IN THE SUPREME COURT OF THE STATE OF KANSAS
No. 122,078
VICKI SCHMIDT, Kansas Insurance Commissioner,
Appellee/Cross-appellant,
v.
TRADEMARK, INC.,
Appellant/Cross-appellee,
v.
DOROTEO BALLIN and BALLIN COMPANY, LLC,
Appellees.
SYLLABUS BY THE COURT
1.
When a statute is plain and unambiguous, the court must give effect to the
legislative intention as expressed in the statutory language. But if a statute's language is
ambiguous, we will consult our canons of construction to resolve the ambiguity.
2.
Even statutory language that appears clear may be ambiguous when considered in
the context of particular facts or another applicable statute.
3.
Judicial dictum is an expression of opinion on a question directly involved in a
particular case, argued by counsel, and deliberately ruled on by the court, although not
1
necessary to a decision. While not binding as a decision, judicial dictum is entitled to
greater weight than obiter dictum and should not be lightly disregarded.
4.
As with legislative acquiescence to judicial precedent under the doctrine of stare
decisis, legislative acquiescence to persuasive judicial dictum may support the decision to
follow that dictum in future cases.
5.
In a case where multiple potential employers are involved under K.S.A. 44-
503(a)—i.e., a principal and a subcontractor—the term "employer" in K.S.A. 2020 Supp.
44-532a is ambiguous. In such a situation, the term "employer" in K.S.A. 2020 Supp. 44-
532a(a) does not necessarily refer to the same entity as the term "employer" in K.S.A.
2020 Supp. 44-532a(b).
6.
If the Kansas Workers Compensation Fund is liable as a result of an immediate
employer's failure to pay under K.S.A. 2020 Supp. 44-532a(a), it may assert a cause of
action against the principal in a separate action under K.S.A. 2020 Supp. 44-532a(b).
7.
A statute authorizing the recovery of attorney fees must be clear and specific.
Statutes authorizing such recovery are construed strictly. Where the plain language of a
statute makes no mention of attorney fees, the recovery of such fees is not authorized.
Review of the judgment of the Court of Appeals in 60 Kan. App. 2d 206, 493 P.3d 958 (2021).
Appeal from Sedgwick District Court; JEFFREY E. GOERING, judge. Opinion filed March 18, 2022.
2
Judgment of the Court of Appeals affirming the district court is affirmed. Judgment of the district court is
affirmed.
William L. Townsley III, of Fleeson, Gooing, Coulson & Kitch, LLC, of Wichita, argued
the cause, and Brian E. Vanorsby, of the same firm, was with him on the briefs for
appellant/cross-appellee.
John C. Nodgaard, of Arn, Mullins, Unruh, Kuhn & Wilson, LLP, of Wichita, argued the cause
and was on the brief for appellee/cross-appellant.
The opinion of the court was delivered by
WILSON, J.: This appeal asks us to consider a question of statutory interpretation:
specifically, what did the Legislature mean when it granted the Kansas Workers
Compensation Fund a cause of action against "the employer" to recover amounts paid by
the Fund for the benefit of an injured worker under K.S.A. 2020 Supp. 44-532a? After
answering this question, we must further consider whether this same statute authorizes
the Fund to recover attorney fees from an "employer" along with any amounts paid on an
injured worker's behalf.
The lengthy procedural journey that precipitated this question began when Juan
Medina was injured on the job and sought compensation from his direct employer,
Doroteo Ballin and Ballin Company, LLC (collectively, Ballin), under the Kansas
Workers Compensation Act (KWCA), K.S.A. 44-501 et seq. Because Ballin carried no
workers compensation insurance, Medina impleaded the Kansas Workers Compensation
Fund to obtain benefits. After an administrative law judge awarded compensation to
Medina and the Fund had paid Medina benefits, the Fund filed the current collateral
action under K.S.A. 2020 Supp. 44-532a against Trademark, Inc., the general contractor
3
for whom Ballin was acting as a subcontractor at the time of Medina's injury. After the
district court granted summary judgment to the Fund, Trademark appealed. The Fund
also cross-appealed the district court's denial of attorney fees.
A panel of the Kansas Court of Appeals first heard the appeal. The panel affirmed
the district court on both issues, holding that the Fund could pursue an action against
Trademark but that it could not recover attorney fees under K.S.A. 2020 Supp. 44-532a.
Schmidt v. Trademark, 60 Kan. App. 2d 206, 221, 493 P.3d 958 (2021). On review, we
consider both issues and affirm.
FACTS AND PROCEDURAL BACKGROUND
In December of 2016, Medina was injured in the course and scope of his
employment with Ballin. Ballin was a subcontractor of Trademark, the general contractor
on the project. Thus, Ballin was performing a part of the work Trademark was obligated
under separate contract to perform. After his injury, Medina brought a workers
compensation proceeding against Ballin for payment of medical treatment and other
benefits; Trademark was not a party in this administrative proceeding.
Because Ballin lacked workers compensation insurance, the Fund was added as a
party under K.S.A. 2016 Supp. 44-532a. The Fund attempted to implead Trademark but
the administrative law judge (ALJ) rejected this effort. The ALJ ultimately ordered the
Fund to pay benefits to Medina, which included $17,432.87 in compensation. The Fund
also paid $5,022.37 in medical benefits and $1,804.73 in administrative costs, and
expended thousands of dollars in attorney fees.
4
District Court Proceedings
The Fund filed the instant case for reimbursement against Trademark on
December 27, 2018. The Fund filed a motion for summary judgment on March 7, 2019.
Trademark responded to the Fund's motion and simultaneously moved for summary
judgment on March 21, 2019.
In a Memorandum Decision filed June 17, 2019, the district court concluded that,
because Medina was an employee of Ballin, and Ballin was a subcontractor of
Trademark, the Fund was permitted to seek recovery from Trademark under K.S.A. 2016
Supp. 44-532a(b). But the district court concluded that the Fund could not recover its
claimed $8,053.95 in attorney fees from Trademark, citing the absence of any contractual
or statutory provision permitting such recovery. The district court subsequently granted
summary judgment in the Fund's favor as to everything except attorney fees.
Appellate Proceedings
Trademark appealed the district court's entry of summary judgment, while the
Fund cross-appealed the district court's conclusion that it could not recover attorney fees.
On appeal, the panel phrased the core question of Trademark's appeal this way: "Can the
Fund only sue the employers mentioned in K.S.A. 2020 Supp. 44-532a(a)—that is, only
the uninsured, insolvent, or vanished employers?" Schmidt, 60 Kan. App. 2d at 212.
Relying largely on the reasoning of Workers Comp. Fund v. Silicone Distrib., Inc., 248
Kan. 551, 809 P.2d 1199 (1991) (Silicone), the panel said, "No." Schmidt, 60 Kan. App.
2d at 218. In concluding that the Fund could seek to recover from Trademark, the panel
found K.S.A. 44-503 ambiguous as to whether—as Trademark claimed—"ALL
references to 'employer' in the Act must be substituted with the term 'principal' [i.e.
5
Trademark] or none can be." 60 Kan. App. 2d at 218. The panel also rejected the Fund's
argument that it could recover attorney fees from Trademark, concluding instead that
there was no statutory authorization for such recovery. 60 Kan. App. 2d at 220-21.
Trademark petitioned this court for review, while the Fund conditionally cross-
petitioned. This court granted review of both petitions on August 27, 2021. We have
jurisdiction under K.S.A. 20-3018(b) (allowing petitions for review of Court of Appeals
decisions) and K.S.A. 60-2101(b) (Supreme Court has jurisdiction to review Court of
Appeals decisions upon petition for review).
ANALYSIS
The lower courts correctly interpreted K.S.A. 2020 Supp. 44-532a.
Trademark raises a bifurcated challenge to the panel's determination that K.S.A.
2020 Supp. 44-532a authorizes the Fund to bring a cause of action against it to recover
benefits paid to the employee of its subcontractor, Ballin. First, Trademark argues that the
plain language of K.S.A. 2020 Supp. 44-532a does not grant the Fund a cause of action
against principals for the recovery of workers compensation benefits paid for the
employees of subcontractors when the principals were not a party to the underlying
workers compensation action. Second, it claims that even if K.S.A. 2020 Supp. 44-532a
is interpreted to allow such a recovery, Trademark itself cannot be liable because the ALJ
made no finding that Trademark was uninsured and insolvent. We address both
arguments together.
6
Standard of Review
Trademark's challenge involves questions of statutory interpretation, which are
subject to unlimited appellate review. Redd v. Kansas Truck Ctr., 291 Kan. 176, 199, 239
P.3d 66 (2010).
"The most fundamental rule of statutory construction is that the intent of the
legislature governs if that intent can be ascertained. The legislature is presumed to have
expressed its intent through the language of the statutory scheme, and when a statute is
plain and unambiguous, the court must give effect to the legislative intention as expressed
in the statutory language.
"When a workers compensation statute is plain and unambiguous, this court must
give effect to its express language rather than determine what the law should or should
not be. The court will not speculate on legislative intent and will not read the statute to
add something not readily found in it. If the statutory language is clear, no need exists to
resort to statutory construction. [Citations omitted.]" Bergstrom v. Spears Mfg. Co., 289
Kan. 605, 607-08, 214 P.3d 676 (2009).
If, on the other hand, "a statute's language is ambiguous, we will consult our
canons of construction to resolve the ambiguity." Johnson v. U.S. Food Serv., 312 Kan.
597, 601, 478 P.3d 776 (2021). Even statutory language that appears clear may be
ambiguous when considered in the context of particular facts or another applicable
statute. E.g., State v. Scheuerman, 314 Kan. 583, 587, 502 P.3d 502 (2022); McCullough
v. Wilson, 308 Kan. 1025, 1035, 426 P.3d 494 (2018).
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Finally, the Legislature has also expressed its intent "that the workers
compensation act shall be liberally construed only for the purpose of bringing employers
and employees within the provisions of the act." K.S.A. 2020 Supp. 44-501b(a).
Discussion
Trademark argues K.S.A. 2020 Supp. 44-532a(a) and (b), read together, grant the
Fund a cause of action to recoup amounts paid only against the "employer" that either
lacked adequate workers compensation insurance or was otherwise unable to pay benefits
to an injured worker under the KWCA—in this case, Ballin. Trademark acknowledges
that the Kansas Supreme Court previously reached the opposite conclusion in Silicone but
asserts that this was dicta and should be disregarded based on the plain language of
K.S.A. 44-503 and K.S.A. 2020 Supp. 44-532a.
We begin with the language of both statutes. K.S.A. 44-503 addresses
subcontractor and contractor responsibility for workers compensation benefits. In
relevant part, it provides:
"(a) Where any person (in this section referred to as principal) undertakes to
execute any work which is a part of the principal's trade or business or which the
principal has contracted to perform and contracts with any other person (in this section
referred to as the contractor) for the execution by or under the contractor of the whole or
any part of the work undertaken by the principal, the principal shall be liable to pay to
any worker employed in the execution of the work any compensation under the workers
compensation act which the principal would have been liable to pay if that worker had
been immediately employed by the principal; and where compensation is claimed from or
proceedings are taken against the principal, then in the application of the workers
compensation act, references to the principal shall be substituted for references to the
8
employer, except that the amount of compensation shall be calculated with reference to
the earnings of the worker under the employer by whom the worker is immediately
employed. For the purposes of this subsection, a worker shall not include an individual
who is a self-employed subcontractor.
....
"(c) Nothing in this section shall be construed as preventing a worker from
recovering compensation under the workers compensation act from the contractor instead
of the principal.
....
"(e) A principal contractor, when sued by a worker of a subcontractor, shall have
the right to implead the subcontractor.
"(f) The principal contractor who pays compensation to a worker of a
subcontractor shall have the right to recover over against the subcontractor in the action
under the workers compensation act if the subcontractor has been impleaded." (Emphasis
added.)
K.S.A. 2020 Supp. 44-532a, meanwhile, addresses situations where an "employer"
carries insufficient workers compensation insurance:
"(a) If an employer has no insurance or has an insufficient self-insurance bond or
letter of credit to secure the payment of compensation, as provided in subsection (b)(1)
and (2) of K.S.A. 44-532, and amendments thereto, and such employer is financially
unable to pay compensation to an injured worker as required by the workers
compensation act, or such employer cannot be located and required to pay such
compensation, the injured worker may apply to the director for an award of the
compensation benefits, including medical compensation, to which such injured worker is
9
entitled, to be paid from the workers compensation fund. Whenever a worker files an
application under this section, the matter shall be assigned to an administrative law judge
for hearing. If the administrative law judge is satisfied as to the existence of the
conditions prescribed by this section, the administrative law judge may make an award,
or modify an existing award, and prescribe the payments to be made from the workers
compensation fund as provided in K.S.A. 44-569, and amendments thereto. The award
shall be certified to the commissioner of insurance, and upon receipt thereof, the
commissioner of insurance shall cause payment to be made to the worker in accordance
therewith.
"(b) The commissioner of insurance, acting as administrator of the workers
compensation fund, shall have a cause of action against the employer for recovery of any
amounts paid from the workers compensation fund pursuant to this section. Such action
shall be filed in the district court of the county in which the accident occurred or where
the contract of employment was entered into."
Trademark contends that the plain language of these statutes makes the meaning of
"employer" unambiguous. It reasons that Ballin employed Medina and Ballin has no
insurance. The same word must mean the same thing, so the "employer" must be Ballin.
Certainly, that may be the case. But, in this context, must it be the case? Only if
we can answer in the affirmative is the statute unambiguous. When we look to the
definition of "employer," as defined elsewhere in the KWCA and in caselaw, it becomes
apparent that "employer" might refer to more than one entity when viewed within the
context of a contractor/subcontractor relationship.
The KWCA partially defines "employer" in K.S.A. 2020 Supp. 44-508(a),
although this definition provides little guidance here. The KWCA further modifies that
definition with K.S.A. 44-503(a)'s provision that references to "employer" for purposes of
10
"the application of the workers compensation act" can mean either the immediate
employer or the contractor/principal that hired the employee's immediate employer. Some
cases involving similar disputes refer to a general contractor as the "statutory employer"
and the subcontractor as the "immediate employer." See Robinett v. Haskell, Co., 270
Kan. 95, 98, 12 P.3d 411 (2000) ("The statute extends the application of the [KWCA] to
certain individuals or entities who are not the immediate employers of the injured
workers, but rather are 'statutory employers.'"). Another case refers to the contractor and
subcontractors as "dual employers." Duarte v. Debruce Grain, Inc., 276 Kan. 598, 607-
08, 78 P.3d 428 (2003) ("Under 44-503[a], the principal and subcontractor
are dual employers for purposes of the Workers Compensation Act."). To summarize,
Trademark could be called an "employer," a "statutory employer," one of "dual
employers," a contractor, or a principal. Ballin could be called an "employer," an
"immediate employer," one of "dual employers," or a subcontractor.
Consequently, the KWCA's references to "employer" may be ambiguous where
multiple potential "employers" are involved, as is the case here. Cf. State v. Walker, 280
Kan. 513, 523, 124 P.3d 39 (2005) ("Under these circumstances, we conclude that the
construction of the statutory language is uncertain or ambiguous as applied to the facts of
this case, where the severity level of the crime of conviction does not match the sentence
to be imposed."); Duarte, 276 Kan. at 605 (despite the "maxim that the same word used
repeatedly in a statutory provision or scheme must be given the same meaning
throughout," not all references to "employer" in K.S.A. 44-504[d] carried the same
meaning); Johnson v. Kansas Emp. Sec. Bd. of Rev., 50 Kan. App. 2d 606, 611-12, 330
P.3d 1128 (2014) ("The ambiguity in K.S.A. 2013 Supp. 44-706[a] becomes apparent
when applied to situations in which the claimant holds multiple jobs. . . . Since the statute
is ambiguous when applied to this factual scenario, we may look beyond the statutory
language to construe the legislature's intent."). Moreover, the Kansas Supreme Court has
11
previously recognized the ambiguity of K.S.A. 44-532a—and the need to apply the rules
of construction to it—when a question of subcontractor versus principal liability is at
issue. Silicone, 248 Kan. at 560 ("The historical background, legislative history and
language of the statute are inconclusive" as to whether K.S.A. 44-532a requires a worker
to make a claim against both a principal and a subcontractor before impleading the Fund).
We have little difficulty concluding that K.S.A. 44-503(a) applies here. Although
Trademark contends that the terms "compensation" and "proceedings" in that subsection
have very specific meanings within the context of a workers compensation case, a similar
argument was rejected in Duarte v. Debruce Grain, Inc.:
"Liberty asserts that the substitution of the principal for the employer pursuant to
K.S.A. 44-503(a) is to occur only when workers compensation claims and proceedings
are taken against the principal. . . . The plain language of the statute [K.S.A. 44-503(a)]
provides for the substitution to be made 'in the application of the workers compensation
act,' but does not limit proceedings taken against the principal to proceedings pursuant to
the Act. A statute should not be read so as to add that which is not readily found in it.
[Citation omitted.]" Duarte, 276 Kan. at 609.
While Duarte dealt with ancillary litigation "proceedings" regarding the
subrogation of claims for compensation paid as part of the KWCA's "statutory web of
reciprocal responsibilities," we see no reason its logic should not also apply to the Fund's
attempt to recover benefits paid under K.S.A. 2020 Supp. 44-532a—another component
of the KWCA's statutory "web." 276 Kan. at 609-10.
Thus, we find the term "employer" in K.S.A. 2020 Supp. 44-532a to be ambiguous
as applied to the facts of the present case. To ascertain the Legislature's meaning, we
must apply our canons of construction to assess whether "employer" in K.S.A. 2020
12
Supp. 44-532a(a) necessarily carries the same meaning as in subsection (b), as Trademark
argues.
We begin by observing that, generally "[i]t is presumed that identical words used
in different parts of the same statute are intended to have the same meaning throughout
the act." Berndt v. City of Ottawa, 179 Kan. 749, 752, 298 P.2d 262 (1956). But in
Duarte, the court construed multiple instances of the word "employer" in a different
KWCA statute—K.S.A. 44-504(d)—to refer to different entities in order to prevent an
"unreasonable result." Duarte, 276 Kan. at 607. In particular, the court reasoned that
"[b]ecause DeBruce and LSI are dual employers under 44-503(a), there is no
inconsistency in substituting either DeBruce or LSI for the term employer in 44-504(d) as
appropriate." 276 Kan. at 607. Thus, if the term "employer" is not necessarily given the
same meaning even when used multiple times within the same subsection, it does not
follow that it must also be given the same meaning within different subsections where
such a construction would produce "unreasonable results."
The Silicone court also "questioned" the argument that "'employer' in K.S.A. 2020
Supp. 44-532a(a) and (b) must refer to the same entity." Silicone, 248 Kan. at 560. There,
an injured worker attempted to obtain workers compensation benefits from her immediate
employer, a subcontractor, but also named the subcontractor's principal and—believing
the subcontractor to be insolvent or uninsured—impleaded the Fund. The principal was
later dismissed "on the grounds that a claimant may not proceed against both the
claimant's immediate employer and the claimant's statutory employer" under Coble v.
Williams, 177 Kan. 743, 282 P.2d 425 (1955). 248 Kan. at 553. After an ALJ "found that
attempts to include [the subcontractor] and recover payment appeared to be unsuccessful
and that [the subcontractor] had no insurance," the ALJ "dismissed the Fund and
indicated that [the worker] should pursue [the principal] under K.S.A. 44-503." 248 Kan.
13
at 553. On review, the Director concluded the Fund was liable for the benefits to the
worker under K.S.A. 44-532a. 248 Kan. at 554. The district court affirmed the Director's
order following a petition for judicial review, concluding that an injured worker was not
required to pursue a claim against a principal as a prerequisite to the Fund's liability
under K.S.A. 44-532a.
On appeal, the court noted that the case "requires us to construe the statutes
concerning liability of the Fund when an employer is either uninsured and insolvent or
cannot be located and required to pay compensation." Silicone, 248 Kan. at 556. It then
concluded that K.S.A. 44-532a provided an injured worker the "option" of obtaining
relief from the Fund, rather than requiring the worker to exhaust claims against all
possible employers first. 248 Kan. at 560. The court found "[t]he historical background,
legislative history and language of" K.S.A. 44-532a to be "inconclusive" but reasoned
that:
"The burden of exhausting remedies against all potential employers is not to be carried by
the claimant alone. The claimant need only elect to assert a compensation claim against
either the immediate or the statutory employer, as was done by [the worker]. If the
employer from which compensation is sought is insolvent or cannot be located, the Fund
may be impleaded. If the Fund pays on a claim, it may assert a K.S.A. 44-532a(b) cause
of action against either the insolvent or unlocated employer, or the solvent statutory
employer (principal), or both." (Emphasis added.) Silicone, 248 Kan. at 560.
The court then emphasized that "principal" could be substituted for "employer" in
K.S.A. 44-532a by virtue of K.S.A. 44-503(a). 248 Kan. at 560. But the court disagreed
with the Fund's then-stated position—which mirrors Trademark's current argument—that
the term "employer" refers to the same entity in both subsection (a) and (b) of K.S.A. 44-
532a when multiple potential employers are involved. 248 Kan. at 560-61. The court
14
reasoned that, "[i]f the Fund is liable as a result of an immediate employer's failure to
pay, it may assert a cause of action against the principal in a separate action under K.S.A.
44-532a(b)." 248 Kan. at 561. This point was even emphasized in Silicone's syllabus. 248
Kan. at 551, Syl. ¶ 3.
Trademark suggests that Silicone's commentary is dicta and should be disregarded
on the basis of more recent caselaw that places greater focus on the plain language of the
KWCA. As we have discussed, an appeal to the plain language of the statute provides no
help here, as Silicone itself also concluded. Silicone, 248 Kan. at 560. Consequently,
Silicone's decision to apply the canons of construction—along with its actual application
of those canons—remains sound. Moreover, while we agree that Silicone's comments
regarding K.S.A. 44-532a were dicta, it appears to us that they are more properly
characterized as judicial dicta, rather than obiter dicta. The distinction is significant:
"Judicial dictum is an expression of opinion on a question directly involved in a
particular case, argued by counsel, and deliberately ruled on by the court, although not
necessary to a decision. While not binding as a decision, judicial dictum is entitled to
greater weight than obiter dictum and should not be lightly disregarded." Jamerson v.
Heimgartner, 304 Kan. 678, 686, 372 P.3d 1236 (2016).
The liability of the principal—or the Fund's ability to pursue an action to recover
workers compensation payments from it—was not directly at issue in Silicone. But the
Fund clearly argued about the interpretation of "employer" in K.S.A. 2020 Supp. 44-532a
before the court, prompting the court to opine on the subject. Thus, while Silicone's
pronouncement that the Fund "may assert a K.S.A. 44-532a(b) cause of action against
either the insolvent or unlocated employer, or the solvent statutory employer (principal),
15
or both" (and similar comments) was not binding precedent, we consider these remarks to
be persuasive judicial dicta. Silicone, 248 Kan. at 560.
While adherence to judicial dictum is not squarely within the boundaries of the
doctrine of stare decisis, it is at least adjacent to it. Cf. In re Estate of Lentz, 312 Kan.
490, 506, 476 P.3d 1151 (2020) (Luckert, C.J., concurring) ("The concept that a court
consider jurisdiction as an antecedent to a merits determination has a practical impact in a
system driven by stare decisis principles because even dicta or obiter dictum 'should not
be lightly disregarded' by lower courts."). And as with stare decisis, we cannot ignore the
Legislature's apparent acquiescence to the Silicone court's pronouncement over the past
30 years: despite several amendments to K.S.A. 44-532a and K.S.A. 44-503 since 1991,
the Legislature has done nothing to repudiate Silicone's interpretation. See State v. Gross,
308 Kan. 1, 15, 417 P.3d 1049 (2018) (finding legislative acquiescence when the
Legislature amended other aspects of a statute in the intervening 27 years following an
earlier court's interpretation of a statute but did not legislatively overrule that
interpretation). This consideration is not undermined by the fact that Silicone's comments
on the subject were dicta. State v. Cheever, 306 Kan. 760, 783, 402 P.3d 1126 (2017)
(recognizing the construction given to a statute in a prior case as dicta, but observing that
the Legislature never expressed any disagreement with such dicta over 15 years),
abrogated on other grounds by State v. Boothby, 310 Kan. 619, 448 P.3d 416 (2019).
We further conclude that Silicone's construction of K.S.A. 44-532a comports with
the policies of the KWCA in general. See K.S.A. 44-503(a) ("Where any person [in this
section referred to as principal] undertakes to execute any work which is a part of the
principal's trade or business or which the principal has contracted to perform and
contracts with any other person [in this section referred to as the contractor] for the
execution by or under the contractor of the whole or any part of the work undertaken by
16
the principal, the principal shall be liable to pay to any worker employed in the execution
of the work any compensation under the workers compensation act which the principal
would have been liable to pay if that worker had been immediately employed by the
principal[.]"). The interpretation of the statute promoted by Trademark, thus, appears to
open the door to the "danger of an employer evading liability under the Act" by
disincentivizing principals to ensure that their subcontractors are insured in the first
place. Duarte, 276 Kan. at 608-09.
Consequently, we choose to affirm Silicone's dicta concluding that "employer" in
K.S.A. 44-532a(a) need not necessarily refer to the same "employer" in K.S.A. 44-
532a(b) when multiple potential employers—specifically, a principal and a subcontractor,
as set out in K.S.A. 44-503(a)—are involved. Thus, the fact that the ALJ made no finding
that Trademark was insolvent or uninsured under K.S.A. 2016 Supp. 44-532a(a) is
immaterial to the Fund's ability to seek recompense from Trademark under K.S.A. 2016
Supp. 44-532a(b), so long as the ALJ made those findings as to Ballin, Trademark's
subcontractor—which it did. In other words, when the district court applied K.S.A. 2016
Supp. 44-532a(a) as to Ballin, it did not err in applying K.S.A. 2016 Supp. 44-532a(b) to
Trademark. We thus affirm both the district court and the Court of Appeals panel on this
issue.
The lower courts correctly concluded that K.S.A. 2016 Supp. 44-532a did not authorize
the recovery of attorney fees by the Fund.
The Fund raises a single issue for our consideration: under the plain language of
K.S.A. 2020 Supp. 44-532a(b), can it recover attorney fees as part of its cause of action
against an employer? We conclude that it cannot.
17
Standard of Review
"Generally, a Kansas court may not award attorney fees unless authorized by
statute or party agreement. Whether a court may award attorney fees is a question of law
subject to an appellate court's unlimited review. If a court lawfully awards fees, the
amount awarded is reviewed for abuse of discretion. [Citations omitted.]" Rinehart v.
Morton Bldgs., Inc., 297 Kan. 926, 942, 305 P.3d 622 (2013).
A statute authorizing the recovery of attorney fees must be "clear and specific."
Idbeis v. Wichita Surgical Specialists, P.A., 285 Kan. 485, 488, 173 P.3d 642 (2007). On
the basis of this rule, "statutory provisions allowing fees are typically construed strictly."
Idbeis, 285 Kan. at 489.
Discussion
The Fund claims that the plain language of the phrase "any amounts paid from the
workers compensation fund pursuant to this section" includes attorney fees because the
need for the Fund to hire counsel and incur such costs "is a direct and foreseeable
consequence of the employer's failure to follow the law." Both the panel and the district
court rejected this argument on the basis "that no statute or contractual provision allowed
the recovery of attorney fees in this case." See Schmidt, 60 Kan. App. 2d at 219-21. We
agree.
The plain language of K.S.A. 2020 Supp. 44-532a(b) makes no mention of fees or
litigation costs, let alone attorney fees. Thus, it is not sufficiently "clear and specific" to
permit the recovery of such fees. Further, a strict construction of the provision supports
the panel's reasoning that the amounts recoverable in an action under K.S.A. 2020 Supp.
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44-532a(b) are explicitly limited to those paid "pursuant to this section"—i.e., "an award
of the compensation benefits, including medical compensation, to which such injured
worker is entitled" as set forth in subsection (a). Schmidt, 60 Kan. App. 2d at 220. The
Fund's only rejoinder is that K.S.A. 2020 Supp. 44-532a(b) "is plain and unambiguous"—
an assertion that turns on its head the presumption that only a plain and unambiguous
authorization of the recovery of attorney fees will permit such recovery. In other words,
we agree that K.S.A. 2020 Supp. 44-532a(b) is plain and unambiguous on this issue—but
only insofar as it makes no mention of attorney fees, thus precluding their recovery. The
panel and the district court rightly rejected the Fund's attempt to recover them.
CONCLUSION
We affirm the decisions of the Court of Appeals panel and the district court on
both questions presented.
***
STEGALL, J., concurring: This is a simple case resolved by the plain language of
K.S.A. 44-503(a). No one disputes that Trademark is a principal under that section. No
one disputes that this is an action "where compensation is claimed from or proceedings
are taken against the principal." K.S.A. 44-503(a). Thus, any reference to "employer" in
"the application of the workers compensation act" "shall be substituted" with a reference
to the principal. K.S.A. 44-503(a).
The purpose of this statutory substitution scheme is clear and straightforward. The
Legislature intended that a principal "be liable to pay to any worker employed in the
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execution of the work any compensation under the workers compensation act which the
principal would have been liable to pay if that worker had been immediately employed by
the principal." K.S.A. 44-503(a). And the easiest way to accomplish this is to "substitute"
the word principal for the word "employer" whenever the recovery is being sought
against the principal. That is precisely the circumstance presented by this case. There is
no ambiguity in the statutory scheme.
Indeed, this is what we previously held in Silicone: "If the Workers Compensation
Fund is liable for payment of an award under K.S.A. 44-532a(a) because an immediate
employer is financially unable to pay or cannot be located, the Fund shall have a cause of
action against the principal or statutory employer under K.S.A. 44-532a(b)." Workers
Comp. Fund v. Silicone Distrib., Inc., 248 Kan. 551, Syl. ¶ 3, 809 P.2d 1199 (1991). I see
no need to treat this syllabus paragraph as dicta and would not do so.
In light of the plain language of the statutory scheme and our prior precedent on
this very point, I concur with the outcome reached by the majority. Though I do not take
such a circuitous path to arrive at this result.
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