F I LED

United States Court of Appeals

Tenth Circuit

April 10, 2007

Elisabeth A. Shumaker

Clerk of Court

PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

JERRY L. WADE, II and NINH

NGUYEN,

Plaintiffs - Appellants,

v. Nos. 05-3044 and 05-3054

EMCASCO INSURANCE

COMPANY,

Defendant - Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF KANSAS

(D.C. NO. 03-CV-1276-JTM)

Patrick B. Hughes of Adams & Jones, Chartered, Wichita, Kansas (N. Russell

Hazlewood of Graybill & Hazlewood L.L.C., Wichita, Kansas with him on the

briefs) for Plaintiff-Appellant Ninh Nguyen.

William J. Graybill of Graybill, Witcher & Ambrosier, Elkhart, Kansas for

Plaintiff-Appellant Jerry L. Wade, II.

Stephen E. Robison (Lyndon W. Vix with him on the brief) of Fleeson, Gooing,

Coulson & Kitch, L.L.C., Wichita, Kansas for Defendant-Appellee EMCASCO

Insurance Company.

Before MURPHY, EBEL, and McCONNELL, Circuit Judges.

McCONNELL, Circuit Judge.
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It is well settled in Kansas that an insurance company owes to its insured a

duty to act in good faith and without negligence in the settlement of third-party

claims. When an insurer negligently or in bad faith declines a settlement offer

within the policy limits, takes the case to trial, and a verdict is rendered against

the insured in excess of policy limits, the insurer is liable to the insured for the

excess judgment. See Bollinger v. Nuss, 449 P.2d 502, 508 (Kan. 1969). This

case involves the application of this principle to an insurer’s delay in acceptance

of a settlement offer, and arises under what we trust is an unusual set of

undisputed facts: the plaintiff in a tort suit against the insured demanded a policylimits settlement shortly after an automobile accident where liability and

causation were vigorously disputed, offered but did not provide relevant medical

records, withdrew the settlement offer before giving the insurance company the

medical records or providing medical releases, and then rejected the insurance

company’s policy-limits settlement offer—tendered the day after the insurance

company received the medical records—solely because the plaintiff hoped to

recover a much larger award on a bad-faith claim. We hold that the district court

was correct to grant summary judgment in favor of the insurer on such a claim,

both as to the insured and as to the tort plaintiff, to whom the insured assigned his

rights against the insurer. 
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I. Background

Because this case arises on summary judgment, we must resolve all factual

disputes and draw all reasonable inferences in favor of the nonmoving party. 

Roberts v. Printup, 422 F.3d 1211, 1214 (10th Cir. 2005). The following facts are

undisputed.

This case arose from a tragic automobile accident in which a vehicle driven

by Jerry L. Wade, II, collided with a minivan driven by Loan Vu, in which her

husband, Ninh Nguyen, was a passenger. The accident occurred on February 23,

2001, at a four-lane intersection controlled by a traffic signal. Ms. Vu was

proceeding northbound through the intersection and Mr. Wade was heading

eastbound. One driver must have failed to stop at a red light. Ms. Vu maintained

that she did not stop at the intersection because she had a green light. She could

not say, however, whether there was traffic coming in the opposite direction

because she does “not pay attention to the other direction of the street.” Vu Dep.

64–65, App. 607. Mr. Wade claimed that he was stopped at a red light and

proceeded through the intersection only after the light turned green. Witnesses to

the accident also disagreed as to who had the green light. Susan Schrag reported

that Mr. Wade entered the intersection against a red light, but Sheldon (Seth)

Turner, a friend and co-worker of Mr. Wade who happened to be in a nearby car,

claimed that Mr. Wade entered the intersection on a green light. Because the

cause of the accident was contested, neither party received a citation. 
The district court stated that Mr. Nguyen was rendered tetraplegic; at 1

various points in the record he is described as quadriplegic or paraplegic. We

will use whichever term is used in the record at the relevant point. Nothing in

this case turns on the precise nature of Mr. Nguyen’s condition. 

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After the accident, Mr. Wade, Ms. Vu, and Mr. Nguyen were taken to

Wesley Medical Center. Ms. Vu and Mr. Wade were treated for relatively minor

injuries. Mr. Nguyen was hospitalized for two weeks before being transferred to

Wesley Rehabilitation Hospital, where he remained an additional five weeks. Mr.

Nguyen suffered a spinal cord injury rendering him tetraplegic or quadriplegic.1

Shortly after the accident, Mr. Wade filed a claim under his EMCASCO

insurance policy for medical treatment and damage to his car. His policy

provided a total of $100,000 coverage for all claimants in an accident. Mr. Wade

was placed in contact with Russ Shreves, an EMCASCO adjuster. He completed

a claim form in which he stated that he had a green light and the minivan ran the

red light. 

Less than a week after the accident, while Mr. Nguyen was still in Wesley

Hospital, Ms. Vu retained Gary Patterson to represent Mr. Nguyen. On March 13,

2001, Mr. Patterson sent Mr. Shreves a letter in which he advised Mr. Shreves

that he represented Mr. Nguyen and that Mr. Nguyen had suffered a spinal cord

injury and may be permanently injured, opined that Mr. Nguyen’s damages would

exceed one million dollars, and inquired as to the limits of Mr. Wade’s insurance
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policy. Mr. Patterson followed up his letter with a phone call to Mr. Shreves. 

Mr. Shreves assigned the investigation to an outside adjuster, Kyle Buck. 

As part of his investigation, Mr. Buck was instructed to gather statements

from the insured and witnesses. He interviewed Mr. Wade and Mr. Turner. 

During his interview, Mr. Wade explained that while he was at the hospital, he

asked a hospital chaplain about the condition of the minivan’s occupants and that

the chaplain informed him that they were okay and would be released. This gave

rise to suspicion that Mr. Nguyen’s quadriplegic condition was not attributable to

the accident. Mr. Buck also attempted, unsuccessfully, to obtain a statement from

Ms. Schrag. He called Ms. Schrag eleven times between April 4, 2001, and June

29, 2001, and left seven messages for her. Although she returned one of his

phone calls when he was out of the office, the two did not connect. 

Meanwhile, Mr. Patterson obtained an authorization for release of medical

information from Mr. Nguyen on March 29, 2001. On April 6, 2001, Mr.

Patterson requested from Wesley Medical Center a complete itemization of Mr.

Nguyen’s medical expenses. By May 1, 2001, Mr. Patterson had forwarded Mr.

Nguyen’s medical bills to Mr. Shreves. In a letter to Mr. Shreves dated May 1,

2001, Mr. Patterson also offered to “settle all claims against [the] insured for

prompt payment of [the] insured’s policy limits” and explained that he had

“ordered the medical records from Wesley Hospital and Wesley Rehabilitation

Hospital and [would] forward same to [Mr. Shreves] upon receipt.” Id. at 793. 
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Based on Mr. Patterson’s promise to send the medical records, Mr. Shreves did

not attempt to obtain Mr. Nguyen’s records himself.

Mr. Patterson received Mr. Nguyen’s medical records from Wesley

Rehabilitation Hospital, reviewed them, and forwarded them to Mr. Shreves on

May 21, 2001. In a letter sent on May 21, 2001, Mr. Patterson said, without

qualification, “I am also enclosing the medical records for Ninh Nguyen with this

letter,” and advised Mr. Shreves “that the policy limits settlement offer will be

withdrawn on June 15, 2001.” Id. at 794. Although this letter purported to

include all of Mr. Nguyen’s medical records, none of Mr. Nguyen’s records from

his two-week stay at the Wesley Medical Center were included. In fact, Mr.

Patterson did not receive Mr. Nguyen’s medical records from Wesley Medical

Center until June 28, 2001, nearly two weeks after the settlement offer expired.

And Mr. Patterson did not forward those records to Mr. Shreves after he received

them on June 28. Instead, Mr. Patterson waited four months, until all settlement

offers had expired, before sending the Wesley Medical Center records.

Mr. Patterson’s May 21, 2001, letter also informed Mr. Shreves that Mr.

Patterson had successfully contacted Ms. Schrag, who maintained that Mr. Wade

had entered the intersection against a red light. Although Mr. Patterson

volunteered to set up a meeting with Ms. Schrag and an EMCASCO

representative, Mr. Shreves declined Mr. Patterson’s offer, preferring that Mr.

Buck make independent arrangements to interview Ms. Schrag. Although Mr.
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Buck continued his attempts to contact Ms. Schrag, all attempts to contact her

before the June 15, 2001, settlement demand deadline were unsuccessful. On

either June 5 or July 5, 2001, Mr. Shreves sent a letter to Mr. Wade informing

him that Mr. Nguyen had filed a claim in excess of the policy limits. Mr. Shreves

explained that “[t]he accident is still under active investigation” and that

EMCASCO had thus far been unable to obtain a statement from one of the

witnesses. Id. at 757.

On August 2, 2001, Mr. Patterson sent Mr. Shreves a copy of a witness

statement obtained from Ms. Schrag on June 25, 2001. At that time, Mr. Shreves

told Mr. Buck to stop attempting to contact Ms. Schrag, as he had already

received a statement. Mr. Patterson did not explain why he waited five weeks

before forwarding the statement to EMCASCO. In the August 2 letter, Mr.

Patterson again offered to settle Mr. Nguyen’s claim for the policy limits. 

On August 7, 2001, Mr. Shreves called attorney David Cooper, who had

been hired to defend Mr. Wade at EMCASCO’s expense. On August 20,

2001—less than three weeks after the second settlement offer and before Mr.

Cooper had an opportunity to review Mr. Nguyen’s medical records—Mr.

Patterson sent Mr. Shreves a letter withdrawing his second policy limits

settlement demand. Mr. Patterson also enclosed a copy of the Petition filed

against Mr. Wade and “agree[d] to delay serving th[e] Petition on [Mr. Wade] to

give [EMCASCO] time to make a settlement offer on this case should
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[EMCASCO] decide to do so.” Id. at 765. Mr. Shreves promptly forwarded that

letter to Mr. Cooper with a note explaining that “[t]his is one of those situations

that may not allow us to wait for all of the facts [because] the threat of excess

judgment and ‘bad faith’ may force us to proceed more hastily than we would

prefer.” Id. at 767. 

Although by August 2001 it had become relatively clear, despite Mr.

Wade’s disclaimer of liability, that there was a 50-50 chance that Mr. Wade ran

the red light, as questions about the cause of Mr. Nguyen’s injuries started to

emerge. In particular, Mr. Cooper was concerned that Mr. Nguyen’s quadriplegia

was caused by something other than the collision. Mr. Cooper explained that he

“did not have the report of the ambulance service from the site of the accident to

the hospital, nor did [he] have any of the records of the emergency room

treatment or the immediate stay at the hospital before [Mr. Nguyen’s] transfer to

the rehab hospital” and therefore he “didn’t know what information there was that

causally connected the accident to the paraplegia [and] whether or not there could

have been any claim for negligence or malpractice by either the emergency care

providers, either in the ambulance or at the hospital or in the course of the stay at

the hospital.” Cooper Dep. 66–67, App. 695. To cure this lack of information,

Mr. Cooper asked Mr. Patterson for medical releases so that Mr. Cooper could

obtain the missing medical records. Mr. Cooper sent Mr. Patterson a letter on

October 22, 2001, explaining his understanding that Mr. Patterson agreed to
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“withhold service upon Mr. Wade pending collection of medical records from the

initial treating hospital and emergency medical service” and explaining the

necessity of “assur[ing] that Mr. Nguy[e]n’s injuries were a result of the motor

vehicle accident and not the result of any medical negligence or accidents that

may have happened after he was transported from the scene of the accident.” 

App. 818. 

Mr. Patterson sent Mr. Cooper a medical release, which Mr. Cooper

submitted to Wesley Hospital. But the release was signed by Mr. Patterson rather

than the patient. The hospital apparently found the release invalid, and did not

furnish the records. Unable to obtain the medical records directly from Wesley

Hospital, Mr. Cooper called Mr. Patterson on October 30, 2001, and asked him

whether he had the emergency treatment records. Mr. Patterson located the

emergency records in his own files and agreed to send them to EMCASCO. Upon

learning that Mr. Patterson would forward the medical records, Mr. Cooper sent

an e-mail to an EMCASCO supervisor, Joel McFadden, stating that Mr. Patterson

“did have the ER records and would be sending copies today” and remarking that

“if [Mr. Patterson] had done this in the first place, this file would be closed by

now.” Id. at 819. Upon receiving the emergency medical records, Mr. Cooper

sent a summary to Mr. McFadden, who immediately authorized a settlement offer

of the policy limit. Mr. Wade, while maintaining that he was not at fault, agreed
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to the settlement. Mr. Cooper conveyed the settlement offer to Mr. Patterson on

November 1, 2001. 

Because Mr. Cooper interpreted Mr. Patterson’s August 20, 2001, letter as

soliciting a policy limits offer, he believed Mr. Patterson would accept the policy

limits offer “as soon as [EMCASCO] had authorization to extend the . . . offer.” 

Cooper Dep. 153, App. 714. But by this time, Mr. Nguyen’s attorney was

contemplating pursuing a bad faith claim against EMCASCO, which could

amount to millions, instead of the policy-limits offer of $100,000. Although his

August 20 letter invited EMCASCO to make a settlement offer, Mr. Patterson

admitted in his later deposition that he would not have accepted a settlement for

the policy limits on August 20. Mr. Patterson explained that by August 20, he

“was fairly certain that they had been acting in bad faith” and that a “policy limit

[settlement] would not have done it, but some amount would have settled it at

[that] point in time.” Patterson Dep. 95, App. 741. Accordingly, without

explicitly disclaiming an intention to settle for the policy limits, Mr. Patterson

never responded to EMCASCO’s November 1, 2001, settlement offer. 

Instead, Mr. Patterson enlisted new co-counsel, Jacob Graybill, an attorney

with experience in bad faith claims against insurance companies. Mr. Patterson

admitted in his deposition that he did not recall any additional work having been

done between August and November that uncovered additional information

relevant to Mr. Nguyen’s claim against Mr. Wade. Nonetheless, Mr. Graybill
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rejected the settlement on behalf of Mr. Nguyen. The plan was to reject the

settlement offer and negotiate an excess judgment directly with Mr. Wade on the

understanding that Mr. Wade would convey to Mr. Nguyen his right to pursue a

bad faith claim against EMCASCO, in exchange for being held harmless on the

judgment. On November 19, 2001, Mr. Graybill sent a letter to Mr. Cooper

rejecting the settlement offer:

The legal test for whether we can recommend that Mr. Nguyen accept

$100,000 to settle Mr. Wade’s liability for his injury is whether from

the facts and circumstances a prima facie case emerges that EMC, as

a result of negligence or lack of good faith, failed to accept either of

Mr. Nguyen’s offers. With all due respect, it appears in this case

that is exactly what has occurred. . . . [O]ne must recognize the

scenario presents a pattern of delay, which EMC has attempted to

obscure with transparently disingenuous excuses. Viewed from that

perspective, it is possible, and in my opinion probable, a fact finder

will find that EMC acted with little, if any, regard for the interest of

Mr. Wade, and engaged in a reckless, mindless, refusal to apply

reason in its refusal to timely accept Mr. Nguyen’s policy limit

settlement offers. Consequently, Mr. Patterson and I would be guilty

of malpractice if we were to advise Mr. Nguyen to accept $100,000

that has been offered on Mr. Wade’s behalf . . . .

App. 833. In the letter, Mr. Graybill also suggested that EMCASCO, Mr. Wade,

and Mr. Nguyen negotiate a fair settlement, without regard to who will pay it and

irrespective of the policy limits, and allow Mr. Wade to confess judgment and

assign his contractual rights to Mr. Nguyen. Mr. Graybill proposed a settlement

in the amount of $3 million. 

At this time, Mr. Wade had virtually no assets other than his potential claim

against the insurance company. He had gone bankrupt five years before the
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accident. Subsequently, he purchased a home with an appraised value of

$49,300, on which he had a $45,400 mortgage. 

Because Mr. Cooper could not agree to enter into negotiations on behalf of 

EMCASCO, he began to prepare Mr. Wade’s case for trial. On June 20, 2002, on

Mr. Cooper’s advice, Mr. Wade confessed judgment in the amount of $3,150,000

and assigned his rights to Mr. Nguyen for any bad-faith claim, in exchange for a

covenant from Mr. Nguyen not to execute the judgment. Following entry of the

$3,150,000 judgment, EMCASCO paid its policy limit of $100,000. Of this sum,

$25,000 went to Ms. Vu, the driver of the other vehicle, and $75,000 went to Mr.

Nguyen. 

Mr. Nguyen, in his capacity as assignee of Mr. Wade’s contractual rights

against the insurance company, filed a lawsuit against EMCASCO in state court.

EMCASCO promptly removed the case to the United States District Court for the

District of Kansas based on diversity of citizenship. Mr. Nguyen claimed that

EMCASCO breached its duty of good faith owed to Mr. Wade under his insurance

policy by failing to use due care in investigating and settling Mr. Nguyen’s claim

and failing to give Mr. Wade’s interest equal consideration to its own interest. 

Mr. Nguyen claimed that “[a]s a foreseeable and direct consequence of

EMCASCO’s” breach, a judgment in excess of $3 million was entered against Mr.

Wade. Id. at 53. 
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On the recommendation of Mr. Patterson and Mr. Jacob Graybill, Mr. Wade

hired Mr. William Graybill to represent him against EMCASCO. Mr. Wade filed

a motion for joinder in Mr. Nguyen’s suit against EMCASCO, which the district

court granted. In his complaint, Mr. Wade argued that EMCASCO breached its

contract by failing to carefully and diligently investigate Mr. Nguyen’s claim, by

not keeping Mr. Wade informed of relevant facts, and by not providing an

adequate defense during the pendency of Mr. Nguyen’s lawsuit against Mr. Wade.

He further claimed that the same conduct was a breach of EMCASCO’s duty of

good faith and fair dealing. Mr. Wade added that EMCASCO was negligent in

failing to adequately respond to Mr. Nguyen’s settlement offers; that EMCASCO

committed fraud by intentionally failing to disclose that Mr. Cooper, the lawyer

assigned to represent Mr. Wade, had a longstanding employment relationship with

EMCASCO, thereby creating a conflict of interest; and that EMCASCO tortiously

interfered with Mr. Wade’s attorney-client relationship with Mr. Cooper.

Although Mr. Wade had virtually no assets and therefore suffered no direct

pecuniary loss from entry of the excess judgment, the Plaintiff’s theory of

damages was that the judgment injured Mr. Wade’s credit and prevented him from
 Although his first mortgage was only slightly under the appraised value of 2

his home and he had filed for bankruptcy five years earlier, Mr. Wade applied to a

bank for a second mortgage of $25,000. The bank denied the application for a

second mortgage because of something on Mr. Wade’s credit report. Mr. Wade

did not inquire as to the reason for the denial, but stated in his deposition that he

“assumed” that the problem was the judgment against him in the automobile

accident case. Wade Dep. 118–19, App. 629. 

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obtaining a second mortgage on his home and from selling his home, and caused 2

him to experience “fear, dread, anxiety and uneasiness.”

EMCASCO filed a motion for summary judgment on all claims, which the

district court granted. The district court found that “[t]he demand for settlement

early in the dispute, its short duration, the contemporaneous existence of

significant questions as [to] liability, and the failure of plaintiff’s counsel to

follow through on commitments to supply necessary medical evidence supporting

his client[’]s claim” compelled a finding that EMCASCO did not act negligently

or in bad faith in waiting to settle Mr. Nguyen’s claim until it had obtained all of

the medical information. Mem. Op. 16. As to Mr. Wade’s claims, the court

rejected all of the tort claims, finding that Kansas law does not allow tort actions

premised on an insurer’s breach of its contractual duty to defend. The court also

rejected Mr. Wade’s breach of contract and breach of implied covenant of good

faith claims because Mr. Wade is not the real party in interest, as he assigned

those claims to Mr. Nguyen. Both Mr. Nguyen and Mr. Wade appeal from the

district court’s order. 
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II. The Bad Faith Claim Against EMCASCO Brought By Assignee Nguyen

A. Insurance Bad Faith Claims Under Kansas Law

In cases arising under diversity jurisdiction, the federal court’s task is not

to reach its own judgment regarding the substance of the common law, but simply

to “‘ascertain and apply the state law.’” Wankier v. Crown Equip. Corp., 353 F.3d

862, 866 (10th Cir. 2003) (quoting Huddleston v. Dwyer, 322 U.S. 232, 236

(1944)); see also Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78 (1938). The federal

court must follow the most recent decisions of the state’s highest court. Wankier,

353 F.3d at 866. “Where no controlling state decision exists, the federal court

must attempt to predict what the state’s highest court would do.” Id. In doing so,

it may seek guidance from decisions rendered by lower courts in the relevant

state, Progressive Cas. Ins. Co. v. Engemann, 268 F.3d 985, 988 (10th Cir. 2001),

appellate decisions in other states with similar legal principles, United States v.

DeGasso, 369 F.3d 1139, 1148 (10th Cir. 2004), district court decisions

interpreting the law of the state in question, Sapone v. Grand Targhee, Inc., 308

F.3d 1096, 1100, 1104–05 (10th Cir. 2002), and “the general weight and trend of

authority” in the relevant area of law, MidAmerica Constr. Mgmt., Inc. v. Mastec

N. Am., Inc., 436 F.3d 1257, 1262 (10th Cir. 2006) (internal quotation marks

omitted). Ultimately, however, the Court’s task is to predict what the state

supreme court would do. Our review of the district court’s interpretation of state

law is de novo. Roberts v. Printup, 422 F.3d 1211, 1215 (10th Cir. 2005). No
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party to this case has asked us to certify any question of law to the Kansas

Supreme Court.

The leading case in Kansas defining bad faith claims in the context of an

insurer’s failure to settle a third-party claim against the insured is Bollinger v.

Nuss, 449 P.2d 502 (Kan. 1969). The Kansas Supreme Court explained the

rationale for the doctrine as follows:

When a claim is made against the insured for an amount in excess of

the policy coverage, the insurer’s obligation to defend creates a

conflict of interest on its part. On the one hand, its interests lie in

minimizing the amount to be paid; on the other, the insured’s

interests, which the insurer is supposedly defending, lie in keeping

recovery within policy limits, so that he will suffer no personal

financial loss. The conflict becomes particularly acute where there is

an offer of settlement approximating policy limits. The insured’s

desire to avoid the risk of a large judgment by settling within the

limits of the policy, regardless of the merits of the claim, would

compel him, were he in charge of settlement negotiations, to accept

the offer. The insurer’s interests, on the other hand, are prompted by

its own evaluation of the liability aspects of the litigation and a

desire not to expose itself to payments which do not adequately

reflect the dangers that might be involved in pursuing the case to

trial. When the settlement offer approaches policy limits, the insurer

has a great deal less to risk from going to trial than does the insured,

because the extent of its potential liability is fixed.

Id. at 510. The “real question,” according to the court, is “the degree of

consideration which an insurer must give to those interests of the insured which

conflict with its own.” Id. After canvassing the alternatives, the Bollinger court

determined that “the insurer may properly give consideration to its own interests,

but it must also give at least equal consideration to the interests of the insured.” 
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Id. “The result,” the court explained, is that “the insurer must conduct itself with

that degree of care which would be used by an ordinarily prudent person in the

management of his own business, with no policy limits applicable to the claim.” 

Id. at 511. “Something more than mere error of judgment is necessary to

constitute bad faith.” Id. at 514. Although the court held that an insurer is bound

to conduct itself both in good faith and without negligence, it considered the

difference in these two formulations “more a difference in verbiage than results.” 

Id. at 509. Thus, many of “the same factors are generally relied upon in those

cases finding a breach of good faith as in those finding negligence on the part of

the insurer.” Id. at 511.

The insurer’s duty in these cases runs only to its insured; it has no duty to

the third-party plaintiff. The Kansas Supreme Court, however, has held that the

insured may assign his claim against the insurance company to another party. 

Glenn v. Fleming, 799 P.2d 79, 90–91 (Kan. 1990). Here, the insured, Jerry

Wade, assigned his rights to sue the insurance company for any bad-faith claim to

Ninh Nguyen, the third-party tort plaintiff, in exchange for a covenant from Mr.

Nguyen not to execute the judgment. Thus, it is Mr. Nguyen—not Mr.

Wade—who is asserting Mr. Wade’s rights against EMCASCO. 

The Bollinger court stressed that “the question of liability depends upon the

circumstances of the particular case and must be determined by taking into

account the various factors present, rather than on the basis of any general
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statement or definition.” Id. at 512. The court then listed certain factors that

should be considered in “deciding whether the insurer’s refusal to settle

constituted a breach of its duty to exercise good faith,” id.:

“(1) the strength of the injured claimant’s case on the issues of

liability and damages; (2) attempts by the insurer to induce the

insured to contribute to a settlement; (3) failure of the insurer to

properly investigate the circumstances so as to ascertain the evidence

against the insured; (4) the insurer’s rejection of advice of its own

attorney or agent; (5) failure of the insurer to inform the insured of a

compromise offer; (6) the amount of financial risk to which each

party is exposed in the event of a refusal to settle; (7) the fault of the

insured in inducing the insurer’s rejection of the compromise offer

by misleading it as to the facts; and (8) any other factors tending to

establish or negate bad faith on the part of the insurer.”

Id. (quoting Brown v. Guarantee Ins. Co., 319 P.2d 69, 75 (Cal. Dist. Ct. App.

1957)). Significantly, the court noted that “[s]everal” of the listed factors were

not relevant to the case at hand, id., and in light of the eighth, catch-all factor

(“any other factors tending to establish or negate bad faith on the part of the

insurer”), it is evident that the list of factors is neither exclusive nor necessarily

pertinent in every case.

Bollinger involved an insurance company’s decision to take a case to trial

rather than to accept a policy-limits settlement offer. This case, by contrast,

involves an insurance company’s delay in accepting a policy-limits settlement

offer. Approximately two months after Mr. Nguyen’s last clear settlement offer

apparently expired, and well before the case would have gone to trial, EMCASCO
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offered to settle for the policy limits. Mr. Nguyen declined to accept the offer at

that time. While the first seven Bollinger factors apply to cases involving delay

in acceptance of a settlement offer as well as cases involving refusal to settle,

Roberts, 422 F.3d at 1219 & n.5, delayed acceptance cases necessarily implicate

“other factors tending to establish or negate bad faith on the part of the insurer,” 

Bollinger, 449 P.2d at 512. 

In Glenn v. Fleming, 799 P.2d 79 (Kan. 1990), the Kansas Supreme Court

applied the Bollinger bad faith doctrine to a delayed acceptance case. The thirdparty plaintiff in that case made a policy-limits offer early in the litigation

process, when discovery had scarcely begun. Id. at 82. Early investigative

reports suggested that the plaintiff, rather than the insured, had caused the

accident. Id. at 81. The insurance company requested the plaintiff’s medical

records and the plaintiff’s attorney said that he would send them, but at the time

of the offer had not done so. Id. at 86. The insurance company rejected the

settlement offer and made a much smaller counter-offer. Id. at 82. When

additional evidence later surfaced, the insurance company made a policy-limits

offer, which the plaintiff refused. Id. at 83. Following a substantial verdict at

trial, the insured assigned his bad faith claim to the third-party plaintiff. Id. at

84. The trial court granted summary judgment in favor of the insurance company,

which the Kansas Supreme Court affirmed. Id. at 84, 86. The trial court held that

“there was no bad faith in refusing to accept the [settlement] offer under these
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circumstances.” Id. at 86. “The offer was found to be unreasonable because it

was premature, had conditions attached to it, and was only open for two weeks.” 

Id. 

Similarly, in Covill v. Phillips, 452 F. Supp. 224 (D. Kan. 1978), the

district court, applying the Bollinger factors, held that an insurance company was

not liable in a bad faith claim based upon its refusal of an early policy-limits

settlement offer. Id. at 231–33. In Covill, the liability of the insured was not in

doubt, but the insurance company questioned the amount of damages suffered by

the third-party plaintiff. Id. at 228, 231. As in Glenn, the plaintiff’s lawyers

promised to provide the company the plaintiff’s full medical records, but failed to

do so. Id. at 228, 231–32. The court found that “it was not unreasonable for

State Farm, having voiced its reasonable and specific requests for the medical

information it felt was necessary to verify the claimant’s injuries, to rely upon the

assurances of the plaintiff’s attorneys that such information would be

forthcoming.” Id. at 232. Under the circumstances, the court held that the

insurer’s failure to accept the policy-limits settlement offer “can in no way be

viewed as a breach of its duty to its insured.” Id. 

The court held, however, that the company’s subsequent conduct did give

rise to a bad faith claim. Id. at 233–40. During the months after State Farm’s

initial refusal of the offer, the company became “increasingly aware of the

seriousness of [the plaintiff’s] injuries,” but it made no attempts to initiate
-21-

settlement. Id. at 234. Indeed, long after the company itself concluded that the

claim was worth more than the policy limit, and after the lawyer it hired to

represent the insured had repeatedly pleaded with the company to authorize a

policy-limits offer, the company continued to offer less than the policy limits. Id.

at 236. The court concluded:

[T]here is compelling evidence that by early November, 1975, State

Farm did not believe and could not have honestly believed that it had

a realistic chance of defeating Larry Covill’s claim or keeping any

possible judgment within the limits of the policy. Furthermore, the

evidence strongly suggests that if State Farm had more aggressively

investigated Larry’s claim instead of relying past the point of all

reason on [plaintiff’s counsel] to voluntarily furnish all of the

information allegedly necessary for adequate evaluation of the claim

it would have known much earlier than November, 1975, that the risk

of an excess judgment was great. 

Id. at 238. 

And in Williams v. American Family Mutual Insurance Co., 101 F. Supp.2d

1337 (D. Kan. 2000), the district court, applying Kansas law, granted summary

judgment in favor of the insurance company in a bad faith claim, despite refusal

of a settlement offer and an attendant excess judgment, where the insurer made a

reasonable request for additional documentation and the plaintiff’s attorney failed

to supply it. Id. at 1342; see also Smith v. Blackwell, 791 P.2d 1343, 1347–49

(Kan. Ct. App. 1990) (upholding bad faith claim where plaintiff’s counsel

“furnished all requested medical reports, agreed to extend time if significant
-22-

progress toward settlement was being made, and did not file suit ‘precipitously,’”

but insurer did not offer to settle until after suit was filed).

Courts in other states have rendered similar decisions. In Miel v. State

Farm Mutual Automobile Insurance Co., 912 P.2d 1333, 1336 (Ariz. Ct. App.

1995), a lawsuit against the insured resulted in an excess judgment. The insurer

was then sued for delaying acceptance of the plaintiff’s settlement offer until after

it had expired. Id. The Arizona Court of Appeals reversed a decision against the

insurer, holding that it was error for the trial court to refuse to allow evidence

regarding the plaintiff’s motives in setting a time limit for the settlement offer. 

Id. at 1339–40. The court explained that “the reasons the Plaintiff adhered to the

deadline are relevant to whether the insurer acted unreasonably.” Id. at 1339. 

The court emphasized that “[w]hat is reasonable on the part of the insurer . . .

must be judged in light of all the facts surrounding the demand.” Id. “Even

though [the insurer] does not claim that the deadline was so short that it could not

have been met, the reasons for a specific deadline may be relevant to whether the

claimant has ‘set up’ the insurer for a claim of bad faith.” Id. 

Similarly, in Adduci v. Vigilant Insurance Co., 424 N.E.2d 645 (Ill. App.

Ct. 1981), the Illinois Court of Appeals upheld dismissal of a bad faith claim

where the insurer attempted to accept a settlement offer forty days after the offer

expired. Id. at 649. The court explained:
-23-

No facts sufficiently indicate why the claimants found it impossible

to accept the offer at this time, so as to fairly place the blame for

failure of settlement upon Insurer. The allegations of the complaint

simply do not show why the offer would have been good on May 7,

1976, but was not acceptable on June 18, 1976.

Id. at 649; see also Haugh v. Allstate Ins. Co., 322 F.3d 227, 232–33 (3d Cir.

2003) (reversing summary judgment in favor of insurer where delay in settlement

imposed substantial litigation costs upon the plaintiff, leading the plaintiff to

reject the later offer); Associated Wholesale Grocers, Inc. v. Americold Corp.,

934 P.2d 65, 92 (Kan. 1997) (“A claimant may be more willing to negotiate with

the insured before undertaking the risk and expense of a trial.”).

In light of these decisions, we agree with the district court’s observation

that courts should exercise caution “when the gravamen of the complaint is not

that the insurer has refused a settlement offer, but that it has delayed in accepting

one.” Mem. Op. 14 (citing Adduci, 424 N.E.2d at 649; Pavia v. State Farm Mut.

Auto. Ins. Co., 626 N.E.2d 24, 28–29 (N.Y. 1993)). This caution “arises from the

desire to avoid creating the incentive to manufacture bad faith claims by

shortening the length of the settlement offer, while starving the insurer of the

information needed to make a fair appraisal of the case.” Id. at 15. As the First

Circuit commented in Peckham v. Continental Casualty Insurance Co., 895 F.2d

830, 835 (1st Cir. 1990): 
 By the same token, we do not hold that an insurer’s attempt to accept an 3

expired offer serves to absolve the insurer of any liability for damages to the

insured caused by the insurer’s earlier bad faith failure to settle. S. Gen. Ins. Co.

v. Holt, 409 S.E.2d 852, 858 (Ga. Ct. App. 1991), vacated on other grounds by S.

Gen. Ins. Co. v. Holt, 416 S.E.2d 274 (Ga. 1992). Under the Kansas Supreme

Court’s multi-factor approach in Bollinger, the jury should consider all relevant

factors bearing on the good faith of the insurer, and only when no reasonable jury

could conclude that the insurance company acted negligently or in bad faith is the

company entitled to summary judgment.

-24-

[T]he doctrinal impetus for insurance bad faith claims derives from

the idea that the insured must be treated fairly and his legitimate

interests protected. . . . In other words, the justification for bad faith

jurisprudence is as a shield for insureds—not as a sword for

claimants. Courts should not permit bad faith in the insurance milieu

to become a game of cat-and-mouse between claimants and insurer,

letting claimants induce damages that they then seek to recover,

whilst relegating the insured to the sidelines as if only a mildly

curious spectator.

In particular, in light of the purposes of the bad faith cause of action, courts

cannot presume that any failure to reach a settlement when the insurer did not

meet a deadline unilaterally imposed by the third-party plaintiff—no matter how

arbitrary or manipulative the deadline may be—may reasonably be blamed on the

insurer. As the New York Court of Appeals has explained: 3

Permitting an injured plaintiff’s chosen timetable for settlement to

govern the bad-faith inquiry would promote the customary

manufacturing of bad-faith claims, especially in cases where an

insured of meager means is covered by a policy of insurance which

could finance only a fraction of the damages in a serious personal

injury case. Indeed, insurers would be bombarded with settlement

offers imposing arbitrary deadlines and would be encouraged to

prematurely settle their insureds’ claims at the earliest possible

opportunity in contravention of their contractual right and obligation

of thorough investigation.
-25-

Pavia, 626 N.E.2d at 28–29. It is therefore necessary to take into consideration,

in addition to the other pertinent Bollinger factors, relevant aspects of the thirdparty plaintiff’s conduct, including any responsibility the plaintiff might have for

the insurer’s lack of adequate information upon which to judge a proposed

settlement offer and the reasons the plaintiff had for declining to entertain an

offer after expiration of a deadline. 

We now turn to the undisputed facts regarding EMCASCO’s delay in

accepting Mr. Nguyen’s offer of a policy-limits settlement in this case. For

convenience, we divide our analysis into two time segments. First, we will

consider the period between May 1, 2001, and August 20, 2001, during which Mr.

Nguyen formally kept open his policy-limits settlement offer. Then, we will

consider the period between August 20, 2001, and November 19, 2001, when Mr.

Nguyen rejected EMCASCO’s policy-limits settlement offer.

B. EMCASCO’s Conduct Prior to August 20, 2001

We have no hesitation in affirming the district court’s judgment in favor of

EMCASCO with regard to the period between May 1 and August 20, 2001. This

conclusion appears especially proper in light of the Kansas Supreme Court’s

pronouncement that “[t]he strength of the plaintiff’s case must be gauged as it

appeared at the time the offer was refused.” Id. at 502. During this time period,

with one possible exception, none of the pertinent Bollinger factors suggests that
-26-

EMCASCO breached its duty. The strength of the injured claimant’s case was a

matter of good faith dispute, both as to liability and as to amount of damages;

EMCASCO reasonably relied on opposing counsel’s offer to send medical

records, and otherwise was properly investigating the circumstances of the

accident; the insurer had received no contrary advice from its attorney or agent;

and the amount of financial risk to which each party would be exposed in the

event of a refusal to settle was unknown. See Bollinger, 449 P.2d at 512. The

Plaintiff bears much of the responsibility for EMCASCO’s lack of information

regarding Mr. Nguyen’s injuries, because Plaintiff’s counsel promised to provide

EMCASCO Mr. Nguyen’s medical records, yet provided only some of them. 

The possible exception involves EMCASCO’s apparent failure to inform

Mr. Wade of the plaintiff’s settlement offer. At this point in time, however, Mr.

Wade was insistent that he was not responsible for the accident, he was not yet

represented by counsel, and there is no evidence to suggest that failure to inform

him affected the course of the litigation. On or about August 7, David Cooper

was engaged as Mr. Wade’s lawyer, and he immediately communicated with

plaintiff’s counsel on Mr. Wade’s behalf. There is no evidence that, after Mr.

Cooper became Mr. Wade’s lawyer, he failed to keep Mr. Wade fully abreast of

settlement negotiations.

Although no two cases are identical, as of August 20, 2001, this case is

remarkably similar to Glenn, Covill, and Williams. In each of those cases, the
-27-

plaintiff placed a deadline on a settlement offer while failing to comply with a

promise to provide relevant medical records. In each case, the court concluded

that the insurer had not breached its duty to the insured by not accepting the offer,

despite subsequent excess judgments. We are confident that the Kansas Supreme

Court would reach the same conclusion here.

C. EMCASCO’s Conduct After August 20, 2001

 In many respects, the situation remained the same after August 20. 

Plaintiff’s counsel continued to make it difficult for the defense to obtain the

relevant medical records. Mr. Nguyen’s lawyer, Mr. Patterson, obtained and

reviewed the records of Mr. Nguyen’s two-week stay at Wesley Medical Center

on June 28, but despite his promise—and his written assurance in a letter dated

May 21 that he had already provided all medical records—he waited four months,

until all settlement offers had expired, to provide these records to the defense. 

Nor did he provide any records pertaining to the ambulance service. The medical

and ambulance records were relevant because, as Mr. Cooper explained, without

them he “didn’t know what information there was that causally connected the

accident to the paraplegia [and] whether or not there could have been any claim

for negligence or malpractice by either the emergency care providers, either in the

ambulance or at the hospital or in the course of the stay at the hospital.” Cooper

Dep. 67, App. 695. 
-28-

Mr. Cooper then asked Mr. Patterson for medical releases so that he could

obtain the records directly from the institutions. App. 817. He sent a letter to

Mr. Patterson explaining why he needed to examine the records, and reminding

Mr. Patterson of his agreement to withhold service on Mr. Wade until the records

had been examined. Id. at 818. Mr. Patterson sent Mr. Cooper a release, but it

was signed by Patterson himself rather than the patient, and was therefore not

accepted by Wesley Hospital. Id. at 801. Mr. Cooper contacted Mr. Patterson

again, and this time—on October 30—Mr. Patterson sent the records he had

promised four months before. Mr. Cooper immediately contacted EMCASCO,

EMCASCO authorized a policy-limits settlement, and Mr. Cooper conveyed the

offer to Mr. Patterson on November 1. Id. at 822. He testified that he believed

the offer would be accepted. He also wrote to an EMCASCO supervisor that if

Mr. Patterson had only sent the records “in the first place, this file would be

closed by now.” Id. at 819.

In some other respects, however, the circumstances changed after August

20. The possibility of a successful defense based on who ran the red light

diminished when the disinterested eyewitness stated unequivocally, on tape, that

she had seen Mr. Wade enter the intersection against a red light. The focus

shifted from the cause of the accident to the medical cause of the

injuries—whether they were a result of the accident itself, a preexisting condition,

or negligence by medical professionals or the ambulance service. Moreover, as
-29-

the extent of Mr. Nguyen’s injuries became apparent, the defense had reason to

believe that even if Mr. Wade were held responsible for only a small portion of

the injury, the damages would still exceed the policy limit. The EMCASCO agent

expressed concern to Mr. Cooper that “[t]his is one of those situations that may

not allow us to wait for all of the facts [because] the threat of excess judgment

and ‘bad faith’ may force us to proceed more hastily than we would prefer.” App.

767. 

 Most significantly, Appellant argues that it ceased to be reasonable for the

insurer to rely on plaintiff’s counsel’s promise to provide the medical records. 

See Covill, 452 F. Supp. at 238 (“[I]f State Farm had more aggressively

investigated [the plaintiff’s] claim instead of relying past the point of all reason

on [plaintiff’s counsel] to voluntarily furnish all of the information allegedly

necessary for adequate evaluation of the claim it would have known much earlier

. . . that the risk of an excessive judgment was great.”). Kansas law requires

insurers to promptly conduct reasonable, good-faith investigations of claims

arising under their policies. Kan. Stat. Ann. § 40-2404(9)(b)–(c). Indeed, a

factor in deciding whether an insurer acted in bad faith in rejecting a settlement

offer is whether the insurer failed “‘to properly investigate the circumstances so

as to ascertain the evidence against the insured.’” Levier v. Koppenheffer, 879

P.2d 40, 46 (Kan. Ct. App. 1994) (quoting Bollinger, 449 P.2d at 502 (other

quotation marks omitted)). 
-30-

We are not necessarily persuaded that the evidence supports a conclusion

that EMCASCO violated its duty to Mr. Wade with regard to efforts to obtain the

medical records. It is not clear to us that the Kansas Supreme Court would wish

to reward plaintiffs for inducing insurers to rely on promises that plaintiffs never

keep; such a holding could create perverse incentives for gamesmanship. See

Peckham, 895 F.2d at 835. And once Mr. Cooper became involved in the case, he

ceased to rely on Plaintiff’s counsel to supply the records; he attempted to obtain

the records directly from the hospital. But in order to do so, he had to obtain

medical releases, and Plaintiff’s counsel supplied legally defective releases. We

hesitate to conclude that EMCASCO could be held responsible under those

circumstances.

Nevertheless, Appellant maintains that these circumstances after August 20,

interpreted in the light most favorable to the party opposing summary judgment,

were sufficient to go to the jury on a claim of negligence. We disagree and

conclude that, in light of the Plaintiff’s manipulation of the settlement offer

deadline, the Kansas Supreme Court would hold that no reasonable jury could

find EMCASCO’s delay was responsible for the parties’ failure to reach a policylimits settlement. 

First, EMCASCO, through Mr. Cooper, had no reason to believe that

Plaintiff’s counsel would refuse to accept a settlement offer on account of the

additional delay between August 20 and November 1. The Plaintiffs had
-31-

extended their offer before, and circumstances had not changed in any relevant

respect. To be sure, Mr. Patterson stated in his deposition that he would not have

accepted a policy-limits offer after August 20. Patterson Dep. 97, App. 741. But

in his letter of August 20 to Mr. Cooper, he expressly agreed not to serve process

against Mr. Wade “to give [EMCASCO] time to make a settlement offer on this

case should [the company] desire to do so.” App. 765. Mr. Cooper testified that

he interpreted this letter as soliciting a policy-limits offer and that he believed

Mr. Patterson would accept such an offer when it was made. Cooper Dep.

153–55, App. 714. Appellant has tendered no evidence that this belief was

insincere, unfounded, or unreasonable. 

More importantly, the undisputed evidence in the record shows that

Plaintiff’s counsel’s sole reason for rejecting EMCASCO’s November 1 offer was

his hope to pursue a bad faith claim against the insurer. Mr. Patterson candidly

admitted that he managed the Nguyen affair, from its inception, with a bad faith

claim in mind. As he expressed it in his deposition: “Pursuit of a bad faith claim

is kind of a process that starts on the first day of the accident, and then winds up

at some point later.” Patterson Dep. 115, App. 744. He explained that by August

20—a date when we have concluded no reasonable juror could find that

EMCASCO had acted in bad faith—he “was fairly certain that they had been

acting in bad faith” and that for this reason a “policy limit [settlement offer]

would not have done it.” Id. at 95, App. 741. Cf. Miel, 912 P.2d at 1339–40
-32-

(reversing a bad faith judgment because the trial court failed to allow evidence

that the plaintiff’s reason for imposing a deadline was to “set up” a bad faith

claim). Mr. Patterson admitted that he could not recall having done any

additional work or uncovering any additional information relevant to Mr.

Nguyen’s claim against Mr. Wade between August and November. Patterson

Dep. 115, App. 744. Cf. Haugh, 322 F.3d at 232–33 (reversing judgment in favor

of insurer where plaintiff’s refusal of a belated offer resulted from the substantial

litigation costs attendant to the insurance company’s delay); Associated

Wholesale Grocers, 934 P.2d at 92 (recognizing that the risk and expense of a

trial is relevant to plaintiff’s willingness to negotiate). Nor has Appellant

suggested any other legitimate reason why the policy-limits offer, which was

good on August 20, was no longer good on November 1. Cf. Adduci, 424 N.E.2d

at 649 (upholding dismissal of bad-faith claim where the evidence revealed no

legitimate reason for the plaintiff to refuse a settlement offer forty days after the

deadline). 

Indeed, in his letter to EMCASCO rejecting its settlement offer, Mr.

Graybill (a specialist in bad faith claims whom Mr. Patterson engaged as cocounsel in August, 2001) explained that Mr. Nguyen could not accept the policylimit offer because “it appears a prima facie case can be made that [EMCASCO]

is guilty of negligence or bad faith” based on its delay in offering to settle the

claim, and that Mr. Nguyen hoped to “enforce Mr. Wade’s rights in a lawsuit.” 
-33-

App. 833–34. It is therefore an admitted fact that Plaintiff’s motive in refusing

EMCASCO’s settlement offer on November 1 was to set up a bad faith claim

against the insurer. 

Because the duty of good faith is an obligation arising from the contract

itself, general principles of contract law apply, including the required elements of

causation and damages. Sours v. Russell, 967 P.2d 348, 351–52 (Kan. Ct. App.

1998). Of particular relevance here is the Kansas Supreme Court’s approval in

Hawkins v. Dennis of the Kansas Court of Appeals’ holding “that there must be a

causal link between the insurer’s conduct and the excess judgment against the

insured.” 905 P.2d 678, 690 (Kan. 1995) (citing Snodgrass v. State Farm Mut.

Auto. Ins. Co., 804 P.2d 1012, 1021–22 (Kan. Ct. App. 1991)). Thus, an insured

may recover under a bad-faith claim only for those excess judgment losses

“directly and naturally resulting from the breach.” Sours, 967 P.2d at 351. See

also Peckham, 895 F.2d at 836 (“[W]e think it settled beyond serious question

that, in order to warrant recovery for an insurer’s bad faith anent settlement

negotiations, it must be shown that the insurer’s conduct caused the ensuing

excess judgment.”). There are a number of reasons why an insurer’s delay in

attempting to settle a claim might set up a natural and continuous sequence of

events that causes a claimant to reject a policy-limits settlement offer that he

would have accepted earlier. For example, a claimant who has invested time and

resources preparing for trial might want the settlement agreement to reflect those
-34-

added expenses. See Haugh, 322 F.3d at 232–33. But if a claimant arbitrarily

withdraws an initial settlement offer and later rejects an identical proposal from

the insurer, the claimant’s conduct is the legal cause of the failure to settle. See

Adduci, 424 N.E.2d at 649 (holding that the court could not “fairly place the

blame for failure of settlement upon Insurer” when the plaintiff did “not show

why the offer would have been good on May 7, 1976, but was not acceptable on

June 18, 1976”); see also Snodgrass, 804 P.2d at 1024 (rejecting a bad-faith claim

against State Farm where the “only” purpose of the plaintiff’s settlement offer

was “as evidence to show the jury that State Farm rejected an offer”). 

The undisputed evidence shows that Mr. Nguyen’s legal team rejected

EMCASCO’s November 1, 2001, settlement offer as part of a strategy to establish

a bad faith claim against EMCASCO for its failure to settle the case earlier. 

Holding an insurance company liable for the excess judgment against the insured

under these circumstances would be inconsistent with the cause of action for badfaith or negligent refusal to settle. The cause of action for failure to settle is

meant to protect the interests of the insured by requiring the insurer to conduct

the litigation, including settlement negotiations, as if the insurance contract had

no policy limits. Bollinger, 449 P.2d at 511. It is not meant to create an artificial

incentive for third-party claimants to reject otherwise reasonable settlement offers

that are within the policy limits. We would be turning the cause of action on its

head by holding an insurance company liable where it eventually offered to settle
 Although Mr. Wade presented numerous tort claims to the district court, 4

including negligence, fraud, breach of fiduciary duty, and tortious interference

with contract, he appeals only the district court’s grant of summary judgment on

the fraud claim. 

-35-

the claim for the policy limits, but a claimant rejected the offer precisely in order

to manufacture a lawsuit against the insurer for bad-faith refusal to settle. 

III. Mr. Wade’s Claims Against EMCASCO

Mr. Wade separately appeals the district court’s grant of summary

judgment in favor of EMCASCO on his breach of contract, breach of the duty of

good faith, and fraud claims. We turn first to Mr. Wade’s contract claims. 4

A. Breach of Contract and Good Faith Claims

Kansas law requires that every legal action be prosecuted by the real party

in interest. Kan. Stat. Ann. § 60-217(a). In causes of action arising from a

contract, only parties to the contract may enforce the contract because “the person

who possesses the right sought to be enforced” is the real party in interest. 

O’Donnell v. Fletcher, 681 P.2d 1074, 1076 (Kan. Ct. App. 1984). Kansas law,

however, allows an injured party to assign his right to recovery under a contract

to a third party. Alldritt v. Kan. Centennial Global Exposition, Inc., 371 P.2d

181, 187 (Kan. 1962) (“In this state all choses in action, except torts, are

assignable. Accordingly it has been held that a cause of action for damages for

breach of contract is assignable.” (citations omitted)). Where the injured party

assigns all of his rights to a third party, the assignee becomes the real party in
-36-

interest and the assignor can no longer pursue a claim on his own behalf. See

Army Nat’l Bank v. Equity Developers, Inc., 774 P.2d 919, 932 (Kan. 1989); First

Nat’l Bank of Topeka v. United Tel. Ass’n, Inc., 353 P.2d 963, 970 (Kan. 1960)

(explaining that “the assignee of an account [is] its legal holder” and therefore

“the proper representative of the account as against the debtor”).

As part of the confession of judgment between Mr. Nguyen and Mr. Wade,

the two men entered into a “Covenant Not to Execute and Assignment of Rights.” 

App. 839–41. The agreement provided, in pertinent part:

Wade assigns to Nguyen, his executors, administrators, legal

representatives, agents, successors and assigns all of his rights

flowing from any interest he may have giving rise to a claim against

any insurer to pay damages Wade is legally obligated to pay Nguyen,

including without limitation insurance policies issued by EMC.

Id. at 840. Once Mr. Wade assigned all of his contractual rights under his

insurance policy to Mr. Nguyen, Mr. Wade no longer possessed the right to

enforce the contract against EMCASCO. He is therefore not the real party in

interest and cannot maintain a cause of action against EMCASCO for breach of

contract or breach of the duty of good faith arising from the contract.

B. Fraud Claim

Because tort claims are unassignable under Kansas law, Mr. Wade remains

the real party in interest for the fraud claim. His fraud claim, however, fails

under Kansas law because it is an impermissible attempt to recharacterize the

breach of contract claim and does not allege an independent tort.
-37-

To maintain a fraud claim under Kansas law, the basis of the claim must be

different from the conduct upon which a breach of contract claim is based. See

Brown v. Chaffee, 612 F.2d 497, 503 (10th Cir. 1979) (interpreting Kansas law

and concluding “Brown cannot turn an action for breach of contract into an action

for fraud by merely alleging reliance on representations that the contract would be

performed and detriment from its breach”); Heller v. Martin, 782 P.2d 1241, 1245

(Kan. Ct. App. 1989). Furthermore, the fraud must have resulted in damages

greater than those caused by the breach of contract alone. Heller, 782 P.2d at

1245; cf. Guarantee Abstract & Title Co. v. Interstate Fire & Cas. Co., 652 P.2d

665, 668 (Kan. 1982) (“[T]here must be an independent tort resulting in

additional injury before punitive damages can be recovered in a breach of an

insurance contract action.”). 

Mr. Wade’s allegations of fraud are indistinguishable from his breach of

contract claims. Mr. Wade alleges, as the basis for his fraud claim, that

EMCASCO intentionally misrepresented to Mr. Wade that Mr. Cooper would

vigorously defend Mr. Wade against Mr. Nguyen’s claim, despite EMCASCO’s

knowledge that Mr. Cooper would also consider EMCASCO’s interests.

EMCASCO’s representation, however, was merely a statement that it would

perform its obligation under Mr. Wade’s insurance policy to defend Mr. Wade

against any claims. Thus, Mr. Wade’s fraud claim is merely a claim that

EMCASCO breached its contractual duty to defend Mr. Wade against claims
-38-

arising from the accident and that Mr. Wade was injured by EMCASCO’s failure

to satisfy its contractual obligation. Such a claim sounds in breach of contract,

not fraud. See Brown, 612 F.2d at 503; Heller, 782 P.2d at 1245. 

Nor has Mr. Wade alleged fraud damages distinct from those arising from

EMCASCO’s breach of contract. In his Amended Petition, Mr. Wade claimed

that EMCASCO’s breach of contract caused “a judgment in excess of $3 million

[to be] entered against [him]” and “prevented [him] from borrowing money

secured by his home and . . . from selling his home.” App. 319. Similarly, the

damages that he claims arose from EMCASCO’s alleged fraud were as follows: “a

judgment in excess of $3 million [was] entered against him; he has been deprived

of the benefits of his insurance policy; he has been and will be precluded from

using his real estate as security for loans; he has been and will be prevented from

buying or selling real estate.” Id. at 325. The damages claimed under the breach

of contract claim and the fraud claim are identical. The only additional injury

Mr. Wade alleges in the fraud claim is that he was “deprived of the benefits of his

insurance policy.” Id. This injury directly relates to the contract, and damages

arising from this injury were recoverable under the breach of contract claim. 

Because Mr. Wade has failed to allege an additional injury distinct from those

caused by the breach of contract, he has failed to establish an independent tort of

fraud. 
-39-

IV. Conclusion

For the foregoing reasons we AFFIRM the district court’s grant of

summary judgment in favor of EMCASCO on Mr. Nguyen’s claim for bad-faith

failure to settle as well as on Mr. Wade’s claims for breach of contract, breach of

the duty of good faith, and fraud.
Wade v. EMCASCO, 05-3044 and 05-3054

Ebel, Circuit Judge, Concurrence and Dissent

I join the majority opinion affirming summary judgment in favor of

EMCASCO on the tort claims. 

However, I would reverse summary judgment for EMCASCO on the

contract claims, and would remand those claims for further consideration. In my

judgment, there are general disputes of material fact which preclude summary

judgment for EMCASCO on the contract claims.