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M.F. v. ADT, Inc.

United States District Court, D. Kansas

November 19, 2018

M.F., a minor, Individually and as Heir-at-Law of Elizabeth A. Frost, Deceased, through his Co-Conservators Julie Frost and Sarah Bayless,
v.
ADT, INC., F/K/A PROTECTION ONE, INC., Defendant. and Charles E. Frost, Jr., as Administrator of THE ESTATE OF ELIZABETH FROST, Plaintiffs,

          MEMORANDUM AND ORDER

          JULIE A. ROBINSON, CHIEF UNITED STATES DISTRICT JUDGE

         Plaintiff M.F. (“Minor”), a minor, brings a claim against Defendant ADT, Inc. (“ADT”) for wrongful death under K.S.A. § 60-1901. Plaintiff Charles E. Frost, Jr., Administrator of the Estate of Elizabeth Frost (“Administrator”), brings claims against ADT for negligence and fraudulent misrepresentation. Plaintiffs together bring claims against ADT for Kansas Consumer Protection Act (“KCPA”) violations, [1] breach of implied warranty, and breach of express warranty. Before the Court is Defendant's Motion to Dismiss (Doc. 9), brought pursuant to Fed.R.Civ.P. 12(b)(6). Defendant asserts that Plaintiffs' claims are time barred under the decedent's contractual agreement, and further that Plaintiffs have failed to allege facts sufficient to state a claim upon which relief can be granted. For the reasons set forth in detail below, Defendant's motion is granted.

         I. Legal Standard

         To survive a motion to dismiss brought under Fed.R.Civ.P. 12(b)(6), a complaint must contain factual allegations that, assumed to be true, “raise a right to relief above the speculative level”[2] and must include “enough facts to state a claim for relief that is plausible on its face.”[3]Under this standard, “the complaint must give the court reason to believe that this plaintiff has a reasonable likelihood of mustering factual support for these claims.”[4] The plausibility standard does not require a showing of probability that “a defendant has acted unlawfully, ” but requires more than “a sheer possibility.”[5] “[M]ere ‘labels and conclusions,' and ‘a formulaic recitation of the elements of a cause of action' will not suffice; a plaintiff must offer specific factual allegations to support each claim.”[6] Finally, the court must accept the nonmoving party's factual allegations as true and may not dismiss on the ground that it appears unlikely the allegations can be proven.[7]

         The Supreme Court has explained the analysis as a two-step process. For the purposes of a motion to dismiss, the court “must take all the factual allegations in the complaint as true, [but is] ‘not bound to accept as true a legal conclusion couched as a factual allegation.'”[8] Thus, the court must first determine if the allegations are factual and entitled to an assumption of truth, or merely legal conclusions that are not entitled to an assumption of truth.[9] Second, the court must determine whether the factual allegations, when assumed true, “plausibly give rise to an entitlement to relief.”[10] “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.”[11]

         Finally, if the court on a Rule 12(b)(6) motion looks to matters that were not attached to the complaint or incorporated into the complaint by reference, it generally must convert the motion to a Rule 56 motion for summary judgment.[12] However, the court may consider documents that are referred to in the complaint if they are central to the plaintiff's claim and the parties do not dispute their authenticity.[13] Here, the Court will consider the contract Plaintiffs refer to in their Third Amended Counterclaim, which Defendant attaches to its motion to dismiss.[14]

         II. Factual Allegations

         A. Timeline of events

         The facts of this action are tragic. Plaintiffs are M.F., a minor and sole heir-at-law to decedent Elizabeth A. Frost (“decedent”), and Charles E. Frost, Administrator of the Estate of Elizabeth Frost. Defendant is ADT, LLC (“ADT”), an alarm services company. Protection One, Inc., and Protection One Alarm Monitoring, Inc., the companies with which decedent contracted, merged with ADT on or around April 13, 2017. Protection One supplied both the home security system and subsequent monitoring services to the residence of decedent, located at 3420 SE Indiana Ave., Topeka, Kansas 66205.

         Sometime during the early morning hours of August 15, 2016, an accidental home fire from the kitchen stove began at decedent's residence. Decedent's home was equipped with a security system, which Defendant sold and monitored. At 1:30 a.m., Defendant received a “sensor tamper” alert for “glass break” in the dining room. Defendant did not call any individual or emergency service at that time. At 1:32 a.m., Defendant received an alert for “expansion module failure.” The expansion module is the key pad and system center located by the front door of the home. Defendant did not call any individual or emergency services at that time. At approximately 1:43 a.m., Defendant twice attempted to call decedent, but was unable to reach her. At 1:49 a.m., Defendant then attempted to call the next call-back number, that of decedent's grandmother, but was also unable to reach her. The caller identification label associated with Defendant's number is an unlisted number and does not identify Defendant as the caller. Between 2:01 a.m. and 2:04 a.m., Defendant again attempted to call decedent's number and the next call-back number. Defendant was again unable to reach either party. Around 2:04 a.m., Defendant “fully cleared” the alarms.

         Around 2:52 a.m., City of Topeka Public Works Department employees noticed the house fire and dialed 911 from a cell phone. First responders arrived at the scene at approximately 2:58 a.m.. A fire crew conducted a primary search and found decedent face down, unconscious, in a hallway. The fire crew took decedent from the house and began emergency medical treatment at approximately 3:07 a.m.. Decedent was transported to Stormont Vail Health Care in Topeka, KS, where she succumbed to her injuries and was pronounced dead.

         Her cause of death was inhalation of smoke and soot from the fire. Decedent experienced significant conscious pain and suffering.

         B. Alleged Representations

         Plaintiffs allege that on Defendant's website are the following statements:

• The ability to remotely learn of possible hazards and to dispatch responders is key to how security monitoring works.
• Protection 1 home alarm systems will provide you with total peace of mind.
• [Security systems] are monitored 24/7 at our central monitoring centers, so you can rest easy in the knowledge that we've got your back at all times.
• 24/7 professional monitoring centers will address alarms immediately to ensure that help is on the way.
• Protection 1's home monitoring services ensure that you and your family always have a watchful eye and a lightning fast response unit on your side.
• [ADT] [t]ake[s] monitoring seriously and always employ[s] triple redundancy monitoring for home alarm systems.
• In the event of an emergency, local police or fire assistance will be notified.
• A trained employee immediately attempts to call you to notify you of the disturbance in case it is a false alarm. If you confirm a false alarm, the employee will see if there is anything else you need before letting you hang up. If the employee is unable to contact you, or if you confirm that the alarm is genuine, the authorities will be notified. A dispatch will then send police officers to your residence to evaluate the situation.

         C. Contractual Provisions

         Decedent signed a contract with Defendant on March 12, 2014. On the front page of the contract is a “Financial Summary” of the services contracted for between Defendant and decedent.[15] Included services for which decedent paid a monthly service fee of $37.99 are “Monitoring, ” “Extended Service, ” and “PrimeCell.” Notably not included, although available, are “Smoke Detection, ” “CO Detection, ” or “Temperature Monitoring.”[16] At the bottom of the first page, above decedent's initials, in bold, capital letters, the contract states: “IMPORTANT PROVISIONS - YOUR RESPONSIBILITY TO READ TERMS OF THIS AGREEMENT” and “By e-signing this Contract, you agree to all the terms and conditions, below.[17] The Contract reads, “Please pay special attention to the following sections:” and specifically directs attention to “Section 6, 7, 8: WE ARE NOT AN INSURER, Limitation of Liability, Hold Harmless, which, among other things, significantly limits [ADT]'s liability to you under this Contract.[18]

         Section 6 provides as follows:

We Are Not an Insurer. YOU AGREE THAT: (i) WE ARE NOT AN INSURER OF YOU, OTHER PERSONS LIVING IN, OR PRESENT AT YOUR PREMISES, OR YOUR PREMISES OR ITS CONTENTS; (ii) IT IS YOUR RESPONSIBILITY TO OBTAIN ADEQUATE INSURANCE COVERING YOU, YOUR PREMISES AND ITS CONTENTS, AND OTHER MEMBERS OF YOUR HOUSEHOLD AND OTHER AFFECTED PERSONS OR PROPERTY; (iii) OUR SERVICE FEES ARE BASED ON THE DETERRENCE AND OTHER VALUE OF THE SERVICES PROVIDED AND OUR LIMITED LIABILITY UNDER THIS CONTRACT, AND NOT THE VALUE OF YOUR PREMISES OR ITS CONTENTS, OR THE LIKELIHOOD OR POTENTIAL EXTENT OR SEVERITY OF INJURY (INCLUDING DEATH) TO YOU OR OTHERS; AND (iv) YOUR SYSTEM AND OUR SERVICES MAY NOT ALWAYS OPERATE AS INTENDED FOR VARIOUS REASONS, INCLUDING OUR NEGLIGENCE OR OTHER FAULT. WE CANNOT PREDICT THE POTENTIAL AMOUNT, EXTENT, OR SEVERITY OF ANY DAMAGES OR INJURIES THAT YOU OR OTHERS MAY INCUR WHICH COULD BE DUE TO THE FAILURE OF THE SYSTEM OR SERVICES TO WORK AS INTENDED. AS SUCH (a) YOU AGREE THAT THE LIMITS ON OUR LIABILITY, WAIVERS AND INDEMNITIES, SET FORTH IN THIS CONTRACT ARE A FAIR ALLOCATION OF RISKS AND LIABILITIES BETWEEN YOU, U.S. AND ANY AFFECTED THIRD PARTIES; (b) YOU WILL LOOK EXCLUSIVELY TO YOUR INSURER FOR FINANCIAL PROTECTION FROM SUCH RISKS AND LIABILITIES, AND (c) EXCEPT AS PROVIDED FOR IN SECTION 7 BELOW, YOU WAIVE ALL RIGHTS AND REMEDIES AGAINST U.S. . . . THAT YOU . . . OR OTHER THIRD PARTY MAY HAVE DUE TO ANY LOSSES OR INJURIES YOU OR OTHERS INCUR.[19]

         In Paragraph 7, decedent agreed to a Limitation of Liability, which reads:

Limitation of Liability. YOUR EXCLUSIVE REMEDIES FOR OUR LIABILITY ARE SET FORTH IN THIS SECTION, NEITHER WE NOR ANY PERSON OR ENTITY AFFILIATED WITH U.S. SHALL BE LIABLE FOR ANY LOSS, INJURY, OR OTHER CONSEQUENCE ARISING DIRECTLY OR INDIRECTLY FROM THE FAILURE OF EITHER THE SERVICES OR SYSTEM TO WORK AS INTENDED . . . IF WE OR ANY PERSON OR ENTITY AFFILIATED WITH U.S. IS DETERMINED TO BE RESPONSIBLE FOR ANY SUCH LOSS, INJURY, OR OTHER CONSEQUENCE, YOUR CLAIM AGAINST U.S. SHALL BE LIMITED TO THE LESSER OF (i) $300.00; OR (ii) SIX (6) TIMES THE MONTHLY SERVICE FEE. THIS AMOUNT IS YOUR SOLE AND EXCLUSIVE REMEDY NO MATTER HOW THE LOSS, INJURY, OR OTHER CONSEQUENCE IS CAUSED, EVEN IF CAUSED BY OUR NEGLIGENCE, BREACH OF THIS CONTRACT, STRICT LIABILITY, FAILURE TO COMPLY WITH ANY APPLICABLE LAW, OR OTHER FAULT. AT YOUR REQUEST, WE MAY IN OUR SOLE DISCRETION AGREE TO ASSUME ADDITIONAL LIABILITY BY SIGNING AN AMENDMENT TO THIS CONTRACT STATING THE EXTENT OF OUR ADDITIONAL LIABILITY AND THE ADDITIONAL COST TO YOU. YOU AGREE THAT WERE WE TO HAVE LIABILITY GREATER THAN THAT STATED ABOVE, WE WOULD NOT PROVIDE THE SERVICES. WE ARE NOT LIABLE TO YOU OR ANY OTHER PERSON FOR ANY INCIDENTAL, PUNITIVE, SPECULATIVE OR CONSEQUENTIAL DAMAGES.[20]

         In Paragraph 8, decedent agreed to hold Defendant harmless for any third-party claims:

Hold Harmless. IF ANY THIRD PARTY FILES ANY CLAIM OR LEGAL ACTION AGAINST U.S. OR ANY PERSON OR ENTITY AUTHORIZED TO ACT ON OUR BEHALF, ARISING FROM OUR SERVICES OR YOUR SYSTEM, YOU AGREE TO DEFEND AND HOLD U.S. COMPLETELY HARMLESS FROM ANY SUCH ACTIONS, INCLUDING ALL DAMAGES, EXPENSES, COSTS, AND ATTORNEYS' FEES WE INCUR. THIS INDEMNIFICATION SHALL APPLY EVEN IF SUCH ACTIONS ARISE FROM OUR NEGLIGENCE, BREACH OF THIS CONTRACT, STRICT LIABILITY, NON-COMPLIANCE WITH ANY APPLICABLE LAW OR REGULATION, OR OTHER FAULT, SUBJECT TO OUR LIMITED LIABILITY SET FORTH ABOVE.[21]

         In Paragraph 9, decedent agreed to a one-year limitation of action:

Legal Actions. NO CLAIM OR LEGAL ACTION EITHER OF U.S. MAY HAVE ARISING OUT OF THIS CONTRACT, YOUR SYSTEM OR OUR SERVICES (WHETHER BASED ON CONTRACT, NEGLIGENCE, OR OTHERWISE) MAY BE BROUGHT MORE THAN ONE YEAR AFTER THE DATE THE CAUSE OF ACTION FOR SUCH CLAIM ACCRUED.[22]

         In Paragraph 10, decedent agreed to monitoring services and procedures. The contract provides:

         When the Center receives an actionable alarm signal from your system (an “Alarm Event”), we will make reasonable efforts, consistent with local laws and our response policies, to make the appropriate notifications. These notifications may include the local emergency response provider . . ., the person designated on your Monitoring Information Schedule or the monitored premises. You acknowledge we are subject to various governmental regulations and industry standards designed to reduce false alarms . . . In the event an Alarm Event is detected, we may, in our sole discretion, endeavor to contact the Premises by telephone to verify that it is not a false alarm.[23]

         The paragraph continues, “we shall attempt to notify the Premises or the first available person designated on your Monitoring Information Schedule.”[24] The contract further provides that Defendant may “alter, amend, or discontinue any of our policies and procedures for alarm response, ” and “that any special instructions provided by you for the handling of alarm signals must be presented and agreed to by us in writing.[25]

         Finally, the contract contains an integration clause:

         This Contact is the entire agreement between you and us, and supersedes all previous contracts between you and us regarding alarm monitoring or similar services at the Premises. You agree that we are not bound by and you have not relied on any representation, promise, condition, inducement, or warranty, express or implied, not included in this Contract.[26]

         III. Discussion

         A. Enforceability of the Contract

         1. Unconscionability

         Plaintiffs argue that “the service agreement is unconscionable and should not be enforced, in any way, by the court.”[27] Defendant asserts that decedent entered into a valid, enforceable contract with Defendant that bars Plaintiffs claims. “Under Kansas law, construction of a written contract is a matter of law for the court.”[28] Kansas law permits “mentally competent parties to arrange their own contracts and fashion their own remedies where no fraud or overreaching is practiced.”[29] “Contracts freely arrived at and fairly made are favorites of the law.”[30] The Court will uphold contracts provided they are neither “illegal nor contrary to public policy, and that in the absence of fraud, mistake or duress a party who fairly and voluntarily entered into such a contract is bound thereby notwithstanding it was unwise or disadvantageous to the complaining party.”[31]

         Unconscionability is a doctrine under which a contract may be denied enforcement because of “procedural abuses arising out of the contract formation, or because of substantive abuses relating to the terms of the contract, such as terms which violate reasonable expectations of parties or which involve gross disparities in price.”[32] The burden of establishing unconscionability is on the party attacking the contract.[33] That party must show unconscionability “at the inception of the contract rather than in the light of subsequent events.”[34]

         The leading case on unconscionability in Kansas is Willie v. Southwestern Bell Telephone Co.[35] In Willie, the Kansas Supreme Court found the following factors relevant to whether a contract was unconscionable:

(1) The use of printed form or boilerplate contracts drawn skillfully by the party in the strongest economic position, which establish industry wide standards offered on a take it or leave it basis to the party in a weaker economic position; (2) a significant cost-price disparity or excessive price; (3) a denial of basic rights and remedies to a buyer of consumer goods; (4) the inclusion of penalty clauses; (5) the circumstances surrounding the execution of the contract, including its commercial setting, its purpose and actual effect; (6) the hiding of clauses which are disadvantageous to one party in a mass of fine print trivia or in places which are inconspicuous to the party signing the contract; (7) phrasing clauses in language that is incomprehensible to a layman or that divert his attention from the problems raised by them or the rights given up through them; (8) an overall imbalance in the obligations and rights imposed by the bargain; (9) exploitation of the underprivileged, unsophisticated, uneducated and the illiterate; and (10) inequality of bargaining or economic power.[36]

         Further, there must be additional factors such as deceptive bargaining conduct as well as unequal bargaining power to render the contract unconscionable.[37]

         Plaintiffs argue that Defendant's adhesion service agreement contains multiple indicators of unconscionability under Willie, including hiding disadvantageous clauses within masses of fine print and in inconspicuous places, using unnecessary legalese, an “overall imbalance in the obligations and rights imposed by the bargain, ” and “clear inequality of bargaining and economic power.”[38] However, numerous courts, including Kansas courts, have rejected arguments that nearly identical exculpatory provisions are unconscionable. In Peter's Clothiers, Inc. v. Nat'l Guardian Sec. Servs. Corp., the court considered a different security company's limitation of liability clause, which was nearly identical to the clause at issue here, and reasoned,

“[c]onsidering the small fee [the security company] received, all parties to this contract understood that [the security company] was not insuring all the merchandise located at [Plaintiffs] store. The court concludes that the liability limiting language in the contract is not unconscionable; it avoids placing [the security company] in the position of being an insurer of [Plaintiffs] property.[39]

         Indeed, courts have “repeatedly upheld limitation of liability clauses in burglar alarm service contracts against allegations that they are violative of public policy or unconscionable.”[40]

         Further, the language limiting liability in decedent's contract was not hidden in fine print.

         In Santana v. Olguin, the court found a limitation of liability clause conspicuous when it was “written in relatively plain language and set forth after an all-capital-and-bold heading that clearly and unequivocally signaled the importance of the release and limitation of liability language.”[41] Here, the front page of the agreement tells the contracting party to “pay special attention to the following sections” including “Section 6, 7, and 8: WE ARE NOT AN INSURER, Limitation of Liability, Hold Harmless, which, among other things, significantly limits Protection One's liability to you under this Contract.”[42] The heading is written in plain English and points the contracting party to the specific provisions in the contract that limit Defendant's liability; this could hardly be considered “hiding of clauses which are disadvantageous to one party in a mass of fine print trivia or in places which are inconspicuous to the party signing the contract.”[43] Beyond the front-page heading, the phrasing of the clause is comprehensible, and contrary to Plaintiffs' assertion, the contract is neither written in unnecessary legalese nor exploitative.

         Finally, assuming there is “unequal bargaining and economic power” here due to the nature of the adhesion contract, Plaintiffs allege no facts to support an inference that there was deceptive bargaining conduct at the time of contracting such that the contract should be found to be unconscionable.[44] Accordingly, the Court considers Plaintiffs' additional arguments in light of its finding that a valid, enforceable contract existed between the parties.

         2. Gross Negligence

         Plaintiffs assert that the contractual limitations of liability are unenforceable due to allegations of gross negligence. Plaintiffs' Complaint alleges that “[d]efendant's negligent acts and/or omissions were carried on with a wanton and conscious disregard for the rights and safety of decedent and/or other clients of defendant similarly situated to decedent.”[45] Similarly, Plaintiff's Reply states, “all of those issues are present in this case, including allegations of gross and wanton negligence.” Certainly, under Kansas law, “[t]o the extent that the release attempts to limit liability for gross negligence or willful and wanton conduct, it is unenforceable.”[46] “To establish wanton conduct, a plaintiff must make a two-pronged showing: (1) that the act was ‘performed with a realization of the imminence of danger'; and (2) that the act was performed with ‘a reckless disregard [of] or complete indifference to the probable consequences of the act.'”[47] Plaintiffs' conclusory allegations do not sufficiently allege wantonness or gross negligence. To survive a motion to dismiss, Plaintiffs must allege “enough facts to state a claim for relief that is plausible on its face.”[48] Here, Plaintiffs have alleged no facts to support an inference that Defendant acted wantonly. Accordingly, the Court finds that allegations of gross negligence here do not bar enforcement of the otherwise enforceable contract.

         3. Suit Limitation Provision

         Paragraph 9 of decedent's contract with ADT reads, “no claim or legal action either of us may have arising out of this contract, your system, or our services (whether based on contract, negligence, or otherwise) may be brought more than one year after the date the cause of action for such claim accrued.”[49] Defendant asserts that this provision is enforceable and bars Plaintiffs' suit.

         Absent statutory prohibition, Kansas law permits a contracting party to limit the time of its liability under a contract.[50] Suit limitation provisions “encourage plaintiffs to use reasonable and proper diligence in enforcing their rights and protect courts from having to resolve claims years after the fact. In short, suit-limitation provisions serve a number of purposes even when the insurer is not directly prejudiced by a late filing.”[51] “[U]nder Kansas law, when a contract does not violate an articulated public policy, parties may agree by contract to limit the time to file suit, even if the applicable statute of limitations allows for a greater time period.”[52]

         Plaintiffs assert that the provision is unenforceable because wrongful death, survival, and consumer protection claims invoke public policy concerns “of a greater magnitude” than other causes of action protected from contractual limitation by Kansas courts. Plaintiffs cite no authority in support of their contention that public policy forbids a one-year suit limitation for survival actions or consumer protection claims, and the Court declines to make new law. Further, even if a one-year contractual suit limitation is against public policy, Plaintiffs' survival and consumer protection claims are dismissed for failure to state a claim, as discussed below. The Court first considers the effect of the suit limitation provision on Minor's wrongful death claim.

         B. Minor's Wrongful Death Claim

         Minor asserts that a one-year suit limitation for wrongful death claims is against Kansas public policy, and further, that Minor's minor status tolls any applicable suit limitation provision or statute of limitations. Under Kansas law, a wrongful death claim requires that the decedent “might have maintained the action had such person lived.”[53] Kansas courts have not decided whether a one-year contractual suit limitation is against public policy with regard to wrongful death claims, nor have Kansas courts considered whether minority tolls a contractual suit limitation agreed to by decedent. The Court considers these issues in turn.

         1. Contractual Limitation of Wrongful Death

         When considering whether public policy limits enforcement of an otherwise enforceable contract, the Court must balance competing interests. On one hand, Kansas courts have consistently recognized “the paramount importance of the freedom to contract.”[54] On the other hand, “[s]tatutes of limitation are creatures of the legislature and themselves an expression of public policy on the rights to litigate.” In Pfeifer, the Kansas Supreme Court rejected a six-month suit limitation provision for a retaliation claim arising under the Worker's Compensation Act. Minor argues that a wrongful death claim “invoke[s] public policy concerns of a greater magnitude” than Pfeifer and accordingly, the court ought to find the one-year provision to be contrary to public policy.

         In Pfeifer, the plaintiff brought a retaliatory discharge claim, alleging that her employer fired her because she collected Worker's Compensation.[55] The plaintiff's employment contract included a provision which required her to file suit within six months of her termination.[56] The Kansas Supreme Court reasoned that “Kansas has a ‘thoroughly established' public policy supporting injured workers' rights to pursue remedies for their on-the-job injuries and opposing retaliation against them from exercising their rights.”[57] The court emphasized that the tort at issue “rested on a principle of deterrence against employer reprisal for an employee's exercise of a legal right” and found that the contract “weakened [the plaintiff's] right to pursue a cause of action and potentially subverts the public interest in deterring employer misconduct.”[58] Further, the court found that “restricting an employee's time to bring a retaliatory discharge claim for a job termination . . . necessarily impeded the enforcement of that right and the public policy underlying it.”[59]

         The Pfeifer court relied on Hunter v. American Rentals in holding that the contractual limitation would impede a legislative purpose.[60] In Hunter, the Kansas Supreme Court found a contract provision eliminating liability for ineffective towing equipment was void because the contract provision directly undermined the legislative purpose of a Kansas statute that specifically required Defendant to provide safe towing equipment.[61] The court found that public policy required the court to uphold the specific statutory duty-providing safe trailer hitches- the company owed to its customers and the general public, despite the contractual wavier.[62]

         Minor asserts that wrongful death “invoke[s] public policy concerns of a greater magnitude than the retaliatory discharge claim protected by the Pfeifer court, ” and asserts that Kansas law supports this finding.[63] Certainly the creation of the wrongful death cause of action is a matter of public policy and properly the jurisdiction of the legislature.[64] However, Minor points to no statute or policy that would be undermined by a one-year contractual limitation on the cause of action. The contractual provision at issue here provides one year from “the date the cause of action for such claim accrued” for the action to be brought.[65] Unlike in Pfeifer, a contractual limitation of one year does not “effectively weaken[]” Minor's rights nor does it “subvert the public interest in deterring” misconduct. Further, no specific statutory duty or legislative purpose is undermined. Indeed, Minor's assertion that the claim invokes “public policy concerns of a greater magnitude than the retaliatory discharge claim” is unavailing. It is not the magnitude of the public policy that is dispositive, but rather the specific, articulable public policy that requires abrogation of parties' freedom to contract. Accordingly, the Court finds that the one-year contractual limitation on Minor's wrongful death claim is not contrary to Kansas public policy.

         2. Tolling of the Wrongful Death Claim

         Minor asserts that even if the one-year provision is enforceable, under K.S.A. § 60-515, the suit limitation is tolled based on his minor status. In Mason v. Gerin Corp., the Kansas Supreme Court found that expiration of decedent's own statute of limitations prior to his death bars a wrongful death claim by his heirs.[66] In Mason, the court explicitly considered and rejected a line of cases that found it was improper to “permit the action of the decedent prior to his death to defeat the cause of action in favor of his personal representative.”[67] The court declined to follow this reasoning in light of the plain language of the Kansas statute and Kansas precedent.[68]The court found the personal representative's action time-barred because “[t]he condition specified in the wrongful death statute requiring that the injured party have the capacity to maintain the action had he or she lived is not fulfilled.”[69] In Mason, the Court also recognized that under Kansas law, a wrongful death action could not be maintained if the “decedent's claim was satisfied by settlement during his lifetime.”[70]

         In Frost v. Hardin, the Kansas Supreme Court, adopting the opinion of the Kansas Court of Appeals, found that a wrongful death action by minor children was not barred by the statute of limitations simply because the action would be barred if brought by the widow mother.[71] The court found that the children's minority tolled the statute of limitations in a wrongful death action, just as it would any other claim brought by a minor, because the court was unable to ...


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