United States District Court, D. Kansas
DIANAH GREENE, individually and on behalf of the heirs-at-law of EDWARD GREENE, deceased, Plaintiff,
CSAA FIRE & CASUALTY INSURANCE COMPANY d/b/a/ AAA Insurance,, Defendants.
MEMORANDUM AND ORDER
D. Crabtree United States District Judge.
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.
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.
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).
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.
Findings of Fact
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.
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.
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.
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.
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.
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). ...