Stroud v. Ozark Nat'l Life Insurance Co. ( 2022 )

NOT DESIGNATED FOR PUBLICATION
No. 124,348
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
CATHY L. STROUD,
Appellant,
v.
OZARK NATIONAL LIFE INSURANCE CO. and STEPHEN I. GUINN,
Appellees.
MEMORANDUM OPINION
Appeal from Sedgwick District Court; STEPHEN J. TERNES, judge. Opinion filed June 10, 2022.
Affirmed.
Roger K. Wilson, of Arn, Mullins, Unruh, Kuhn & Wilson, LLP, of Wichita, for appellant.
William E. Hanna and Christina J. Hansen, of Stinson LLP, of Wichita, for appellees.
Before ARNOLD-BURGER, C.J., GREEN, J., and RICHARD B. WALKER, S.J.
PER CURIAM: Cathy L. Stroud appeals the trial court's order granting Ozark
National Life Insurance Co. and Stephen Guinn's summary judgment motion, resulting in
the dismissal of her breach of fiduciary duty, negligent misrepresentation, and vicarious
liability claims. Cathy contends that contrary to the trial court's ruling, Guinn—her
deceased husband Alan Stroud's former insurance agent—violated his fiduciary duty to
Alan and her when giving advice about converting Alan's term life insurance into whole
life insurance. She also challenges the trial court's ruling that she was not the real party in
interest under K.S.A. 2020 Supp. 60-217(a)(1) to bring her claims. And for these same
reasons, she argues that the trial court erred by dismissing her vicarious liability claim.
1
Nevertheless, under Kansas law, the trial court correctly dismissed Cathy's claims. As a
result, we affirm the trial court's summary judgment ruling.
FACTS
The following facts are undisputed in the context of the trial court's summary
judgment ruling:
On April 8, 2002, Alan bought a 20-year term life insurance policy from Gene
Spoon, an Ozark insurance agent. In the event of Alan's death, a $60,000 death benefit
would be paid to Cathy, who was the sole beneficiary listed on Alan's policy. According
to the premium schedule given to Alan, Alan's annual premium on his 20-year term life
insurance policy was $400.80 per year for the first 15 years he owned the policy. If Alan
decided to renew his policy following the fifteenth year, his annual premium increased to
$1,250.40. Then, if Alan decided to renew his policy following the twentieth year, Ozark
would increase his annual premium to $1,847.
In January 2019, Alan had a hemorrhagic stroke. The stroke affected Alan's
coordination, ability to read, and ability "to deal with numbers." Also, after having the
stroke, doctors discovered that Alan needed aorta heart surgery. Because very few
doctors perform the specific surgery Alan needed, Alan had to travel to Houston, Texas,
for his surgery. Additionally, before Alan could have his heart surgery, Alan's brain
needed to adequately heal from his hemorrhagic stroke. So, in early to mid-2019, Alan
was working on recovering from his stroke so he could be healthy enough to have heart
surgery. Then, as soon as Alan was healthy enough for the heart surgery, he would go to
Houston for the operation.
On May 5, 2019, Guinn called the Strouds hoping to speak about Alan's term life
insurance policy. When Cathy answered the phone, Guinn told her that he "needed" to
2
talk to Alan about his term life insurance policy. He explained that he wanted to schedule
an in-person visit to do this. Although Cathy asked Guinn whether Spoon—the Ozark
agent who sold Alan the term life insurance policy—was still working for Ozark, Guinn
did not directly respond to Cathy's question. Afterwards, Cathy told Guinn that given
Alan's "upcoming imminent life and death surgery," they should all talk about Alan's
term life insurance policy as soon as possible.
On May 6, 2019, Guinn went to the Strouds' home to discuss Alan's term life
insurance. During this meeting, the Strouds discussed Alan's health problems in detail.
They explained to Guinn that as soon as Alan's doctors told him that his brain was well-
enough for the heart surgery, Alan would go to Houston for the operation.
At some point during the conversation, Guinn told the Strouds that "the premiums
on [Alan's] life insurance policy were going to drastically . . . increase and that the
Strouds needed to change [Alan's] term life insurance policy to a whole life insurance
policy before that happened." After learning this, the Strouds "expressed . . . concerns
that if the premiums on the term policy increased when they were in Houston, Texas for
[Alan's] surgery, they wouldn't have enough money in their account from which the
premiums were being automatically drawn, to cover the amount of the increased
premiums." Guinn told the Strouds that if Alan missed a premium payment, Alan's term
life insurance policy would be cancelled. And he explained that because of Alan's health
problems, Alan would probably not qualify for a new life insurance policy upon its
cancellation.
Although not necessarily in the context of Alan's health, Guinn discussed
converting Alan's term life insurance policy with a $60,000 death benefit into a whole life
insurance policy with a $30,000 death benefit. Guinn explained to the Strouds that Alan's
premium would never increase under a whole life insurance policy. He also explained
that Alan would not have to prove his insurability—that is, prove that he was in good
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health—by converting his term life insurance policy to a whole life insurance policy; this
is something Alan would have to do if he bought a new policy.
By the end of the meeting, Alan had converted his term life insurance policy
naming Cathy as the sole beneficiary into a whole life insurance policy naming Cathy as
the sole beneficiary. Alan signed the necessary paperwork and paid the first annual
premium on his whole life insurance policy, which was $1,538. Thus, by the end of the
May 6, 2019 meeting with Guinn, Alan converted his term life insurance policy with a
$60,000 death benefit and current annual premium of $1,250.40 to a whole life insurance
policy with a $30,000 death benefit and annual premium of $1,538. Alan did this
although he still had about 2 years and 11 months before Ozark would increase the
premium on his term life insurance policy to $1,847.
On August 1, 2019, Alan had his aorta heart surgery in Houston. Unfortunately,
Alan never recovered from his surgery, dying on August 25, 2019.
Following Alan's death, Ozark paid Cathy the $30,000 death benefit as required
under its whole life insurance policy with Alan. This upset Cathy. In a letter to Ozark's
legal department, Cathy asked Ozark if it could pay her the $60,000 death benefit
associated with Alan's term life insurance policy. To support her request, Cathy alleged
that Guinn told Alan and her that Alan "had" to get the whole life insurance policy
because "that was all [Alan and her] could afford for the new premiums." She asserted:
"[Guinn] said that [Alan] needed to upgrade [his term life insurance policy] because of
Alan's age and that if [he] didn't upgrade to the whole life insurance [policy] that [Alan]
could end up with nothing as Alan may not be able to obtain any life insurance because
of his [medical] condition[s]." She also suggested that but for Guinn's advice, Alan would
not have converted his term life insurance into whole life insurance.
4
After Ozark rejected Cathy's request, Cathy sued Ozark and Guinn. In her petition,
under a single cause of action, Cathy argued that she was entitled to the $30,000
difference between Alan's term life insurance and whole life insurance policies' death
benefits because Guinn breached his fiduciary duty to Alan and her by not advising
"them in their best interests" about converting Alan's term life insurance. She argued she
was also entitled to this money because Guinn negligently misrepresented information to
Alan and her about converting Alan's term life insurance. She argued that Guinn told
Alan and her that Alan "need[ed]" to convert his term life insurance into whole life
insurance because his annual premium was going to "drastically increase" in the near
future. She suggested that Guinn negligently misrepresented the information about
converting Alan's term life insurance so he could receive a commission from selling a
new insurance policy. Additionally, she argued that Ozark was vicariously liable for
Guinn's tortious conduct since Guinn was acting as Ozark's agent when he gave Alan and
her the disputed advice about converting Alan's term life insurance into whole life
insurance.
In a joint answer, Ozark and Guinn denied engaging in any tortious conduct. As an
affirmative defense, they asserted that Cathy was not the proper party to bring the breach
of fiduciary duty, negligent misrepresentation, and vicarious liability claims.
Eventually, Ozark and Guinn moved for summary judgment. In this motion, Ozark
and Guinn argued that the trial court should dismiss all of Cathy's claims for the
following reasons: (1) Cathy was not the real party in interest to bring the claims against
them; (2) Guinn owed neither Alan nor Cathy a fiduciary duty; (3) Cathy could not
establish that Guinn made a false statement constituting a negligent misrepresentation;
and (4) Cathy could not otherwise establish that Alan relied on Guinn's alleged negligent
misrepresentation.
5
In their first argument, Ozark and Guinn asserted that Spencer v. Aetna Life &
Casualty Insurance, 227 Kan. 914, 611 P.2d 149 (1980), stood for the proposition that
insurers have no fiduciary duty to the insured in a "first party relationship" situation.
According to Ozark and Guinn, this meant that insurers never have a fiduciary duty to the
insured absent a dispute with a third party—that is, a third party making a claim against
the insured. Relying on this interpretation of Spencer, they concluded that Guinn owed
neither Alan nor Cathy a fiduciary duty because Guinn was an agent for Ozark which had
a first-party relationship with Alan and Cathy. As for their argument that Cathy was not
the real party in interest, Ozark and Guinn asserted that because K.S.A. 2020 Supp. 60-
217(a)(1) required all actions to "be prosecuted in the name of the real party in interest,"
Cathy could not sue them in her own right for breaching any legal duty owed to Alan.
Instead, relying on Patterson v. Midland Care Connection, Inc., Case. No., 118,359, 2019
WL 1213246 (Kan. App. 2019) (unpublished opinion), they argued that Cathy needed to
bring any tort claim Alan could have brought in life as the executor of Alan's estate.
In her response, Cathy argued that Guinn knew that Alan and she were relying on
his advice. So, she asserted that despite Ozark and Guinn's argument to the contrary,
Guinn created a fiduciary relationship with Alan and her through his interactions with
them on May 5, 2019, and May 6, 2019. She argued that Ozark and Guinn's reliance on
Spencer was misplaced, asserting they had an errant interpretation of the opinion.
Additionally, she cited Marshel Investments, Inc. v. Cohen, 6 Kan. App. 2d 672, 683, 634
P.2d 133 (1981), in which this court held:
"[A]n insurance agent or broker who undertakes to procure insurance for another owes to
the client the duty to exercise the skill, care and diligence that would be exercised by a
reasonably prudent and competent insurance agent or broker acting under the same
circumstances."
6
Cathy argued that this precedent proved that insurers have a fiduciary duty to the
insured. Cathy also asserted that she was the real party in interest under K.S.A. 2020
Supp. 60-217(a)(1) to bring her breach of fiduciary duty, negligent misrepresentation, and
vicarious liability claims. According to Cathy, she was the real party in interest because
she was "bring[ing] her claims on her own behalf in this case as the beneficiary of her
husband's $60,000.00 life insurance policy which was terminated because of the wrongful
conduct of [Guinn]." She argued that this fact distinguished her case from Patterson
because in Patterson, a daughter sued in her own name for a hospice provider's negligent
care of her now deceased father. She stressed that she directly suffered Guinn's alleged
wrongdoing because she received $30,000 less in death benefits. And she pointed out that
in Iowa, beneficiaries may sue life insurers in their own right in limited circumstances.
See Pitts v. Farm Bureau Life Ins. Co., 818 N.W.2d 91, 106 (Iowa 2012).
Ultimately, the trial court granted Ozark and Guinn's summary judgment motion.
The trial court dismissed Cathy's breach of fiduciary duty cause of action for several
reasons. First, it determined that Spencer's precedent established that Guinn owed neither
Alan nor Cathy a fiduciary duty. Second, citing caselaw establishing that a person cannot
unilaterally impose a fiduciary relationship onto another, it determined that Cathy had not
otherwise presented any evidence that Guinn had a fiduciary duty to her. See Linden
Place, LLC v. Stanley Bank, 38 Kan. App. 2d 504, 510, 167 P.3d 374 (2007). Third,
citing K.S.A. 2020 Supp. 60-217(a)(1) and Patterson, it determined that if Guinn owed a
fiduciary duty to Alan, then Cathy "need[ed] to open an estate and sue in his name."
Next, the trial court dismissed Cathy's negligent misrepresentation cause of action,
finding that undisputed material facts established that it failed as a matter of law. It
explained that to establish the tort of negligent misrepresentation, a party must prove (1)
that the alleged wrongdoer supplied false information and (2) that the party later relied on
this false information. It found that Cathy failed to prove the preceding elements because
she had "not specified any information that was supplied to her by [Ozark or Guinn] that
7
was false" and had "not specified any information . . . show[ing] that [Alan] relied on this
false information." Finally, it dismissed Cathy's vicarious liability claim since it hinged
on her breach of fiduciary duty and negligent misrepresentation claims that it had just
rejected.
Cathy timely appeals.
ANALYSIS
Did the trial court err by granting Ozark and Guinn's summary judgment motion?
On appeal, Cathy argues that the trial court made several errors when granting
Ozark and Guinn's summary judgment motion. Citing Marshel Investments, Inc., Cathy
argues that Ozark and Guinn owed Alan and her a fiduciary duty when giving advice
about converting his term life insurance into whole life insurance. She argues that the
trial court misinterpreted Spencer in determining that Guinn had no fiduciary relationship
with Alan and her. And she argues that Guinn's behavior on May 5, 2019, and May 6,
2019, prove that Guinn created a fiduciary relationship with Alan and her. As for the trial
court's real party in interest findings, Cathy contends that Iowa's Pitts decision supports
that she, as Alan's beneficiary, may sue Ozark and Guinn. She suggests that allowing life
insurance beneficiaries to sue for an insurer's negligent treatment of the insured is no
different than allowing beneficiaries to sue an attorney for malpractice for negligently
drafting a will or trust—a concept our Supreme Court has approved of in limited
circumstances in Pizel v. Zuspann, 247 Kan. 54, Syl. ¶ 5, 795 P.2d 42, opinion modified
on other grounds 247 Kan. 699, 803 P.2d 205 (1990). Cathy also argues that the trial
court's reliance on Patterson was misplaced since she is bringing "her claims on her own
behalf . . . as the beneficiary of [Alan's] $60,000.00 [term] life insurance policy."
8
In addition to the preceding, Cathy argues that she presented evidence that Guinn
made a false statement and that Alan relied on this false statement. Cathy argues that
contrary to the trial court's finding, there were genuine issues of material fact as to
whether Guinn made false statements and whether Alan relied on those false statements.
She further contends that because the trial court erred by dismissing her breach of
fiduciary and negligent misrepresentation claims, the trial court necessarily erred by
dismissing her vicarious liability claim.
Ozark and Guinn's response repeats the arguments in their summary judgment
motion—arguments that the trial court largely adopted when granting their motion.
Relying on Spencer, they argue that Guinn had no fiduciary duty to either Alan or Cathy
because Spencer stands for the proposition that no fiduciary duty exists in first-party
relationships between the insurer and the insured unless a third-party is making a claim
against the insured. They argue that if Guinn owed Alan a fiduciary duty, Alan was the
real party in interest under K.S.A. 2020 Supp. 60-217(a)(1) to sue for Guinn's alleged
wrongful conduct. Also, they argue that because Cathy's breach of fiduciary duty and
negligent misrepresentation claims were baseless, the trial court properly dismissed
Cathy's vicarious liability claim. Hence, Ozark and Guinn ask us to affirm the trial court's
ruling because the trial court made no errors when granting its summary judgment
motion.
As considered below, although the trial court sometimes relied on erroneous
reasoning, it correctly granted Ozark and Guinn's summary judgment motion.
Accordingly, we affirm the trial court's order of summary judgment, dismissing Cathy's
breach of fiduciary duty, negligent misrepresentation, and vicarious liability claims. See
Gannon v. State, 302 Kan. 739, 744, 357 P.3d 873 (2015) (holding that appellate court
may affirm trial court's decision if it reached correct result even though it relied on
erroneous reasoning in reaching correct result).
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a. Standard of Review
Our standard for reviewing a trial court's summary judgment ruling is well-known:
"'"Summary judgment is appropriate when the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, show that there is no
genuine issue as to any material fact and that the moving party is entitled to judgment as
a matter of law. The trial court is required to resolve all facts and inferences which may
reasonably be drawn from the evidence in favor of the party against whom the ruling is
sought. When opposing a motion for summary judgment, an adverse party must come
forward with evidence to establish a dispute as to a material fact. In order to preclude
summary judgment, the facts subject to the dispute must be material to the conclusive
issues in the case. On appeal, we apply the same rules and when we find reasonable
minds could differ as to the conclusions drawn from the evidence, summary judgment
must be denied."' [Citation omitted.]" Patterson v. Cowley County, Kansas, 307 Kan.
616, 621, 413 P.3d 432 (2018).
Generally, a trial court should be hesitant to grant summary judgment motions for
negligence claims. Elstun v. Spangles, Inc., 289 Kan. 754, 757, 217 P.3d 450 (2009).
When considering negligence claims, in most instances, it is proper to grant summary
judgment on questions of law only. Martin v. Naik, 297 Kan. 241, 245, 300 P.3d 625(2013). Because the existence of a duty of care is a question of law, the trial court may
grant a defendant's summary judgment motion when the record and arguments reveal that
the defendant had no duty to act in a certain manner towards the plaintiff. Elstun, 289
Kan. at 757. We exercise unlimited review on issues concerning the existence of a duty
of care. 289 Kan. at 758.
As for real party in interest issues, there is limited caselaw on our review of a trial
court's ruling that a plaintiff is not a real party in interest. All the same, this caselaw
supports that the question of whether a party is a real party in interest is a question of law
over which we exercise unlimited review. Leavenworth/Lansing Physicians Bldg., LLC v.
10
Cristiano, No. 102,699, 2010 WL 4977144, at *8 (Kan. App. 2010) (unpublished
opinion); FinanceCo of Kansas, Inc. v. Ledin, No. 102,836, 2010 WL 2509971, at *3
(Kan. App. 2010) (unpublished opinion); Parks v. Benchmark, Ins. Co., No. 101,697,
2010 WL 445951, at *5 (Kan. App. 2010) (unpublished opinion). Also, to the extent that
review of the trial court's real party in interest ruling involves interpreting K.S.A. 2020
Supp. 60-217(a)(1), interpretation of a statute constitutes a question of law over which we
exercise unlimited review. Neighbor v. Westar Energy, Inc., 301 Kan. 916, 918, 349 P.3d
469 (2015).
b. Elements
"The requirements of a claim of breach of fiduciary duty are existence of a duty,
breach of that duty, and damages resulting from the breach." Schneider v. Kansas
Securities Comm'r, 54 Kan. App. 2d 122, 152, 397 P.3d 1227 (2017). A person has a
legal duty as a fiduciary when he or she has a fiduciary relationship with another. To
establish the existence of a fiduciary relationship, a person must prove that he or she
placed "a special confidence'" in another "'who, in equity and good conscience, [was]
bound to act in good faith and with due regard to [his or her] interests.'" Linden Place,
LLC, 38 Kan. App. 2d at 509.
Our Supreme Court has refused to give an exact definition of a fiduciary
relationship because the existence of a fiduciary relationship between parties hinges on
the facts and circumstances of each individual case. 38 Kan. App. 2d at 509. Even so,
there are generally just two types of fiduciary relationships. The first type of fiduciary
relationship is created by a contract or formal legal proceedings. 38 Kan. App 2d at 509.
The second type of fiduciary relationship is "'implied in law due to the factual situation
surrounding the involved transactions and the relationship of the parties to each other and
to the questioned transactions. The determination of the existence of a fiduciary
11
relationship in the second category is more difficult to determine. [Citation omitted.]'" 38
Kan. App. 2d at 509.
The requirements to establish a negligent misrepresentation claim are somewhat
similar. All negligent misrepresentation claims involve a person "who in the course of
any transaction in which he or she has a pecuniary interest, supplies false information for
the guidance of another person." Stechschulte v. Jennings, 297 Kan. 2, 22, 298 P.3d 1083(2013). In that context, the person who supplied false information will be liable for
damages the other person suffered by relying on this false information if the other person
establishes the following:
"(1) the person supplying the false information failed to exercise reasonable care or
competence in obtaining or communicating the false information; (2) the person who
relies upon the information is the person for whose benefit and guidance the information
is supplied; and (3) the damages are suffered in a transaction that the person supplying
the information intends to influence." 297 Kan. at 22.
It is important to note that it is more difficult to prove a breach of a fiduciary duty
than negligent misrepresentation. To prove the legal duty element of negligent
misrepresentation, a person needs to establish only that the alleged wrongdoer had a
pecuniary interest in the disputed transaction. On the other hand, to prove the legal duty
element of breach of a fiduciary duty, a person must prove that because of a special
relationship, the alleged wrongdoer was obligated to act in his or her best interests during
the disputed transaction. So it is possible for a person to prove that the alleged wrongdoer
negligently misrepresented information without establishing that the alleged wrongdoer
breached his or her fiduciary duty.
As for the elements of vicarious liability, vicarious liability claims make one party
legally liable for the wrongful conduct of another based on that party's relationship to the
alleged wrongdoer. This court has explained that "'[v]icarious liability is a term generally
12
applied to legal liability which arises solely because of a relationship and not because of
any actual act of negligence by the person held vicariously liable for the act of another.'"
Long v. Houser, 57 Kan. App. 2d 675, 677, 456 P.3d 549 (2020). Thus, to establish a
vicarious liability claim, a person must first prove his or her underlying claims against the
alleged wrongdoer.
c. Preliminary Matters
First, although neither the parties nor the trial court have recognized it, Cathy has
raised two breach of fiduciary duty and two negligent misrepresentation claims in her
pleadings. In her petition, Cathy pleaded a single cause of action entitled, "Breach of
Fiduciary Duty," and a single cause of action entitled, "Negligent Misrepresentations." In
both causes of action, Cathy contended that Guinn created a fiduciary relationship with
Alan and with her that he violated. It is important to note that Cathy's negligent
misrepresentation cause of action relied on Guinn's disputed fiduciary duty to Alan and to
her. For example, Cathy argued that Guinn's fiduciary duty to Alan and Guinn's fiduciary
duty to her was the legal duty that should have prevented Guinn from negligently
misrepresenting information about converting Alan's term life insurance policy into a
whole life insurance policy.
But by asserting that Guinn created a fiduciary relationship with both Alan and
her, Cathy addressed distinct disputed rights—Guinn's alleged fiduciary duty to Alan as
the insured as well as Guinn's alleged fiduciary duty to her as the beneficiary. Although
Cathy's arguments treat Guinn's alleged fiduciary duty to Alan and to her as a single
fiduciary duty, Guinn may owe Alan a fiduciary duty as the insured without owing Cathy
a fiduciary duty as the beneficiary. Of further note, the tort of negligent misrepresentation
is confined to those for whose benefit the alleged wrongdoer supplied the information
and whom the alleged wrongdoer intended to influence. Rinehart v. Morton Buildings,
Inc., 297 Kan. 926, 937, 305 P.3d 622 (2013). Thus, although Cathy alleges that Guinn
13
negligently misrepresented information to Alan and to her jointly, Guinn may have
intended to influence Alan without intending to influence her.
In her reply brief, Cathy seemingly argues that her claims against Ozark and
Guinn have always been clearly defined. There, she stresses that she "is claiming a
breach of fiduciary duty by [Guinn] owed to [Alan] and a breach of fiduciary duty owed
to her." This is true. Cathy has consistently argued that Guinn violated his fiduciary duty
to Alan and to her. But as indicated by the plain language of her breach of fiduciary duty
cause of action, at many points throughout the pendency of her case, Cathy has referred
to Guinn's fiduciary duty to Alan and to her as a combined claim. And Cathy never
recognizes that Guinn could have negligently misrepresented information to Alan without
negligently misrepresenting information to her. Thus, Cathy's claims are confusing for
several reasons.
In any case, because Cathy alleged that Guinn breached his fiduciary duty to Alan
and to her as well because he made negligent misrepresentations to both Alan and her,
Cathy has pleaded the following four claims: (1) that Guinn breached his fiduciary duty
to Alan when advising Alan about converting his term life insurance policy, which she
can sue for as the beneficiary of Alan's term life insurance policy; (2) that Guinn
negligently misrepresented information to Alan about converting Alan's term life
insurance policy, which she can sue for as the beneficiary of Alan's term life insurance
policy; (3) that Guinn breached his fiduciary duty to her as the beneficiary of Alan's term
life insurance policy when giving advice about converting Alan's term life insurance
policy; and (4) that Guinn negligently misrepresented information to her about converting
Alan's term life insurance policy.
Second, we note that the trial court never addressed whether Cathy was the real
party in interest under K.S.A. 2020 Supp. 60-217(a)(1) to bring her negligent
misrepresentation claims when it dismissed those claims. Also, it never addressed
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whether Cathy could sue for negligent misrepresentation because Guinn owed Alan and
her a legal duty when giving advice about converting Alan's term life insurance policy to
a whole life insurance policy. Rather, the trial court ruled that Cathy failed to establish
elements of negligent misrepresentation—that Guinn made a false statement and that
Alan relied on this false statement.
Even so, if Cathy was not the real party in interest to sue for breach of fiduciary
duty based on Guinn's alleged violation of his fiduciary duty to Alan, then it necessarily
follows that she was not the real party in interest to sue for Guinn's alleged negligent
misrepresentation to Alan. Thus, the trial court implicitly ruled that Cathy was not the
real party in interest to sue for Guinn's alleged negligent misrepresentation to Alan.
Therefore, if we were to assume that the trial court correctly ruled that Cathy was not the
real party in interest to sue for breach of Alan's fiduciary duty, we may rely on the trial
court's implicit real party in interest ruling to affirm its dismissal of Cathy's claim that
Guinn negligently misrepresented information to Alan. On the other hand, if the record
reveals that the trial court properly dismissed Cathy's negligent misrepresentation claims
because Guinn owed neither Alan nor her a fiduciary duty or because she was not the real
party in interest, we may affirm the trial court as being right for the wrong reason. See
Gannon, 302 Kan. at 744.
With this understanding, we will consider the following arguments of the parties:
(1) whether Guinn owed a fiduciary duty to Alan or to Cathy, (2) whether Guinn sought
to influence Cathy, and (3) whether Cathy constituted a real party in interest who could
sue in her own name for injuries that occurred to Alan during Alan's lifetime.
d. Fiduciary Duty
The primary case that Ozark and Guinn rely on to argue that Guinn had no
fiduciary duty is Spencer v. Aetna Life & Casualty Insurance. In Spencer, our Supreme
15
Court considered whether Kansas recognized the tort of bad faith against an insurance
company. 227 Kan. at 914. The insured, whose house had burned down, attempted to sue
her insurance company for its alleged wrongful conduct in settling her fire loss claim. In
ruling that Kansas does not recognize the tort of bad faith, our Supreme Court addressed
an insurer's fiduciary duty to the insured in settling claims. It explained that the existence
of a fiduciary duty depends on whether the claim is being brought by the insured or
against the insured. It described claims being brought by the insured as "first party
relationships" while it described claims brought against the insured as "third party
relationships." 227 Kan. at 920-21.
In discussing an insurer's duty to the insured in third party relationships, our
Supreme Court explained:
"'In defending and settling claims against its insured, the insurer of a liability or
indemnity policy owes to the insured the duty to act in good faith and without negligence;
failure to do so will result in the insurer being held liable for the full amount of the
insured's resulting loss, even if that amount exceeds policy limits.'" 227 Kan. at 920.
In contrast, our Supreme Court explained that in first party relationships, the
insurer has no fiduciary duty to the insured because the settlement process places them in
an adversarial relationship:
"The first party relationship is distinguishable from the third party situation. In
third party claims, the absolute control of the trial and settlement is in the hands of the
insurer. That control gives rise to a fiduciary relationship between the insurer and its
insured. In first party claims the insurer is not in a position to expose the insured to a
judgment in excess of policy limits through its unreasonable refusal to settle a case nor is
the insurer in exclusive control of the defense." 227 Kan. at 922.
16
So, Spencer stands for the proposition that when settling claims brought by third
parties against the insured, the insurer has a fiduciary duty to the insured. By contrast, the
insurer does not have a fiduciary duty to the insured when settling claims brought by the
insured on behalf of himself or herself. In those situations, the insured and the insurer are
in a first-party adversarial relationship.
Although the trial court adopted Ozark and Guinn's argument that insurers never
owe the insured a fiduciary duty absent a third-party claim against the insured, it read
Spencer too broadly. Spencer involves the specific situation of settling the insured's
claims. It does not involve procuring insurance for the insured or giving advice to an
insured about insurance policies. Therefore, the trial court erred by relying on Spencer to
hold that Guinn owed neither Alan nor Cathy a fiduciary duty.
Next, the main case Cathy relies on to support her argument that Guinn owed Alan
and her a fiduciary duty is Marshel Investments, Inc. v. Cohen. There, the insured asked
the insurance agent for complete coverage on an oil well. But the agent secured only a
comprehensive general liability insurance policy that did not cover losses caused by a
later fire at the well. On appeal after the trial court reversed the jury's verdict in favor of
the insured, this court considered what duty, if any, the agent owed to the insured. After
reviewing caselaw, it held:
"[W]e conclude an insurance agent or broker who undertakes to procure insurance for
another owes to the client the duty to exercise the skill, care and diligence that would be
exercised by a reasonably prudent and competent insurance agent or broker acting under
the same circumstances. We will refer to this as the exercise care duty." (Emphasis
added.) 6 Kan. App. 2d at 683.
Perhaps a liberal reading of the preceding holding supports that Guinn formed a
fiduciary relationship with Alan and Cathy. Nevertheless, since deciding Marshel
Investments, Inc., this court has consistently held that the preceding holding meant that an
17
insurance agent has a duty to act on explicit insurance requests from their clients. And in
doing so, this court has consistently rejected arguments such as the appellant makes here
interpreting the Marshel Investments, Inc. holding as meaning that insurance agents have
a duty to advise clients about their insurance-related choices. See Carpenter v. Bolz, No.
101,679, 2010 WL 2977937, at *6-7 (Kan. App. 2010) (unpublished opinion); Duncan v.
Janosik, Inc., No. 99,459, 2009 WL 743579, at *3 (Kan. App. 2009) (unpublished
opinion); Benskin v. Anderson Insurance Agency, Inc., No. 86,976, 2002 WL 35657473,
at *5 (Kan. App. 2002) (unpublished opinion).
Here, Cathy's complaint is not that Guinn failed to get Alan the life insurance
coverage he requested. Instead, her complaint is that Guinn hid or neglected to tell Alan
and her important information about the advisability of converting Alan's term life
insurance policy into a whole life insurance policy. Thus, Marshel Investments, Inc. does
not support Cathy's contention that Guinn owed either Alan or her a fiduciary duty. Her
case does not involve the insurer's failure to procure insurance requested by the insured.
Guinn procured whole life insurance for Alan as Alan requested after receiving Guinn's
advice.
Concerning an insurance agent's advice, this court has long held that "[a]bsent a
specific agreement to do so, an insurance agent does not have a continuing duty to advise,
guide, or direct an insured's coverage after the agent has complied with his obligation to
obtain insurance coverage on behalf of the insured." (Emphasis added.) Marshall v.
Donnelli, 14 Kan. App. 2d 150, Syl. ¶ 1, 783 P.2d 1321 (1989). Likewise, in Marshel
Investments, Inc., this court explained:
"It has been explicitly stated an action for the breach of this duty may be brought
in contract or in tort. Although no Kansas cases reveal particular exposition of legal
analysis for the ability to bring the action on these alternative theories, it might be said
the duty is both an implied contractual term of the undertaking (contract duty) and a part
18
of the fiduciary duty owed the client by reason of the principal-agent relationship arising
out of the undertaking (tort duty)." 6 Kan. App. 2d at 683.
This means that unless the insurance agent is contractually obligated to do so, an
insurance agent has no fiduciary duty to advise the insured. See also Duncan, 2009 WL
743579, at *4 (discussing Marshel Investments, Inc.'s explanation of an insurance agent's
duty to advise as being based in contract). Thus, to successfully establish that an
insurance agent violated a fiduciary duty by giving bad advice, the insured must prove
that the agent was contractually obligated under his or her policy to give reasonable
advice.
Cathy argues that Guinn's conduct on May 5, 2019, and May 6, 2019, created a
fiduciary relationship with Alan and her. She does not rely on Alan's life insurance
policies to argue that a fiduciary relationship existed. But based on Marshall's authority,
the facts surrounding Guinn's conduct could not have created a fiduciary relationship
between Guinn and Alan and Guinn and her. Rather, if Guinn had a fiduciary duty to
either Alan or her, that fiduciary relationship had to arise from contract. Even if we
ignored this problem, though, it is undisputed that Cathy had no life insurance policy with
Ozark; thus, there was no contractual provision creating a fiduciary relationship between
Guinn and Cathy. Also, neither Alan's term life insurance policy nor his whole life
insurance policy required Guinn to provide advice that was in Alan's best interests. It
therefore follows that Guinn had no contractual fiduciary duty to either Alan or Cathy to
provide advice in either Alan or Cathy's best interests.
In turn, although the trial court relied on the wrong reasoning, it correctly granted
Ozark and Guinn's summary judgment motion as to Cathy's breach of fiduciary duty
claims. Alan's life insurance policies did not require Guinn to provide sound advice.
Accordingly, Guinn could not have violated his breach of fiduciary duty to Alan by
giving Alan what seemed to be unsound advice. Because Cathy had no insurance policy
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with Ozark, it is readily apparent that Guinn owed no fiduciary duty to Cathy. Then the
trial court properly dismissed Cathy's claim (1) that Guinn breached his fiduciary duty to
Alan, which she can sue under as Alan's term life insurance beneficiary and (2) that
Guinn breached his fiduciary duty to her.
e. Guinn's Influence
As just noted, Cathy did not have a life insurance policy with Ozark. Also, it is an
undisputed fact that Guinn's discussions with Alan and Cathy on May 5, 2019, and
May 6, 2019, involved converting Alan's term life insurance policy into a whole life
insurance policy.
The preceding facts undermine Cathy's contention that Guinn could have
negligently misrepresented information to her about converting Alan's term life insurance
policy into a whole life insurance policy. Again, the tort of negligent misrepresentation
"confines the universe of potential claimants to those for whose benefit the defendant
supplied the information and whom the defendant intended to influence." Rinehart, 297
Kan. at 937. Here, if Guinn supplied false information for the guidance of anyone, he
supplied the false information to guide Alan. Alan was the person Guinn needed to
convince to convert his term life insurance policy into a whole life insurance policy to
obtain a commission. Although Alan and Cathy may have discussed financial decisions,
that does not matter since Alan owned his term life insurance policy in its entirety. It
stated that while he was living, unless he assigned his policy to another person or named
an irrevocable beneficiary, he had sole control of the policy. In fact, under the plain
language of Alan's term life insurance policy and under Kansas law, Cathy had no vested
interest in Alan's term life insurance policy until Alan's death. See Tromp v. National
Reserve Life Ins. Co., 143 Kan. 98, Syl. ¶ 1, 53 P.2d 831 (1936) (holding that unless the
insured names an irrevocable beneficiary, the beneficiary of a life insurance policy has no
vested interest in the death benefits under the insured's policy until the insured's death).
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As a result, even if we were to assume that Guinn negligently misrepresented
information about converting Alan's term life insurance policy, Cathy does not have a
negligent misrepresentation claim against Guinn because Guinn negligently
misrepresented the information to influence Alan—the term life insurance policy owner.
Simply put, any influence Guinn had on Cathy, even though she was Alan's beneficiary,
was irrelevant. Thus, Cathy's claim that Guinn negligently misrepresented information to
her about converting Alan's term life insurance policy into a whole life insurance policy
fails as a matter of law.
On the other hand, it is important to note the trial court's actual reasoning for
dismissing Cathy's negligent misrepresentation claims was questionable. The trial court
found that Cathy failed to produce any evidence that Guinn supplied false information
and that Alan relied on the allegedly false information. Regarding the trial court's finding
that Cathy failed to produce any evidence that Guinn supplied false information, Ozark
and Guinn argue that Cathy's claim is more akin to a fraud by silence claim. Regardless
of this argument, a trial court should be hesitant to grant summary judgment on
negligence claims. Elstun, 289 Kan. at 757. Our Supreme Court has recently explained
that to present a prima facie case of negligence to survive summary judgment, a plaintiff
does not need to present direct evidence. Instead, a plaintiff may rely on circumstantial
evidence that does "not exclude every other reasonable conclusion as long as it forms a
basis from which a jury could draw a reasonable inference." Montgomery v. Saleh, 311
Kan. 649, 663, 466 P.3d 902 (2020).
Here, Cathy's complaint was that Guinn told Alan and her that Alan "need[ed]" to
convert his term life insurance policy into a whole life insurance policy. Given (1) that
Alan had nearly three years left on his term life insurance policy before his premiums
would increase again, (2) that Guinn's advice resulted in Alan's annual premium payment
increasing immediately, and (3) that Guinn knew of Alan's severe health situation,
Guinn's contention that Alan needed to convert his term life insurance policy into a whole
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life insurance policy could be construed as false information. Also, contrary to the trial
court's finding, it is readily apparent that Alan relied on Guinn's advice about converting
his term life insurance policy into a whole life insurance policy. Alan converted his term
life insurance policy to a whole life insurance policy by the end of the May 6, 2019
meeting with Guinn. Given this fact, the trial court's finding that Cathy failed to present
evidence that Alan relied on Guinn's allegedly false information was unreasonable. Thus,
we reject the trial court's specific reasoning for denying Cathy's negligent
misrepresentation claims.
f. Real Party in Interest
To review, our discussion in the preceding sections show that the trial court
properly dismissed Cathy's claims against Guinn for the following: (1) that Guinn
breached his fiduciary duty to Alan when advising Alan about converting his term life
insurance policy to a whole life insurance policy, which she can sue under as the
beneficiary of Alan's term life insurance policy; (2) that Guinn breached his fiduciary
duty to her as the beneficiary of Alan's term life insurance policy when giving advice
about converting Alan's term life insurance policy into a whole life insurance policy; and
(3) that Guinn negligently misrepresented information to her about converting Alan's
term life insurance policy into a whole life insurance policy. Thus, the only claim that we
have not addressed is Cathy's claim that Guinn negligently misrepresented information to
Alan about converting Alan's term life insurance policy into a whole life insurance
policy, for which she can maintain an action as the beneficiary of Alan's term life
insurance policy.
K.S.A. 2020 Supp. 60-217(a)(1) states that "[a]n action must be prosecuted in the
name of the real party in interest." It goes on to say that some parties "may sue in their
own names without joining the person for whose benefit the action is brought." K.S.A.
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2020 Supp. 60-217(a)(1). This includes a party suing as an executor or an administrator
of another's estate. K.S.A. 2020 Supp. 60-217(a)(1)(A)-(B).
Our Supreme Court has held that the real party in interest rule requires that "'[a]n
action shall be prosecuted in the name of the party who, by the substantive law, has the
right sought to be enforced.'" Torkelson v. Bank of Horton, 208 Kan. 267, 270, 491 P.2d
954 (1971). "A party's substantive right to recover in a particular action is neither
enlarged nor restricted by the provisions of the real party in interest rule and we look . . .
to substantive law to see what if any claim for relief plaintiff here has stated in his
petition." 208 Kan. at 270. As a result, when considering real party in interest questions,
the paramount question is "[w]ho holds the right sought to be enforced?" Ryder v.
Farmland Mutual Insurance, 248 Kan. 352, 366, 807 P.2d 109 (1991).
In granting Ozark and Guinn's summary judgment motion, the trial court relied on
this court's Patterson decision to rule that Cathy was not a real party in interest to claim
that Guinn violated his fiduciary duty to Alan, which she could sue under as the
beneficiary of Alan's term life insurance policy. But as discussed earlier, in making the
preceding ruling, it also implicitly ruled that Cathy was not the real party in interest to
sue for Guinn's alleged negligent misrepresentation to Alan. On appeal, Cathy contends
that the trial court's reliance on Patterson was misplaced because unlike the plaintiff in
Patterson, she has sued on her own behalf as Alan's beneficiary. Ozark and Guinn assert
that the trial court properly relied on Patterson because it is procedurally similar to
Cathy's case.
In Patterson, the daughter of the decedent sued a hospice provider for improper
care of the decedent during his lifetime. The trial court dismissed the daughter's claims,
ruling that she was wrongly suing in her own name on behalf of the decedent. 2019 WL
1213246, at *1. On appeal, this court affirmed the trial court's ruling. It explained:
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"The Kansas Supreme Court has long held that claims that survive the death of
the decedent may be maintained only by the decedent's personal representative, not his or
her heirs. Cory v. Troth, 170 Kan. 50, 53, 223 P.2d 1008 (1950). In the present case,
however, the amended petition fails to state that [the daughter] is the personal
representative of [the decedent]. This is a fatal omission because a personal
representative is the real party in interest in such a cause of action. [Citations omitted.]"
2019 WL 1213246, at *5.
As a result, the Patterson court affirmed the dismissal of the daughter's lawsuit
against the hospice provider because she was suing in her own name—not as a personal
representative—for wrongful conduct done to the decedent. 2019 WL 1213246, at *5.
Therefore, the Patterson decision stands for the proposition that in Kansas, an
administrator or executor of a decedent's estate is the only real party in interest to sue for
torts committed against the decedent during the decedent's life.
Although Cathy tries to distinguish her case from Patterson by arguing that she is
suing on her own behalf as Alan's beneficiary, Cathy's argument ignores that under
Kansas law, she had no rights as Alan's beneficiary until Alan died. As already discussed,
Guinn had no fiduciary duty to Cathy when discussing Alan's life insurance policy
options. And our Supreme Court has held that unless the insured names an irrevocable
beneficiary, the beneficiary of a life insurance policy has no vested interest in the policy's
death benefits until the insured's death. Tromp, 143 Kan. at 98. Accordingly, Kansas law
supports that Cathy had no interest in Alan's life insurance policy as his beneficiary that
allowed her to sue in her own name for Guinn's alleged violation of his fiduciary duty to
Alan or his alleged negligent misrepresentations to Alan. In turn, just like the daughter in
Patterson, Cathy is trying to sue in her own name for alleged wrongdoing that occurred
to someone who is now deceased.
To support her contention that she can sue in her own right, Cathy primarily relies
on the Iowa Supreme Court case of Pitts. There, a husband purchased a life insurance
24
policy that listed both his wife and daughter as beneficiaries. Later, the husband asked his
life insurance agent to remove his daughter from the policy, leaving his wife as the sole
beneficiary of the policy. When the husband died, his wife discovered that the insurance
agent had not removed the daughter from his policy. So, the wife sued the insurance
company and the insurance agent for negligence, negligent misrepresentation, and
vicarious liability. On appeal after the trial court granted the insurance company and the
insurance agent's summary judgment motion, the Iowa Supreme Court held that
insurance agents "owe[] a duty to the intended beneficiary of a life insurance policy in
limited circumstances." 818 N.W.2d at 106. It went on to hold that in Iowa, a life
insurance beneficiary may sue in his or her name after establishing that "he or she was
the 'direct, intended, and specifically identifiable beneficiar[y]' of the policy as well as the
other elements of negligence." 818 N.W.2d at 106.
The Pitts decision favors Cathy's position that beneficiaries may sometimes sue in
their own name. But it ignores Kansas' precedent. As acknowledged by the Patterson
court, our Supreme Court has long held that a cause of action surviving a decedent must
be maintained by the decedent's personal representative, not the decedent's heirs.
Patterson, 2019 WL 1213246, at *5; see Cory v. Troth, 170 Kan. 50, 52-53, 223 P.2d
1008 (1950). The Cory decision—the decision that the Patterson court cited for this
proposition—is over 70 years old. 170 Kan. at 52-53. Our Supreme Court's precedent is
binding authority. See Tillman v. Goodpasture, 56 Kan. App. 2d 65, 77, 424 P.3d 540,
549 (2018) (explaining that this court is duty-bound to follow our Supreme Court's
precedent absent some indication that it is moving away from that precedent).
Meanwhile, the Pitts decision is merely persuasive authority from another jurisdiction.
See Cunningham v. Braum's Ice Cream & Dairy Stores, 276 Kan. 883, 887, 80 P.3d 35(2003) (refusing to follow holdings from other jurisdictions as persuasive authority).
Also, Cathy's reliance on Pitts ignores that it is factually distinguishable from her
case. First, Cathy's case involves whether Guinn gave unsound advice about converting
25
Alan's term life insurance policy into a whole life insurance policy. Pitts involved an
insurance agent who failed to follow through on the insured's request to make policy
changes. The wife could sue for the insurance agent's alleged wrongdoing because the
insurance agent had a fiduciary duty to the wife as the intended beneficiary of the
husband's policy to follow through on this request. 818 N.W.2d at 106. As previously
explained, Guinn had no fiduciary duty to either Alan or Cathy under Alan's term life
insurance policy or Kansas law to provide sound advice. Second, Cathy's reliance on Pitts
ignores that the Pitts court never directly addressed whether the wife constituted a real
party in interest. The only issue in Pitts was whether the insurance agent owed a fiduciary
duty to the wife as the husband's intended beneficiary. Thus the Pitts decision is not on
point with the issue in this case. 818 N.W.2d at 98.
In their briefs, the parties dispute whether the law on standing applies when
analyzing real party in interest issues. Cathy argues that she should be able to sue as the
beneficiary of Alan's term life insurance policy because she "has a 'sufficient stake' in the
outcome of this controversy." Ozark and Guinn argue that the law on standing is
irrelevant for purposes of deciding whether Cathy is a real party in interest.
"Standing is a jurisdictional question whereby courts determine whether a plaintiff
has alleged a sufficient stake in the outcome of a controversy as to warrant invocation of
jurisdiction and to justify exercise of the court's remedial powers on the plaintiff's
behalf." Board of Sumner County Comm'rs v. Bremby, 286 Kan. 745, Syl. ¶ 1, 189 P.3d
494 (2008). It is worth mentioning that although the concepts of standing and real party
in interest overlap, they are not the same. See § 1542 Real Party in Interest, Capacity, and
Standing Compared, 6A Wright & Miller, Federal Practice and Procedure: Civil 3rd
§ 1542 (2022) (discussing the differences between the concepts of standing and real party
in interest). Still, we need not address the differences between these concepts to resolve
Cathy's appeal. Under the plain language of K.S.A. 2020 Supp. 60-217(a)(1) and Kansas
26
caselaw, Cathy was not the real party in interest to sue Ozark and Guinn for Guinn's
alleged violation of his fiduciary duty to Alan and negligent misrepresentation to Alan.
Another argument Cathy makes is that she is the only one "during [her] lifetime"
who can assert the claims in her case. For this reason, she argues that she should not have
to sue through Alan's estate. For this same reason, she compares her position as a life
insurance beneficiary to the position of a wills and trusts beneficiary. She stresses that in
Pizel, our Supreme Court held that an attorney may be liable for malpractice to the
beneficiary of a will or trust that he or she negligently drafted in certain circumstances.
Relying on Pizel, she argues that she should be able to sue in her own name for Guinn's
allegedly tortious conduct towards Alan as Alan's term life insurance beneficiary.
Cathy here introduces a red herring―dragging a secondary subject across the trail
to distract attention from the real issue under discussion―into the mix. For example,
Cathy's argument ignores a major difference between the will and trust beneficiaries
alleging negligence in the context of drafting documents that were supposed to distribute
testator's property to them upon the testator's death and life insurance beneficiaries
alleging negligence in the context of giving advice to the insured about life insurance.
Thus, Cathy's claim is dissimilar to the claim made by the will and trust beneficiaries in
Pizel.
Additionally, Cathy's reliance on Pizel ignores the plain language of K.S.A. 2020
Supp. 60-217(a)(1). Our Legislature has determined that all actions must be prosecuted in
the name of the real party in interest. The only exceptions to this rule are listed under
K.S.A. 2020 Supp. 60-217(a)(1)(A)-(I). Our Legislature has listed being an executor or
administrator as two of those exceptions. K.S.A. 2020 Supp. 60-217(a)(1)(A)-(B). Thus,
the combined plain language of K.S.A. 2020 Supp. 60-217(a)(1)(A)-(B) requires the
party who has the right sought to be enforced to sue in his or her own name unless that
party is the executor or administrator of the estate of the party who has the right sought to
27
be enforced. In such instances, although the executor or administrator is suing for a
violation of some right belonging to the decedent, the party may sue in his or her own
name because he or she is the executor or administrator of the decedent's estate. Yet, by
including this language, our Legislature undoubtedly intended for a party suing on behalf
of a decedent to do so as either the executor or administrator of the decedent's estate.
Here, although Cathy argues that she is suing on her own behalf as Alan's term life
insurance beneficiary, she challenges Guinn's alleged wrongdoing that influenced Alan to
convert his term life insurance policy into a whole life insurance policy. Cathy, as a
matter of law, had no vested interest in Alan's term life insurance policy. Tromp, 143
Kan. at 98. Therefore, in claiming that she can sue on her own behalf as Alan's term life
insurance beneficiary for Guinn's alleged breach of fiduciary duty to Alan and Guinn's
alleged negligent misrepresentation to Alan, Cathy has challenged Guinn's alleged
violations of Alan's rights as the insured. Cathy cannot rely on Pizel's distinguishable
caselaw to avoid K.S.A. 2020 Supp. 60-217(a)(1)(A)-(B)'s statutory mandate requiring
her to sue as either an executor or administrator of an estate when suing for an alleged
wrongdoing that violated the rights of someone who is now deceased.
In her reply brief, Cathy contends that our Supreme Court's Torkelson decision
supports that she is the real party in interest. In Torkelson, our Supreme Court explained:
"The requirement that an action be brought by the real party in interest has as one of its
principal purposes the protection of the defendant from being repeatedly harassed by a
multiplicity of suits for the same cause of action so that if a judgment be obtained it is a
full, final and conclusive adjudication of the rights in controversy that may be pleaded in
bar to any further suit instituted by any other party. [Citation omitted.]" 208 Kan. at 270.
Relying on this language, she argues that she is the real party in interest because if
allowed to proceed, her cause would conclude any controversy about Alan's term life
insurance death benefits. Nevertheless, Cathy's argument misconstrues Torkelson. The
28
Torkelson court held that one of the principal purposes of the real party in interest rule
was finality. It did not say that the test for whether a party is the real party in interest is
whether the cause of action would result in the conclusive adjudication of the
controversy. Rather, the Torkelson court explained that the test for whether a party
constitutes a real party in interest is whether that party is the party who, by substantive
law, has the right sought to be enforced. 208 Kan. at 270. As previously explained, under
that test, Cathy's status as Alan's term life insurance policy's beneficiary does not make
her a real party in interest to sue Ozark and Guinn for Guinn's alleged breach of fiduciary
duty to Alan or Guinn's alleged negligent misrepresentation to Alan during his lifetime.
In summary, K.S.A. 2020 Supp. 60-217(a)(1)(A)-(B) and Kansas caselaw support
that Cathy was not the real party in interest to sue Ozark and Guinn for Guinn's alleged
breach of fiduciary duty to Alan or Guinn's alleged negligent misrepresentation to Alan.
Cathy's status as a beneficiary did not make her a real party in interest to sue for those
claims. Thus, we affirm the trial court's dismissal of Cathy's claims that Guinn breached
his fiduciary duty to Alan and that Guinn negligently misrepresented information to Alan
when discussing the conversion of Alan's term life insurance policy into a whole life
insurance policy.
For the preceding reasons, we affirm the trial court's summary judgment order.
Affirmed.
29