A determination of this sort in Kansas, like the characterization of a federal action under ERISA, is grounded in the long-recognized principle that "the nature of the cause of action determines the applicable statute of limitations." Kirtland v. Tri-State Insurance Co., 220 Kan. 631, 632, 556 P.2d 199 (1976). The Kirtland court explained that the purpose of this maxim is "to make the right to be enforced, not the procedure, the test as to which statute of limitations applies.
We cannot accept this argument because it is quite inconsistent with established precedent regarding actions on liabilities created by statute other than a penalty or forfeiture. See, Hollinger v. Dickinson County, 115 Kan. 92, 222 P. 136 (1924); Kirtland v. Tri-State Ins. Co., 220 Kan. 631 556 P.2d 199 (1976); Hough v. Hough, 206 Okla. 179, 242 P.2d 162 (1952). Also, in rejecting the analysis in Mullins and employer's arguments herein, we are not acting inconsistently with statute of limitations policy.
It is the law, of course, that under K.S.A. 66-1, 128, a party injured by the negligence of an insured motor carrier has a direct cause of action in tort against the insurer. The purpose of that statute is discussed in Kirtland v. Tri-State Insurance Co., 220 Kan. 631, 556 P.2d 199 (1976), where this court held that K.S.A. 66-1, 128 is not substantive, but is remedial in nature. It does not give the injured party any new rights or a new cause of action.
44 Am.Jur.2d, Insurance § 1821; Hartford Fire Ins. Co. v. Western Fire Ins. Co., 226 Kan. 197, 597 P.2d 622 (1979). In Kirtland v. Tri-State Insurance Co., 220 Kan. 631, 556 P.2d 199 (1976), a claim regarding the statutes of limitations was made by reason of K.S.A. 66-1,128. A party had been injured by the insured motor carrier and a direct cause of action was recognized in tort against the insurer of the motor carrier by reason of this statute.
Other statutes which create liability include the veterans' preference law, K.S.A. 73-201 et seq. (see Pecenka, 6 Kan.App.2d at 29, 626 P.2d 802) and actions brought by the State against the county treasurer and its surety, State, ex rel., v. Masterson, 221 Kan. 540, 545, 561 P.2d 796 (1977). In Kirtland v. Tri-State Insurance Co., 220 Kan. 631, 556 P.2d 199 (1976), plaintiff was injured by a motor carrier. Plaintiff brought suit against the motor carrier's insurer under a statute allowing suit directly against the insurer, although the carrier is not made a party to the action.
While the record at this point does not include Castlepoint's insurance contract with GM Cargo, plaintiffs' allegations show that Castlepoint purposefully provided commercial liability insurance to GM Cargo, an over-the-road motor carrier company that operates on Kansas highways and elsewhere. By Kansas law, carriers who operate in this state are required to maintain a certain minimum level of liability insurance, and the Kansas Supreme Court has determined that a party injured by a motor carrier has a direct cause of action in tort against the insurer. Kirtland v. Tri-State Ins. Co., 220 Kan. 631, 556 P.2d 199 (1976). This is a procedural right, remedial in nature, that is designed to ensure adequate protection for members of the public from the negligent conduct of motor carriers on Kansas highways.
For the same or similar reasons, other courts have found direct-action statutes procedural. See Moore v. United Servs. Auto. Ass'n, 808 F.2d 1147, 1154 (5th Cir. 1987) ("The right to maintain a direct action against an insurer based upon the negligence of its insured is considered a remedial right and is, therefore, governed by the law of the forum."); see also Kirtland v. Tri-State Ins. Co., 556 P.2d 199, 202 (Kan. 1976) ("The power to sue the insurance company directly is only a statutory remedy designed to assist the injured party in effectuating a successful recovery when liability is established."). In like manner, Raskob merely provides injured plaintiffs with a procedural remedy against a tortfeasor's insurance carriers.
In that case, the statute at issue was the Kansas Tort Claims Act, which allows an individual to sue a governmental entity for damages caused by its employees. 220 Kan. 631, 556 P.2d 199 (1976). 227 Kan. 533, 608 P.2d 923 (1980).
Dechand v. Ins. Co. of State of Pa., 732 F. Supp. 1120, 1121 (D. Kan. 1990).Kirtland v. Tri-State Ins. Co., 556 P.2d 199, 201-02 (Kan. 1976) (quoting Fitzgerald v. Thompson, 204 P.2d 756, 758 (Kan. 1949)).
Dechand v. Ins. Co. of State of Pa., 732 F. Supp. 1120, 1121 (D. Kan. 1990).Kirtland v. Tri-State Ins. Co., 556 P.2d 199, 201-02 (Kan. 1976) (quoting Fitzgerald v. Thompson, 204 P.2d 756, 758 (Kan. 1949). [T]he statute under discussion is not substantive, but is remedial in nature.