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Self v. Uhl

United States District Court, D. Kansas

May 24, 2017

ERIC SELF, individually and on behalf of the heirs-at-law of VICKI B. SELF, deceased, Plaintiff,
v.
JOHN R. UHL and GEORGE UHL, Defendants.

          MEMORANDUM AND ORDER

          Daniel D. Crabtree United States District Judge

         Plaintiff Eric Self brought this action against defendants John and George Uhl under the Kansas Wrongful Death Act, Kan. Stat. Ann. §§ 60-1901-1906, to recover for the wrongful death of his mother, Vicki B. Self. On April 17, 2017, the parties informed the court that they had settled the case. As the Kansas Wrongful Death Act requires, the court conducted a settlement apportionment hearing on May 4, 2017. Doc. 34. At the hearing's conclusion, the court took the matter under advisement. After reviewing the evidence presented at the hearing and the parties' submissions, the court is prepared to rule.

         I. Findings of Fact

         On June 12, 2014 around 9:30pm, Vicki Self was riding in the front passenger seat of a Chevy TBZ and wearing her seatbelt as her husband, John, drove the car down U.S. Highway 75 in Jackson County. As they approached the intersection of Highway 75 and 246th County Road, they suddenly noticed a large, dark animal standing in the road. John did not have sufficient time or distance to avoid hitting the animal, which turned out to be a horse. When John hit the horse, it flew up into the windshield and struck Vicki. She died on the scene. John survived.

         John originally retained counsel to pursue an action for his wife's death. He became dissatisfied with his initial counsel and retained new representation. This new counsel then referred John to Ralston, Pope, and Diehl, LLC. John Self first came to Ralston, Pope, and Diehl, LLC in March 2015 but the firm did not agree to take the case right away, and so John Self did not sign a fee agreement, until May 2015.

         At first, Ralston, Pope, and Diehl, LLC investigated the possibility of filing a claim against the airbag or vehicle manufacturer because the airbag on Mrs. Self's side of the vehicle did not deploy during the accident. Finding this claim unlikely to succeed, Ron Pope of Ralston, Pope, and Diehl, LLC, identified and investigated the possibility of filing a claim against John and George Uhl under the Kansas Wrongful Death Act (“the Act”) because John Uhl owned the horse that killed Mrs. Self and kept it on property owned by his father, George Uhl. Mr. Pope advised John to pursue an action under the Act, and to name Eric Self, Vicki's adult son who resides in California, as the plaintiff in the case. John and Eric Self consented. Eric signed a fee agreement with Ralston, Pope, and Diehl, LLC on April 6, 2016. In the fee agreement, Eric agreed to pay the firm a 40% contingency fee if the case settled before a petition or complaint was filed, and to pay a 45% contingency fee of any recovery obtained after a petition or complaint was filed.

         Eric filed this lawsuit on June 9, 2016. Doc. 1. In the Complaint, Eric alleges that John and George Uhl caused the wrongful death of his mother by failing to maintain the fencing that corralled the horse. Defendants' insurance carrier denied coverage for the accident twice before settling the case for policy limits. Because a coverage dispute arose, Mr. Pope and his firm expended considerable time researching Kansas livestock, fencing, and insurance law, recreating the crash, and investigating the facts of the case. The firm also set aside $100, 000 in its operating fund in contemplation of this case going to trial. Although Mr. Pope's firm does not keep time records, the firm's records for this case report 618 “contacts with work” and 483 emails and/or “phone calls of significance.” Mr. Pope explained that the term “contacts with work” represents review and preparation of documents in the case, and that the term “phone calls of significance” represents a phone conversation that either was recorded or was one where facts or other case information was discussed.

         Eventually, the parties settled the case for policy limits and asked the court to apportion the settlement proceeds among Mrs. Self's heirs. At the time of her death, Mrs. Self had only three surviving heirs: plaintiff, her son; John Self, her husband; and Christy Rackley, her daughter. In their settlement agreement, the parties propose that the three heirs split the settlement proceeds equally after subtracting $4, 933.30 in costs and Ralston, Pope, and Diehl, LLC's 40% contingency fee. All three heirs signed the settlement agreement.

         II. Analysis

         “A federal court sitting in diversity must apply the substantive law of the state in which it sits, in this instance, the state of Kansas.” Turman v. Ameritruck Refrigerated Trans., Inc., 125 F.Supp.2d 444, 446 (D. Kan. 2000) (citation omitted). “The method of distributing the amount recovered in a wrongful death action ‘depends upon the law of the state which, by its wrongful death statute, creates the cause of action.'” Id. at 446-47 (citing Kent v. Kan. Power & Light Co., 123 F.Supp. 662, 664 (D. Kan. 1954)). Here, plaintiff brought his claims under the Kansas Wrongful Death Act. So, the court applies Kansas law.

         Kansas law requires the court to apportion any recovery in a wrongful death case after conducting a hearing. Kan. Stat. Ann. § 60-1905. When apportioning the recovery, the court first allows costs and reasonable attorney's fees for plaintiff's counsel then apportions the remaining recovery among the decedent's 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”).

         So, the court first subtracts $4, 933.30 in costs. Next, the court considers whether Ralston, Pope, and Diehl's requested 40% contingency fee is reasonable. Only then does the court apportion the net settlement proceeds.

         A. Attorney Fees

         Because the court has a duty to ensure that the requested attorney's fee award is reasonable, it considers the request under the eight factors set forth in Kansas Rule of Professional Conduct 1.5(a).[1]See Baugh v. Baugh ex rel. Smith, 973 P.2d 202, 207 (Kan.Ct.App. 1999) (explaining that the court considers the Kan. R. Prof'l Conduct 1.5(a) factors when deciding whether a requested § 60-1905 attorney-fee award is reasonable); Johnson v. WesthoffSand Co., 135 P.3d 1127, 1135 (Kan. 2006) (“In determining the reasonableness of an attorney fee . . . the factors in Rule 1.5(a) of the Kansas Rules of ...


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