Eckel v. Delmar Gardens of Overland Park Operating, LLC

Filing 34

MEMORANDUM AND ORDER granting 32 Plaintiff's Application for Approval of Wrongful Death Settlement and Allocation of Proceeds. See Order for details. Signed by District Judge Daniel D. Crabtree on 11/16/2020. (mig)

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
JUDITH ECKEL, heir-at-law, and JUDITH
ECKEL, Administrator of the Estate of
RICHARD ECKEL,
Plaintiff,
v.
DELMAR GARDENS OF OVERLAND
PARK OPERATING, LLC,
Defendant.

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Case No. 2:19-cv-02762-DDC-KGG

MEMORANDUM AND ORDER
This matter comes before the court on the Application for Approval of Wrongful Death
Settlement and Allocation of Proceeds (Doc. 32) filed by Plaintiff Judith Eckel (“Plaintiff”). As
the Kansas Wrongful Death Act requires, the court conducted a settlement hearing on November
12, 2020. Plaintiff appeared in person and by her attorney Brett Williams. Defendant Delmar
Gardens of Overland Park Operating, LLC (“Defendant”) appeared by its attorney Elizabeth
Moeller. There were no other appearances.
I.

Findings of Fact
The court, after being fully advised and after due consideration, finds as follows:
1.

This action has been brought by Plaintiff against Defendant alleging negligence

and wrongful death in connection with care and treatment rendered to Richard Eckel while he
was a resident of Defendant’s nursing facility related to bilateral heel wounds that Plaintiff
alleges caused or contributed to cause his death.
2.

Mr. Eckel died on November 16, 2018 and Plaintiff has brought a cause of action

for wrongful death pursuant to Kan. Stat. Ann. §§ 60-1901–60-1906.

6301.005

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3.

Defendant denies liability and denies that it caused or contributed to cause Mr.

Eckel’s death.
4.

Plaintiff is the surviving spouse of Mr. Eckel, and the wrongful death beneficiary

who has brought a wrongful death claim under Kan. Stat. Ann. §§ 60-1901–60-1906.
5.

Mr. Eckel was not survived by his parents.

6.

Mr. Eckel had three (3) children, natural or adopted: Lee Eckel, Denne Eckel,

and Perri Eckel.
7.

Plaintiff and the natural children of Mr. Eckel have been given notice of the

settlement, of this application to approve the settlement apportionment, and of the hearing on this
application as required under Kansas law, and approve of said settlement and distribution.
8.

Plaintiff affirms that there are no other heirs at law of Mr. Eckel to give notice of

the settlement, this application to approve the settlement apportionment, and of the settlement
hearing pursuant to Kan. Stat. Ann. § 60-1905.
9.

Plaintiff represents and warrants that she knows of no other wrongful death

beneficiary other than as set forth above, and that there are no other wrongful death beneficiaries
as defined under Kan. Stat. Ann. §§ 60-1901–60-1906.
10.

Plaintiff and Defendant reached a resolution of this matter following mediation, as

Plaintiff has testified in court and as set forth in the Final Release, Settlement and Confidentiality
Agreement entered into, and Plaintiff now petitions the court to approve the apportionment of the
wrongful death settlement proceeds.
11.

Plaintiff has employed Brown & Crouppen, P.C. to assist in the prosecution of the

above cause of action under a contingency fee arrangement. Her attorneys have informed the
court that they fully have investigated the law and the facts pertinent to the above-captioned
cause of action, and have advised Plaintiff accordingly. Her attorneys have advised Plaintiff that
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her cause of action may be compromised and settled with Defendant upon the terms set forth in
this Order and in the Final Release, Settlement and Confidentiality Agreement.
12.

Plaintiff and her attorneys have had sufficient time to become fully informed

about the nature and extent of damages, the legal merit of the claims made against Defendant,
and the uncertain outcome of the litigation.
13.

Although Defendant denies liability to Plaintiff of any kind or character, the

parties have nevertheless been able to negotiate a compromise and settlement. The gross amount
is set forth on Exhibit 1 (referenced in the Application for Approval of Wrongful Death
Settlement and Allocation of Proceeds), which was presented to the court as evidence and then
withdrawn.
14.

Plaintiff and her attorneys believe and have represented to the court that the

settlement amount and settlement agreement are fair and reasonable considering all the facts and
circumstances and that their approval by this court would be in the best interests of Plaintiff and
wrongful death beneficiaries.
15.

Plaintiff waives a trial by jury and the right to appeal.

16.

At the November 12, 2020 settlement apportionment hearing, the parties asked

the court to approve Plaintiff’s counsel’s attorneys’ fees and costs and an apportionment of the
settlement proceeds to Mr. Eckel’s heirs after deducting for costs, reasonable attorneys’ fees, and
medical liens. Specifically, Plaintiff asked the court to apportion the gross settlement amount as
follows: (1) 22.695% to Plaintiff’s attorneys’ fees, (2) 12.721% to costs associated with this
action, (3) 24.099% to decedent’s outstanding medical liens, and (4) 40.485% to Mr. Eckel’s
heirs. And, Plaintiff asked the court to apportion the 40.485% of the settlement proceeds for the
heirs as follows: (1) 58% to Judith Eckel as surviving spouse (or 23.481% of the total

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settlement), and (2) 14% to each of Mr. Eckel’s children Lee Eckel, Denne Eckel, and Perri
Eckel (or 5.668% each of the total settlement).1
17.

After reviewing the evidence presented at the hearing, the court is prepared to rule

on the proper apportionment of the wrongful death settlement proceeds.
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. § 601905. This act provides that the court, first, should allow costs and reasonable attorneys’ 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

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The court intentionally has omitted references to the settlement amounts in this Order because the
parties’ settlement agreement includes a confidentiality clause. At the November 12, 2020 hearing, the
court heard counsel’s arguments for maintaining the confidentiality of the settlement figures and finds
that the interest in preserving the result of confidential settlement negotiations outweighs the public
interest in accessing the settlement amounts here. See Nixon v. Warner Commc’ns, Inc., 435 U.S. 589,
597 (1978) (explaining that while the public has a “general right to inspect and copy public records and
documents,” the right is not absolute).
Specifically, counsel for Defendant explained that her client valued a confidentiality provision
governing the settlement. Counsel explained that the confidentiality provision was a material part of her
client’s decision to settle this hotly contested case and nullifying the provision would subvert the parties’
agreement. The courts long have recognized a public interest in supporting private efforts to resolve
litigation. Also, here, this interest does not conflict with other public interests. In the Kansas Wrongful
Death Act, the Kansas Legislature recognized a public policy interest in court approval of specified
aspects of lawsuits brought under that Act. As this Order discusses, the Kansas Wrongful Death Act
requires court approval of how a settlement apportions the settlement’s proceeds among decedent’s heirs.
See Kan. Stat. Ann. § 60-1905. The Act does not require, however, court approval of the settlement
amount. Cf. Adams v. Christi Reg’l Med. Ctr., 19 P.3d 132, 137–39 (Kan. 2001) (explaining Kan. Stat.
Ann. § 60-1903’s requirement for a court or jury “to award fair and just damages” is “associated with
trials and verdicts” but not settlements). Because of this role, the court concludes that the public’s interest
in the actual amount of the parties’ agreement does not outweigh the interest in resolving disputed
litigation through a confidential settlement.
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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 attorneys 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 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
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loss of companionship.” Id. at 451 (quoting McCart, 641 P.2d at 391). “The Kansas Supreme
Court has recognized that ‘while these [intangible damages] are nebulous and impossible to
equate satisfactorily with money, they nonetheless are very real and onerous to a bereaved
[family member], often far outweighing in severity and permanent effect the pecuniary loss
involved.’” Id. (quoting Corman v. WEG Dial Tel., Inc., 402 P.2d 112, 115 (Kan. 1965)).
III.

Analysis
The court addresses the distribution of the settlement proceeds in the order that Kan. Stat.

Ann. § 60-1905 presents them.
A. Costs
Kan. Stat. Ann. § 60-1905 allows the court to award counsel the reasonable costs
incurred during the litigation. Newton v. Amhof Trucking, Inc., 385 F. Supp. 2d 1103, 1109 (D.
Kan. 2004). Here, Brown & Crouppen, P.C. represents that it expended costs retaining experts,
conducting depositions, filing this action, and mediating with Defendant. The court has
reviewed the costs presented at the hearing on Exhibit 1 and finds that they are reasonable. The
court thus deducts 12.721% of the wrongful death settlement proceeds to compensate Plaintiff’s
counsel’s reasonable costs.
B. Attorneys’ Fees
Kan. Stat. Ann. § 60-1905 “requires the district court to determine a reasonable fee for
the plaintiffs’ attorneys in a wrongful death case.” Baugh v. Baugh ex rel. Smith, 973 P.2d 202,
207 (Kan. Ct. App. 1999). “The general rule is that an attorney is entitled to the reasonable value
of services performed for the client.” Id. When deciding whether a requested fee is reasonable,
the court considers the factors set forth in Kansas Rule of Professional Conduct 1.5(a). Id.
Those factors are:
(1) the time and labor required, the novelty and difficulty of the questions involved,
and the skill requisite to perform the legal service properly; (2) the likelihood, if
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apparent to the client, that the acceptance of the particular employment will
preclude other employment by the lawyer; (3) the fee customarily charged in the
locality for similar legal services; (4) the amount involved and the results obtained;
(5) the time limitations imposed by the client or by the circumstances; (6) the nature
and length of the professional relationship with the client; (7) the experience,
reputation, and ability of the lawyer or lawyers performing the services; and (8)
whether the fee is fixed or contingent.
Kan. R. Prof’l Conduct 1.5(a).
Plaintiff’s counsel seeks an award of attorneys’ fees representing 22.695% of the gross
recovery, which represents a smaller fee than the contingency fee agreement counsel reached
with Plaintiff. At the hearing on November 12, Plaintiff’s counsel described the work conducted
to reach the settlement here including gathering relevant medical records, retaining experts and
reviewing expert reports, pre-suit negotiations, depositions, and mediation. He also described
the contested nature of the case and how the parties have been negotiating the claims at issue
here for some time. The court finds the Rule 1.5(a) factors support the requested attorneys’ fees
for this wrongful death case. See, e.g., Newton, 385 F. Supp. 2d at 1108 (finding that a 25%
contingency fee award was reasonable, and indeed lower, than what often is charged in a
personal injury case); Dudley v. Gagne, No. 05-2030-JAR, 2006 WL 314347, at *2 (D. Kan.
Feb. 3, 2006) (finding that the attorney’s one-third contingency fee with plaintiff was
reasonable); Turman v. Ameritruck Refrigerated Trans., Inc., 125 F. Supp. 2d 444, 447–48 (D.
Kan. 2000) (“[I]n [the court’s] experience . . . a one-third contingency fee is not uncommon in
wrongful death actions.”). The court thus concludes the 22.695% attorney fee award requested
by Plaintiff’s counsel is reasonable and awards attorneys’ fees in the amount presented at the
hearing on Exhibit 1.
C. Apportionment of Settlement
Last, the court considers how to apportion the remaining wrongful death settlement
proceeds. Plaintiff’s counsel proposed the following apportionment: 24.099% to outstanding
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medical liens of the decedent and 40.485% to Mr. Eckel’s heirs in the amounts and to the parties
listed on Exhibit 1 presented at the hearing. And, Plaintiff asked the court to apportion the
40.485% of the settlement proceeds allocated to the heirs of the decedent as follows: (1) 58% to
Judith Eckel as surviving spouse (or 23.481% of the total settlement), and (2) 14% to each of Mr.
Eckel’s children Lee Eckel, Denne Eckel, and Perri Eckel (or 5.668% each of the total
settlement).
At the hearing, the court heard testimony from one witness, Judith Eckel. During her
testimony, Judith Eckel confirmed the facts of this case involving her husband’s injuries while in
Defendant’s care and how he passed away several months after being discharged from
Defendant’s care. She confirmed that she hired Brown & Crouppen, P.C. to prosecute her case,
and that she understands the attorneys spent time investigating and preparing the case both
before and after they filed the lawsuit. Judith Eckel also confirmed that she is satisfied with the
work the attorneys performed, and that she fully understands the risks and benefits of settling this
case. She confirmed that she understands that, after attorneys’ fees and expenses are paid,
24.099% of the settlement will be used to pay outstanding medical liens of the decedent and then
Mr. Eckel’s heirs will receive 40.485% of the settlement. She confirmed she understands that of
the settlement amounts apportioned to the heirs, she will receive 58% of that amount (or
23.481% of the total settlement) and each of decedent’s children will receive 14% of that amount
(or 5.668% each of the total settlement). She testified that she believes the apportionment is fair
and reasonable, that the three other heirs are aware of the settlement and approve of it, and that
her counsel has reviewed the settlement agreement with her. Judith Eckel didn’t testify about the
losses, pecuniary or otherwise, the heirs sustained, but the court understands they are paramount.
After considering the evidence at the hearing, the court concludes the proposed apportionment
for medical liens and to Mr. Eckel’s heirs is appropriate.
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IV.

Conclusion
The court apportions the settlement as follows:

Gross Settlement Proceeds

100%

Reduction to pay approved costs

12.721%

Attorney fee award (as approved in this Order)

22.695%

Medical liens

24.099%

Judith Eckel

23.481%

Lee Eckel

5.668%

Denne Eckel

5.668%

Perri Eckel

5.668%

IT IS THEREFORE ORDERED BY THE COURT THAT Plaintiff’s Application for
Approval of Wrongful Death Settlement and Allocation of Proceeds (Doc. 32) is granted and the
court apportions the wrongful death settlement proceeds according to and consistent with this
Memorandum and Order.
IT IS SO ORDERED.
Dated this 16th day of November, 2020, at Kansas City, Kansas.
s/ Daniel D. Crabtree
Daniel D. Crabtree
United States District Judge

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