United States District Court, D. Kansas
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,
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
D. Crabtree United States District Judge
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.
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
Findings of Fact
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.
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.
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.
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.
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.
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.
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)).