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Wiho, LLC v. Hubbauer

United States District Court, D. Kansas

August 29, 2014

WIHO, L.L.C., Plaintiff,


ERIC F. MELGREN, District Judge.

This case arises out of a dispute between Plaintiff WIHO, L.L.C., a professional ice hockey club, and its former employee, Defendant Matt Hubbauer. Plaintiff claims that Defendant fraudulently misrepresented and/or concealed certain information regarding his history of concussions to gain employment with Plaintiff. Plaintiff claims that had it been provided Defendant's full medical history, it would not have employed Defendant. Before the Court is Defendant's Motion for Summary Judgment (Doc. 52). For the reasons set forth below, Defendant's motion is granted in part and denied in part.

I. Factual and Procedural Background[1]

Plaintiff, a Kansas limited liability company, is the former owner of the professional ice hockey club known as the "Wichita Thunder." The Wichita Thunder is a member of the Central Hockey League. Defendant, a Canadian citizen, is a professional ice hockey player who was employed by Plaintiff.

In 2005, prior to his employment with Plaintiff, Defendant suffered a concussion while playing professional hockey for the Columbia Inferno. The report of one of Defendant's treating physicians, Dr. Evan Ekman, states that he was doubtful Defendant would return to playing hockey. Defendant was also treated for his concussion by Dr. Anthony Kaufmann, who stated in his report that it would be "potentially dangerous" for Defendant to return to competitive hockey play.[2]

On or about October 3, 2010, just before his employment with Plaintiff, Defendant underwent an orthopedic and medical physical examination performed by the Wichita Thunder's team physician, Dr. Kenneth Jansson, and his staff. Plaintiff alleges that during the physical, Defendant represented to Dr. Jansson and his staff that he had not had any prior serious head injuries. After the physical, Plaintiff medically cleared Defendant to play hockey for the 2010-2011 hockey season.

On October 13, 2010, Defendant entered into a Standard Player Agreement ("SPA") to play hockey for Plaintiff during the 2010-2011 season. Under the SPA, Defendant was obligated to play one hockey season, beginning October 15, 2010, and Plaintiff was obligated to pay Defendant $700.00 per week. The SPA provides:

Player understands and recognizes that he is competing with other players for a position on the TEAM's roster. If at any time, in the sole judgment of the TEAM, PLAYER's skill and performance under this Agreement has not been satisfactory as compared to that of the other players competing for positions in the CHL, then the TEAM may release PLAYER and immediately terminate this Agreement thereby ending the payments provided herein.[3]

The SPA also states: "Player agrees to report at the time and place fixed by the TEAM and/or CHL in excellent physical and mental condition and to maintain this level of conditioning throughout the term of this Agreement."[4] With regard to player injury, the SPA states:

If PLAYER is injured in the performance of his services under this Agreement and promptly reports such injury to the TEAM's physician or trainer, then (1) PLAYER will receive such medical and hospital care during the term of this Agreement as the TEAM's physicians may deem necessary; and (b) PLAYER will continue to receive his weekly salary for the season of injury only and for no subsequent period covered by this Agreement, as PLAYER is physically unable to perform all services required of him under this Agreement because of such injury.[5]

Before signing the SPA, Defendant did not disclose to Plaintiff or Dr. Jansson the opinions of Drs. Ekman or Kaufmann. Defendant, however, denies being aware of Dr. Ekman's and Dr. Kaufmann's opinions regarding his ability to continue playing competitive hockey.

The SPA incorporates by reference the Collective Bargaining Agreement ("CBA") for the Central Hockey League. Under the CBA, Plaintiff is obligated to provide all players on the active roster and injured reserve with lodging during the season. The CBA also required Plaintiff to obtain workers' compensation coverage or provide an equivalent benefit to its players.

On October 15, 2010, Defendant suffered a concussion while playing in a Wichita Thunder hockey game in Tulsa, Oklahoma. As a result of the concussion, Plaintiff placed Defendant on injured reserve, and Defendant did not play for Plaintiff for the rest of the season. On October 20, 2010, Defendant met with team physician Dr. Richard Leu. Dr. Leu's dictated report from that appointment noted that Defendant reported three to four previously diagnosed concussions with the last one being several years prior. On November 10, 2010, Defendant met with team physician Dr. Jansson. Dr. Jansson's dictated report from that appointment states: "The patient states that he has had a history of concussions. He has played hockey all of his life. He has had about four concussions from the year 1999 to the year 2004. He had done well until recently."[6]

Dr. Jansson referred Defendant to Dr. Bart Grelinger. The dictated report from Defendant's November 11, 2010, appointment with Dr. Grelinger states: "The patient reports at least four real concussions' and multiple other hits of the head where he is uncertain whether he had a concussion or not. The patient reports he has not missed a game secondary to concussion for the past ...

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