Unruh v. PURINA MILLS, LLC

ROSEN, J.,

concurring in part and dissenting in part: I concur *1205 with the result reached by the majority. I write separately in order to express my disagreement with the majority’s conclusion that the legislature intended to place the burden on the consumer of demonstrating malicious intent on the part of a supplier under the Kansas Consumer Protection Act (KCPA), K.S.A. 50-623 et seq.

As the majority correctly notes, a statute should not be read to add something that is not contained in the language of the statute. Casco v. Armour Swift-Eckrich, 283 Kan. 508, 521 , 154 P.3d 494 (2007). “An appellate court’s first task is to ‘ascertain the legislature’s intent through the statutory language it employs, giving ordinary words their ordinary meaning.’ [Citation omitted.]” State v. Gracey, 288 Kan. 252, 257 , 200 P.3d 1275 (2009).

The reasoning by the majority gives little credence to the first principle of statutory interpretation: reading the plain language of the statute as the legislature enacted it and giving ordinary words their ordinary meanings. The majority implicitly rejects the premise that courts should not add something to a statute that is not contained in the language of the statute.

Webster’s Third New International Dictionary 2617 (Unabridged 1993) defines “willful” as “done deliberately: not accidental or without purpose.” The same dictionary defines “intentional” as “done by intention or design.” Webster’s 1176. Black’s Law Dictionary 1630 (8th ed. 2004) defines “willful” as “[vjoluntary and intentional, but not necessarily malicious.” It defines “intentional” as “[d]one with the aim of carrying out the act.” Black’s Law Dictionary, 826. The dictionary definitions demonstrate at best a subtle distinction between the words “willful” and “intentional.” Neither dictionary definition of “willful” suggests a requisite element of intention to do wrong or cause injury.

It is true that the legislature amended K.S.A. 50-626(b)(3) in 1991 and 1993 to change the word “intentional,” which appeared twice in that paragraph as originally enacted, to “willful.” See L. 1991, ch. 159, sec. 2; L. 1993, ch. 177, sec. 1. A review of the legislative history indicates, however, that the legislature was merely making the language of that section consistent with other sections of the KCPA.

*1206 In a letter to the Senate Judiciary Committee dated April 3, 1991, Assistant Attorney General Jeanne Kutzley stated the Attorney General’s support of amendments to the KCPA. She characterized the amendments as “basically a cleanup of the door to door sales portion of the consumer protection act” and noted that the amendments sought to make terms used within the KCPA consistent. Minutes Sen. Judiciary Comm. April 3, 1991, attach. 1. The overall emphasis of the amendments was to provide greater protection for consumers when dealing with misrepresentations and to provide for attorney fees on appeal.

The Minutes of the Senate Judiciary Committee on March 9, 1993, also reveal an intention to expand protection for consumers from misrepresentations and to increase long-arm jurisdiction over suppliers engaging in consumer transactions in Kansas. A February 19, 1993, letter from Assistant Attorney General Mark Stafford referred to changes in K.S.A. 50-626(b)(2) and (b)(3) as “clean-up language.” The letter went on to note that “[violations of the Kansas consumer protection act do not always amount to tortious activity as defined by our courts” and urged the legislature to broaden its protection of Kansas consumers by granting them relief beyond what tort and contract law historically provided. Minutes, Sen. Judiciary Comm. March 9, 1993, attach. 2.

Nothing in the legislative history remotely suggests that the legislature sought to restrict protection for Kansas consumers by enacting the 1991 and 1993 amendments — the amendments instead had an overriding purpose of broadening tire rights of Kansas consumers, especially in tíre area of misrepresentations. The majority of this court concludes, however, that the substitution of “willful” for “intentional” must have been grounded in a legislative desire to increase the burden of proof for consumers under the KCPA, especially in the area of misrepresentations.

There is another plausible explanation for the substitution of words. Other sections of the KCPA, consumer protection, and the Kansas Fair Credit Reporting Act have used the words “willful” or “willfully.” See K.S.A. 50-631(e) (L. 1973, ch. 217, sec. 9); K.S.A. 50-636(b) (L. 1973 ch. 217, sec. 14); K.S.A. 50-657(b)(l) (L. 1988, ch. 193, sec. 6); K.S.A. 50-709(e) (L. 1973, ch. 85, sec. 144); K.S.A. *1207 50-715 (L. 1973, ch. 85, sec. 150). The Senate Judiciary Committee considered testimony referring to “cleaning up” the statutory language to make it consistent. Given the broadening of consumer rights in other parts of the KCPA, it appears likely that the change from intentional to willful” reflected only an effort to make the statutory language consistent, not an effort to restrict consumer rights in the specific arena of misrepresentations.

This conclusion is consistent with K.S.A. 50-623, which explicitly states the purpose and philosophy of construction of the KCPA is to protect consumers: “This act shall be construed liberally to promote the following policies: . . . (b) to protect consumers from suppliers who commit deceptive and unconscionable practices.” See Moore v. Bird Engineering Co., 273 Kan. 2, 10 , 41 P.3d 755 (2002).

The Court of Appeals majority and the majority of this court ground their analysis on PIK Civ. 4th 103.04. This analysis appears backwards: jury instructions should be based on interpretation of statutory law; interpretation of statutory law is not based on jury instructions. PIK instructions must conform with the duties imposed by the legislature. See Carlson v. Ferguson, 270 Kan. 576, 581-82 , 17 P.3d 333 (2001).

The PIK instruction is based in part on Railway Co. v. Lacy, 78 Kan. 622, 629 , 97 P. 1025 (1908), where this court found that “willful negligence” contains a requirement that “there must be a design, purpose, or intent to do wrong or to cause the injury.” The relevance of Lacy to the present case is dubious: willful negligence and the willful conduct specified in the KCPA are not necessarily identical concepts. By adopting the Lacy definition, the majority is adding the complex phrase “to do wrong or to cause injury” to the common understanding of intent or willfulness. This addition avoids giving common meanings to common words and adds to the language of the statute, violating our long-held principles of statutory interpretation and contravening the obvious legislative intent of increasing protection for consumers.

Although I agree with the majority of this court that the facts of this case suffice to support the jury’s award under either reading of the statute, I disagree with the majority’s construction of the *1208 KCPA that increases the burden on consumers who seek to protect their rights against misinformation from suppliers.

Davis, C.J., and Biles, ]., join the foregoing concurring and dissenting opinion.