Kreekside Partners v. Nord Bitumi U.S., Inc.

963 F. Supp. 968, 1997 U.S. Dist. LEXIS 6655, 1997 WL 236690
Procedural entryThis page is a short order in Kreekside Partners v. Nord Bitumi U.S., Inc.. Read the opinion of the Court — 963 F. Supp. 959
District Court, D. Kansas·Decided April 21, 1997·No. Civil Action No. 95-2580-EEO·Published

Opinion

MEMORANDUM AND ORDER

EARL E. O’CONNOR, Senior District Judge.

This matter is before the court on plaintiffs motion in limine (Doc. # 93). Plaintiff seeks to exclude (1) evidence of any alleged fault of Duane Dennis Danner d/b/a Danner Roofing (“Danner”) for purposes of reducing defendant’s fault under the Kansas Comparative Fault Act and (2) references that any damages plaintiff suffered should be satisfied by insurance carried by Danner. For the reasons stated below, plaintiffs motion is granted.

I. Factual Background.

Plaintiff Kreekside Partners (“Kreekside”) claims that defendant Nord Bitumi U.S., Inc. (“Nord”) negligently represented that Danner was qualified and suitable to apply Nord’s roofing material for the purpose of inducing plaintiff to enter into a contract with Danner. Kreekside subsequently entered into a contract with Danner to re-roof Kreekside’s apartment buildings using materials supplied by Nord. In early 1994, Danner commenced work and re-roofed plaintiffs apartment buildings with Nord roofing material. Significant leaks developed in the roofs which caused damage to plaintiffs apartment buildings and its tenants’ property. The parties have stipulated that Danner faded to perform the roofing applications in accordance with Nord’s specifications and requirements.

II. Relevance Of Danner’s Alleged Negligence To Plaintiffs Negligent Misrepresentation Claim Against Nord.

Defendant seeks to have the jury compare Nord’s fault (in making the alleged misrepresentation of Danner’s abilities) to Danner’s fault (in failing to properly install the roofs and complete the work) and Kreekside’s fault. Plaintiff concedes that the jury appropriately can compare Nord’s fault to Kreekside’s fault. Plaintiff argues, however, that comparison of Nord’s fault to Danner’s fault is inappropriate under the Kansas Comparative Fault Act. See Kan. Stat. Ann. § 60-258a. The court agrees.

The Kansas Supreme Court has recognized a cause of action for negligent misrepresentation. See Mahler v. Keenan Real Estate, Inc., 255 Kan. 593, 876 P.2d 609 (1994) (recognizing tort of negligent misrepresentation in real estate purchase context).1 [970]*970The court adopted section 552 of the Restatement (Second) of Torts, which provides:

[o]ne who, in the course of his business, profession or employment, or in any other transaction in which he has a pecuniary interest, supplies false information for the guidance of others in their business transactions, is subject to liability for pecuniary loss caused to them by their justifiable reliance upon the information, if he fails to exercise reasonable care or competence in obtaining or communicating the information.

255 Kan. at 604, 876 P.2d at 616 (quoting Restatement (Second) of Torts § 552(1) (1977)). A defendant’s liability for negligent misrepresentations extends to those damages resulting from the action that the defendant intends to induce or influence. See Mahler, 255 Kan. at 604, 876 P.2d at 616; Restatement § 552(2). Plaintiff is entitled to compensation for the loss suffered of which the misrepresentation is the legal cause. See Restatement § 552B(1); EF Hutton & Co., Inc. v. Heim, 236 Kan. 603, 613-16, 694 P.2d 445, 453-54 (1985) (adopting customary negligence rule of damages based upon proximate cause for commodity broker’s alleged negligent misrepresentation). In this ease, plaintiff alleges that defendant’s misrepresentations are the legal cause of Danner’s negligence or faulty workmanship on plaintiff’s property. Thus, Nord’s liability cannot be reduced by the fault of Danner. Rather, the amount of plaintiff’s damages for Nord’s alleged misrepresentation is dependent on or derivative from Danner’s negligent or wrongful conduct.2

Nord and Danner are not “joint or successive tortfeasors” for which the Kansas Comparative Fault Act applies. See Mick v. Mani, 244 Kan. 81, 85-94, 766 P.2d 147, 150-57 (1988); Teepak, Inc. v. Learned, 237 Kan. 320, 322-29, 699 P.2d 35, 37-43 (1985). Kansas courts apply comparative fault principles to multiple tortfeasors to a single occurrence or successive tortfeasors that cause a single indivisible injury. See Chavez v. Markham, 256 Kan. 859, 867, 889 P.2d 122, 127 (1995); Mick, 244 Kan. at 86, 766 P.2d at 151; Teepak, 237 Kan. at 329, 699 P.2d at 42-43; Brown v. Keill, 224 Kan. 195, 207, 580 P.2d 867, 876 (1978). Here, the “occurrence” was the execution of a contract between plaintiff and an individual who did not have the represented qualifications. Danner’s negligent workmanship did not contribute to this “occurrence.” Instead, plaintiff claims that Danner’s negligent workmanship was a foreseeable consequence of defendant’s conduct of inducing plaintiff to enter into the contract. The extent to which Danner deviated from the standard of care goes to the amount of plaintiff’s damages for entering the contract and does not offset defendant’s liability.

Nord should not be able to reduce its fault by the fault of Danner where the nature of Nord’s alleged wrongful conduct is that Nord misrepresented the abilities of Danner. See generally Kansas State Bank & Trust Co. v. Specialized Transp. Servs., Inc., 249 Kan. 348, 376, 819 P.2d 587, 606 (1991) (“Negligent tortfeasors should not be allowed to reduce their fault by the intentional fault of another that they had a duty to prevent.”); Gould v. Taco Bell, 239 Kan. 564, 570-71, 722 P.2d 511, 516-17 (1986) (same); M. Bruenger & Co. v. Dodge City Truck Stop, Inc., 234 Kan. 682, 687, 675 P.2d 864, 869-70 (1984) (same). In M. Bruenger, plaintiff alleged that its truck was stolen because of the negligence of the defendant who was a bailee. The defendant attempted to compare its negligence with the fault of the thief who subsequently wrecked the truck. The Kansas Supreme Court held that the Comparative Fault Act did not apply because a bailee is required to exercise reasonable care “to prevent the theft in the first place.” 234 Kan. at 686, 675 P.2d at 869. The cause of the loss, the failure to exercise reasonable care to prevent [971]*971theft, is complete when the theft occurs. 234 Kan. at 687, 675 P.2d at 869. The court concluded that “the trial court committed reversible error in requiring the jury to compare the negligence of the bailee with the acts or omissions (whether intentional or negligent) of the thief.” 234 Kan. at 687, 675 P.2d at 870-71. “The thief s level of care in using or abusing the rig did not alter [defendant’s] duty one whit.” 234 Kan. at 686, 675 P.2d at 869.

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Kreekside Partners v. Nord Bitumi U.S., Inc., 963 F. Supp. 968, 1997 U.S. Dist. LEXIS 6655, 1997 WL 236690 (D. Kan. 1997).

963 F. Supp. 968 (Kreekside Partners v. Nord Bitumi U.S., Inc.) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Related

Teepak, Inc. v. Learned
699 P.2d 35 (Supreme Court of Kansas, 1985)
Brown v. Keill
580 P.2d 867 (Supreme Court of Kansas, 1978)
Mahler v. Keenan Real Estate, Inc.
876 P.2d 609 (Supreme Court of Kansas, 1994)
M. Bruenger & Co. v. Dodge City Truck Stop, Inc.
675 P.2d 864 (Supreme Court of Kansas, 1984)
Mick v. Mani
766 P.2d 147 (Supreme Court of Kansas, 1988)
EF Hutton & Co. v. Heim
694 P.2d 445 (Supreme Court of Kansas, 1985)
Albertson v. Volkswagenwerk Aktiengesellschaft
634 P.2d 1127 (Supreme Court of Kansas, 1981)
Chavez v. Markham
889 P.2d 122 (Supreme Court of Kansas, 1995)
Gould v. Taco Bell
722 P.2d 511 (Supreme Court of Kansas, 1986)