As Amended by House Committee
         

         
[As Amended by Senate on Final Action]
         

         
As Amended by Senate Committee
         

          Session of 1998
                   
SENATE BILL No. 640
         
By Senator Schraad
         
2-11
          14             AN ACT concerning liability; relating to wrongful death; enacting
15             the Kansas drug dealer liability act; amending K.S.A. 60-308 and 60-
16             1903 and repealing the existing section sections.
17            
18       Be it enacted by the Legislature of the State of Kansas:
19           New Section 1. This act shall be known and may be cited as the
20       Kansas drug dealer liability act.
21           Sec. 2. The purpose of this act is to provide a civil remedy for dam-
22       ages to persons in a community injured as a result of illegal drug use.
23       These persons include parents, employers, insurers, governmental enti-
24       ties and others who pay for drug treatment or employee assistance pro-
25       grams, as well as infants injured as a result of exposure to drugs in utero.
26       The act will enable such injured persons to recover damages from those
27       persons in the community who have joined the illegal drug market. A
28       further purpose of the act is to shift, to the extent possible, the cost of
29       the damage caused by the existence of the illegal drug market in a com-
30       munity to those who illegally profit from that market. The further purpose
31       of the act is to establish the prospect of substantial monetary loss as a
32       deterrent to those who have not yet entered into the illegal drug distri-
33       bution market and to establish an incentive for drug users to identify and
34       seek payment for their own drug treatment from those dealers who have
35       sold drugs to the user in the past.
36           Sec. 3. The legislature finds and declares all of the following: (a)
37       Every community in the country is affected by the marketing and distri-
38       bution of illegal drugs. A vast amount of state and local resources are
39       expended in coping with the financial, physical and emotional toll that
40       results from the existence of the illegal drug market. Families, employers,
41       insurers and society in general bear the substantial costs of coping with
42       the marketing of illegal drugs. Drug babies and parents, particularly those
43       of adolescent illegal drug users, suffer significant noneconomic injury as

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  1       well;
  2           (b) although the criminal justice system is an important weapon
  3       against the illegal drug market, the civil justice system can and must also
  4       be used. The civil justice system can provide an avenue of compensation
  5       for those who have suffered harm as a result of the marketing and dis-
  6       tribution of illegal drugs. The persons who have joined the illegal drug
  7       market should bear the cost of the harm caused by that market in the
  8       community;
  9           (c) the threat of liability under this act serves as an additional deter-
10       rent to a recognizable segment of the illegal drug network. A person who
11       has nondrug related assets, who markets illegal drugs at the workplace,
12       who encourages friends to become users, among others, is likely to decide
13       that the added cost of entering the market is not worth the benefit. This
14       is particularly true for a first-time, casual dealer who has not yet made
15       substantial profits. This act provided a mechanism for the cost of the
16       injury caused by illegal drug use to be borne by those who benefit from
17       illegal drug dealing;
18           (d) this act imposes liability against all participants in the illegal drug
19       market, including small dealers, particularly those in the workplace, who
20       are not usually the focus of criminal investigations. The small dealers
21       increase the number of users and are the people who become large deal-
22       ers. These small dealers are most likely to be deterred by the threat of
23       liability;
24           (e) a parent of an adolescent illegal drug user often expends consid-
25       erable financial resources, typically in the tens of thousands of dollars, for
26       the child's drug treatment. Local and state governments provide drug
27       treatment and related medical services made necessary by the distribution
28       of illegal drugs. The treatment of drug babies is a considerable cost to
29       local and state governments. Insurers pay large sums for medical treat-
30       ment relating to drug addiction and use. Employers suffer losses as a
31       result of illegal drug use by employees due to lost productivity, employee
32       drug-related workplace accidents, employer contributions to medical
33       plans and the need to establish and maintain employee assistance pro-
34       grams. Large employers, insurers and local and state governments have
35       existing legal staffs that can bring civil suits against those involved in the
36       illegal drug market, in appropriate cases, if a clear legal mechanism for
37       liability and recovery is established;
38           (f) drug babies, who are clearly the most innocent and vulnerable of
39       those affected by illegal drug use, are often the most physically and men-
40       tally damaged due to the existence of an illegal drug market in a com-
41       munity. For many of these babies, the only hope is extensive medical and
42       psychological treatment, physical therapy and special education. All of
43       these potential remedies are expensive. These babies, through their legal

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  1       guardians and through court appointed guardians ad litem, should be able
  2       to recover damages from those in the community who have entered and
  3       participated in the marketing of the types of illegal drugs that have caused
  4       their injuries;
  5           (g) in theory, civil actions for damages for distribution of illegal drugs
  6       can be brought under existing law, but they are not. Several barriers
  7       account for this. Under existing tort law, only those dealers in the actual
  8       chain of distribution to a particular user can be sued. Drug babies, parents
  9       of adolescent illegal drug users and insurers are not likely to be able to
10       identify the chain of distribution to a particular user. Futhermore, drug
11       treatment experts largely agree that users are unlikely to identify and
12       bring suit against their own dealers, even after they have recovered, given
13       the present requirements for a civil action. Recovered users are similarly
14       unlikely to bring suit against others in the chain of distribution, even if
15       the distributors are known to the user. A user is unlikely to know other
16       dealers in the chain of distribution. Unlike the chain of distribution for
17       legal products, in which records identifying the parties to each transaction
18       in the chain are made and shared among the parties, the distribution of
19       illegal drugs is clandestine. Its participants expend considerable effort to
20       keep the chain of distribution secret;
21           (h) those involved in the illegal drug market in a community are nec-
22       essarily interrelated and interdependent, even if their identity is unknown
23       to one another. Each new dealer obtains the benefit of the existing illegal
24       drug distribution system to make illegal drugs available to drug users. In
25       addition, the existing market aids a new entrant by the prior development
26       of people as users. Many experts on the illegal drug market agree that all
27       participants are ultimately likely to be indirectly related. That is, begin-
28       ning with any one dealer, given the theoretical ability to identify every
29       person known by that dealer to be involved in illegal drug trafficking, and
30       in turn each of such others known to them, and so on, the illegal drug
31       market in a community would ultimately be fully revealed;
32           (i) market liability has been created with respect to legitimate prod-
33       ucts by judicial decision in some states. It provides for civil recovery by
34       plaintiffs who are unable to identify the particular manufacturer of the
35       product that is claimed to have caused them harm, allowing recovery from
36       all manufacturers of the product who participated in that particular mar-
37       ket. The market liability theory has been shown to be destructive of mar-
38       ket initiative and product development when applied to legitimate mar-
39       kets. Because of its potential for undermining markets, this act expressly
40       adopts a legislatively crafted form of liability for those who intentionally
41       join the illegal drug market. The liability established by this act grows out
42       of but is distinct from existing judicially crafted market liability;
43           (j) the prospect of a future suit for the costs of drug treatment may

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  1       drive a wedge between prospective dealers and their customers by en-
  2       couraging users to turn on their dealers. Therefore, liability for those
  3       costs, even to the user, is imposed under this act as long as the user
  4       identifies and brings suit against the user's own dealers;
  5           (k) allowing dealers who face a civil judgment for their illegal drug
  6       marketing to bring suit against their own sources for contribution may
  7       also drive a wedge into the relationships among some participants in the
  8       illegal drug distribution network; and
  9           (l) while not all persons who have suffered losses as a result of the
10       marketing of illegal drugs will pursue an action for damages, at least some
11       individuals, guardians of drug babies, government agencies that provide
12       treatment, insurance companies and employers will find such an action
13       worthwhile. These persons deserve the opportunity to recover their
14       losses. Some new entrants to retail illegal drug dealing are likely to be
15       deterred even if only a few of these suits are actually brought.
16           New Sec. 4 2. As used in this act: (a) ``Illegal drug'' means a drug
17       whose distribution is a violation of state law the controlled substances
18       act, K.S.A. 65-4101 et seq. and amendments thereto or a comparable
19       law in another state or the comprehensive drug abuse prevention
20       and control act of 1970, public law 91-513, 84 Stat. 1236, codified
21       at 21 U.S.C. 801 et seq.;
22           (b) ``illegal drug market'' means the support system of illegal drug
23       related operations, from production to retail sales, through which an il-
24       legal drug reaches the user;
25        (b) ``Illegal drug violation'' means a violation of K.S.A. 65-4159,
26       65-4161 or 65-4163, and amendments thereto, or a comparable
27       law in another state or a comparable law in the comprehensive
28       drug abuse prevention and control act of 1970, public law 91-513,
29       84 Stat. 1236, codified at 21 U.S.C. 801 et seq., in which the sub-
30       stances involved were equal to the amount for such substance as
31       specified in this subsection;
32           (c) ``illegal drug market target community'' is the area described un-
33       der section 9 7 [6];
34           (d) ``individual drug user'' means the individual whose illegal drug
35       use is the basis of an action brough brought under this act;
36           (e) ``level 1 offense'' means possession of 1/4 ounce or more, but less
37       than four ounces, or distribution of less than one ounce of a specified
38       illegal drug or possession of one pound or 25 plants or more, but less
39       than four pounds or 50 plants, or distribution of less than one pound of
40       marijuana;
41           (f) (e) ``level 2 1 offense'' means possession of four ounces or more,
42       but less than eight ounces, or distribution of one ounce or more, but less
43       than two ounces, of a specified illegal drug or possession of four pounds

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  1       or more or 50 plants or more, but less than eight pounds or 75 plants, or
  2       distribution of more than one pound, but less than five pounds, of ma-
  3       rijuana;
  4           (g) (f) ``level 3 2 offense'' means possession of eight ounces or more,
  5       but less than 16 ounces, or distribution of two ounces or more, but less
  6       than four ounces, of a specified illegal drug or possession of eight pounds
  7       or more or 75 plants or more, but less than 16 pounds or 100 plants, or
  8       distribution of more than 5 pounds, but less than 10 pounds, of marijuana;
  9           (h) (g) ``level 4 3 offense'' means possession of 16 ounces or more or
10       distribution of four ounces or more of a specified illegal drug or posses-
11       sion of 16 pounds or more or 100 plants or more or distribution of 10
12       pounds or more of marijuana;
13           (i) ``participate in the illegal drug market'' means to distribute, possess
14       with an intent to distribute, commit an act intended to facilitate the mar-
15       keting or distribution of, or agree to distribute, possess with an intent to
16       distribute, or commit an act intended to facilitate the marketing and dis-
17       tribution of an illegal drug. ``Participate in the illegal drug market'' does
18       not include the purchase or receipt of an illegal drug for personal use
19       only;
20           (j) (h) ``person'' means an individual, governmental entity, corpora-
21       tion, firm, trust, partnership or incorporated or unincorporated associa-
22       tion, existing under or authorized by the laws of this state, another state
23       or a foreign country;
24           (k) (i) ``period of illegal drug use'' means, in relation to the individual
25       drug user, the time of the individual's first use of an illegal drug to the
26       accrual of the cause of action. The period of illegal drug use is presumed
27       to commence two years before the cause of action accrues unless the
28       defendant proves otherwise by clear and convincing evidence;
29           (l) (j) ``place of illegal drug activity'' means, in relation to the individ-
30       ual drug user, each Kansas house of representatives legislative judicial
31       district in which the individual possesses or uses an illegal drug or in which
32       the individual resides, attends school, or is employed during the period
33       of the individual's illegal drug use, unless the defendant proves otherwise
34       by clear and convincing evidence;
35           (m) (k) ``place of participation'' means, in relation to a defendant in
36       an action brought under this act, each Kansas house of representatives
37       legislative judicial district in which the person participates in the illegal
38       drug market or in which the person resides, attends school or is employed
39       during the period of the person's participation in the illegal drug market
40       is convicted of an illegal drug violation; and
41           (n) (l) ``specified illegal drug'' means cocaine, heroin or metham-
42       phetamine and any other drug the distribution of which is a violation of
43       state law the controlled substances act, K.S.A. 65-4101 et seq. and

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  1       amendments thereto or a comparable law in another state or the
  2       comprehensive drug abuse prevention and control act of 1970, pub-
  3       lic law 91-513, 84 Stat. 1236, codified at 21 U.S.C. 801 et seq..
  4           New Sec. 5 3. (a) A person who knowingly participates in the illegal
  5       drug market within this state is convicted of an illegal drug violation
  6       is liable for civil damages as provided in this act. A person may recover
  7       damages under this act for injury resulting from an individual's use of an
  8       illegal drug.
  9           (b) A law enforcement officer or agency, the state or a person acting
10       at the direction of a law enforcement officer or agency or the state is not
11       liable for participating in the illegal drug market, if the participation is in
12       furtherance of an official investigation.
13        [(c) A person who manufactures, distributes or dispenses any
14       controlled substance and is registered or exempt from registration
15       pursuant to K.S.A. 65-4116 and amendments thereto or a compa-
16       rable law in another state or the comprehensive drug abuse pre-
17       vention and control act of 1970, public law 91-513, 84 Stat. 1236,
18       codified at 21 U.S.C. § 801, et seq., is not liable under this act unless
19       convicted of a criminal violation of the controlled substances act,
20       K.S.A. 65-4101 et seq. and amendments thereto or a comparable law
21       in another state or the comprehensive drug abuse prevention and
22       control act of 1970, public law 91-513, 84 Stat. 1236, codified at
23       21 U.S.C. § 801 et seq. Such a conviction is prima facie evidence of
24       the person's participation in the illegal drug market during the two
25       years preceding the date of an act giving rise to a conviction.
26           [(d) A person who manufactures, distributes or dispenses drugs
27       which are not controlled substances and is registered or exempt
28       from registration pursuant to K.S.A. 65-1643 and amendments
29       thereto or a comparable law in another state or a comparable fed-
30       eral law is not liable under this act unless convicted of a criminal
31       violation of the controlled substances act, K.S.A. 65-4101 et seq. and
32       amendments thereto or a comparable law in another state or the
33       comprehensive drug abuse prevention and control act of 1970, pub-
34       lic law 91-513, 84 Stat. 1236, codified at 21 U.S.C § 801 et seq. Such
35       a conviction is prima facie evidence of the person's participation in
36       the illegal drug market during the two years preceding the date of
37       an act giving rise to a conviction.
38           [(e) (b) A claim or judgment under the provisions of this act
39       shall not constitute an obligation or liability against any insurer or
40       third-party payor.]
41           New Sec. 6 4. (a) One or more of the following persons may bring
42       an action for damages caused by an individual's use of an illegal drug: (1)
43       A parent, legal guardian, child, spouse or sibling of the individual drug

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  1       user;
  2           (2) an individual who was exposed to an illegal drug in utero;
  3           (3) an employer of the individual drug user;
  4           (4) a medical facility, insurer, governmental entity, employer or other
  5       entity that funds a drug treatment program or employee assistance pro-
  6       gram for the individual drug user or that otherwise expended money on
  7       behalf of the individual drug user; or
  8           (5) a person injured as a result of the willful, reckless or negligent
  9       actions of an individual drug user.
10           (b) A person entitled to bring an action under this section may seek
11       damages from one or more of the following: (1) A person who knowingly
12       distributed, or knowingly participated in the chain of distribution of, was
13       convicted of an illegal drug violation and actually sold or offered
14       for sale an illegal drug that was actually used by the individual drug user;
15       and
16           (2) a person who knowingly participated in the illegal drug market
17       was convicted of an illegal drug violation if: (A) The place of illegal
18       drug activity by the individual drug user is within the illegal drug market
19       target community of the defendant; and
20           (B) the defendant's participation in the illegal drug market convic-
21       tion of an illegal drug violation was connected with the same type of
22       illegal drug used by the individual drug user; and
23           (C) the defendant participated in the illegal drug market was con-
24       victed of an illegal drug violation at any time during the individual
25       drug user's period of illegal drug use.
26           (c) (1) A person entitled to bring an action under this section may
27       recover all of the following damages: (1) (A) [(1)] Economic damages,
28       including, but not limited to, the cost of treatment and rehabilitation,
29       medical expenses, loss of economic or educational potential, loss of pro-
30       ductivity, absenteeism, support expenses, accidents or injury and any
31       other pecuniary loss proximately caused by the illegal drug use;
32           (2) (B) [(2)] noneconomic damages, including, but not limited to,
33       physical and emotional pain, suffering, physical impairment, emotional
34       distress, medical anguish, disfigurement, loss of enjoyment, loss of com-
35       panionship, services and consortium and other nonpecuniary losses prox-
36       imately caused by an individual's use individual's use of an illegal drug;
37           (3) (C) [(3)] exemplary damages[, except that notwithstanding the
38       provisions of K.S.A. 60-3702 and amendments thereto, exemplary
39       damages recovered pursuant to this act shall not exceed
40       $10,000,000];
41           (4) (D) [(4)] reasonable attorney fees; and
42           (5) (E) [(5)] costs of suit, including, but not limited to, reasonable
43       expenses for expert testimony.

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  1        (2) Any provision of law which prescribes a limit or cap on re-
  2       covery of noneconomic or punitive damages or recovery in a wrong-
  3       ful death action shall not apply to any action brought pursuant to
  4       the provisions of this act.
  5           (d) A defendant shall not be allowed to make a defense or claim
  6       of preexisting condition to diminish damages pursuant to this sec-
  7       tion.
  8           New Sec. 7 5. (a) Except as otherwise provided in this subsection,
  9       an individual drug user shall not bring an action for damages caused by
10       the use of an illegal drug. An individual drug user may bring an action
11       for damages caused by the use of an illegal drug only if all of the following
12       conditions are met: (1) The individual personally discloses to narcotics
13       enforcement authorities, more than six months before filing the action,
14       all of the information known to the individual regarding all that individ-
15       ual's sources of illegal drug;
16           (2) the individual has not used an illegal drug within the six months
17       before filing the action; and
18           (3) the individual continues to remain free of the use of an illegal
19       drug throughout the pendency of the action.
20           (b) A person entitled to bring an action under this section may seek
21       damages only from a person who distributed, or is in the chain of distri-
22       bution of, was convicted of distributing an illegal drug that was actually
23       used by the individual drug user.
24           (c) A person entitled to bring an action under this section may recover
25       only the following damages: (1) Economic damages, including, but not
26       limited to, the cost of treatment, rehabilitation and medical expenses, loss
27       of economic or educational potential, loss of productivity, absenteeism,
28       accidents or injury and any other pecuniary loss proximately caused by
29       the person's illegal drug use;
30           (2) reasonable attorney fees; and
31           (3) costs of suit, including, but not limited to, reasonable expenses
32       for expert testimony.
33           Sec. 8 6. A third party shall not pay damages awarded under this act,
34       or provide a defense or money for a defense, on behalf of an insured
35       under a contract of insurance or indemnification.
36           New Sec. 9 7 [6]. A person whose participation in the illegal drug
37       market conviction of an illegal drug violation constitutes the following
38       level offense shall be considered to have the following illegal drug market
39       target community: (a) For a level 1 offense, the Kansas house of repre-
40       sentatives legislative judicial district in which the defendant's place of
41       participation is situated;
42           (b) for a level 2 offense, the target community described in subsection
43       (1) plus all Kansas house of representatives legislative judicial districts

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  1       with a border contiguous to that target community;
  2           (c) (b) for a level 3 2 offense, the target community described in
  3       subsections subsection (1) and (2) plus all Kansas house of representa-
  4       tives legislative judicial districts with a border contiguous to that target
  5       community; or
  6           (d) (c) for a level 4 3 offense, the state.
  7           New Sec. 10 8 [7]. (a) Two or more persons may join in one action
  8       under this act as plaintiffs if such person's respective actions have at least
  9       one place of illegal drug activity in common and if any portion of the
10       period of illegal drug use overlaps with the period of illegal drug use for
11       every other plaintiff.
12           (b) Two or more persons may be joined in one action under this act
13       as defendants if such persons are liable to at least one plaintiff.
14           (c) A plaintiff need not be interested in obtaining and a defendant
15       need not be interested in defending against all the relief demanded. Judg-
16       ment may be given for one or more plaintiffs according to such plaintiffs'
17       respective rights to relief and against one or more defendants according
18       to such defendants' respective liabilities.
19           New Sec. 11 9 [8]. (a) An action by an individual drug user is gov-
20       erned by the principles of comparative responsibility. Comparative re-
21       sponsibility attributed to the plaintiff does not bar recovery but diminishes
22       the award of compensatory damages proportionally, according to the
23       measure of responsibility attributed to the plaintiff.
24           (b) The burden of proving the comparative responsibility of the plain-
25       tiff is on the defendant, which shall be shown by clear and convincing
26       evidence.
27           (c) Comparative responsibility shall not be attributed to a plaintiff
28       who is not an individual drug user. The liability of defendants other
29       than individual drug users shall be joint and several liability.
30           New Sec. 12 10 [9]. A person subject to liability under this act has
31       a right of action for contribution against another person subject to liability
32       under this act. Contribution may be enforced either in the original action
33       or by a separate action action brought for that purpose. A plaintiff may
34       seek recovery in accordance with this act and existing law against a person
35       whom a defendant has asserted a right of contribution.
36           New Sec. 13 11 [10]. (a) Proof of participation in the illegal drug
37       market in an action brought under this act shall be shown by clear and
38       convincing evidence. Except as otherwise provided in this act, other el-
39       ements of the cause of action shall be shown by a preponderance of the
40       evidence.
41           (b) A person against whom recovery is sought who has a criminal
42       conviction pursuant to a violation of the controlled substances act, K.S.A.
43       65-4101 et seq. and amendments thereto or a comparable law in another

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  1       state or the comprehensive drug abuse prevention and control act of 1970,
  2       public law 91-513, 84 Stat. 1236, codified at 21 U.S.C. § 801 et seq., who
  3       is convicted of an illegal drug violation is estopped from denying
  4       participation in the illegal drug market. Such a conviction is also prima
  5       facie evidence of the person's participation in the illegal drug market
  6       during the two years preceding the date of an act giving rise to a convic-
  7       tion.
  8           (c) The absence of a criminal drug conviction of a person against
  9       whom recovery is sought does not bar an action against that person.
10           New Sec. 14 12 [11]. (a) A plaintiff under this act, subject to the
11       provisions of subsection (c), may request an ex parte prejudgment at-
12       tachment order from the court against all assets of a defendant sufficient
13       to satisfy a potential award. If attachment is instituted, a defendant is
14       entitled to an immediate hearing. Attachment may be lifted if the de-
15       fendant demonstrates that the assets will be available for a potential award
16       or if the defendant posts a bond sufficient to cover a potential award.
17           (b) A person against whom a judgment has been rendered under this
18       act is not eligible to exempt any property, of whatever kind, from process
19       to levy or process to execute on the judgment.
20           (c) Any assets sought to satisfy a judgment under this act that are
21       named in a forfeiture action or have been seized for forfeiture by any
22       state or federal agency may not be used to satisfy a judgment unless and
23       until the assets have been released following the conclusion of the for-
24       feiture action or released by the agency that seized the assets.
25           New Sec. 15 13 [12]. (a) Except as otherwise provided in this sec-
26       tion, a claim under this act shall not be brought more than two years after
27       the cause of action accrues. A cause of action accrues under this act when
28       a person who may recover has reason to know of the harm from illegal
29       drug use that is the basis for the cause of action and has reason to know
30       that the illegal drug use is the cause of the harm.
31           (b) For a plaintiff, the statute of limitations under this section is tolled
32       while the individual potential plaintiff is incapacitated by the use of an
33       illegal drug to the extent that the individual cannot reasonably be ex-
34       pected to seek recovery under this act or as otherwise provided by law.
35       For a defendant, the statute of limitations under this section is tolled until
36       six months after the individual potential defendant is convicted of a crim-
37       inal drug offense or as otherwise provided by law.
38           (c) The statute of limitations under this act for a claim based on par-
39       ticipation in the illegal drug market a conviction that occurred prior to
40       the effective date of this act does not begin to run until the effective date
41       of this act.
42           New Sec. 16 14 [13]. (a) A prosecuting attorney may represent the
43       state or a political subdivision of the state in an action brought under this

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  1       act.
  2           (b) On motion by a governmental agency involved in a drug investi-
  3       gation or prosecution, an action brought under this act shall be stayed
  4       until the completion of the criminal investigation or prosecution that gave
  5       rise to the motion for a stay of the action.
  6           New Sec. 17 15 [14]. The provisions of this act are not intended to
  7       alter the law regarding intra-family tort immunity.
  8           New Sec. 18 16 [15]. If any provision of this act or the application
  9       of any provision to any person or circumstance is held invalid, the re-
10       mainder of this act and the application of such provision to any other
11       person or circumstance shall not be affected by that invalidation.
12        New Sec. 17 [16]. K.S.A. 60-308 is hereby amended to read as
13       follows: 60-308. (a) Proof and effect. (1) Service of process may be
14       made upon any party outside the state. If upon a person domiciled
15       in this state or upon a person who has submitted to the jurisdiction
16       of the courts of this state, it shall have the force and effect of service
17       of process within this state; otherwise it shall have the force and
18       effect of service by publication.
19           (2) The service of process shall be made (A) in the same manner
20       as service within this state, by any officer authorized to make serv-
21       ice of process in this state or in the state where the defendant is
22       served or (B) by sending a copy of the process and of the petition
23       or other document to the person to be served in the manner provided
24       in subsection (e). No order of a court is required. An affidavit, or
25       any other competent proofs, of the server shall be filed stating the
26       time, manner and place of service. The court may consider the af-
27       fidavit, or any other competent proofs, in determining whether serv-
28       ice has been properly made.
29           (3) No default shall be entered until the expiration of at least
30       30 days after service. A default judgment rendered on service out-
31       side this state may be set aside only on a showing which would be
32       timely and sufficient to set aside a default judgment under subsec-
33       tion (b) of K.S.A. 60-260, and amendments thereto.
34           (b) Submitting to jurisdiction -- process. Any person, whether or
35       not a citizen or resident of this state, who in person or through an
36       agent or instrumentality does any of the acts hereinafter enumer-
37       ated, thereby submits the person and, if an individual, the individ-
38       ual's personal representative, to the jurisdiction of the courts of this
39       state as to any cause of action arising from the doing of any of these
40       acts:
41           (1) Transaction of any business within this state;
42           (2) commission of a tortious act within this state;
43           (3) ownership, use or possession of any real estate situated in

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  1       this state;
  2           (4) contracting to insure any person, property or risk located
  3       within this state at the time of contracting;
  4           (5) entering into an express or implied contract, by mail or oth-
  5       erwise, with a resident of this state to be performed in whole or in
  6       part by either party in this state;
  7           (6) acting within this state as director, manager, trustee or other
  8       officer of any corporation organized under the laws of or having a
  9       place of business within this state or acting as executor or admin-
10       istrator of any estate within this state;
11           (7) causing to persons or property within this state any injury
12       arising out of an act or omission outside of this state by the defend-
13       ant if, at the time of the injury either (A) the defendant was engaged
14       in solicitation or service activities within this state; or (B) products,
15       materials or things processed, serviced or manufactured by the de-
16       fendant anywhere were used or consumed within this state in the
17       ordinary course of trade or use;
18           (8) living in the marital relationship within the state notwith-
19       standing subsequent departure from the state, as to all obligations
20       arising for maintenance, child support or property settlement under
21       article 16 of this chapter, if the other party to the marital relation-
22       ship continues to reside in the state;
23           (9) serving as the insurer of any person at the time of any act
24       by the person which is the subject of an action in a court of com-
25       petent jurisdiction within the state of Kansas which results in judg-
26       ment being taken against the person;
27           (10) performing an act of sexual intercourse within the state, as
28       to an action against a person seeking to adjudge the person to be a
29       parent of a child and as to an action to require the person to provide
30       support for a child as provided by law, if (A) the conception of the
31       child results from the act and (B) the other party to the act or the
32       child continues to reside in the state; or
33           (11) entering into an express or implied arrangement, whether
34       by contract, tariff or otherwise, with a corporation or partnership,
35       either general or limited, residing or doing business in this state
36       under which such corporation or partnership has supplied trans-
37       portation services, or communication services or equipment, in-
38       cluding, without limitation, telephonic communication services, for
39       a business or commercial user where the services supplied to such
40       user are managed, operated or monitored within the state of Kansas,
41       provided that such person is put on reasonable notice that arrang-
42       ing or continuing such transportation services or telecommunica-
43       tion services may result in the extension of jurisdiction pursuant to

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  1       this section.; or
  2           (12) participating in the illegal drug market as described in section 1
  3       et seq. and amendments thereto.
  4           (c) Service of process upon any person who is subject to the
  5       jurisdiction of the courts of this state, as provided in subsection (b),
  6       may be made by serving the process upon the defendant outside this
  7       state, as provided in subsection (a)(2), with the same force and effect
  8       as though process had been served within this state, but only causes
  9       of action arising from acts enumerated in subsection (b) may be
10       asserted against a defendant in an action in which jurisdiction over
11       the defendant is based upon this subsection.
12           (d) Nothing contained in this section limits or affects the right
13       to serve any process in any other manner provided by law.
14           (e) Service by certified mail. Service of any out-of-state process
15       may be by certified mail, evidenced by return receipt signed by any
16       person or by restricted delivery. The attorney for the party seeking
17       service or the party, if the party is not represented by an attorney,
18       shall cause a copy of the process and petition or other document to
19       be placed in an envelope addressed to the person to be served in
20       accordance with K.S.A. 60-304, and amendments thereto, adequate
21       postage to be affixed and the sealed envelope to be placed in the
22       United States mail as certified mail return receipt requested with
23       instructions to the delivering postal employee to show to whom de-
24       livered, date of delivery, and address where delivered. The party's
25       attorney or the party, if the party is not represented by an attorney,
26       shall execute a return on service stating the nature of the process,
27       the date on which the process was mailed, and the name and address
28       on the envelope containing the process mailed as certified mail re-
29       turn receipt requested. The party or the party's attorney shall file
30       the return on service and the return receipt or return envelope in
31       the records of the action. Service of process shall be considered
32       obtained under K.S.A. 60-203, and amendments thereto, upon the
33       delivery of the certified mail envelope. If the certified mail envelope
34       is returned with an endorsement showing refusal of delivery, the
35       serving party or the party's attorney may send a copy of the process
36       and petition or other document to be served to the defendant by
37       ordinary, first-class mail. The mailing shall be evidenced by a cer-
38       tificate of mailing which shall be filed with the clerk. Service shall
39       be considered obtained upon the mailing by ordinary, first-class
40       mail. Failure to claim certified mail service is not refusal of service
41       within the meaning of this subsection.
42        Sec. 17. K.S.A. 60-1903 is hereby amended to read as follows:
43       60-1903. (a) In any wrongful death action, the court or jury may

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  1       award such damages as are found to be fair and just under all the
  2       facts and circumstances, but the damages, other than pecuniary
  3       loss sustained by an heir at law, cannot exceed in the aggregate
  4       the sum of $100,000 $350,000 and costs.
  5           (b) If a wrongful death action is to a jury, the court shall not
  6       instruct the jury on the monetary limitation imposed by subsection
  7       (a) upon recovery of damages for nonpecuniary loss. If the jury
  8       verdict results in an award of damages for nonpecuniary loss
  9       which, after deduction of any amounts pursuant to K.S.A. 60-258a
10       and amendments thereto, exceeds the limitation of subsection (a),
11       the court shall enter judgment for damages of $100,000 $350,000
12       for nonpecuniary loss.
13           (c) In any wrongful death action, the verdict shall be itemized
14       by the trier of fact to reflect the amounts, if any, awarded for:
15           (1) Nonpecuniary damages;
16           (2) expenses for the care of the deceased caused by the injury;
17       and
18           (3) pecuniary damages other than those itemized under sub-
19       section (c)(2).
20           (d) Where applicable, the amounts required to be itemized
21       pursuant to subsections (c)(1) and (c)(3) shall be further itemized
22       by the trier of fact to reflect those amounts awarded for injuries
23       and losses sustained to date and those awarded for injuries and
24       losses reasonably expected to be sustained in the future.
25           (e) In any wrongful death action, the trial court shall instruct
26       the jury only on those items of damage upon which there is some
27       evidence to base an award.
28           Sec. 18 [17] 18. K.S.A. 60-308 is and 60-1903 are hereby re-
29       pealed.
30           Sec. 19 [18] 19. This act shall take effect and be in force from and
31       after its publication in the statute book.
32