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Marquis v. State Farm Fire and Casualty Co.6/5/1998
s expired, any claim for negligent hiring, retention, or supervision is barred.
The argument is without merit. Even though the plaintiffs' petition did not state a cause of action for negligent entrustment, Sharon Auck was a proper defendant on a respondeat superior theory. Amendments to the pleadings which would have related back to the date of the original pleading were available to the plaintiffs. See K.S.A. 60-215. More importantly, however, this matter is not a tort action but one sounding in contract based on the settlement agreement. The parties agreed to submit the issues to the district court for a decision on whether coverage existed. We have determined that the settlement agreement allowed the plaintiffs to assert claims of negligent hiring, retention, or supervision. The statute of limitations affirmative defense has been waived by the settlement agreement.
State Farm also contends that the plaintiffs' assertion of a claim for negligent hiring, retention, or supervision is barred by equity. State Farm argues that both laches and estoppel should operate to bar such an assertion. According to its argument, because the plaintiffs did not mention claims for negligent hiring, retention, or supervision, plaintiffs' should not now be able to do so, as a matter of fairness. However, the question is not one of fairness but rather involves a question of law involving the interpretation of the agreement entered into by the parties. Under the contract agreement, the parties removed the facts from the case and agreed to pay in the event the court determined that coverage was owed under either policy. Estoppel, laches, or other equitable considerations are not involved.
(3) Factual Basis for Claims of Negligent Hiring, Retention, or Supervision
State Farm argues that the plaintiffs' claims against Sharon Auck have no factual basis and, therefore, should not be allowed. The plaintiffs argue that their claims have a factual basis and, therefore, State Farm, under the terms of the agreement, is prohibited from contesting those claims.
As we previously stated, the effect of the settlement agreement between the parties was to remove the facts from contention. Thus, under the terms of the agreement, once the plaintiffs articulated a theory and alleged facts which, if true, would result in coverage under the contractor's policy, State Farm could not dispute those facts. We have examined the record and agree with the Conclusion of the trial court that there exists a factual basis for the plaintiffs' claims of negligent hiring, retention, or supervision.
(4) Respondent Superior
The final argument made by State Farm is that the plaintiffs were barred from proceeding against Sharon Auck under the theory of negligent hiring, retention, or supervision because State Farm had already admitted that Jerry Auck was an employee acting within the scope of his employment and, therefore, the respondeat superior liability of Sharon Auck had already been established. In support of this position, State Farm cites a recent Missouri case, McHaffie v. Bunch, 891 S.W.2d 822 (Mo. 1995.)
In McHaffie, the Missouri Supreme Court ruled that in an automobile accident it was improper to allow a plaintiff to proceed against the employer under the theory of negligent hiring where the employer had already admitted respondeat superior liability. 891 S.W.2d at 827. The court reasoned that negligent hiring is a form of imputed liability in that the employer cannot be made more liable than the employee for the damages which were the result of the employee's negligence. The court concluded that allowing a plaintiff to proceed on one theory where liability on
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