STEP 7 - FILING A PERSONAL INJURY SUIT
Many personal injury claims are not settled prior to filing suit due to a number of reasons. One of these reasons is the relative powerless position of the parties. For example, neither party can make the other party produce documents to support their claim or even state what they think caused the plaintiff’s injury. However, once a claim is filed with the court, both sides acquire more power to make the other side act. Nevertheless, just because a claim is filed does not mean the case will proceed to trial. The following is an overview of what a party should expect during and just after filing a claim.
FILING A PETITION
According to Section 60-203, a lawsuit begins with the filing of a petition in the district court. A petition serves the limited purpose of placing the defendant(s) on notice of the lawsuit. There is not much that goes into a petition; one just needs enough information to show the court that the petition is filed in the correct county. So, a claim for injuries resulting from a car collision could be only four sentences. Each sentence (or allegation) requires a separate number so the defendant can respond to each allegation separately.
SERVING THE DEFENDANT
A court will approve a service packet for each defendant once the petition is filed and the filing fee is paid. The service packet contains a copy of the petition and a summons, describing the obligations of the defendant upon receiving all of the documents. “Service of process” can be achieved by making sure the defendant has the service in his or her hands or taking approved methods and notifying the court that service has been completed. A sheriff deputy or approved “process server” may serve a defendant at home or work. Additionally, service can also be achieved by mailing the documents the defendant’s home via certified mail. An unusual method of service is publishing notice of the lawsuit in the newspaper. Regardless of how one is served, it is important that service be done according to the means outlined by Kansas Statute. A claim could be dismissed due to failure to properly serve. The United State Supreme Court upheld a dismissal in Murphy Bros., Inc. v. Michetti Pipe Stringing, Inc., because the defendant’s right to due process under the Fourteenth Amendment was violated.
A defendant has to respond to the petition once service has been accomplished. A defendant responds by way of an “answer” and will address each allegation in one of three ways: admitting the allegation as true, denying the allegation, or stating the defendant does not know whether the allegation is true or false. Additionally, the defendant can set forth defenses against the claims. With this said, comparative fault is the most common defense and means that the plaintiff was at least partially at fault for the injury. According to Section 60-212, the defendant has 21 days from the date of service to file an answer. If the defendant does not answer within 21 days, all allegations are considered true and a default judgment is entered against the defendant.
OTHER RESPONSIVE PLEADINGS
Shortly after or before filing an answer, a defendant has the opportunity to file additional pleadings with the court. These additional pleadings include a motion to dismiss and a motion for judgment on the pleadings. A motion to dismiss is used to get the lawsuit dismissed because of some defect (such as for failing to state a valid claim). In Hokanson v. Lichtor, a plaintiff attempted to bring a lawsuit against his insurance company and treating doctor, alleging they were conspiring to falsely testify that his injuries were not caused by a motorcycle accident. In response, the court stated that Kansas law did not recognize such a claim and dismissed the plaintiff’s the lawsuit. “Subject matter jurisdiction” is another common reason to dismiss a claim. In Anchor Casualty Co. v. Wise, a worker was injured while on the job but filed a premise liability action rather than a worker’s compensation claim. The court dismissed the claim because worker’s compensation had removed other overlapping remedies from the subject matter jurisdiction of the courts.
A motion for judgment on the pleadings pursues a judgment from the court stating that the defendant prevails. This type of pleading is used when the defendant agrees with all of the allegations and still prevails or if the defendant has an affirmative defense. This type of pleading is rare because any disputed facts that affect the legal outcome will guarantee that the motion is denied. Nonetheless, it succeeded in Clean Water Truck Co. v. M. Bruenger & Co. when a plaintiff sued a defendant for defamation arising from statements made on the floor of the Kansas legislature. The only problem was that statements made in the process of lawmaking, even if they are false and slanderous, are afforded complete protection by law. Both parties agreed to all of the facts and the facts supported a ruling in favor of the defendant. So, judgment on the pleadings was appropriate and properly granted. Despite this case, this type of pleading virtually never works because the defendant will rarely agree to facts outlining liability.
A long road of litigation is in front of both parties once a lawsuit has been filed. While the litigation may never reach trial, it is important to file to protect the claim from being time-barred from the statute of limitations and to grant the parties greater power to require production of documents or testimony by witnesses. Furthermore, it is important that filing is complete and correct to prevent the defendant from being able to end the lawsuit just as it begins. This is why it is so important to hire an experienced and competent lawyer.