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Greene v. CSAA Fire & Casualty Insurance Co.

United States District Court, D. Kansas

November 21, 2017

DIANAH GREENE, individually and on behalf of the heirs-at-law of EDWARD GREENE, deceased, Plaintiff,
v.
CSAA FIRE & CASUALTY INSURANCE COMPANY d/b/a/ AAA Insurance,, Defendants.

          MEMORANDUM AND ORDER

          Daniel D. Crabtree United States District Judge.

         This diversity suit arises from a motor vehicle accident that occurred on February 18, 2016, in Topeka, Kansas. Edward Greene was killed when a car driven by Marcos Adan Cruz crashed into a car driven by Jerry Griggs. Mr. Greene was riding as a passenger in Mr. Griggs' car. Before the accident, Mr. Cruz was traveling at high speeds and evading the police. As Mr. Griggs' car crossed an intersection at a green light, Mr. Cruz drove his vehicle into the same intersection on a red light. Mr. Cruz's car stuck Mr. Griggs' vehicle-the one carrying Mr. Greene. Mr. Greene sustained fatal injuries and died at the accident scene.

         Mr. Cruz's liability insurer denied coverage for the losses sustained by Mr. Greene's heirs because of Mr. Cruz's conduct. So, when the collision occurred, Mr. Cruz was an uninsured motorist under Kan. Stat. Ann. § 40-284. Defendant CSSA Fire & Casualty Insurance Company, a company that does business under the name AAA Insurance (“AAA”), insured Mr. Griggs (the driver of the vehicle carrying Mr. Greene). The AAA policy provided uninsured motorist coverage with a policy limit of $250, 000 per person and $500, 000 per accident. Mr. Greene also had a personal automobile policy when the accident occurred. Defendant Safeco Insurance Company of America (“Safeco”) issued this policy. The Safeco policy provided uninsured motorist coverage with a policy limit of $100, 000 per person and $300, 000 per accident.

         Plaintiff Dianah Greene, the wife of Edward Greene, brings this lawsuit on her own behalf and on behalf of Mr. Greene's heirs under the Kansas Wrongful Death Act, Kan. Stat. Ann. §§ 60-1901, et seq., to recover damages sustained by Mr. Greene's death. Plaintiff asserts claims against both insurance carriers-AAA and Safeco. Plaintiff and defendant AAA initially reached a partial settlement of the claim for $150, 000 in early 2017, which the court approved on February 24, 2017 (Doc. 21). AAA and Safeco filed cross summary judgment motions on January 31 and February 1, respectively, to determine who owed plaintiff $100, 000, which is the greatest amount of money plaintiff could recover from either insurance company. On September 15, 2017, the court ruled that AAA owed the $100, 000 (Doc. 27).

         Shortly afterwards, the parties informed the court that they had reached a full settlement. As the Kansas Wrongful Death Act requires, the court conducted a settlement apportionment hearing on November 15, 2017 by phone. 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 on the proper apportionment of the wrongful death settlement proceeds. The court explains its ruling below.

         I. Findings of Fact

         At the time of his death, Mr. Greene had three surviving heirs. The first was his wife of 38 years, Dianah Greene (“Dianah”). Mr. Greene had no biological children. But, he helped Dianah raise her biological children as if they were his. Later in their marriage, Mr. Greene and Dianah adopted two of Dianah's grandchildren to keep them from entering the foster care system. The two grandchildren are John Igercic-Greene and Rebecca Igercic-Greene, and behind Dianah, they are Mr. Greene's second and third heirs. Mr. Greene had no other heirs-at-law.

         Dianah, individually and on behalf of Mr. Greene's heirs-at-law, retained LJ Leatherman of Palmer Law Group, LLP as counsel to pursue a wrongful death action under the Kansas Wrongful Death Act, including uninsured or underinsured motorist claims against defendants AAA and Safeco. As part of the representation, Dianah and Mr. Leatherman entered into a contingency agreement. The agreement provides that Dianah will pay Mr. Leatherman a one-third contingency fee if the claim is settled before filing a Petition to recover damages in court. The agreement also commits Dianah to pay Mr. Leatherman a 40% contingency fee after a Petition to recover damages is filed in court.

         Dianah, individually and on behalf of Mr. Greene's heirs-at-law, and defendant AAA now have agreed to a Release of All Claims (the “Settlement Agreement”). The Settlement Agreement provides that Dianah will release her claims against defendant AAA in exchange for $100, 000.

         At the November 15, 2017 settlement apportionment hearing, the parties asked the court to apportion the $100, 000 settlement established by the Settlement Agreement. Specifically, Dianah asked the court to apportion the settlement as follows: (1) $435.39 to the Palmer Law Group for expenses; (2) $33, 188.20 to the Palmer Law Group for attorney's fees; and (3) the remaining $66, 376.41 to one of the three heirs-plaintiff Dianah Greene. The court considers her request 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. The 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 attorney's 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). ...


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