Oakes v. Repcon, Inc.

Filing 32

MEMORANDUM AND ORDER 19 Motion for Summary Judgment deferred, pending additional briefing as hereinabove directed. 31 Motion to Stay Deadlines granted. The parties shall prepare a proposed Amended Scheduling Order to be discussed at a status co nference ( Status Conference reset for 1/12/2017 at 02:15 PM by Telephone before Magistrate Judge Gerald L. Rushfelt.) Counsel and any pro se parties should call 1-888-363-4749, access number 8533057, for the conference. Signed by Magistrate Judge Gerald L. Rushfelt on 12/19/2016. (ydm)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
DANIEL T. OAKES,
Plaintiff,
v.

Case No. 16-1074-GLR

REPCON, INC.,
Defendant.

MEMORDANDUM AND ORDER
Plaintiff, Daniel T. Oakes, originally brought this action in McPherson County District
Court. He asserts a claim for negligence that allegedly caused personal injury, sustained while
doing contract work on behalf of Defendant. Defendant removed the case to this Court. The
parties have consented to jurisdiction before the magistrate judge for all further proceedings
(ECF 10). The matter is before the Court on Defendant’s Motion for Summary Judgment (ECF
19). After the initial briefing the Court ordered additional briefing to address the possible
applicability of K.S.A. § 16-121(b). (ECF 25.) It directed each party to file a brief of no more
than five pages and without any order or invitation for opposing responses. The parties timely
filed their respective supplemental briefs. (ECF 26 and ECF 27.) After reviewing the briefing
and for the following reasons, the Court will defer its ruling on the motion.
“Summary judgment is appropriate if the pleadings, depositions, other discovery
materials, and affidavits demonstrate the absence of a genuine issue disputes of material fact and
that the moving party is entitled to judgment as a matter of law.” Water Pik, Inc. v. Med–
Systems, Inc., 726 F.3d 1136, 1143 (10th Cir. 2013) (quotation omitted); see Fed. R. Civ. P.
56(a). A factual issue is genuine “if the evidence is such that a reasonable jury could return a
verdict for the nonmoving party.” Water Pik, Inc., 726 F.3d at 1143 (quotation omitted). “The

nonmoving party is entitled to all reasonable inferences from the record; but if the nonmovant
bears the burden of persuasion on a claim at trial, summary judgment may be warranted if the
movant points out a lack of evidence to support an essential element of that claim and the
nonmovant cannot identify specific facts that would create a genuine issue.” Id. at 1143-44.
Defendant’s motion frames the dispositive issue as one of contract interpretation.
Defendant seeks what amounts to immunity from its alleged negligence. The contract(s) entered
into by the parties contain an indemnification provision that arguably means that Plaintiff must
indemnify Defendant against any liability for the alleged injuries for which he seeks relief.
Specifically, Defendant asserts that the provision applies even though defendant, through its
agents or employees, has negligently caused the alleged injury. Plaintiff contends the provision
is inapplicable. He cites two instances of ambiguity in the indemnification provision: (1) the
difference between “Subcontractor” and “subcontractor” (i.e. the difference in capitalization);
and (2) a selective use of the word “injury” in one part of the contract, but not in another. He
also argues that the contract(s) are unconscionable as a matter of public policy and thus
unenforceable.
The Court sua sponte raised the question of the possible applicability of K.S.A. § 16121(b). The statute states: “An indemnification provision in a contract which requires the
promisor to indemnify the promisee for the promisee’s negligence or intentional acts or
omissions is against public policy and is void and unenforceable.” The Court has assumed the
statute may apply because Plaintiff’s injuries apparently stem from an accident allegedly caused
by the negligence of Defendant or its agents or employees.
But the Court also notes that K.S.A. § 16-121(b) applies only to “construction
contract[s]” as defined by § 16-121(a)(1), which provides:

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“Construction contract” means an agreement for the design,
construction, alteration, renovation, repair or maintenance of a
building, structure, highway, road, bridge, water line, sewer line,
oil line, gas line, appurtenance or other improvement to real
property, including any moving, demolition or excavation . . . .
“Construction contract” shall not include any design, construction,
alteration, renovation, repair or maintenance of:
(A) Dirt or gravel roads used to access oil and gas wells
and associated facilities; or
(B) oil flow lines or gas gathering lines used in association
with the transportation of production from oil and gas wells
from the wellhead to oil storage facilities or gas
transmission lines.
Because the uncontroverted facts indicate that Defendant contracted Plaintiff to weld pipes at an
oil refinery, the Court ordered the parties to brief the applicability of K.S.A. Sec. 16-121(b). But
it limited the additional brief for each party to five pages, which would have included any
assertion of allegedly undisputed facts. The parties have timely filed these additional briefs.
After reviewing all the briefing, the Court is of the opinion that additional briefing either
is necessary or would materially aid it to determine whether or not K.S.A. 16-121(b) invalidates
or renders as unenforceable the indemnification provision in the contract. Hindsight suggests
that the abbreviated briefing previously ordered may have been inadequate, in particular to
reasonably address any additional, relevant facts as to the applicability of the Kansas statute.
But the Court will also reserve its ruling on the outstanding motion for summary
judgment, filed by Defendant. The applicability both of the indemnity provision in the contract
and of K.S.A. § 16-121(b), therefore, remain as open issues and subject to further briefing.
To address these issues, the Court finds the broad provisions of Fed. R. Civ. P. 56, and
particularly subsections (c) and (f), to be applicable. Accordingly, it orders the following
schedule for additional briefing: Within 30 days of the date of this order Defendant may file an

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additional brief, including any statement of undisputed facts, to support any contention that
K.S.A. 16-121(b) does not apply to this case. Within 21 days of service of such additional brief,
Plaintiff may file a responsive brief. Within 14 days after service of the response Defendant may
file any reply brief. The D. Kan. Rules, of course, otherwise apply.
IT IS THEREFORE ORDERED BY THE COURT that Defendant’s Motion for
Summary Judgment (ECF 19) is deferred, pending additional briefing as hereinabove directed.
IT IS FURTHER ORDERED that the parties’ Joint Motion to Stay Deadlines (ECF 31)
is granted. The parties shall prepare a proposed Amended Scheduling Order to be discussed at a
status conference on January 12, 2017 at 2:15pm, as the previous setting of January 5, 2017 has
been moved to accommodate the court’s schedule. Counsel and any pro se parties should call 1888-363-4749, access number 8533057, for the conference.
Dated December 19, 2016, at Kansas City, Kansas.
s/ Gerald L. Rushfelt
Gerald L. Rushfelt
U.S. Magistrate Judge

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