Szerwinski v. Mainstreet Assoc. - Vicarious Liability and Negligent Hiring

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April 17, 2026 Get Citation Alerts Download PDF Add Note

Szerwinski v. Mainstreet Assoc., Inc.

Court of Appeals of Kansas

• Citations: None known

• Docket Number: 128438

• Opinion

• Authorities (25)

• Cited By (0)

• Summaries (0)

• Similar Cases (12.1K)

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Combined Opinion

No. 128,438

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

MICHAEL SZERWINSKI,
Appellant,

v.

MAINSTREET ASSOCIATES, INC., d/b/a MINSKY'S PIZZA,
Appellee.

SYLLABUS BY THE COURT

1.
Under the doctrine of respondeat superior, an employer faces liability stemming
from its employee's malfeasance. This type of negligence is also called vicarious liability
or imputed negligence, where one party is held liable for the acts of another based on the
relationship between the tortfeasor and the party held liable.

2.
The Kansas Supreme Court has long held that in an action for respondeat superior,
the liability of the employer is limited by the claims available against the employee.

3.
Unlike a respondeat superior claim, the employer's liability in a negligent hiring or
retention claim is not derivative of the employee's negligence but is based on the
employer's direct negligent acts.

4.
Kansas applies the modified specific identity rule, in which a rebuttable
presumption exists that a tortfeasor who is not named or otherwise specifically identified
in a settlement or release document is not discharged from liability. This rule protects

1
both the plaintiff and tortfeasor from the perils of an inadvertent omission or careless
drafting while also adhering to the parties' intent.

5.
The modified specific identify rule is a two-part test where, in the first step, the
tortfeasor seeking to be discharged from liability must show that the written instrument
identifies it by name or other specifically identifying terminology. If the written
instrument does not name or otherwise identify the tortfeasor seeking to be discharged, it
is presumed that the unnamed tortfeasor is not released from liability. In Kansas this is a
rebuttable presumption. Therefore, in step two the unnamed tortfeasor can present
extrinsic or parol evidence to establish that the parties to the written instrument intended
to also discharge the unnamed party from liability.

6.
Under the modified specific identity rule, generic, general, or boilerplate language
in a release is not sufficient to show that the parties intended to discharge the liability of
an unnamed tortfeasor.

7.
When the party seeking to benefit from the discharge of liability in a written
instrument is not named in that instrument, the presumption is that the parties did not
intend to include the party in the discharge. Therefore, evidence other than the written
instrument can rebut that presumption.

Appeal from Johnson District Court; DAVID W. HAUBER, judge. Oral argument held January 6,
2026. Opinion filed April 17, 2026. Affirmed in part, reversed in part, and remanded with directions.

Jonathan Sternberg, of Jonathan Sternberg, Attorney, P.C., of Kansas City, Missouri, for
appellant.

2
Jackson D. Wagner, of Kreamer Arney Wait & Bottaro, L.C., of Overland Park, for appellee.

Before WARNER, C.J., HURST and BOLTON FLEMING, JJ.

HURST, J.: Michael Szerwinski, while riding a bicycle, was struck and injured by a
car driven by an employee of Main Street Associates, Inc., d/b/a Minsky's Pizza
(Minsky's). Szerwinski settled his claims with the employee pursuant to a settlement
agreement in which Szerwinski released claims against the employee and others.
Szerwinski later sued Minsky's under two negligence theories—respondeat superior and
negligent hiring or retention. Asserting dated legal principles, Minsky's sought a
judgment on the pleadings alleging that Szerwinski, through the settlement and release
with the employee, had also released Minsky's from any potential liability. The district
court granted Minsky's motion for judgment on the pleadings on both claims, and
Szerwinski appeals.

While Szerwinski's settlement and release of liability with the employee prevents
Szerwinski from asserting a respondeat superior claim against Minsky's, the release does
not discharge Minsky's liability for the negligent hiring or retention claim. Contrary to
the district court's decision, because Minsky's is not named or otherwise specifically
identified in the release of liability, there is a presumption that the document does not
discharge Minsky's liability. Minsky's failed to rebut that presumption. Therefore,
Szerwinski's independent negligent hiring or retention claim should have survived
Minsky's motion for judgment on the pleadings. The district court is affirmed, in part, and
reversed, in part, and the case is remanded for further proceedings.

FACTUAL AND PROCEDURAL BACKGROUND

On September 24, 2022, the driver of a car who was acting in the scope of his
employment with Minsky's struck and injured Szerwinski. In exchange for a financial

3
payment, in July 2023, Szerwinski entered into a settlement agreement with the driver,
the driver's spouse, and their insurer Allstate Insurance Company. The settlement
agreement included a release of all claims (the Release) and this case relates to its terms,
not the underlying facts of the accident or Szerwinski's injuries.

Pursuant to the Release, Szerwinski agreed to release liability for future claims
against the driver (Minsky's employee), the driver's wife, and their personal insurer as
follows:

"This Indentured Witnesseth that, in consideration of the sum . . . receipt whereof
is hereby acknowledged, for myself and for my heirs, personal representatives and
assigns, I do hereby release forever discharge [the driver and his spouse] with respect to
claim #0688578327, against Allstate Insurance Company under policy

000000821589911, their heirs, executors and administrators, from the above-specified

Allstate Claim, demands, damages, costs, expenses, loss of services, actions, and causes
of actions arising from any act or occurrence, up to the present time, and particularly an
account of all personal injury, disability, property damage, loss of services and loss or
damages of any kind sustained or that I hereafter may sustain in consequence of an
accident that occurred on or about the 24th day of September, 2022 at or near Lackman
Rd. & 79th St.

....

"I hereby agree that, as a further consideration and inducement for this
compromise settlement, that it shall apply to all unknown and unanticipated injuries and
damages resulting from said accident, casualty, or event, as well as to those now
disclosed.

"I understand that the parties hereby released admit no liability of any sort by
reason of said accident and that the said payments and settlement in compromise are
made to terminate further controversy respecting all claims for damages that we have

4
heretofore asserted or that I or my personal representatives might hereafter assert because
of said accident.

"I further understand that such liability as I, may or shall have incurred, directly
or indirectly, in connection with or for damages arising out of the accident to each person
or organization released and discharged of liability herein, and to any other person or
organization, is expressly reserved to each of them, such liability not being waived,
agreed upon, discharged nor settled by this release."

The Allstate Insurance Company policy referenced in the Release was the driver's
personal automobile insurance policy—not Minsky's insurance policy.

On January 12, 2024, Szerwinski filed a petition against Minsky's, asserting claims
of respondeat superior and negligent hiring or retention. Minsky's filed an answer
asserting nine affirmative defenses.

Minsky's then filed a motion for judgment on the pleadings under K.S.A. 60-
212(c), arguing that the Release prevented Szerwinski's claims. First, Minsky's claimed
that because Szerwinski released the driver, Minsky's employee, from all claims arising
out of the accident, Szerwinski also "effectively released" Minsky's from being held
vicariously liable for the driver's conduct. Second, Minsky's argued that the Release's
broad language also prevented Szerwinski's negligent hiring or retention claim because
Minsky's and the driver were concurrent tortfeasors. According to Minsky's, the Release
was just as effective to Minsky's as it was to the driver.

On August 30, 2024, the district court issued an order granting Minsky's motion
for judgment on the pleadings. As to the respondeat superior claim, the district court cited
law holding that the release of an agent also releases a principal that faces liability only
vicariously through their agent. Regarding Szerwinski's negligent hiring or retention
claim, the district court noted that a release with an agent does not necessarily release a

5
principal from the principal's direct liability. Instead, the court found the terms of the
Release could be broad enough to include Minsky's if the terms "encompass[ed] all
liability claims that [Szerwinski] could have asserted, even if [Minksy's] was not a party
to the [R]elease."

The court ultimately found the language of the Release was broad enough to
encompass Minsky's potential liability. The court emphasized the language from the
Release that referenced all "'causes of action'" and "'all claims for damages'" when it
concluded that the Release applied to "any causes of action relating back to the accident."
The district court granted Minsky's motion on both claims, and Szerwinski now appeals.

DISCUSSION

When a party has suffered damage allegedly caused by the negligence of another,
as is the case here, the injured party often seeks damages against the alleged wrongdoers,
also referred to as tortfeasors. Through that process, the injured party may seek to settle or
resolve claims against one tortfeasor while maintaining claims against other tortfeasors.
This resolution is accomplished through a written agreement that often includes a release
or discharge of liability. One issue that can arise is whether that written instrument releases
the plaintiff's liability against a particular tortfeasor. That is the heart of the dispute here—
whether Szerwinski's settlement and release of liability with the driver encompassed in the
Release also discharges Minsky's liability.

On appeal, Szerwinski contends the district court erroneously applied the law and
thus incorrectly found the Release applied to discharge Minsky's liability related to the
negligent hiring or retention claim. For clarity, in his reply brief, Szerwinski maintains he
is not challenging the district court's decision to grant Minsky's motion for judgment on
the pleadings as to the respondeat superior claim. In the interest of completeness, and
because the initial brief is not entirely clear on that point, this court will briefly address

6
the respondeat superior claim. See Schutt v. Foster, 320 Kan. 852, 857, 572 P.3d 770
(2025) (discussing general rule that new issues may not be raised in reply briefs).

A motion for judgment on the pleadings under K.S.A. 60-212(c) asks the district
court to find for the defendant based on the plaintiff's failure to state a cause of action.
Tillman v. Goodpasture, 313 Kan. 278, 281, 485 P.3d 656 (2021). In considering the
motion, the district court must accept the plaintiff's factual allegations as true, which
permits the court to dispose of a matter early based on the application of the law to those
admitted facts. 313 Kan. at 281. Thus, the primary consideration is whether the plaintiff
has stated a legally cognizable claim. This court exercises unlimited review of a district
court's decision to grant a motion for judgment on the pleadings. 313 Kan. at 281.

Before turning to the merits of Szerwinski's appeal, this court will address the
parties' dispute regarding an apparent early draft of the Release that Szerwinski included
with his opposition motion to Minsky's motion for judgment on the pleadings. There is
nothing in the record showing that the district court considered this early draft in its
decision, and this court will not use the draft in its review.

I. THE DISTRICT COURT PROPERLY DISMISSED SZERWINSKI'S RESPONDEAT SUPERIOR
CLAIM

Under the doctrine of respondeat superior, an employer faces liability stemming
from its employee's malfeasance. This type of negligence is also called vicarious liability
or imputed negligence, where one party is held liable for the acts of another based on the
relationship between the tortfeasor and the party held liable. See, e.g., Stroud v. Ozark
Nat'l Life Ins. Co., 320 Kan. 180, 210, 564 P.3d 725 (2025). In this case, under the
respondeat superior claim, the employer's liability does not stem from its direct conduct
but is imputed from its employee's conduct. McGuire v. Sifers, 235 Kan. 368, 378, 681
P.2d 1025 (1984). To pursue a claim against an employer under a theory of respondeat

7
superior, the employee must have been acting within the scope of their employment at the
time the employee caused the injury. 235 Kan. at 378. Accepting the allegations in the
petition as true, the driver was a Minsky's employee and was acting in the scope of his
employment when the accident occurred. Those facts establish a basis for a respondeat
superior negligence claim against Minsky's.

The Kansas Supreme Court has long held that in an action for respondeat superior,
the liability of the employer is limited by the claims available against the employee. See
Jacobson v. Parrill, 186 Kan. 467, 472-73, 351 P.2d 194 (1960); see also Stroud, 320
Kan. at 210 (granting summary judgment on vicarious liability claim when summary
judgment was appropriate for the claims of the agent). A judgment against the agent
"establishes the full limit of liability against" the principal, who is "only derivatively
liable as under the doctrine of respondeat superior." Jacobson, 186 Kan. at 474.
Therefore, Kansas courts have long ruled that "the satisfaction of such a judgment
extinguishes any right of action for derivative liability." 186 Kan. at 474-75. See also
York v. InTrust Bank, N.A., 265 Kan. 271, Syl. ¶ 3, 962 P.2d 405 (1998) ("A release or
covenant not to sue an agent also releases a principal who is purely vicariously liable for
imputed negligence under a theory of respondeat superior."). That is, satisfaction of
claims against the employee forecloses a respondeat superior claim against the employer.

It is undisputed that, in exchange for payment, Szerwinski released the driver
(Minsky's employee) and the driver's personal insurer from Szerwinski asserting any
future claims related to the accident. This means Minsky's liability under respondeat
superior was absolved. By operation of law, if Szerwinski could no longer assert
negligence claims against the employee there could be no imputed negligence against
Minsky's because there was no negligence to impute. However, the specific identity rule,
discussed below, does not apply to whether an employer's respondeat superior liability is
extinguished based on a plaintiff's settlement with the employee. See Cobb v. Corbett, 32
Kan. App. 2d 1184, 1191, 95 P.3d 1028 (2004) (finding specific identity rule did not

8
apply in respondeat superior context). Therefore, to the extent the district court relied on
this rule to analyze Szerwinski's respondeat superior claim, that analysis was done in
error. The district court properly dismissed Szerwinski's respondeat superior claim.

II. THE DISTRICT COURT ERRED IN GRANTING MINSKY'S MOTION AS TO SZERWINSKI'S
CLAIM OF INDEPENDENT NEGLIGENCE

Unlike a respondeat superior claim, the employer's liability in a negligent hiring or
retention claim is not derivative of the employee's negligence but is based on the
employer's direct negligent acts. Liability in a negligent hiring or retention claim "runs
directly from the employer to the person injured" and is distinct from the employee's
negligence. Marquis v. State Farm Fire & Cas. Co., 265 Kan. 317, 334, 961 P.2d 1213
(1998); see also Atkinson v. Wichita Clinic, P.A., 243 Kan. 705, 710, 763 P.2d 1085
(1988) (distinguishing liability that is derivative versus direct). Here, the district court
determined that the Release, which only named the employee and his insurer, also acted
to discharge Minsky's liability from Szerwinski's direct negligence claims based on the
breadth of the claims released. In this appeal, Minsky's continues to argue the language of
the Release supports the district court's decision. For reasons explained below, this court
disagrees.

A Historical Look at Releasing Liability of Unnamed Tortfeasors

To understand Minsky's argument and what occurred here, it helps to review the
history of liability in multi-tortfeasor negligence actions. Before 1974, Kansas applied a
doctrine of contributory negligence and principles of joint and several liability between
joint tortfeasors. Luther v. Danner, 268 Kan. 343, 346-49, 995 P.2d 865 (2000). This
meant that when more than one tortfeasor caused the plaintiff's injury, each tortfeasor
was jointly and severally liable for the entire damage. See Milwaukee Ins. Co. v. Gas
Service Co., 185 Kan. 604, 609, 347 P.2d 394 (1959). Under those circumstances, a

9
general release of liability was often understood to release all tortfeasors unless the
language reserved claims against specific tortfeasors. See Sade v. Hemstrom, 205 Kan.
514, 523, 471 P.2d 340 (1970) (ruling a release extinguished liability for multiple
tortfeasors when only one tortfeasor was named and there was no express reservation of
rights); Railway Co. v. McWherter, 59 Kan. 345, 352, 53 P. 135 (1898) ("acceptance of
satisfaction from one of two or more joint tort feasors [] discharge[s] as to all"); Stueve v.
American Honda Motors Co., 457 F. Supp. 740, 746-47 (D. Kan. 1978) (citing to Kansas
cases from 1908 and 1927 where the Kansas Supreme Court ruled general release
language without a reservation of the right to sue extinguished liability against all
wrongdoers).

When applying these concepts, courts often distinguished between successive and
concurrent tortfeasors. See Fieser v. St. Francis Hospital & School of Nursing, Inc., 212
Kan. 35, 39-41, 510 P.2d 145 (1973), disapproved of on other grounds by Puckett v. Mt.
Carmel Regional Med. Center, 290 Kan. 406, 228 P.3d 1048 (2010). Concurrent
tortfeasors were those "whose tortious acts are concurrent and result in a single injury,"
but a successive tortfeasor was an independent tortfeasor whose actions caused injury
distinct from the other tortfeasors. Fieser, 212 Kan. at 39. Under traditional theories of
joint and several liability, the court would conclude that a general release would not
automatically apply to release a successive tortfeasor from liability. See, e.g., 212 Kan. at
41 (finding a general release does not automatically release a successive tortfeasor and
declining to consider whether it would release concurrent tortfeasors); Milwaukee Ins.
Co., 185 Kan. at 609 ("In cases of such independent concurring or successive torts, the
release of one wrongdoer does not release the other."); Jukes v. North American Van
Lines, Inc., 181 Kan. 12, 20, 309 P.2d 692 (1957) (same).

After Kansas adopted the comparative fault negligence standard in 1974, these
historic "common-law principles of joint liability" were eliminated. Stueve, 457 F. Supp.
at 748; see Brown v. Keill, 224 Kan. 195, 204, 580 P.2d 867 (1978) ("[T]he concept of

10
joint and several liability between joint tort-feasors previously existing in this state no
longer applies in comparative negligence actions."); see also K.S.A. 60-258a. In
recognition of the Legislature's newly adopted comparative fault standards, by the late
1970s federal courts theorized that under Kansas law, if a release was silent as to one
tortfeasor, or the plaintiff's claims against that tortfeasor, then the unnamed tortfeasor was
not presumed to be released. Stueve, 457 F. Supp. at 746-47.

Under comparative negligence standards, the unnamed tortfeasor bore the burden
of showing that a settlement between a plaintiff and another tortfeasor intended to release
the unnamed tortfeasor. Shinkle v. Union City Body Co., 94 F.R.D. 631, 633 (D. Kan.
1982). This represented a distinct shift in the law. See, e.g., Geier v. Wikel, 4 Kan. App.
2d 188, 189-90, 603 P.2d 1028 (1979) (noting that adoption of comparative fault
"shattered" the reasoning of earlier rules applying a general release to unnamed
tortfeasors). Additionally, now intervening and superseding causes of damage are only
recognized in extraordinary cases. Puckett, 290 Kan. 406, Syl. ¶ 11. The purpose of the
change was to award damages based on the comparative fault of the tortfeasors and to
eliminate contributory negligence as a bar to the plaintiff's recovery. Brown, 224 Kan. at
197.

The Kansas Supreme Court confirmed this evolution in 2000 when it found a
general release did not extinguish the plaintiff's claims against unnamed tortfeasors.
Luther, 268 Kan. at 352. In Luther, a father and son were in an accident with Danner,
who was driving a truck as part of his employment with Service Printing, Inc. The minor
son was injured and the father died. The mother/wife of the victims entered a small
settlement with the insurer for the son's personal injury claim against his father's estate.
She later filed wrongful death claims against Danner and Service Printing related to her
husband's death. The district court found the settlement release agreement for the son's
personal injury claims "foreclosed any other claims against Danner and Service Printing."
268 Kan. at 343. On review, a panel of this court applied the traditional rules of contract

11
interpretation and concluded the district court did not err because the release was "'plain,
unambiguous, and binding as to all tortfeasors.'" 268 Kan. at 345.

The pertinent release language identified the releasees as husband's estate,
Dairyland Insurance Company, and "'all other persons, firms, corporations, associations,
or partnerships'" and provided:

"'The undersigned have read the foregoing release and fully understand it and
know that it is intended to be, and is, a complete bar to any future claim or action of any
kind on account of any injuries or damages, whether known or unknown at this time,
caused or resulting from the occurrence mentioned above.'" 268 Kan. at 344.

On its review, the Kansas Supreme Court considered whether the general release
extinguished the wife's claims against the defendants. 268 Kan. at 344. The court
discussed Kansas' move to the "institution of comparative negligence concepts," which
softened the "'all or nothing'" outcomes under the prior scheme. 268 Kan. at 346. The
Luther court then noted "that in the construction of general releases, too, the 'all or
nothing' rule has given way to more tempered approaches," which included the "'flat bar
rule,' 'intent rule,' and 'specific identity rule' cases." 268 Kan. at 346.

The Luther court, citing to an analysis from the New Mexico Supreme Court,
adopted the specific identity rule, which presumes that "'the liability of a party not named
or otherwise specifically identified by the terms of the release is not discharged.'" Luther,
268 Kan. at 347 (quoting Hansen v. Ford Motor Co., 120 N.M. 203, 207, 900 P.2d 952
[1995]). This rule "'compels the settling parties either to name nonsettling tortfeasors . . .
or to include such terms or descriptions as make the identity of the unnamed beneficiaries
or the class thereof reasonably apparent.'" 268 Kan. at 347. The Luther court explained
that the specific identity rule as adopted "affords protection to the settling party by
creating a presumption against wholesale discharge and affords protection to the
nonsettling tortfeasors by making it rebuttable." 268 Kan. at 351-52.
12
The Modified Specific Identity Rule

Here, both parties agree that the specific identity rule applies but disagree about
the outcome, which hinges on an interpretation of the Release. On appeal, this court
exercises unlimited review to determine the meaning of a written instrument. Marquis,
265 Kan. at 324. Generally, when interpreting written instruments, the court's primary
role is to determine the parties' intent. Waste Connections of Kansas, Inc. v. Ritchie
Corp., 296 Kan. 943, 963, 298 P.3d 250 (2013). In conducting that review, this court
must consider the instrument as a whole and cannot read the terms or passages in
isolation. 296 Kan. at 963. This court will only find an agreement ambiguous "if it
contains provisions or language of doubtful or conflicting meaning" from the natural and
reasonable reading of its terms. Marquis, 265 Kan. at 324.

Courts adopting the traditional specific identity rule "conclusively presume that
the liability of a party not named or otherwise specifically identified by the terms of the
release is not discharged." Hansen, 120 N.M. at 207. Rather than make the presumption
conclusive, New Mexico adopted a variation that made the presumption rebuttable. 120
N.M. at 211. The Hansen court reasoned that the "pure specific identity rule entirely
ignores the actual intent of the parties to a general release." 120 N.M. at 211.
Accordingly, the court found that "sound policy requires more evidence of intent to
release potential tortfeasors not named in a release agreement than boilerplate language
that objectively purports to release the entire world from liability." 120 N.M. at 211.
Noting its agreement with the New Mexico court's decision in Hansen, the Luther court
also adopted the variation of the specific identity rule creating a rebuttable presumption
against the release of an unnamed tortfeasor's liability. 268 Kan. at 349, 351-52. See also
Stueve, 457 F. Supp. at 747 ("[I]n the absence of any evidence produced by either party
on the question of intent, and when the document is silent upon the matter, the Kansas
rule is that other parties are 'presumed' not released.").

13
As explained in Luther, Kansas applies the modified specific identity rule, in
which a rebuttable presumption exists that a tortfeasor who is not named or otherwise
specifically identified in a settlement or release document is not discharged from liability.
The modified specific identify rule is a two-part test where, in the first step, the tortfeasor
seeking to be discharged from liability must show that the written instrument identifies it
by name or other specifically identifying terminology. Luther, 268 Kan. at 352; Hansen,
120 N.M. at 207. If the written instrument does not name or otherwise identify the
tortfeasor seeking to be discharged, it is presumed that the unnamed tortfeasor is not
released from liability. In Kansas this is a rebuttable presumption. Therefore, in step two
the unnamed tortfeasor can present extrinsic or parol evidence to establish that the parties
to the written instrument intended to also discharge the unnamed party from liability. See
Luther, 268 Kan. at 349 (quoting Hansen, 120 N.M. at 211). This modified specific
identity rule protects the plaintiff from inadvertently releasing the unnamed tortfeasors
but also allows an unnamed tortfeasor to show an intent that it be released from liability.
See, e.g., McKissick v. Yuen, 618 F.3d 1177, 1193 (10th Cir. 2010) ("The specific identity
rule is designed to prevent the release of all potential tortfeasors upon the release of one
by means of boilerplate, 'generalized broad language which, in essence, . . . purports to
release the entire world from any and all claims.'"). Essentially, this rule protects both the
plaintiff and tortfeasor from the perils of an inadvertent omission or careless drafting
while also adhering to the parties' intent.

Step One: Minsky's is not named or otherwise specifically identified in the Release.

In step one of the modified specific identity rule, this court must determine
whether the Release names or otherwise specifically identifies Minsky's as a released
tortfeasor. Minsky's admits it is not named in the Release but maintains "other specific
identifying terminology in the Release . . . was sufficient to identify Minsky's." Minsky's
focuses on the language releasing the driver's "heirs, executors and administrators" and
reference to any claims arising from the accident. Minsky's argues that the Release

14
applies to "any controversy for all claims that the plaintiff had previously asserted or
which he could assert in the future due to the September 24, 2022, accident," which it
argues would include any claims against Minsky's.

The district court—in disregard for the tenets of the modified specific identity
rule—found the language in the Release was "broad enough to cover Minsky's." The
court focused on the following Release language to support its decision:

"[C]auses of actions arising from any act or occurrence, up to the present time, and
particularly an account of all personal injury, disability, property damage, loss of services
and loss or damages of any kind sustained or that I hereafter may sustain in consequence
of [the] accident . . . .

....

". . . [S]aid payments and settlements in compromise are made to terminate
further controversy respecting all claims for damages that we have heretofore asserted or
that I or my personal representatives might hereafter assert because of said accident."

In support of its argument, Minsky's relies on an unpublished case—decided
before the Luther decision—in which the plaintiff, a passenger involved in a car accident,
entered a release with the driver of the car and the driver's insurance companies. White v.
Miller, No. 66,734, unpublished opinion filed March 13, 1992 (Kan. App.). The release
in White provided that:

"'For the sole consideration of Six Thousand and no/100 dollars . . . the undersigned
hereby releases and forever discharges Nina Collins, Ranger Ins. Co. and Seneca Ins. Co.
and all other persons, firms and corporations from all claims and demands, rights and
causes of action of any kind the undersigned now has or hereafter may have on account
of or in any way growing out of Personal Injuries known or unknown to me at the present

15
time . . . resulting or to result from an occurrence which happened on or about July 2,
1988.'" (Emphasis added.) White, slip op. at 2.

The district court found the release was broad enough to apply to all third-party
defendants, not just the parties to the agreement. On review, a panel of this court likened
the case to another case with similar release language and affirmed the district court's
dismissal. White, slip op. at 2-4, 9-11 (citing Kennedy v. City of Sawyer, 228 Kan. 439,
618 P.2d 788 [1980]).

The releases in both cases relied on by Minsky's contained language that released
claims against a specific party "and all other persons, firms and corporations." While the
district court here agreed that the language in the White release was broader than the
Release here, it still concluded the Release covered "all 'causes of action"' and "'all claims
for damages'" that Szerwinski might assert against Minsky's related to the accident. Not
only did the releases in White and Kennedy include more entities ("all other persons,
firms and corporations") than the Release here, those cases were also decided before
Luther and thus apply a legal principle inapplicable to the current negligence standards.
See, e.g., White, slip op. at 3-8 (no discussion of specific identity rule).

The Release here states that Szerwinski releases and discharges the Minsky's
driver and his spouse, including "their heirs, executors and administrators," with respect
to a claim submitted to Allstate Insurance Company under the driver's personal insurance
policy:

"I do hereby release forever discharge [the driver and his spouse] with respect to claim

0688578327, against Allstate Insurance Company under policy #000000821589911,

their heirs, executors and administrators, from the above-specified Allstate Claim,
demands, damages, costs, expense, loss of services, actions, and causes of actions arising
from any act or occurrence, up to the present time, and particularly an account of all
personal injury, disability, property damage, loss of services and loss of damages of any

16
kind sustained or that I hereafter may sustain in consequence of an accident that occurred
on or about the 24th day of September, 2022 at or near Lackman Rd. & 79th St."

The Release discharges the liability of the driver, the driver's spouse, and their
insurance policy under which Szerwinski made a claim and identifies no other
tortfeasors. Nothing in this language names or relates to Minsky's with specifically
identifying terminology. Additionally, Minsky's role in the litigation or potential liability
is not identified using specific terminology. For example, the Release does not refer to
the driver's employer or to Minsky's insurance policy. Moreover, when referencing the
liability discharged, the Release refers to "the parties hereby released," again showing the
discharge applies only to those parties identified in the Release. The breadth of this
language does not name or otherwise specifically identify Minsky's as a released party.

Under the modified specific identity rule—which unquestionably applies here—
Minsky's is not included as a released party. Therefore, under step one, it is presumed
that the Release does not discharge Minsky's from liability. Therefore, this court must
move to step two of the modified specific identity rule which allows the party seeking
discharge to rebut the presumption through extrinsic evidence.

Step Two: Rebutting the presumption against discharge

In step two, Minsky's can rebut the presumption that the Release did not discharge
its liability through extrinsic evidence that demonstrates the parties intended to discharge
Minsky's liability. Just as step one protects against the inadvertent effects of a poorly
drafted written instrument, so does step two. Allowing the unnamed tortfeasor seeking to
be discharged from liability to rebut the presumption against discharge ensures that the
parties' intent can still be accomplished even if the written instrument lacks clarity and
specificity. This process combines legal principles requiring parties to make their
writings clear with the long-standing Kansas policy to interpret written instruments

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consistent with the parties' intent. See Liggatt v. Employers Mut. Casualty Co., 273 Kan.
915, 921, 46 P.3d 1120 (2002) ("The primary rule in interpreting written contracts is to
ascertain the intent of the parties."). An unnamed party should not be subject to further
liability simply because its exact name or identity was not included in a written
instrument when the parties intended its release.

Rather than present extrinsic evidence to rebut this presumption—likely because
extrinsic evidence does not support its position—Minsky's merely argues that the breadth
of the Release shows an intent to include Minsky's as a released party. Minsky's seeks to
limit this court's review to the four corners of the Release and argues this court should not
consider extrinsic/parol evidence unless the parties' intent is not clear. In limiting the
evidence available to show the parties' intent, Minsky's misunderstands or perhaps
ignores the specific identity rule and the rebuttable presumption standard, but reverts to
the antiquated common-law rule, which is inapplicable here. See Luther, 268 Kan. at 349.

In Kansas, when a party enters into a settlement agreement with some, but not all,
of the tortfeasors, there is a "presumption against wholesale discharge" of all tortfeasors
through that settlement. Luther, 268 Kan. at 351-52. Therefore, under the modified
specific identity rule, generic, general, or boilerplate language in a release is not
sufficient to show that the parties intended to discharge the liability of an unnamed
tortfeasor. The entire point of adopting the specific identity rule was to reduce the risk of
unintentionally releasing a tortfeasor through general, boilerplate language. McKissick,
618 F.3d at 1193. While courts typically determine the parties' intent without straying
outside the four corners of the document, to reach step two of the modified specific
identity rule a court must have already concluded that the written instrument does not
sufficiently demonstrate an intent to discharge the unnamed tortfeasor. Therefore,
evidence other than the written instrument must be used to rebut that presumption.
Luther, 268 Kan. at 349.

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In step two, the unnamed tortfeasor carries the burden to rebut the presumption
that the writing did not discharge its liability. Luther, 268 Kan. at 352. Following Luther,
few Kansas cases have addressed the specific identity rule, and there has been little
explanation of what evidence could rebut the presumption against discharge of liability.
See, e.g., Wright v. Bachmurski, 29 Kan. App. 2d 595, 604, 29 P.3d 979 (2001) (found
that two men were not included in the general release and explained that "the burden of
pleading and proving that the settlement releases the individual is on the party claiming
release"). In New Mexico, the Hansen court explained that an unnamed tortfeasor
"seeking to be discharged must prove by extrinsic evidence that the parties to the
agreement actually intended to discharge [them] from liability." (Emphasis added.) 120
N.M. at 211.

A more recent New Mexico case provides some insight into the type of extrinsic
evidence that a court might consider. See Leslie v. BNSF Railway Co., No. 1:16-CV-
1208-JCH-JHR, 2019 WL 3082494 (D.N.M. 2019) (unpublished opinion). In Leslie,
plaintiffs were injured when their car struck a cow owned by Huning that the defendants
argued got into the road by jumping over a barrier owned and maintained by BNSF
Railway. Plaintiffs then filed separate claims against BNSF. The plaintiffs executed a
settlement with the Huning defendants, with no mention of BNSF, but it said, "'This
settlement shall resolve all claims, pled or unpled, between all named or potential parties
to the litigation . . . ." 2019 WL 3082494, at *1-2.

BNSF moved for summary judgment arguing the settlement agreement language
that included "'all named or potential parties to the litigation'" also released and
discharged BNSF. 2019 WL 3082494, at *3. The court disagreed, finding BNSF was not
named and, thus, BNSF had the burden to prove by extrinsic evidence that the parties
intended to also release BNSF. To meet its burden, BNSF provided extrinsic evidence of
its letter to Huning describing its rights to indemnification. BNSF argued the timing of
the indemnification letter indicates the "'all named or potential parties to the litigation'"

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language shows plaintiffs intended to also release BNSF. 2019 WL 3082494, at *3. The
court again disagreed because the parties knew at the time that BNSF was included in the
litigation and thus its absence from the list of released parties demonstrates intent to not
include BNSF. The court also found other evidence supported its finding: BNSF was not
present at the settlement discussions, provided no compensation to plaintiffs, and Huning
disputed BNSF's claim of indemnity and blamed the accident on BNSF's negligence.
2019 WL 3082494, at *4. On appeal, the United States District Court for the District of
New Mexico affirmed the denial of summary judgment for BNSF. 2019 WL 3082494, at
*5.

Minsky's fails to present extrinsic evidence to rebut the presumption that, as an
unnamed tortfeasor, the Release did not discharge its liability. For example, Minsky's
does not argue that it was included in the settlement discussion that resulted in the parties'
settlement and agreement to enter the Release. Minsky's does not argue that it made a
financial contribution in exchange for the plaintiff agreeing to the Release. Minsky's does
not allege that it or any of its insurers has contributed financially in any way to
Szerwinski. While evidence of this type may not be dispositive, it is difficult to imagine a
plaintiff intending to discharge a party from liability who was not involved in the
settlement negotiations and who made no financial (or other) contribution to the plaintiff.

Apparently recognizing the shortcomings of its argument under the modified
specific identity rule, Minsky's asserts alternative legal theories to support its claim. In
one theory, Minsky's attempts to convince this court to disregard the specific identity rule
and instead apply the intent rule. Yet, this is merely a different route to the same result.
Under the intent rule, the court's goal is to discern the intent of the parties to the written
release or settlement agreement, with some courts permitting extrinsic/parol evidence and
some not. Luther, 268 Kan. at 347. Once again Minsky's asks this court to ignore any
extrinsic/parol evidence, but Minsky's incorrectly believes that the Release alone
demonstrates the parties' intent in its favor. Finally, Minsky's also resurrects the

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distinction between concurrent and successive tortfeasors to claim the Release discharges
its liability. These arguments rely on dated theories of liability and thus fail. See Brown,
224 Kan. at 204 ("the concept of joint and several liability between joint tort-feasors
previously existing in this state no longer applies in comparative negligence actions");
Stueve, 457 F. Supp. at 748 (same).

Kansas has moved away from the old theories that a general, broad, boilerplate
release operates to discharge all claims against all potential tortfeasors. Luther, 268 Kan.
at 351-52. Minsky's was not named or otherwise specifically identified in the Release and
thus it is presumed that the Release does not discharge Minsky's liability. Minsky's had
the opportunity and carried the burden to rebut the presumption—and it failed to meet
that burden. The general, broad language in the Release does not demonstrate an intent to
discharge Minsky's liability, and the district court erred in finding that the Release
discharged Minsky's from direct liability for Szerwinski's negligent hiring or retention
claim.

CONCLUSION

After being injured by a Minsky's employee in a car versus bicycle accident,
Szerwinski settled claims it could have asserted against the Minsky's employee and the
employee's personal insurer through the Release. That action also foreclosed Szerwinski's
respondeat superior claim against Minsky's. However, the Release does not name or
otherwise specifically identify Minsky's as a discharged party. Therefore, under the
modified specific identity rule, there is a rebuttable presumption that the Release did not
discharge Minsky's direct liability. Minsky's failed to introduce evidence to rebut that
presumption, and the district court erred in granting Minsky's motion for judgment on the
pleadings as to Szerwinski's negligent hiring or retention claim.

Affirmed in part, reversed in part, and remanded with directions.

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