Pamela Heimerman, Individually, as Surviving Spouse and Heir At Law of Daniel Joseph Heimerman, Deceased, Appellant,
Zachary Rose and Payless Concrete Products, Inc., Appellees, and Northern Clearing, Inc. and Old Republic Ins. Co., Intervenors/Appellees.
who settles a wrongful death claim in a federal court lawsuit
may not seek categorization of the damages recovered in a
separate state court wrongful death action. Doing so violates
the one-action rule.
of the judgment of the Court of Appeals in an unpublished
opinion filed January 13, 2017.
from Allen District Court; Daniel D. Creitz, judge. Judgment
of the Court of Appeals affirming the district court is
affirmed. Judgment of the district court is affirmed.
J. Mann, of Mann, Wyatt & Rice, LLC, of Hutchinson,
argued the cause, and Jesse Tanksley, was with him on the
briefs for appellant.
P. Sollars, of Evans & Dixon, LLC, of Kansas City,
Missouri, argued the cause, and Brian J. Fowler, of the same
office, was with him on the briefs for intervenors/appellees.
Heimerman was killed in a car accident while acting within
the course and scope of his employment. As a result,
Daniel's wife, Pamela, received workers compensation
death benefits. By operation of law, an employer who pays
workers compensation benefits receives subrogation rights and
a statutory lien against any third-party recovery by the
recipients of the workers compensation benefits.
participated in two wrongful death cases stemming from
Daniel's death, both of which were based on the Kansas
wrongful death statute. She personally filed a state court
action in Allen County, and she joined a federal action filed
by Daniel's son, Lucas, in the United States District
Court of Kansas. Pamela and Lucas eventually settled their
wrongful death claims with the third-party tortfeasors. The
federal court approved the settlement and its apportionment
between Pamela and Lucas and entered a journal entry of
judgment. After the federal case concluded, Pamela moved the
Allen County court to rule that her share of the federal
settlement was attributable to her damages for loss of
consortium and loss of spousal services, which are damages
statutorily exempt from the workers compensation lien. The
district court judge denied Pamela's motion and dismissed
the case, ruling that doing otherwise would be equivalent to
relitigating the federal court's judgment.
of our Court of Appeals affirmed the dismissal. See
Heimerman v. Rose, No. 114, 890, 2017 WL 130123, at
*1 (Kan. App. 2017) (unpublished opinion).
granted Pamela's petition for review. We affirm the Court
of Appeals' decision affirming the district court for
reasons other than those relied upon by our appellate
Factual and Procedural Background
August 31, 2013, a dumptruck driven by Zachary Rose
rear-ended a pickup Daniel was driving and killed him. At the
time of the accident, Rose was acting within the course and
scope of his employment for Payless Concrete Products, Inc.;
and Daniel was acting within the course and scope of his
employment for Northern Clearing, Inc.
was survived by Pamela and Lucas.
collision resulted in multiple lawsuits and a workers
compensation case being filed. Of relevance to this case,
Pamela filed a wrongful death case in Allen County and Lucas,
a resident of Florida, filed a wrongful death case in Kansas
federal court. Pamela eventually intervened in the federal
case. Rose and Payless Concrete were defendants in both
addition to the lawsuits, Pamela was the recipient of a
workers compensation award based on Daniel's death. She
was paid a lump sum of $40, 000 and burial expenses of $5,
000, and she began receiving a weekly benefit of $578 to be
continued for the remainder of her life, not to exceed a
total of $300, 000. By operation of law, Northern Clearing
and its insurer, Old Republic Insurance Co., retained
subrogation rights and ...