Frost v. ADT

                                                                     FILED
                                                         United States Court of Appeals
                                                                 Tenth Circuit

                                       PUBLISH                January 17, 2020
                                                            Christopher M. Wolpert
                   UNITED STATES COURT OF APPEALS               Clerk of Court

                                TENTH CIRCUIT



 JULIE FROST, co-conservator for
 M.F., a minor, individually and as
 heir-at-law of Elizabeth A. Frost,
 deceased; SARAH BAYLESS, co-
 conservator for M.F., a minor,
 individually and as heir-at-law of
 Elizabeth A. Frost, deceased; and
 CHARLES E. FROST, JR., as
 administrator of the estate of Elizabeth
 Frost,

              Plaintiffs-Appellants,
 v.                                                   No. 18-3259
 ADT, LLC, formerly known as
 Protection One, Inc.,

              Defendant-Appellee.


        APPEAL FROM THE UNITED STATES DISTRICT COURT
                  FOR THE DISTRICT OF KANSAS
                 (D.C. NO. 2:18-CV-02360-JAR-GEB)


Randall L. Rhodes (Steven W. Brookreson with him on the briefs), Rouse Frets
White Goss Gentile Rhodes, P.C., Leawood, Kansas, for Appellants.

Jason R. Scott (Charles C. Eblen on the brief), Shook, Hardy & Bacon L.L.P.,
Kansas City, Missouri, for Appellee.


Before TYMKOVICH, Chief Judge, BALDOCK, and HOLMES, Circuit
Judges.
TYMKOVICH, Chief Judge.


      Elizabeth Frost lost her life when an accidental house fire ignited in her

home. At the time, ADT provided security monitoring services to the premises.

During the fire, ADT received several alerts through its monitoring system.

Although ADT attempted to call Frost and the back up number listed on her

account, it did not get through. After several such attempts, ADT cleared the

alerts without contacting emergency services.

      The administrator of Frost’s estate and her minor heir, M.F., (collectively

Claimants) brought this action against ADT. The central theme of the complaint

is that ADT’s failure to notify emergency services contradicted representations on

its website that it would do so, and that failure wrongfully caused or contributed

to Frost’s death.

      The district court dismissed the complaint, holding the one-year suit-

limitation provision in the contract between ADT and Frost barred the claims and

that Claimants failed to state a claim with respect to certain counts. Because we

find the contract between Frost and ADT provides an enforceable suit-limitation

provision that bars the claims at issue, we AFFIRM.




                                        -2-
                                 I. Background

      During the early morning hours of August 15, 2016, an accidental house

fire ignited in Frost’s home, claiming her life. At the time of the fire, Frost’s

home was equipped with a security system acquired from ADT and its

predecessors. ADT provided monitoring services accompanying the security

system under a contract entitled “Residential Alarm System and Services

Agreement.” App. at 73. Under the Contract, ADT provided round-the-clock

monitoring of Frost’s home security in exchange for payments of $37.99 a month.

Although offered, the Contract did not cover “Smoke Detection” or “CO

Detection services.”

      A. Night of the Accident

      At 1:30 a.m., ADT received a “sensor tamper” alert for “glass break” in

Frost’s dining room. App. at 12. At 1:32 a.m., ADT received an alert for

“expansion module failure.” Id. The expansion module is the key pad and system

center located by the front door of Frost’s home. At approximately 1:43 a.m.,

ADT attempted to call Frost twice, but was unable to reach her. At 1:49 a.m.,

ADT attempted to call Frost’s grandmother, who was listed as the next contact

number on Frost’s account. ADT was also unable to reach Frost’s grandmother.

Between 2:01 a.m. and 2:04 a.m., ADT again attempted to call Frost’s number

and her grandmother’s number, but was unable to reach either. When calling both


                                         -3-
Frost and her grandmother, ADT’s number appeared as an unlisted number and

did not identify ADT as the caller. Around 2:04 a.m., without having made

contact with Frost, Frost’s grandmother, or any emergency services, ADT “fully

cleared” the alarms. Id.

      Around 2:52 a.m., City of Topeka Public Works Department employees

noticed the house fire and called 911. First responders arrived at the scene at

approximately 2:58 a.m. A fire crew conducted a search of the house and found

Frost face down, unconscious, in a hallway in her home. She was still alive at the

time first responders discovered her. Frost first received medical treatment at

3:07 a.m. and was subsequently transported to Stormont Vail Health Care, where

she was pronounced dead. The cause of death was inhalation of smoke and soot

from the fire.

      B. ADT’s Website

      Claimants allege that in contracting with ADT for home monitoring

services, Frost “reasonably relied” on certain representations on ADT’s website,

including the following:

•     “The ability to remotely learn of possible hazards and to dispatch

      responders is key to how security monitoring works.”

•     “24/7 professional monitoring centers will address alarms immediately to

      ensure that help is on the way.”



                                         -4-
•     “In the event of an emergency, local police or fire assistance will be

      notified.”

•     “A trained employee immediately attempts to call you to notify you of the

      disturbance in case it is a false alarm. If you confirm a false alarm, the

      employee will see if there is anything else you need before letting you hang

      up. If the employee is unable to contact you, or if you confirm that the

      alarm is genuine, the authorities will be notified. A dispatch will then send

      police officers to your residence to evaluate the situation.”

App. at 22.

      C. The Contract

      The Contract between ADT and Frost does not contain these

representations. Instead, on the first page, under the heading “IMPORTANT

PROVISIONS — YOUR RESPONSIBILITY TO READ TERMS OF THIS

AGREEMENT” the Contract states: “SECTION 6, 7, and 8: WE ARE NOT

AN INSURER, Limitation of Liability, Hold Harmless which, among other

things, significantly limits [ADT’s] liability to you under this Contract.”

App. at 73 (emphasis in original).

      Section 6 clarifies that ADT is not an insurer and that ADT’s “fees” are not

based on “the value of your premises or its contents, or the likelihood or potential

extent or severity of injury (including death) to you or others.” App. at 75.



                                         -5-
Section 7 limits ADT’s liability to “the lesser of (i) $300.00; or (ii) Six (6) times

the monthly service fee [$227.99 in this case].” Id. at 76.

      Section 9 establishes a one-year suit-limitation period:

      Legal Actions. NO CLAIM OR LEGAL ACTION EITHER OF US
      MAY HAVE ARISING OUT OF THIS CONTRACT, YOUR
      SYSTEM OR OUR SERVICES (WHETHER BASED ON
      CONTRACT, NEGLIGENCE, OR OTHERWISE) MAY BE
      BROUGHT MORE THAN ONE YEAR AFTER THE DATE THE
      CAUSE OF ACTION FOR SUCH CLAIM ACCRUED.

App. at 76 (emphasis in original).

      Section 10 outlines the monitoring services to be provided:

      . . . When the Center receives an actionable alarm signal from your
      system (an “Alarm Event”), we will make reasonable efforts, consistent
      with local laws and our response policies, to make the appropriate
      notifications. These notifications may include the local emergency
      response provider . . . , the person designated on your Monitoring
      Information Schedule or the monitored premises. . . .

App. at 76.

      Section 22 sets out an integration clause:

      This Contract is the entire agreement between you and us, supersedes
      all previous contracts between you and us regarding alarm monitoring
      or similar services at [Frost’s home]. You agree that we are not bound
      by and you have not relied on any representation, promise, condition,
      inducement, or warranty, express or implied, not included in this
      Contract. . . .

App. at 83.




                                          -6-
      D. Proceedings Below

      Claimants filed a lawsuit against ADT on July 11, 2018, more than one but

less than two years after Frost’s death on August 15, 2016. The complaint seeks

recovery on a number of theories, including wrongful death, negligence, fraud,

contract, and violations of the Kansas Consumer Protection Act. ADT moved to

dismiss the complaint arguing, among other things, that the complaint was time-

barred by the Contract’s one-year suit-limitation provision. The district court

granted ADT’s motion.

                                  II. Analysis

      The central issue is whether Section 9’s one-year suit-limitation provision

of the Contract is enforceable and applies to the claims presented in the

complaint. 1

      The district court held that the one-year suit-limitation provision in Section

9 bars the present action. To rebut this, Claimants present a series of arguments

regarding the enforceability and applicability of this provision. None of these are

persuasive. To the contrary, the Contract, including Section 9, is enforceable and

applicable. As a result, the complaint is time-barred.




      1
         It is undisputed that the present claims were brought more than one year
after they accrued. See Aplt. Reply Br. at 16.

                                        -7-
         A. ADT’s Affirmative Defenses

         As a threshold matter, Claimants argue the district court should not have

entertained ADT’s motion to dismiss because it was “predicated on issues that are

affirmative defenses.” Aplt. Br. at 12. Since this argument is raised for the first

time on appeal, we review for plain error. 2 To show plain error, Claimants must

establish (1) an error, (2) that is plain, (3) which affects substantial rights, and (4)

seriously affects the fairness, integrity, or public reputation of judicial

proceedings. See Richison v. Ernest Grp., Inc., 634 F.3d 1123, 1128 (10th Cir.

2011).

         Because the district court did not err, the first prong of plain error review is

dispositive here. Claimants rely on Fernandez v. Clean House, LLC, 883 F.3d

1296, 1297 (10th Cir. 2018), for the proposition that ADT’s affirmative defense

regarding the timeliness of this suit was not properly before the district court. 3 In

         2
        Claimants contend this argument was raised below. See Aplt. Reply Br. at
5. But a review of the citations provided and an independent review of the record
reveal only the most circumspect references to such an argument. In their
briefing below, Claimants state, “[r]ather than addressing the causes of action
actually asserted by plaintiffs, defendant is instead trying to litigate largely non-
existent contractual claims that might have been brought by the decedent had she
survived the fire.” App. at 104. We do not view this as sufficient to raise the
argument before the district court. Vague references to potential arguments do
not sufficiently put the lower court on notice and accordingly fail to preserve the
issue. See Bancamerica Commercial Corp. v. Mosher Steel of Kan., Inc., 100
F.3d 792, 798 (10th Cir. 1996).
         3
        Claimants also rely on Shields v. U.S. Postal Service, but this
unprecedential order and judgment is similarly unavailing. See 729 F. App’x 662,
                                                                      (continued...)

                                            -8-
Fernandez, we reversed the dismissal of Fair Labor Standards Act claims as

barred under the FLSA’s limitations period. Under the FLSA, plaintiffs may

bring claims within two years of ordinary violations and within three years of

“willful” violations. Although plaintiffs in Fernandez had alleged willfulness,

the district court dismissed their claims because it found they had not presented

sufficient supporting allegations to make the “willful” violations plausible. This

court reversed, holding that in such circumstances plaintiffs did not bear the

burden of supporting the willfulness allegation at the pleadings stage because

willfulness was an element of defendants’ limitations-based affirmative defense.

See id. at 1298–99.

      Fernandez does not stand for the broader proposition that Claimants seek to

read into it. Nothing in that case restricts district courts from interpreting

contractual provisions, determining the parties’ respective rights and obligations

thereunder, or enforcing a dispositive suit-limitation provision at the motion to

dismiss stage.




(...continued)
663 (10th Cir. 2018).

                                          -9-
      Here, the complaint and Contract 4 “admit[] all the elements of [ADT’s]

affirmative defense.” Id. at 1299. In such circumstances, where “there is no

disputed issue of fact raised by an affirmative defense, or the facts are completely

disclosed on the face of the pleadings, and realistically nothing further can be

developed by pretrial discovery or a trial on the issue raised by the defense” it is

appropriate and expedient to dispose of a claim by a motion to dismiss under Rule

12(b). See Wright & Miller, Federal Practice and Procedure § 1277 (3d ed. 2002)

(August 2019 update) (noting some disagreement among federal courts, but

stating that the “more recent cases . . . hold that a complaint containing dates that

show the claim is time-barred can be dismissed on a motion under Rule

12(b)(6)”). Although some affirmative defenses may present more difficult

questions, the “statute of limitations defense is unusual in that . . . its

effectiveness may well appear on the face of the complaint” as we find it does

here. Id. Accordingly, we hold the district court did not err in reaching the suit-

limitations issue.



      4
        Claimants criticize the district court for considering the Contract, which
was not attached to the complaint but was introduced as an exhibit to ADT’s
motion to dismiss. But district courts may consider evidence beyond the
pleadings where the document is central to the claims presented and its
authenticity is not disputed by the parties. See Alvarado v. KOB-TV, LLC, 493
F.3d 1210, 1215 (10th Cir. 2007). The Contract meets these criteria. Although
Claimants state that “the contract attached to defendant’s motion is not
authenticated” they do not, either here or in the proceedings below, expressly
challenge its authenticity. See Aplt. Br. at 4; App. at 104–31.

                                          -10-
      B. Contract Validity and Enforceability

      Claimants next attack the validity and enforceability of the Contract. In an

appeal from an order granting dismissal under Federal Rule of Civil Procedure

12(b), we review such arguments de novo. Slater v. A.G. Edwards & Sons, Inc.,

719 F.3d 1190, 1196 (10th Cir. 2013).

            1. Unconscionability

      First, Claimants argue the Contract as a whole is unenforceable as an

unconscionable adhesion contract. Under Kansas law, courts look to numerous

factors in assessing unconscionability, including,

      (1) the use of printed form or boilerplate contracts drawn skillfully by
      the party in the strongest economic position, which establish industry
      wide standards offered on a take it or leave it basis to the party in a
      weaker economic position; (2) a significant cost-price disparity or
      excessive price; (3) a denial of basic rights and remedies to a buyer of
      consumer goods; (4) the inclusion of penalty clauses; (5) the
      circumstances surrounding the execution of the contract, including its
      commercial setting, its purpose and actual effect; (6) the hiding of
      clauses which are disadvantageous to one party in a mass of fine print
      trivia or in places which are inconspicuous to the party signing the
      contract; (7) phrasing clauses in language that is incomprehensible to
      a layman or that divert his attention from the problems raised by them
      or the rights given up through them; (8) an overall imbalance in the
      obligations and rights imposed by the bargain; (9) exploitation of the
      underprivileged, unsophisticated, uneducated and the illiterate; and (10)
      inequality of bargaining or economic power.

Willie v. Sw. Bell Tel. Co., 549 P.2d 903, 907 (Kan. 1976) (internal citations
omitted).




                                        -11-
      Claimants engage with only a subset of these factors, arguing principally

that the Contract is unconscionable because the parties lacked equal bargaining

power and the Contract was presented on a “take it or leave it” basis. Aplt. Br. at

18–19. Under Kansas law, more is required—for example, substantive unfairness

or some form of deception in the contracting process—to render a contract

unconscionable. See Willie, 549 P.2d at 906–07. As the Kansas Supreme Court

clarified, the principle of unconscionability is aimed at preventing oppression and

unfair surprise, not disturbing the allocation of risks resulting from an imbalance

of bargaining power. See id.

      Here, the Contract’s significant limitation of liability must be viewed in

context. Where monitoring services are concerned, liability-limiting provisions

reflect appropriate risk allocations, especially where monthly premiums are low.

See Leon’s Bakery, Inc. v. Grinnell Corp., 990 F.2d 44, 49 (2d Cir. 1993) (“[T]he

price [of a fire or burglary alarm system] does not generally include a sum

designed to anticipate the possible need to pay the purchaser the value of the

property that the system is to protect.”). It is thus no surprise that many courts

uphold monitoring services contracts with similar liability-limiting provisions.

See, e.g., Corral v. Rollins Protective Servs. Co., 732 P.2d 1260, 1265 (Kan.

1987) (upholding a similar liability-limiting provision in a contract for burglary

and fire alarm monitoring services); see also Peter’s Clothiers, Inc. v. Nat’l



                                         -12-
Guardian Sec. Servs. Corp., 994 F. Supp. 1343, 1348 (D. Kan. 1998) (upholding

similar liability-limiting provisions in a contract for security system monitoring

services).

      Claimants also fail to show any “cost-price disparity” or that ADT charged

an “excessive price.” Willie, 549 P.2d at 907. To the contrary, Frost’s $37.99

monthly fee is reasonable in light of the services. Where consumers pay small

monthly premiums, it is hardly unconscionable for liability to be appropriately

limited. See Greenspan v. ADT Sec. Servs. Inc., 444 F. App’x 566, 570 (3d Cir.

2011) (“The relatively low yearly service fee that the Greenspans paid reflects the

fact that ADT was not the Greenspans’ insurer, it was not in the business of

assessing risk, and its annual service fee could not have been reasonably based on

the value of the real property protected by ADT’s alarm system.”). The Contract

here does just that. Moreover, it does so conspicuously, with large, bolded and

capitalized language on the first page stating that ADT is “NOT AN INSURER,”

notifying the purchaser that the Contract contains a “Limitation of Liability,”

and directing him to the appropriate subsections to find additional details. App.

at 73–74 (emphasis in original).

      Claimants rely on John Deere Leasing Co. v. Blubaugh, 636 F. Supp. 1569

(D. Kan. 1986), but the analogy is unpersuasive. In John Deere, the court found

certain lease terms unconscionable where they were contained in print so light



                                         -13-
that they did not show up in a photocopy of the document and so small that the

court had to read them with a magnifying glass. The terms also used

“unreasonably complex” language. Id. In addition to this “near concealment” of

the actual terms of the contract, the court found that the substantive remedy at

issue was “unusually harsh” and that it resulted in the exaction of a “penalty.” Id.

at 1574 (finding “both procedural and substantive unconscionability are present”).

      Unlike John Deere, here the complained-of provisions are contained in

clear, conspicuous language and are referenced on the first page of the Contract.

See Santana v. Olguin, 208 P.3d 328, 333 (Kan. Ct. App. 2009) (finding liability-

limiting provision enforceable where it was “written in relatively plain language

and set forth after an all-capital-and-bold heading that . . . signaled the

importance” of the provision). Accordingly, John Deere fails to necessitate a

finding of unconscionability.

      Because the Contract’s liability-limiting provisions are substantively

reasonable in the context of a monitoring service agreement and were

conspicuously presented, we find no substantive or procedural unconscionability.

             2. Gross Negligence

      Claimants also argue that ADT’s “wanton” behavior and “gross negligence”

invalidate certain provisions of the Contract. Aplt. Br. at 23–25. To show

wanton conduct, Claimants must establish (1) the alleged acts were performed



                                          -14-
with a realization of imminent danger and (2) that the alleged acts were

performed with a reckless disregard or complete indifference to the probable

consequences. Wagner v. Live Nation Motor Sports, Inc., 586 F.3d 1237 (10th

Cir. 2009). Claimants’ conclusory allegations fail this test. Despite receiving the

alerts, ADT had little actual knowledge of the danger Frost faced at the time of

the fire. See Messer v. Amway Corp., 210 F. Supp. 2d 1217, 1237 (D. Kan. 2002)

(“Wantonness refers to the mental attitude of the wrongdoer rather than to a

particular act of negligence.”). Moreover, nothing about ADT’s response

indicates reckless disregard or complete indifference. ADT attempted to contact

Frost and the next number listed on her account multiples times immediately after

receiving the alerts in question. Regardless of whether ADT’s failure to then

contact emergency services was negligent, this conduct does not rise to the higher

bar of wanton or grossly negligent behavior. Accordingly, we refuse to invalidate

the terms of the Contract on this basis.

             3. Kansas Public Policy

      Next, relying on a Kansas Supreme Court case, Pfeifer v. Federal Express

Corp., 304 P.3d 1226 (Kan. 2013), Claimants argue that the contractual one-year

suit-limitation provision abbreviates the applicable statute of limitations in a

manner contrary to Kansas public policy and therefore is unenforceable.

Generally under Kansas law, parties are free to contractually shorten otherwise



                                           -15-
applicable statutes of limitations. Id. This principle recognizes the fact that

Kansas public policy favors not interfering with parties’ freedom of contract. See

Marshall v. Kan. Med. Mut. Ins., 73 P.3d 120, 128 (Kan. 2003). It is also

warranted in light of the fact that “[s]uit limitation provisions serve a number of

legitimate purposes which can ultimately lower costs to consumers.” B.S.C. Hold.

Inc. v. Lexington Ins. Co., 625 F. App’x 906, 911 (10th Cir. 2015).

      In Pfeifer, the Kansas Supreme Court limited parties’ freedom to contract

in this manner where doing so would violate a “strongly held public policy

interest.” Pfeifer, 304 P.3d at 1234. Pfeifer involved a suit-limitation provision

in an employment contract that restricted the time in which employees could bring

retaliatory discharge claims based on the exercise of rights granted under the

Kansas Workers Compensation Act. Under the contract at issue, the generally

applicable period of two years was reduced to only six months. In considering the

validity of the suit-limitation provision, the Kansas Supreme Court noted the issue

“is lodged squarely between two long-standing public policy interests”—the

freedom to contract and the “protections afforded injured workers against

retaliatory discharge when exercising statutory workers compensation rights.” Id.

at 1228. In recognizing the latter public policy interest, the court looked to

Kansas case law discussing “a thoroughly established public policy supporting

injured workers’ rights to pursue remedies for their on-the-job injuries and



                                         -16-
opposing retaliation against them for exercising their rights.” Id. at 1232 (citing

Hysten v. Burlington N. Santa Fe Ry. Co., 108 P.3d 437, 444 (Kan. 2004)). The

court also noted that the recognition of the retaliatory discharge tort was essential

to the protection of the statutory rights of the Workers Compensation Act, which,

“exist only because of the legislature’s determination that such [rights are] in the

public interest.” Id. Because it found contractually abbreviating the otherwise

applicable two-year statute of limitations period to six months would have a

“deterrent” effect on the exercise of such rights, the court found the public policy

concerns sufficient to invalidate the contractual suit-limitation provision at issue.

Id. at 1232–34.

      Claimants argue that a similar conclusion is warranted here because their

“wrongful death, survival and consumer protection claims invoke public policy

concerns of a greater magnitude than the retaliatory discharge claim protected by

the Pfeifer court.” Aplt. Br. at 28. But Claimants fail to support this conclusory

statement with sufficient evidence to demonstrate a “strongly held public policy

interest” is at stake. Pfeifer, 304 P.3d at 1234. With respect to Claimants’

wrongful death claim and survival actions, Claimants point to Kansas case law

recognizing these causes of action. None of these cases, however, explicitly state

a Kansas public policy with respect to the claim at issue, much less one strong

enough to outweigh the policy favoring parties’ freedom to contract. See Byrd v.



                                         -17-
Wesley Med. Ctr., 699 P.2d 459, 468 (Kan. 1985); Flowers v. Marshall, 494 P.2d

1184, 1188 (Kan. 1972). We decline to read such Kansas public policy statements

into these precedents.

        Finally, Claimants suggest that Section 9’s suit-limitation provision violates

Kansas public policy because their claims stem from statutory authority. While

statutory rights reflect the Kansas “legislature’s determination that such a right is

in the public interest,” and thereby provide some evidence of a public policy

interest, see Pfeifer, 304 P.3d at 1232, we decline to read Pfeifer so broadly as to

invalidate suit-limitation provisions with respect to all statutory rights. Such a

broad reading would contradict Pfeifer’s statement that its holding “is limited to

the circumstances in which there is a strongly held public policy interest at issue.”

Id. at 1234. Indeed, Pfeifer itself affirmed the general proposition that parties are

free to shorten applicable statutes of limitations through contracts. See id. at

1231.

        Accordingly, we hold that the contractual limitations period at issue is

neither void or unenforceable as contrary to Kansas public policy.

        C. Contract Applicability

        Claimants also contest the Contract’s applicability. Even if the Contract is

valid, Claimants contend, it does not bind them.




                                          -18-
      With respect to M.F.’s wrongful death claim, Claimants argue that because

M.F. is not a third-party beneficiary or in privity with ADT, the Contract does not

apply to his claim. Aplt. Br. at 20. But, as the district court explained, the

Contract applies because under the Kansas wrongful death statute, M.F.’s claim is

derivative of Frost’s legal rights. See K.S.A. § 60-1901(a). That statute states

that M.F. is only permitted to pursue a wrongful death claim “if [Frost] might

have maintained the action had [she] lived.” Id. Because the viability of the

claim is conditioned on Frost’s legal rights and obligations, the Contract—which

affects those rights and obligations—applies to M.F.’s wrongful death claim. See

Mason v. Gerin Corp., 647 P.2d 1340, 1345 (Kan. 1982) (describing the

decedent’s ability to bring an action as the “condition precedent” to a claim under

§ 60-1901); see also Salazar v. On the Trails Rentals, Inc., 506 F. App’x 709, 713

(10th Cir. 2012) (affirming dismissal of wrongful death claim brought by

decedent’s surviving family on the basis of the liability-limiting provision in the

contract decedent entered into). This holds true irrespective of M.F.’s privity of

contract or status as a third-party beneficiary.

      With respect to the remaining claims, Claimants contend the Contract is

inapplicable because the causes of action constitute independent torts arising

outside of the contractual relationship at issue. Under Kansas law, Claimants may

simultaneously pursue claims arising in contract and tort. See Bittel v. Farm



                                          -19-
Credit Servs. of Cent. Kan., P.C.A., 962 P.2d 491, 497–98 (Kan. 1998). But

where parties “abandon their status as legal strangers and define their relationship

by contract,” their legal duties are dictated by contract, not tort, law. Ford Motor

Credit Co. v. Suburban Ford, 699 P.2d 992, 998 (Kan. 1985); see also Isler v.

Texas Oil & Gas Corp., 749 F.2d 22, 24 (10th Cir. 1984) (stating that “an

essential corollary of the concept of bargained-for duties is bargained-for

liabilities”). Thus, where a contractual relationship exists, it will bar the

assertion of tort claims covering the same subject matter. See Regal Ware, Inc. v.

Vita Craft Corp., 653 F. Supp. 2d 1146, 1152 (D. Kan. 2006); see also Suburban

Ford, 699 P.2d at 998.

      Here, Claimants’ allegations regarding independent torts committed outside

of contractual duties fail under this principle. The Sixth Circuit’s opinion in

Spengler v. ADT Security Services, Inc. is instructive. 505 F.3d 456 (6th Cir.

2007). In Spengler, plaintiff entered into a contract with ADT Security Services,

Inc. to install and monitor a security alarm at his mother’s home. After receiving

an alarm, ADT contacted emergency responders. But ADT erred in the address

that it gave to ambulance dispatchers, resulting in a sixteen minute delay in the

arrival of emergency medical services. Plaintiff brought suit, alleging tort as well

as contract liability. The Sixth Circuit affirmed dismissal of the tort claims

because the tort theories of liability were subsumed within the scope of the



                                          -20-
contract. See id. at 457 (“[T]his case sounds in contract and not in tort.”). A

similar conclusion is warranted here.

      Although the Sixth Circuit applied Michigan law in Spengler, we detect no

meaningful differences between the principles applied there and the Kansas law

applicable here. Nor have Claimants put forward any case holding a security

services company or similar entity liable in tort for failures to adequately perform

monitoring services. See Valenzuela v. ADT Sec. Servs., Inc., 820 F. Supp. 2d

1061, 1070–71 (C.D. Cal.) (noting “plaintiffs have not pointed to, nor has this

Court found, a single case in which a court held . . . that an alarm company’s

failure to notify the relevant parties of a received burglar alarm signal created a

duty outside of the contract.”).

      In sum, Claimants cannot rely on independent tort theories of liability to

avoid the terms of the Contract.

      D. Tolling

      Even if enforceable and applicable, Claimants argue the suit-limitation

provision should be tolled with respect to M.F.’s claims in light of his minority

status. 5 Claimants argue that under Kansas law, M.F. is entitled to bring any of

      5
        Claimants also argue tolling is warranted due to fraudulent concealment.
But fraudulent concealment requires affirmative and intentional conduct aimed at
preventing a plaintiff from pursuing a claim. See Friends Univ. v. W.R. Grace &
Co., 608 P.2d 936, 941 (Kan. 1980). Claimants fail to allege any conduct on
behalf of ADT that involves Claimants and was directed at precluding them from
timely bringing suit. Accordingly, this argument fails.

                                         -21-
his claims up until August 15, 2024 because the limitations period should only

begin to run once M.F. reaches 18 years of age. Aplt. Br. at 30 (citing K.S.A. §

60-515). K.S.A. § 60-515 provides, “if any person entitled to bring an action . . .

at the time the cause of action accrued or at any time during the period the statute

of limitations is running, is less than 18 years of age . . . such person shall be

entitled to bring such action within one year after the person’s disability is

removed.” K.S.A. § 60-515(a). Claimants fail to raise any precedent applying

this provision to displace a contractually agreed upon limitations provision, and,

similar to the district court, we decline to conclude that the Kansas Supreme

Court would apply § 60-515(a) in this manner. Indeed, the text of Section 9 of

the Contract is clear in that it precludes the application of tolling provisions,

stating, without exception, that any claim must be brought no later “than one year

after the date the cause of action for such claim accrued.” App. at 75.

      Moreover, with respect to a minor’s wrongful death claim, the Kansas

Supreme Court in Mason v. Gerin Corp., clarified that it is decedent’s ability to

bring suit that serves as the “condition precedent” for a wrongful death claim.

647 P.2d 1340, 1345 (Kan. 1982). Because Frost would be unable to bring a

claim more than a year after her death, those seeking to bring a wrongful death

action are similarly limited. 6
      6
         Although the Kansas Supreme Court in Frost v. Hardin held K.S.A. § 60-
515 tolled minor’s wrongful death claim, that decision pre-dates Mason v. Gerin
                                                                    (continued...)

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                                III. Conclusion

       We find Section 9 of the Contract valid, enforceable, and controlling with

respect to the claims at issue. Under the plain terms of Section 9, such claims are

barred if, as is the case here, they are brought more than a year after the claim

accrues. Accordingly and for the foregoing reasons, we AFFIRM the judgment

of the district court.




       6
       (...continued)
Corp. See Frost v. Hardin, 577 P.2d 1172, 1172 (Kan. 1978). Moreover, Frost
dealt with a generally applicable statue of limitations as opposed to a
contractually agreed upon limitations period.

                                        -23-