HOME PRACTICE AREAS ATTORNEYS NEWS & RESOURCES CONTACT US NEWS & RESOURCES KANSAS MAY REQUIRE YOU TO EXHAUST YOUR ADMINISTRATIVE REMEDIES BEFORE YOU ARE ENTITLED TO PAYMENT ON A PUBLIC JOB March 18, 2019/ March, 2019 A recent Kansas Court of Appeals case exposes the danger of failing to exhaust administrative remedies when contracting with a public entity. The court of appeals affirmed the trial court ruling dismissing all claims of the prime contractor for its failure to comply with the Kansas Judicial Review Act (“KJRA”) and its contractually negotiated administrative remedies prior to filing suit. In doing so, the court held the KJRA applies to construction contracts, just as it does to other contracts with public entities. Kansas State University (“KSU”) and Crossland Construction Company, Inc. (“Crossland”) entered into a contract where Crossland served as the prime contractor in the construction of a new residence hall on the KSU campus. Treanor Architects, P.A. (“Treanor”) entered into a contract with KSU to serve as the project architect and engineer. Crossland entered into a subcontract with Otis Elevator Company (“Otis”) to install the elevator in the new residence hall. A dispute arose between Crossland and Otis regarding the elevator system to be installed. Crossland submitted Otis’s shop drawings that included the elevator system it wanted to use. Treanor rejected those drawings, interpreting the contract to require a different elevator system. Due to the elevator system disagreement, Crossland terminated its subcontract with Otis. Following the termination of Otis, Crossland hired a replacement subcontractor, paying a substantial markup. Roughly one year after Treanor rejected Otis’s shop drawings, Crossland submitted a Proposed Change Order (“PCO”) requesting over $1.3 million as compensation for the additional expenses it incurred related to the elevator system disagreement. The PCO had to be approved by several parties, including Treanor and KSU. The PCO was denied. After attempts by Crossland to settle the matter by alternative dispute resolution, Crossland filed suit against KSU, Treanor, Otis and Otis’s insurer, Liberty Mutual (Crossland and Otis along with Liberty Mutual later voluntarily dismissed their claims without prejudice). KSU, joined by Treanor, moved to dismiss Crossland’s Petition for failure to exhaust administrative remedies as required by the KJRA and the parties’ contract. The trial court granted KSU and Treanor’s Motion to Dismiss holding that Crossland was required to appeal its breach of contract claim against KSU, a state agency, pursuant to the KJRA and the administrative remedies provision in its contract. The trial court explained that because Crossland did not follow the administrative remedies provision in the contract, Crossland had failed to exhaust its administrative remedies. Crossland appealed the trial court’s ruling. The court of appeals affirmed the trial court ruling explaining that the KJRA requires a party to exhaust all administrative remedies available within an agency in a breach of contract case against a state agency before filing a petition for judicial review. Further, parties may contractually include administrative remedies in their contract, which in turn must be exhausted before filing a petition with the trial court. Crossland did not bring its claim to the Director of the Office of Facilities and Procurement Management within 10 days of Treanor’s decision to deny the shop drawings, as required by the contract. Crossland further failed to file its petition for judicial review within 30 days of the agency action. Thus, Crossland did not exhaust its administrative remedies prior to filing its petition. Also, the court of appeals held that the agency action, which triggered the KJRA and the contractual remedies, was Treanor’s denial of the shop drawings, rather than the denial of the PCO. As a practical matter, if one has contracted, or intends to contract, with a Kansas public entity, one should seek counsel to determine one’s statutory and contractual obligations regarding contract disputes. Kansas courts have held that failure to comply with the KJRA and other contractual administrative remedies requirements is a waiver of all claims against the public entity. The outcome of the Crossland case may seem counterintuitive, but it stands for the principle that what you don’t know can hurt you, especially if you are doing public work in Kansas. Case citation: Crossland Constr. Co. v. Otis Elevator Co., 2018 Kan. App. Unpub. LEXIS 1005 (Ct. App. Dec. 28, 2018). LOTTERY WINNINGS CAN BE ASSIGNED TO SECURE A LOAN UNDER MISSOURI LAW January 13, 2016/ The Missouri Court of Appeals ruled in 2015 that a lottery winner’s pledge of his lottery winnings to his bank under the Uniform Commercial Code is effective notwithstanding State Lottery Law that lottery winnings are unassignable without a court order. Gary Michael Clark v. Missouri Lottery Commission and Community Bank of El Dorado Springs, WD78060. Mr. Clark won the “Lifetime Riches” prize in 2006 from the Missouri Lottery. He won a payout of $50,000 per year for the rest of his life but with a minimum payout of thirty years. He obtained a loan from his Bank and assigned his right to receive payments from the Missouri Lottery to the Bank as security. The lottery prize payouts were thereafter paid into an account at the Bank and Mr. Clark had no authority to withdraw the funds. After a few years, Mr. Clark then filed this action asserting that the assignment was void under the State Lottery Law (last amended in 1993) which specifically prohibits the assignment of lottery prizes. Mo. Rev. Stat. §313.285.1. He claimed that all payments had to be made to him and not to the Bank. However, the Uniform Commercial Code amended in 2001 specifically provides that “winnings in a lottery or other games of chance operated or sponsored by a state …” are included in the definition of “accounts” and “accounts” are assignable under the UCC. 400.9 – 102(a)(2). Further, 400.9-406(f) which was part of the 2001 amendment provides that any law, statute or regulation prohibiting assignment or the creation of a security interest in an account is ineffective. Mr. Clark argued that the State Lottery Law was a more specific law and, therefore, should control over the general statute in Article 9. The Court rejected this claim and held that the later enacted amendments to the UCC rendered the prohibition of assignments of lottery winnings ineffective. Mr. Clark could not withdraw his assignment until the loans it secured were paid in full. KANSAS SUPREME COURT ADDRESSES A PASSENGER’S LIABILITY TO ANOTHER PASSENGER September 2, 2015/ Can one passenger be liable to another passenger for her injuries?[1] The Kansas Supreme Court recently answered this question in a case titled Siruta v. Siruta, which detailed a family tragedy. Though the facts are horrific, the Court answered that passengers are generally not responsible for the safety of fellow passengers. A passenger is only liable to another passenger for a driver’s negligence where the passenger and the driver operated the vehicle as a common enterprise, or the passenger and the driver had a special relationship. A joint or common enterprise requires four elements: (1) an agreement, (2) a common purpose, (3) a community of interest, and (4) an equal right to a voice, accompanied by an equal right of control over the automobile. If all four elements are present in a relationship between a driver and a passenger, the driver’s negligence may then be imputed to the passenger. The Sirutas are the sole heirs at law of their child, who died in the accident. The parents had periodically traded driving duties during an approximate 330 mile-journey. At the time of the crash, the mother was driving, the child was asleep in the back seat, and the child’s father was asleep in the front passenger seat. The mother could not recall what caused the accident. The father sued the mother for negligence. The mother’s attorney, (undoubtedly prompted by her insurance company), argued that if she was negligent, the father was also responsible for the mother’s negligence as a result of their joint-driving decisions. Accordingly, her negligence would be imputed to him and his recovery for the loss of his child would be reduced or completely barred by the mother’s negligence. This theory ran afoul of the fourth prong of the joint-driving doctrine. That elements reads: “whether, under the facts and circumstances, there is an understanding between the parties that [the passenger] has the right and is possessed of equal authority to prescribe conditions of use and operation[.]” The Court clarified this element as a “right of control” test: It requires that the driver and the passenger have some advance understanding or agreement that the passenger has a right to tell the driver how to drive. The agreement must extend “equal privilege and right to direct and control [the vehicle’s] operations” to both parties. That is not what the Sirutas had. While they may have had a vague understanding that they would divide the time behind the wheel, the Court found that agreement did not amount to an understanding that each party “has the right and is possessed of equal authority to prescribe conditions of use and operation”. For example, there was no evidence of an agreement that allowed one to tell the other “how to drive the automobile” or that such orders would be followed. In fact, the mother testified that the father did not make her drive if she did not want to or if she was too tired. The father similarly testified that neither he nor the mother could command the other “to do X, Y or Z”. The Court observed that this agreement lacked the degree of control necessary to satisfy the joint-driving doctrine’s fourth element. Instead, it was a “mere association of persons riding together in an automobile having a common purpose in making a trip and a common destination”. As a result, the driver mother’s negligence in this case could not be imputed to the passenger father. Rarely will a passenger exert enough control over the driver to impute the driver’s negligence to that passenger. The driver’s liability is not imputed to a passenger who merely takes driving shifts under a casual driving arrangement. [1] A passenger can be liable for negligence for injuries to themselves which can reduce damages they may recover from a driver. For example, getting into a vehicle with a known drunk driver. This article addresses liability to fellow passengers and not their duty to use due care for their own safety. Download the .pdf here: KSSupCtAddressesPassengerLiability ATTORNEYS FROM BROWN & RUPRECHT, PC NAMED TO MISSOURI AND KANSAS SUPER LAWYERS November 10, 2014/ (Kansas City, MO – November 10, 2014) – The firm is pleased to announce that the following attorneys from Brown & Ruprecht, PC, have been selected for inclusion in Missouri and Kansas Super Lawyers; Top 50: 2014 Kansas City Super Lawyers and Top 100: 2014 Missouri & Kansas Super Lawyers; Top 50: 2014 Women Missouri and Rising Stars: Firm members named to Super Lawyers 2014 include: Branden Bell Stephen Brown William DeBauche John Hayob Robert Latz Matthew Merrill (also named in Top 100: 2014 Missouri & Kansas Super Lawyers) G. Steven Ruprecht (also named in Top 50: 2014 Kansas City Super Lawyers and Top 100: 2014 Missouri & Kansas Super Lawyers) Heather Shore (also named in Top 50: 2014 Women Missouri) Frank Wendt Firm members named to Rising Star 2014 include: Diane Lewis The selections for the list are made by the research team at Super Lawyers, which is a service of the Thomson Reuters Legal division based in Eagan, Minnesota. Each year, the research team at Super Lawyers undertakes a rigorous multi-phase selection process that includes a statewide survey of lawyers, independent evaluation of candidates by the attorney-led research staff, a peer review of candidates by practice area and a good standing and disciplinary check. ATTORNEYS FROM BROWN & RUPRECHT, PC RECEIVE TIER 1 RANKING November 10, 2014/ (Kansas City, MO – November 10, 2014) – Brown & Ruprecht, PC has been named a Tier 1 Kansas City-MO “Best Law Firm” in three practice areas by U.S. News – Best Lawyers® in 2015: Construction Law, Insurance Law and Litigation – Construction. We have also been named a Tier 3 National “Best Law Firm” in two practice areas by U.S. News – Best Lawyers® in 2015: Construction Law and Litigation – Construction. THE BEST LAWYERS IN AMERICA® November 3, 2014/ (Kansas City, MO – November 3, 2014) –Stephen S. Brown, William J. DeBauche, John L. Hayob, G. Steven Ruprecht and Heather F. Shore, lawyers from Brown & Ruprecht, PC were recently selected by their peers for inclusion in The Best Lawyers in America® 2015. BROWN & RUPRECHT, PC ESTABLISHES WHITE COLLAR CRIMINAL DEFENSE AND INTERNAL INVESTIGATIONS PRACTICE AREAS January 1, 2014/ (Kansas City, MO – January 1, 2014) – With the addition of attorney Branden A. Bell, Brown & Ruprecht, PC has established two new practice areas. Branden Bell is an experienced trial lawyer who focuses on federal criminal litigation. He has experience in cases involving business disputes, corporate concerns, health care fraud, conspiracies, and other criminal violations. He has been lead counsel in hundreds of criminal cases and helped clients navigate charges of Medicare and Medicaid fraud, wire fraud, smuggling, mislabeling, and other serious allegations. He also advises corporations, directors, and executives about internal investigations and corporate compliance. When the government comes knocking, you are in for the fight of your life. That’s why you will never hear about our greatest victories: when we convince the government not to prosecute our clients. ATTORNEYS FROM BROWN & RUPRECHT, PC RECEIVES TIER 1 RANKING November 11, 2013/ (Kansas City, MO – November 11, 2013) – Brown & Ruprecht, PC has been named a Tier 1 Kansas City-MO “Best Law Firm” in three practice areas by U.S. News – Best Lawyers® in 2014: Construction Law, Insurance Law and Litigation – Construction. We have also been named a Tier 3 National “Best Law Firm” in two practice areas by U.S. News – Best Lawyers® in 2014: Construction Law and Litigation – Construction. ATTORNEYS FROM BROWN & RUPRECHT, PC NAMED TO MISSOURI AND KANSAS SUPER LAWYERS October 21, 2013/ (Kansas City, MO – October 21, 2013) – The firm is pleased to announce that the following attorneys from Brown & Ruprecht, PC, have been selected for inclusion in Missouri and Kansas Super Lawyers; Top 50: 2013 Kansas City Super Lawyers; Top 50: 2013 Women Missouri & Kansas Super Lawyers and Rising Stars. Firm members named to Super Lawyers 2013 include: Stephen Brown, William DeBauche, John Hayob, Robert Latz, Matthew Merrill, G. Steven Ruprecht (also named as Top 50: 2013 Kansas City Super Lawyers), Heather Shore (also named as Top 50: 2013 Women Missouri & Kansas Super Lawyers), Frank Wendt. Firm members named to Rising Star 2013 include Diane Lewis. The selections for the list are made by the research team at Super Lawyers, which is a service of the Thomson Reuters Legal division based in Eagan, Minnesota. Each year, the research team at Super Lawyers undertakes a rigorous multi-phase selection process that includes a statewide survey of lawyers, independent evaluation of candidates by the attorney-led research staff, a peer review of candidates by practice area and a good standing and disciplinary check. HEATHER F. SHORE SELECTED TO RECEIVE THE 2013 INFLUENTIAL WOMEN AWARD FROM KANSAS CITY BUSINESS MAGAZINE February 14, 2013/ Kansas City, MO (Feb. 14, 2013): Heather F. Shore, JD, shareholder at the law firm of Brown & Ruprecht, PC, been selected to receive a 2013 ‘Kansas City Influential Women Award’ by Kansas City Business Magazine, according to a notification received from Fred Bauters, Senior Editor of the publication. Shore was selected based on her career achievements, business acumen, outstanding leadership skills, and for her continued involvement in the legal, construction, general business, and non-profit communities in the Kansas City-metropolitan area. The Influential Women award program annually recognizes Kansas City’s women leaders in the creative, corporate, nonprofit and entrepreneurial communities. Shore will receive her award March 13, 2013, during the Seventh Annual Influential Women Recognition Reception held at The National World War I Museum. The event is open to the public. Tickets are $30 and can be purchased by calling Jessica Earnshaw, Anthem Publishing, (913) 894-6923 ext.678. Heather Shore is a member of Brown & Ruprecht, PC. Her practice specialized in the areas of construction and surety law and commercial/business litigation. She represents business owners, developers, contractors, subcontractors, suppliers, sureties and start-ups on a wide-variety of construction and business litigation matters in state and federal courts, and in arbitrations. Shore is also in charge of marketing for the firm. Shore was named the Best of the Bar by Kansas City Business Journal (2011), and selected for inclusion in Missouri and Kansas Super Lawyers* – Top 50 Women Edition (2010-2012), Missouri and Kansas Super Lawyers (2009-2012), Missouri and Kansas Super Lawyers – Construction Litigation, Corporate Counsel Edition (2009), and Missouri and Kansas Super Lawyers – Rising Stars Edition (2008). Brown & Ruprecht, PC is based in Kansas City, Missouri and offers clients a wide-array of legal services and expertise including alternative dispute resolution, bankruptcy and creditors’ rights, commercial/business litigation, construction and surety litigation, employee benefits/ERISA, estate planning/probate, insurance coverage and defense, real estate and taxation. Attorneys and support staff serve a variety of clients comprised of individuals, start-up companies, and multinational corporations. Many clients look to Brown & Ruprecht, PC for assistance related to their businesses; other clients require legal services for both business and personal needs. Brown & Ruprecht, PC is located at 911 Main Street, Suite 2300, Kansas City, Missouri 64105- 5319. The web address is https://brlawkc.com. For more information, please contact Heather Shore, Brown & Ruprecht, PC, (816) 292-7000. RECENT POSTS KANSAS MAY REQUIRE YOU TO EXHAUST YOUR ADMINISTRATIVE REMEDIES BEFORE YOU ARE ENTITLED TO PAYMENT ON A PUBLIC JOB LOTTERY WINNINGS CAN BE ASSIGNED TO SECURE A LOAN UNDER MISSOURI LAW KANSAS SUPREME COURT ADDRESSES A PASSENGER’S LIABILITY TO ANOTHER PASSENGER Attorneys from Brown & Ruprecht, PC Named to Missouri and Kansas Super Lawyers Attorneys from Brown & Ruprecht, PC Receive Tier 1 Ranking The Best Lawyers in America® Brown & Ruprecht, PC Establishes White Collar Criminal Defense and Internal Investigations Practice Areas Attorneys from Brown & Ruprecht, PC Receives Tier 1 Ranking Attorneys from Brown & Ruprecht, PC Named to Missouri and Kansas Super Lawyers Heather F. Shore selected to receive the 2013 Influential Women Award from Kansas City Business Magazine ARCHIVED NEWS RELEASES February-2019-Legal-Update.pdf Amount "Billed" Versus Amount "Paid" [Dec. 2009] Brown & Ruprecht Attorneys selected for inclusion in Missouri and Kansas Super Lawyers (2010) Heather Shore selected for inclusion in Missouri and Kansas Super Lawyers - Top 50 Women Edition (2010) Stephen S. Brown Honored with KCMBA's Congenial Counselor Award (2011) Stephen S. Brown Named "Best of the Bar" by the Kansas City Business Journal (2011) Heather Shore Named "Best of the Bar" by the Kansas City Business Journal (2011) Brown & Ruprecht Attorneys selected for inclusion in Missouri and Kansas Super Lawyers (2011) G. Steven Ruprecht and William DeBauche recognized as "Best Lawyers in Kansas City" (2011) U.S. News & World Report awards Brown & Ruprecht with a First-Tier Ranking in Construction Law and Construction Litigation Areas (2011) Stephen S. Brown, Matthew M. Merrill and G. Steven Ruprecht Named Brown & Ruprecht Attorneys selected for inclusion in Missouri and Kansas Super Lawyers (2012) "A Top Medium Sized Firm" (2012) William DeBauche and John Hayob included in The Best Lawyers in America® (2013) Heather Shore selected to receive the 2013 Influential Women Award from Kansas City Business Magazine Kansas City Business Journal recognizes Stephen Brown and Steven Ruprecht as "Best of the Bar" (2013) Stephen Brown, William DeBauche, John Hayob and Heather Shore included in The Best Lawyers in America® (2014) Super Lawyers and Rising Stars (2013) Firm Receives Tier 1 Ranking (2014) Brown & Ruprecht, PC Establishes Two New Practice Areas (2014) The Best Lawyers in America® (2015) Super Lawyers and Rising Star (2014) Firm Receives Tier 1 Ranking (2015) OUR NEWSLETTERS Kansas Supreme Court Addresses A Passenger’s Liability To Another Passenger [Sept 2015] Law Adapts to the Digital World [2007] The Economic Growth and Tax Relief Reconciliation Act of 2001 [2007] Fund Trustees Should Examine UBS Downturn [August 2008] Value of Medical Treatment in Missouri Post-Tort Reform: Amount Billed vs. Amount Paid [Oct. 2008] Res Ipsa Loquitur Theory Allowed in Medical Malpractice Cases in Missouri [Oct. 2008] Deadline Approaches for Compliance with New Immigration Law [Nov. 2008] Recent Verdicts and Opinions in Kansas and Missouri [Dec. 2008] Welfare Benefits 2008 Year in Review: Michelle's Law Mandates Certain Benefits for College Students [Jan. 2009] Welfare Benefits 2008 Year in Review: Bailout Bill Includes Provisions for Mental Health Parity [Jan. 2009] Welfare Benefits 2008 Year in Review: Medicare Secondary Payer Mandatory Reporting [Feb. 2009] Welfare Benefits 2008 Year in Review: Effects of the Genetic Information Nondiscrimination Act [March 2009] New Missouri Law Requires Immediate Action by More Than 500,000 Businesses [March 2009] Homeowners Under Threat of Foreclosure Seek "Short Sale" [Oct. 2009] EEOC Proposes Regulations Implementing the ADA Amendment Act of 2008 [Nov. 2009] The New Federal Acquisition Regulations Require Your Business to Have a Compliance Plan, Ethics Training and Internal Controls [Jan. 2010] Supreme Court Reaffirms Final Bankruptcy Court Orders are Enforceable Even if Erroneous Under the Law [April 2010] Employees May Now Claim Wrongful Discharge Based on Violation of Public Policy [Sept. 2010] The Estate, Gift and Generation Skipping Tax - Where Are We Now? 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