History: L. 1981, ch. 231, § 1; July 1.
(b) "Manufacturer" includes a product seller who designs, produces, makes, fabricates, constructs or remanufactures the relevant product or component part of a product before its sale to a user or consumer. It includes a product seller or entity not otherwise a manufacturer that holds itself out as a manufacturer, or that is owned in whole or in part by the manufacturer.
(c) "Product liability claim" includes any claim or action brought for harm caused by the manufacture, production, making, construction, fabrication, design, formula, preparation, assembly, installation, testing, warnings, instructions, marketing, packaging, storage or labeling of the relevant product. It includes, but is not limited to, any action based on, strict liability in tort, negligence, breach of express or implied warranty, breach of, or failure to, discharge a duty to warn or instruct, whether negligent or innocent, misrepresentation, concealment or nondisclosure, whether negligent or innocent, or under any other substantive legal theory.
(d) "Harm" includes: (1) Damage to property; (2) personal physical injuries, illness and death; (3) mental anguish or emotional harm attendant to such personal physical injuries, illness or death. The term "harm" does not include direct or consequential economic loss.
History: L. 1981, ch. 231, § 2; L. 1992, ch. 307, § 5; July 1.
Examples of evidence that is especially probative in determining whether a product's useful safe life had expired include:
(A) The amount of wear and tear to which the product had been subject;
(B) the effect of deterioration from natural causes, and from climate and other conditions under which the product was used or stored;
(C) the normal practices of the user, similar users and the product seller with respect to the circumstances, frequency and purposes of the product's use, and with respect to repairs, renewals and replacements;
(D) any representations, instructions or warnings made by the product seller concerning proper maintenance, storage and use of the product or the expected useful safe life of the product; and
(E) any modification or alteration of the product by a user or third party.
(2) A product seller may be subject to liability for harm caused by a product used beyond its useful safe life to the extent that the product seller has expressly warranted the product for a longer period.
(b) (1) In claims that involve harm caused more than 10 years after time of delivery, a presumption arises that the harm was caused after the useful safe life had expired. This presumption may only be rebutted by clear and convincing evidence.
(2) (A) If a product seller expressly warrants that its product can be utilized safely for a period longer than 10 years, the period of repose, after which the presumption created in paragraph (1) of this subsection arises, shall be extended according to that warranty or promise.
(B) The ten-year period of repose established in paragraph (1) of this subsection does not apply if the product seller intentionally misrepresents facts about its product, or fraudulently conceals information about it, and that conduct was a substantial cause of the claimant's harm.
(C) Nothing contained in this subsection shall affect the right of any person liable under a product liability claim to seek and obtain indemnity from any other person who is responsible for the harm which gave rise to the product liability claim.
(D) The ten-year period of repose established in paragraph (1) of this subsection shall not apply if the harm was caused by prolonged exposure to a defective product, or if the injury-causing aspect of the product that existed at the time of delivery was not discoverable by a reasonably prudent person until more than 10 years after the time of delivery, or if the harm caused within 10 years after the time of delivery, did not manifest itself until after that time.
(c) Except as provided in subsections (d) and (e), nothing contained in subsections (a) and (b) above shall modify the application of K.S.A. 60-513, and amendments thereto.
(d) (1) In a product liability claim against the product seller, the ten-year limitation, as defined in K.S.A. 60-513, and amendments thereto, shall not apply to the time to discover a disease which is latent caused by exposure to a harmful material, in which event the action shall be deemed to have accrued when the disease and such disease's cause have been made known to the person or at the point the person should have been aware of the disease and such disease's cause.
(2) The term "harmful material" means silicone gel breast implants, which were implanted prior to July 1, 1992; any chemical substances commonly known as asbestos, dioxins, or polychlorinated biphenyls, whether alone or as part of any product; or any substance which is determined to present an unreasonable risk of injury to health or the environment by the United States environmental protection agency pursuant to the federal toxic substances control act, 15 U.S.C. § 2601 et seq., or the state of Kansas, and because of such risk is regulated by the state or the environmental protection agency.
(e) Upon the effective date of this act through July 1, 1991, the provisions of this subsection shall revive such causes of action for latent diseases caused by exposure to a harmful material for: (1) Any person whose cause of action had accrued, as defined in subsection (d) on or after March 3, 1987; or (2) any person who had an action pending in any court on March 3, 1989, and because of the judicial interpretation of the ten-year limitation contained in subsection (b) of K.S.A. 60-513, and amendments thereto, as applied to latent disease caused by exposure to a harmful material the: (A) Action was dismissed; (B) dismissal of the action was affirmed; or (C) action was subject to dismissal. The intent of this subsection is to revive causes of action for latent diseases caused by exposure to a harmful material which were barred by interpretation of K.S.A. 60-513, and amendments thereto, in effect prior to this enactment.
History: L. 1981, ch. 231, § 3; L. 1990, ch. 211, § 1; L. 1992, ch. 307, § 6; July 1.
(b) When the injury-causing aspect of the product was not, at the time of manufacture, in compliance with legislative regulatory standards or administrative regulatory safety standards relating to design, performance, warnings or instructions, the product shall be deemed defective unless the product seller proves by a preponderance of the evidence that its failure to comply was a reasonably prudent course of conduct under the circumstances.
(c) When the injury-causing aspect of the product was, at the time of manufacture, in compliance with a mandatory government contract specification relating to design, this shall be an absolute defense and the product shall be deemed not defective for that reason, or, if the specification related to warnings or instructions, then the product shall be deemed not defective for that reason.
(d) When the injury-causing aspect of the product was not, at the time of manufacture, in compliance with a mandatory government contract specification relating to design, the product shall be deemed defective for that reason, or if the specification related to warnings or instructions, the product shall be deemed defective for that reason.
History: L. 1981, ch. 231, § 4; July 1.
(b) to situations where the safeguards, precautions and actions would or should have been taken by a reasonable user or consumer of the product similarly situated exercising reasonable care, caution and procedure; or
(c) to warnings, protecting against or instructing with regard to dangers, hazards or risks which are patent, open or obvious and which should have been realized by a reasonable user or consumer of the product.
History: L. 1981, ch. 231, § 5; July 1.
(b) such seller in the performance of any duties the seller performed, or was required to perform, could not have discovered the defect while exercising reasonable care;
(c) the seller was not a manufacturer of the defective product or product component;
(d) the manufacturer of the defective product or product component is subject to service of process either under the laws of the state of Kansas or the domicile of the person making the product liability claim; and
(e) any judgment against the manufacturer obtained by the person making the product liability claim would be reasonably certain of being satisfied.
History: L. 1981, ch. 231, § 6; July 1.
(1) Evidence of any advancements or changes in technical or other knowledge or techniques, in design theory or philosophy, in manufacturing or testing knowledge, techniques or processes in labeling, warning of risks or hazards, instructions for the use of such product, if such advancements or changes have been made, learned or placed into common use subsequent to the time the product in issue was designed, formulated, tested, manufactured or sold by the manufacturer; and
(2) evidence of any changes made in the designing, planning, formulating, testing, preparing, manufacturing, packaging, warnings, labeling or instructing for use of, or with regard to, the product in issue, or any similar product, which changes were made subsequent to the time the product in issue was designed, formulated, tested, manufactured or sold by the manufacturer.
(b) This section does not require the exclusion of evidence of a subsequent measure if offered to impeach a witness for the manufacturer or seller of a product who has expressly denied the feasibility of such a measure.
History: L. 1986, ch. 214, § 1; July 1.
(1) "Improper means" includes theft, bribery, misrepresentation, breach or inducement of a breach of a duty to maintain secrecy, or espionage through electronic or other means.
(2) "Misappropriation" means:
(i) acquisition of a trade secret of another by a person who knows or has reason to know that the trade secret was acquired by improper means; or
(ii) disclosure or use of a trade secret of another without express or implied consent by a person who
(A) used improper means to acquire knowledge of the trade secret; or
(B) at the time of disclosure or use, knew or had reason to know that his knowledge of the trade secret was
(I) derived from or through a person who had utilized improper means to acquire it;
(II) acquired under circumstances giving rise to a duty to maintain its secrecy or limit its use; or
(III) derived from or through a person who owed a duty to the person seeking relief to maintain its secrecy or limit its use; or
(C) before a material change of his position, knew or had reason to know that it was a trade secret and that knowledge of it had been acquired by accident or mistake.
(3) "Person" means a natural person, corporation, business trust, estate, trust, partnership, association, joint venture, government, governmental subdivision or agency, or any other legal or commercial entity.
(4) "Trade secret" means information, including a formula, pattern, compilation, program, device, method, technique, or process, that:
(i) derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use, and
(ii) is the subject of efforts that are reasonable under the circumstances to maintain its secrecy.
History: L. 1981, ch. 214, § 1; July 1.
(b) In exceptional circumstances, an injunction may condition future use upon payment of a reasonable royalty for no longer than the period of time for which use could have been prohibited. Exceptional circumstances include, but are not limited to, a material and prejudicial change of position prior to acquiring knowledge or reason to know of misappropriation that renders a prohibitive injunction inequitable.
(c) In appropriate circumstances, affirmative acts to protect a trade secret may be compelled by court order.
History: L. 1981, ch. 214, § 2; L. 1988, ch. 221, § 1; July 1.
(b) If willful and malicious misappropriation exists, the court may award exemplary damages in an amount not exceeding twice any award made under subsection (a).
History: L. 1981, ch. 214, § 3; L. 1988, ch. 221, § 2; July 1.
History: L. 1981, ch. 214, § 4; July 1.
History: L. 1981, ch. 214, § 5; July 1.
History: L. 1981, ch. 214, § 6; July 1.
(b) This act does not affect:
(1) Contractual remedies, whether or not based upon misappropriation of a trade secret;
(2) other civil remedies that are not based upon misappropriation of a trade secret; or
(3) criminal remedies, whether or not based upon misappropriation of a trade secret.
History: L. 1981, ch. 214, § 7; L. 1988, ch. 221, § 3; July 1.
History: L. 1981, ch. 214, § 8; July 1.
History: L. 1981, ch. 214, § 9; July 1.
History: L. 1981, ch. 214, § 10; July 1.
History: L. 1981, ch. 214, § 11; L. 1988, ch. 221, § 4; July 1.
(b) Except as provided further, if the person who shoplifts is an unemancipated minor, the parent of such minor, shall be civilly liable pursuant to a civil action filed as authorized in subsection (a) in an amount of the civil penalty as prescribed in subsection (a). If the merchant recovers the merchandise in merchantable condition, the civil penalty against the parent, as provided in this subsection, shall be $50.
(c) Unless the action is brought pursuant to the Kansas small claims act and a final judgment is rendered in small claims court, the prevailing party in such action brought pursuant to this section shall be entitled to reasonable attorney fees and costs. If the action is brought in small claims court and the judgment is appealed to district court pursuant to chapter 60 of the Kansas Statutes Annotated or K.S.A. 61-2709 and amendments thereto, the prevailing party on appeal shall be entitled to reasonable attorney fees and costs.
(d) A conviction or a plea of guilty to the offense of theft which would constitute shoplifting or an adjudication as a juvenile offender or an adjudication as a child in need of care for committing an offense while a juvenile which if committed by an adult would constitute the commission of the offense of theft which would constitute shoplifting is not a prerequisite to the filing of a civil action under this section.
(e) Prior to filing a civil action under this section, a merchant damaged by shoplifting shall demand that an individual alleged to be civilly liable under this act reimburse such merchant in an amount of the civil penalty as prescribed in subsection (a). Such demand shall be in writing and offered in consideration for the merchant's agreement not to commence a civil action under this section. Such demand shall not contain a threat of criminal prosecution against such individual. Any merchant who makes a demand with a threat of criminal prosecution against such individual shall be precluded from filing a civil action under this section and pursuing any other remedy at law or equity. A demand pursuant to this subsection shall be a prerequisite to filing a civil action under this section, but no demand may be made which does not comply with this subsection.
(f) Nothing contained in this act shall be construed to preclude a merchant from pursuing any other remedy at law or equity prior to filing an action under this act.
(g) For purposes of this act, "shoplift" means any one or more of the following acts committed by a person without the consent of the merchant and with the intent of appropriating merchandise to that person's or another's own use without payment, obtaining merchandise at less than its stated sales price or otherwise depriving a merchant of all or any part of the value or use of merchandise:
(1) Removing any merchandise from the premises of the merchant's establishment;
(2) concealing any merchandise with intent to leave the premises with the merchandise;
(3) substituting, altering, removing or disfiguring any label or price tag;
(4) transferring any merchandise from a container in which that merchandise is displayed or packaged to any other container; or
(5) disarming any alarm tag attached to any merchandise.
(h) A civil penalty, claim or judgment under the provisions of this section shall not constitute an obligation or liability against any insurer or third-party payor.
History: L. 1993, ch. 98, § 1; L. 2002, ch. 156, § 1; July 1.
(a) "Environmental audit" means a voluntary, internal assessment, evaluation or review of a facility or operation, of an activity at a facility or operation or of an environmental management system at a facility or operation when the facility, operation or activity is regulated by state or federal environmental laws that is performed by the owner or operator, the owner's or operator's employees, or a qualified auditor retained by the owner or operator of the facility or operation for the express and specific purpose of identifying historical or current noncompliance with environmental laws, discovering environmental contamination or hazards, remedying noncompliance or improving compliance with environmental laws or improving an environmental management system. Once initiated, an audit shall be completed within a reasonable period of time not to exceed six months, unless an extension is approved by the agency that regulates the facility or operation. Nothing in this section shall be construed to authorize uninterrupted or continuous auditing.
(b) "Environmental audit report" means a set of documents, each labeled "Audit Report: Privileged Document" that is generated and developed for the primary purpose and in the course of or as a result of an environmental audit that is conducted in good faith. An environmental audit report may include the following supporting information, if collected or developed for the primary purpose and in the course of an audit: Field notes and records of observations, samples, analytical results, exhibits, findings, opinions, suggestions, recommendations, conclusions, drafts, memoranda, implementation plans, interviews, correspondence, drawings, photographs, computer-generated or electronically recorded information, maps, charts, graphs and surveys. An environmental audit report, when completed, may include any of the following components:
(1) An audit report prepared by the auditor, which may include the scope of the environmental audit, the information gained in the environmental audit, conclusions and recommendations, together with exhibits and appendices;
(2) memoranda and documents analyzing all or part of the audit report and discussing potential implementation issues;
(3) an implementation plan that addresses correcting past noncompliance, improving current compliance or an environmental management system, and preventing future noncompliance; and
(4) periodic updates documenting progress in completing the implementation plan.
(c) "Facility" means all contiguous land, structures and other appurtenances and improvements on the land.
(d) "Qualified auditor" means a person or organization with education, training and experience in preparing environmental studies and assessments.
(e) "Environmental law" means any requirement contained in state environmental statutes and in rules and regulations promulgated under such statutes, or in any orders, permits, approvals, licenses or closure plans issued or made under these provisions.
(f) "Owner or operator" means any person who possesses an interest in or who is in control of the daily operation of a facility and who caused the environmental audit to be undertaken.
(g) "Person" means any individual, association, partnership, joint venture, company, firm, corporation, institution, governmental subdivision, state or federal department or agency or other legal entity.
History: L. 1995, ch. 204, § 1; L. 2006, ch. 30, § 2; July 1.
(b) If an environmental audit report, or any part thereof, is subject to the privilege recognized in this section, neither any person who conducted the audit nor anyone to whom the audit results are disclosed, unless such disclosure constitutes a waiver of the privilege under K.S.A. 60-3334, can be compelled to testify regarding any matter which was the subject of the audit and which is addressed in a privileged part of the audit report.
(c) A person who conducts or participates in the preparation of an environmental audit report and who has observed physical events of an environmental violation may testify about those events but shall not be compelled to testify or produce documents related to the preparation of or any privileged part of an environmental audit or any component listed in subsection (b) of K.S.A. 60-3332, and amendments thereto.
(d) An employee of a regulatory agency or other governmental employee shall not request, review or otherwise use an environmental audit report during an agency inspection of a regulated facility or operation or activity at a regulated facility or operation.
(e) A party asserting the privilege under this section has the burden of establishing the applicability of the privilege. If there is evidence of noncompliance with environmental laws, such party must prove that appropriate efforts to achieve compliance were initiated promptly upon discovery and pursued with reasonable diligence.
History: L. 1995, ch. 204, § 2; L. 2006, ch. 30, § 3; July 1.
(b) The environmental audit report and information generated by the audit may be disclosed to any person employed by the owner or operator of the audited facility, any legal representative of the owner or operator or any independent contractor retained by the owner or operator to address an issue or issues raised by the audit, without waiving the privilege recognized in K.S.A. 60-3333, and amendments thereto.
(c) Disclosure of the environmental audit report or any information generated by the audit under the following circumstances shall not waive the privilege recognized in K.S.A. 60-3333, and amendments thereto:
(1) Disclosure under the terms of an agreement which expressly provides that the information provided be kept confidential between the owner or operator of the facility audited and a potential purchaser of the operation or facility; or
(2) disclosure under the terms of a confidentiality agreement between governmental officials and the owner or operator of the facility audited, which expressly provides that the information provided be kept confidential. Nothing in this act shall prohibit the division of post audit from having access during an audit approved by the legislative post audit committee to all environmental audit report documents in the custody of a governmental agency.
(d) In a civil or administrative proceeding, a court or administrative tribunal of record shall require disclosure of material for which the privilege recognized in K.S.A. 60-3333, and amendments thereto, is asserted, after in camera review consistent with the code of civil procedure, if such court or administrative tribunal determines that:
(1) The privilege is asserted for a fraudulent purpose;
(2) the party asserting the privilege has not implemented a management system to assure compliance with environmental laws. Depending on the nature of the facility including its size, its financial resources and assets and the environmental risks posed by its operations, and based on a qualitative assessment of the totality of circumstances, a management system shall be deemed to satisfy the requirements of this act if it contains the following primary characteristics:
(A) A system that covers all parts of the facility's operations regulated under one or more environmental laws;
(B) a system that regularly takes steps to prevent and remedy noncompliance;
(C) a system that has the support of senior management;
(D) the facility owner or operator implements a system that has policies, standards and procedures that highlight the importance of assuring compliance with all environmental laws;
(E) the facility owner or operator's policies, standards and procedures are communicated effectively to all in the facility whose activities could affect compliance achievement;
(F) specific individuals within both high-level and plant- or operation-level management are assigned responsibility to oversee compliance with such standards and procedures;
(G) the facility owner or operator undertakes regular review of the status of compliance, including routine evaluation and periodic auditing of day-to-day monitoring efforts, to evaluate, detect, prevent and remedy noncompliance;
(H) the facility owner or operator has a reporting system which employees can use to report unlawful conduct within the organization without fear of retribution; and
(I) the facility's standards and procedures to ensure compliance are enforced through appropriate employee performance, evaluation and disciplinary mechanisms;
(3) the material is not subject to the privilege as provided in K.S.A. 60-3336, and amendments thereto;
(4) even if subject to the privilege, the material shows evidence of noncompliance with the environmental laws, and appropriate efforts to achieve compliance with such laws were not promptly initiated and pursued with reasonable diligence upon discovery of noncompliance;
(5) the environmental audit report was prepared to avoid disclosure of information in an investigative, administrative, criminal or civil proceeding that was underway or imminent or for which the facility owner or operator had been provided written notification that an investigation into a specific violation had been initiated;
(6) all or part of the environmental audit report shows evidence of substantial actual personal injury, which information is not otherwise available; or
(7) all or part of the environmental audit report shows an imminent and substantial endangerment to the public health or the environment.
(e) A person seeking disclosure of an environmental audit report has the burden of proving that the privilege does not exist under this section.
(f) A person seeking disclosure of an environmental audit report may review the report, but such review does not waive or make the administrative or civil evidentiary privilege inapplicable to the report.
(g) Environmental audit reports shall be returned to the facility's owner or operator upon completion of the review of the report.
History: L. 1995, ch. 204, § 3; L. 2006, ch. 30, § 4; July 1.
History: L. 1995, ch. 204, § 4; Repealed, L. 2006, ch. 30, § 8; July 1.
(1) Documents, communications, data, reports or other information required to be collected, developed, maintained or reported to a regulatory agency pursuant to federal, state or local statute, ordinance, resolution, rule and regulation, permit, approval or order;
(2) information obtained by observation, sampling or monitoring by any regulatory agency or its authorized designee;
(3) information obtained from a source not involved in the preparation of the environmental audit report;
(4) information that existed before the initiation and independent of the environmental audit;
(5) information prepared after the completion and independent of the environmental audit; or
(6) any information, not otherwise privileged, that is developed or maintained in the course of regularly conducted business activity or regular practice.
(b) This section does not limit the right of a person to agree to conduct an environmental audit and disclose an environmental audit report.
History: L. 1995, ch. 204, § 5; L. 2006, ch. 30, § 5; July 1.
History: L. 1995, ch. 204, § 6; July 1.
(1) Made promptly after knowledge of the information disclosed is obtained by the facility owner or operator;
(2) made to an agency having regulatory authority with regard to the violation disclosed before there is notice of a citizen suit or a legal complaint by a third party;
(3) arising out of an environmental audit and is related to privileged information as provided in K.S.A. 60-3334, and amendments thereto;
(4) for which the facility owner or operator making the disclosure initiates action in a reasonable and diligent manner to resolve the violations identified in the disclosure; and
(5) in which the facility owner or operator making the disclosure cooperates with the appropriate agency in connection with investigation of the issues identified in the disclosure.
(b) A disclosure is not voluntary for purposes of this section if it is required by environmental law to be reported to a regulatory authority.
(c) The presumption recognized in subsection (a) may be rebutted and penalties may be imposed under state law if it is established that:
(1) The disclosure was not voluntary within the meaning of this section;
(2) the violation was committed intentionally and willfully by the facility owner or operator making the disclosure;
(3) the facility owner or operator did not fully correct the violation in a reasonable time; or
(4) the violation caused serious actual harm or an imminent and substantial endangerment to public health or the environment.
(d) In any enforcement action brought against a facility owner or operator regarding a violation for which the facility owner or operator claims to have made a voluntary disclosure within the meaning of this section, the burden of proof concerning voluntariness of the disclosure shall be allocated as follows:
(1) The facility owner or operator making the voluntary disclosure claim shall have the burden of establishing a prima facie case that the disclosure was voluntary within the meaning of this section; and
(2) once a prima facie case of voluntary disclosure is established, the opposing party shall have the burden of rebutting the presumption recognized in subsection (a) by a preponderance of the evidence.
(e) Except as provided in this section, this section does not impair the authority of the appropriate regulatory agency to require technical or remedial action or to seek injunctive relief.
(f) Immunity provided under this section from administrative or civil penalties does not apply under any of the following circumstances:
(1) If a facility owner or operator has been found in a civil, criminal or administrative proceeding to have committed violations in this state that constitute a pattern of continuous or repeated violations of environmental law that were due to separate and distinct events giving rise to the violations within the three-year period prior to the date of disclosure.
(2) If a violation of an environmental law, administrative order or judicial decree results in a substantial economic benefit to the violator.
(g) In cases where the conditions of a voluntary disclosure are not met, but a good faith effort was made to voluntarily disclose and resolve a violation detected in an environmental audit, the state regulatory authorities shall consider the nature and extent of any good faith effort in deciding the appropriate enforcement response and shall consider reducing any administrative or civil penalties based on mitigating factors showing that one or more of the conditions for voluntary disclosure have been met.
(h) The immunity provided by this section does not abrogate the responsibility of a person as provided by applicable law to report a violation, to correct the violation, conduct necessary remediation or respond to third-party actions.
History: L. 1995, ch. 204, § 7; L. 2006, ch. 30, § 6; July 1.
History: L. 1995, ch. 204, § 8; L. 2006, ch. 30, § 7; July 1.
(b) If any insurance company, person, or entity performs or directs the performance of an insurance compliance audit, an officer, employee or agent involved with the insurance compliance audit, or any consultant who is hired for the purpose of performing the insurance compliance audit, may not be examined in any civil, criminal or administrative proceeding as to the insurance compliance audit or any insurance compliance self-evaluative audit document, as defined in this section. This subsection (b) shall not apply if the privilege set forth in subsection (a) of this section is determined under K.S.A. 60-3352 and 60-3353, and amendments thereto, not to apply.
(c) Any insurance company may voluntarily submit, in connection with any examination conducted under chapter 40 of the Kansas Statutes Annotated, and amendments thereto, an insurance compliance self-evaluative audit document to the commissioner as a confidential document in the same manner as provided in chapter 40 of the Kansas Statutes Annotated, and amendments thereto, for documents required to be provided to the commissioner in the course of an examination by the commissioner without waiving the privilege set forth in this section to which the insurance company would otherwise be entitled. Any provision in chapter 40 of the Kansas Statutes Annotated, and amendments thereto, permitting the commissioner to make confidential documents public or to grant the national association of insurance commissioners access to confidential documents shall not apply to the insurance compliance self-evaluative audit document voluntarily submitted by an insurance company. To the extent that the commissioner has the authority to compel the disclosure of an insurance compliance self-evaluative audit document under other provisions of applicable law, any such report furnished to the commissioner shall not be provided to any other persons or entities and shall be accorded the same confidentiality and other protections as provided above for voluntarily submitted documents. Any use of an insurance compliance self-evaluative audit document furnished as a result of a request of the commissioner under a claim of authority to compel disclosure shall be limited to determining whether or not any disclosed defects in an insurers' policies and procedures or inappropriate treatment of customers has been remedied or that an appropriate plan for their remedy is in place.
(1) Any insurance company's insurance compliance self-evaluative audit document submitted to the commissioner shall remain subject to all applicable statutory or common law privileges including, but not limited to, the work product doctrine, attorney-client privilege, or the subsequent remedial measures exclusion.
(2) Any compliance self-evaluative audit document so submitted and in the possession of the commissioner shall remain the property of the insurance company and shall not be subject to any disclosure or production under the Kansas open records act. The provision of this paragraph shall expire on July 1, 2010, unless the legislature reenacts such provision. The provision of this paragraph shall be reviewed by the legislature prior to July 1, 2010.
(d) Disclosure of an insurance compliance self-evaluative audit document to a governmental agency, whether voluntary or pursuant to compulsion of law, shall not constitute a waiver of the privilege set forth in subsection (a) with respect to any other persons or any other governmental agencies. Nothing in this act shall prohibit the division of post audit from having access to all insurance compliance self-evaluative audit documents in the custody of the commissioner.
History: L. 2005, ch. 148, § 1; July 1.
(1) The insurance compliance self-evaluative audit document shows evidence of noncompliance with applicable laws and regulations and appropriate efforts to achieve compliance with such laws and regulations were not promptly initiated and pursued with reasonable diligence upon discovery of noncompliance; or
(2) to the extent that it is expressly waived by the insurance company that prepared or caused to be prepared the insurance compliance self-evaluative audit document; or
(3) the privilege is asserted for a fraudulent purpose; or
(4) the material is not subject to the privilege.
(b) In a criminal proceeding, after an in camera review, a court may require disclosure of material for which the privilege described in K.S.A. 60-3351, and amendments thereto, is asserted, if the court determines one of the following:
(1) The privilege is asserted for a fraudulent purpose;
(2) the material is not subject to the privilege; or
(3) the material contains evidence relevant to commission of a criminal offense under chapter 40 of Kansas Statutes Annotated, and amendments thereto, and all three of the following factors are present:
(A) The commissioner, attorney general, or a county or district attorney, has a compelling need for the information;
(B) the information is not otherwise available; and
(C) the commissioner, attorney general, or a county or district attorney is unable to obtain the substantial equivalent of the information by any other means without incurring unreasonable cost and delay.
History: L. 2005, ch. 148, § 2; July 1.
(b) Any insurance company asserting the insurance compliance self-evaluative privilege in response to a request for disclosure under this subsection shall include in its request for an in camera hearing all of the information set forth in subsection (e) of this section.
(c) Upon the filing of a petition under this section, the court shall issue an order scheduling, within 45 days after the filing of the petition, an in camera hearing to determine whether the insurance compliance self-evaluative audit document or portions of the document are privileged under this act or subject to disclosure.
(d) After an in camera review, the court may require disclosure of material for which the privilege in K.S.A. 60-3351, and amendments thereto, is asserted if the court determines, based upon its in camera review, that any one of the conditions set forth in paragraphs (1) and (2) of subsection (b) of K.S.A. 60-3352, and amendments thereto, is applicable as to a civil or administrative proceeding or that any one of the conditions set forth in paragraphs (1) through (3) of subsection (c) of K.S.A. 60-3352 and amendments thereto, is applicable as to a criminal proceeding. Upon making such a determination, the court may only compel the disclosure of those portions of an insurance compliance self-evaluative audit document relevant to issues in dispute in the underlying proceeding. Any compelled disclosure will not be considered to be a public document or be deemed to be a waiver of the privilege for any other civil, criminal or administrative proceeding. A party unsuccessfully opposing disclosure may apply to the court for an appropriate order protecting the document from further disclosure.
(e) At the time of filing any objection to the disclosure, any insurance company asserting the insurance compliance self-evaluative privilege in response to a request for disclosure under this section shall provide to the commissioner, attorney general, or a county or district attorney, all of the following information:
(1) The date of the insurance compliance self-evaluative audit document.
(2) The identity of the entity conducting the audit.
(3) The general nature of the activities covered by the insurance compliance audit.
(4) An identification of the portions of the insurance compliance self-evaluative audit document for which the privilege is being asserted.
History: L. 2005, ch. 148, § 3; July 1.
(b) The parties may at any time stipulate in proceedings under K.S.A. 60-3352 or 60-3353, and amendments thereto, to entry of an order directing that specific information contained in an insurance compliance self-evaluative audit document is or is not subject to the privilege provided under K.S.A. 60-3351 and amendments thereto. Any such stipulation may be limited to the instant proceeding and, absent specific language to the contrary, shall not be applicable to any other proceeding.
History: L. 2005, ch. 148, § 4; July 1.
(a) Documents, communications, data, reports or other information collected, developed, maintained or reported to a regulatory agency pursuant to chapter 40 of Kansas Statutes Annotated, and amendments thereto, or other provisions of federal or state law;
(b) information obtained by observation or monitoring by any regulatory agency; or
(c) information obtained from a source independent of the insurance compliance audit.
History: L. 2005, ch. 148, § 5; July 1.
(b) "Insurance company" or "insurer" shall have the meaning ascribed to the term insurer in K.S.A. 40-112 and amendments thereto.
(c) "Insurance compliance audit" means a voluntary, internal evaluation, review, assessment, audit or investigation for the purpose of identifying or preventing noncompliance with, or promoting compliance with laws, regulations, orders, or industry or professional standards, which is conducted by or on behalf of any insurance company licensed or regulated under the Kansas insurance code, or which involves an activity regulated under the Kansas insurance code. Once initiated an audit shall be completed within a reasonable period of time. Nothing in this section shall be construed to authorize uninterrupted or continuous auditing.
(d) "Insurance compliance self-evaluative audit document" means any document prepared as a result of or in connection with an insurance compliance audit. An insurance compliance self-evaluative audit document may include:
(1) A written response to the findings of an insurance compliance audit.
(2) Any supporting information is collected or developed for the primary purpose and in the course of an insurance compliance audit including, but is not limited to, field notes and records of observations, findings, opinions, suggestions, conclusions, drafts, memoranda, drawings, photographs, exhibits, computer-generated or electronically recorded information, phone records, maps, charts, graphs and surveys.
(3) Any of the following:
(A) An insurance compliance audit report prepared by an auditor, who may be an employee of the insurance company or an independent contractor, which may include the scope of the audit, the information gained in the audit, and conclusions and recommendations, with exhibits and appendices;
(B) memoranda and documents analyzing portions or all of the insurance compliance audit report and discussing potential implementation issues;
(C) an implementation plan that addresses correcting past noncompliance, improving current compliance, and preventing future noncompliance; or
(D) analytic data generated in the course of conducting the insurance compliance audit.
(e) Presiding officer shall have the meaning ascribed to it in K.S.A. 77-514 and amendments thereto.
History: L. 2005, ch. 148, § 6; July 1.
History: L. 2005, ch. 148, § 7; July 1.
History: L. 2005, ch. 148, § 8; July 1.