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Martin v. FCA, US, LLC

United States District Court, D. Kansas

April 27, 2017

SARAH M. MARTIN, individually, as heir at law of Quinlee Martin, and as duly appointed Co-Exector and Personal Representative of the estate of Delores L. Rabas and the estate of William A. Rabas,
v.
FCA, US, LLC, Defendant. AND KIMBERLY A. RYAN, as heir at law and duly appointed Co-Executor and Personal Representative of the estate of Delores L. Rabas and the estate of William A. Rabas, Plaintiffs,

          MEMORANDUM AND ORDER

          Daniel D. Crabtree United States District Judge

         This diversity suit arises from a motor vehicle accident that occurred on September 14, 2014 near Ellsworth, Kansas. William and Delores Rabas, and Sarah Martin (then expecting with her daughter, Quinlee Martin) were passengers in a 2013 Dodge Durango traveling Southwest on K-156 Highway. Darin Martin, Sarah's husband, was driving. William was in the right front passenger seat, Delores was in the right rear passenger seat, and Sarah was in the left rear passenger seat. Lee Martin, Sarah and Darin's daughter, was riding in the middle rear passenger seat. As the Durango passed through the intersection between K-156 and Highway 14, a vehicle driven by John Anderson struck the driver's side. Darin was unable to maintain control of the Durango and it rolled. William, Delores, and Sarah (with Quinlee) were ejected from the Durango. William, Delores, and Quinlee were killed. Sarah survived, but she sustained serious injuries. Lee was not injured.

         Sarah and her sister, Kimberly Ryan, assert product liability claims against FCA, US, LLC (“Chrysler”) under Kan. Stat. Ann. § 60-1901 et seq. to recover damages sustained as a result of William, Delores, and Quinlee's death. Sarah and Ms. Ryan are heirs and duly appointed co-executors and personal representatives of William and Delores. Sarah, Kimberly, and Chrysler have reached a settlement of the claims, as described more fully below. As the Kansas Wrongful Death Act requires, the court conducted a settlement apportionment hearing on April 6, 2017. At the hearing's conclusion, the court took the matter under advisement. Plaintiffs supplemented their motion papers with a Supplemental Brief filed one day after the hearing. After reviewing the evidence presented at the hearing and the parties' submissions, the court now is prepared to rule on the proper apportionment of the wrongful death settlement proceeds. The court explains its ruling below.

         I. Findings of Fact

         At their death, William and Delores had two surviving heirs-their two biological daughters, Kimberly and Sarah. William and Delores had no other children. Delores's father is still living. Her mother is not. Neither of William's parents are living. Though living, Delores's father is not her heir under Kansas law. See Johnson v. McAthur, 596 P.2d 148, 153 (Kan. 1979); see also Kan. Stat. Ann. § 59-507 (“If the decedent leaves no surviving spouse, child, or issue, but leaves a surviving parent or surviving parents, all of his or her property shall pass to such surviving parent, or in equal shares to such surviving parents . . .”). Sarah and Darin are Quinlee's only surviving heirs at law. See id.

         Sarah, individually and on behalf of Quinlee, Delores, and William, and Kimberly, on behalf of Delores and William, retained two law firms to pursue a survival action under Kan. Stat. Ann. § 60-1801. They retained the Douthit, Frets, Rouse, Gentile, & Rhodes, LLC law firm of Leawood, Kansas, and the Render Kamas, LC law firm of Wichita, Kansas in April 2016. In May 2016, Sarah and Kimberly retained a third law firm, the Wolff Ardis law firm out of Tennessee, specifically to help prosecute the case.

         As part of their representation, Sarah and Kimberly signed a contingency fee arrangement with the Douthit, Frets, Rouse, Gentile, & Rhodes law firm and the Render Kamas law firm. The contingency fee operated on a sliding scale. The agreement provided that Sarah and Kimberly would pay the law firms 35% of the proceeds if the claim settled before filing a petition to recover damages in court. The agreement provided that if a lawsuit was filed and the claim settled more than 90 days before trial, Sarah and Kimberly would pay the law firms a 40% contingency fee. If the claim settled within 90 days of the first scheduled trial date, or if the claim went to trial, Sarah and Kimberly would pay 45% of their net recovery. If there was no recovery, the law firms would receive no fee. The agreement also required the firms to advance all expenses needed to pursue the case. Each firm prepared an itemized expense list, which was presented at the hearing as Exhibit C.

         Sarah and Kimberly, on behalf of William and Delores's heirs-at-law, and Sarah, individually and on behalf of Quinlee's heirs-at-law, and defendant Chrysler now have agreed to a Release and Settlement Agreement (“the Settlement Agreement”). The Settlement Agreement provides that Sarah and Kimberly will release their claims against Chrysler in exchange for a sum of money. The agreement also provides that the parties will keep the settlement amount confidential. Because the court need not reference the amount of the settlement to decide the current motion, this order does not reference it.

         At the April 6, 2017 settlement apportionment hearing, the parties asked the court to approve the settlement established by the Settlement Agreement. The parties asked the court to approve an apportionment of the settlement proceeds after the out of pocket expenses of the law firms are removed. Specifically, Sarah and Kimberly asked the court to apportion the settlement proceeds as follows: (1) one sixth to William Rabas; (2) two sixths to Delores Rabas; (3) two sixths to Quinlee Martin; (4) one sixth to Sarah Martin for her injures. The proceeds apportioned to William and Delores are to be split between Sarah and Kimberly, with 50% going to each. The proceeds apportioned to Quinlee are to be split between Sarah and Darin, with 50% going to each. Sarah will keep 100% of the proceeds apportioned for her injures. The three law firms agreed to split the attorney's fee award into thirds, so each firm would receive one third of the fees. The court considers these requests below.

         II. Legal Standard

         As a federal court sitting in diversity, the court “appl[ies] the substantive law of the forum state, Kansas.” Cohen-Esrey Real Estate Servs., Inc. v. Twin City Fire Ins. Co., 636 F.3d 1300, 1302 (10th Cir. 2011). As stated above, plaintiff brings this action under the Kansas Wrongful Death Act. The Kansas Wrongful Death Act requires the court to apportion the recovery in a Kansas Wrongful Death Act case after conducting a hearing. Kan. Stat. Ann. § 60-1905. This act provides that the court, first, should allow costs and reasonable attorney's fees for plaintiff's counsel. Id. The act then directs the court to apportion the recovery among the heirs in proportion to the loss sustained by each one. Id.; see also Flowers v. Marshall, 494 P.2d 1184, 1187 (Kan. 1972) (explaining that the statute “provides for an apportionment among the heirs of any amount recovered to be made by the trial court according to the loss sustained by each”). The full text of Kan. Stat. Ann. § 60-1905 provides:

The net amount recovered in any such action, after the allowance by the judge of costs and reasonable attorneys fees to the attorneys for the plaintiffs, in accordance with the services performed by each if there be more than one, shall be apportioned by the judge upon a hearing, with reasonable notice to all of the known heirs having an interest therein, such notice to be given in such manner as the judge shall direct. The apportionment shall be in proportion to the loss sustained by each of the heirs, and all heirs known to have sustained a loss shall share in such apportionment regardless of whether they joined or intervened in the action; but in the absence of fraud, no person who failed to join or intervene in the action may claim any error in such apportionment after the order shall have been entered and the funds distributed pursuant thereto.

         The Kansas Wrongful Death Act allows for recovery of damages including: (1) mental anguish, suffering, or bereavement; (2) loss of society, companionship, comfort, or protection; (3) loss of marital care, attention, advice, or counsel; (4) loss of filial care or attention; (5) loss of parental care, training, guidance, or education; and (6) reasonable funeral expenses for the deceased. Kan. Stat. Ann. § 60-1904. The statute thus allows the court to apportion both pecuniary and non-pecuniary losses. Turman v. Ameritruck Refrigerated Transport, Inc., 125 F.Supp.2d 444, 450-55 (D. Kan. 2000); see also Kan. Stat. Ann. § 60-1903 (describing damages the court or jury may award in a wrongful death action). Pecuniary damages are those that “can be estimated in and compensated by money.” Turman, 125 F.Supp.2d at 453 (quoting McCart v. Muir, 641 P.2d 384, 391 (Kan. 1982)). Pecuniary damages in a wrongful death action “should be equivalent to those pecuniary benefits or compensation that reasonably could have resulted from the continued life of the deceased.” Id. (quoting McCart, 641 P.2d at 391). In Kansas, pecuniary damages “include the losses of such things as marital or parental care, services, training, advice, and financial support.” Id. Non-pecuniary damages, on the other hand, are generally intangible and may include compensation for “mental anguish, bereavement, loss of society and loss of companionship.” Id. at 451 (quoting McCart, 641 P.2d at 391). “The Kansas Supreme Court has recognized that ‘while these [intangible damages] are nebulous and impossible to equate satisfactorily with money, they nonetheless are very real and onerous to a bereaved [family member], often far outweighing in severity and permanent effect the pecuniary loss involved.'” Id. (quoting Corman v. WEG Dial Tel., Inc., 402 P.2d 112, 115 (Kan. 1965)).

         III. ...


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