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Heimerman v. Rose

Supreme Court of Kansas

April 6, 2018

Pamela Heimerman, Individually, as Surviving Spouse and Heir At Law of Daniel Joseph Heimerman, Deceased, Appellant,
v.
Zachary Rose and Payless Concrete Products, Inc., Appellees, and Northern Clearing, Inc. and Old Republic Ins. Co., Intervenors/Appellees.

         SYLLABUS

         An heir 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.

         Review of the judgment of the Court of Appeals in an unpublished opinion filed January 13, 2017.

          Appeal 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.

          Scott J. Mann, of Mann, Wyatt & Rice, LLC, of Hutchinson, argued the cause, and Jesse Tanksley, was with him on the briefs for appellant.

          Kyle 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.

          Beier, J.

         Daniel 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.

         Pamela 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.

         A panel 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).

         We 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 colleagues.

         Additional Factual and Procedural Background

         On 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.

         Daniel was survived by Pamela and Lucas.

         The 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 actions.

         In 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 ...


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