim for failure to procure where the damages in such an action
remain unclear. The decision between Dupass and Woofter to settle and assign Woofter's
claims against the Defendants was a strategic one. That decision does not provide a
foundation for changing Kansas' law on the statute of limitations for breach of contract
claims.
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Dupass' failure to bring the breach of contract action within the statute of
limitations is fatal to his claim. The district court's decision to dismiss his petition is
affirmed.
Affirmed.
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