Trotter v. Harris et al

Filing 92

MEMORANDUM AND ORDER: The court apportions the settlement proceeds according to and consistent with this Memorandum and Order. See Order for details. Signed by District Judge Daniel D. Crabtree on 3/21/2018. (ht)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

ROBERT TROTTER, JR.,

Plaintiff,
v.

Case No. 16-4005-DDC

JULIAN T. HARRIS, et al.,
Defendants.
____________________________________

MEMORANDUM AND ORDER
Plaintiff Robert Trotter, Jr., for himself and all of Adrian Trotter’s heirs, files this case
against defendants Julian T. Harris, Titus Transportation, LP, and Fast Lane Express Carriers,
LLC. Plaintiff asserts one claim against all defendants: wrongful death under the Kansas
Wrongful Death Act (Kan. Stat. Ann. §§ 60-1901, et seq.). Plaintiff alleges that Mr. Harris
wrongfully caused Adrian’s death when he negligently drove his semi-truck and hit Adrian on I335.
The court set this case for trial on January 31, 2018. After conducting a limine
conference that morning, the parties informed the court that they had reached a settlement. The
parties have asked the court to conduct a settlement apportionment hearing as the Kansas
Wrongful Death Act requires. At the hearing, the court orally granted the apportionment the
parties proposed. This Memorandum and Order memorializes and explains further the court’s
findings and rationale.

I.

Findings of Fact
At the time of his death, Adrian had two heirs: his mother, Karen Hidalgo, and his father,

plaintiff. Adrian never married and he has no children.
Plaintiff retained Pantaleon Florez, Jr. of Pantaleon Florez, Jr. Law Office to represent
him in this wrongful death suit. Plaintiff agreed to pay Mr. Florez 40% of any net recovery he
realized, after expenses. Ex. 1 at 2. Ms. Hidalgo also has retained Mr. Florez and agreed to pay
a similar fee.
As noted above, the parties reached a settlement the morning of the first day of trial.
When the parties announced the settlement on January 31, 2018, the parties informed the court
that they wished to seal the gross amount of the settlement. At the March 1, 2018 hearing, the
court reviewed a copy of the parties’ settlement agreement. The court intentionally has omitted
reference to the gross settlement amounts in this order because it recognizes the role and value
that confidential settlement negotiations can play in the efficient and fair resolution of disputes.
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).
Here, the court finds that the interest served by preserving the gross amount of the confidential
settlement outweighs the public interest in access to that figure. The court briefly explains the
basis for this finding in the following paragraphs.
First, neither the public nor members of the media have demonstrated any interest in the
proceedings. When the court called the case for trial, only the parties and their counsel appeared.
The same was true for the settlement hearing on March 1. And while the public has some level
of interest in all proceedings conducted in a forum funded by taxpayers, the Nixon standard
directs the court to weigh that interest against factors favoring a different outcome. See id. at

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602 (weighing the public’s interest in the Nixon tapes and the public’s right to access judicial
records against President Nixon’s right to privacy and his “property interest in the sound of his
own voice”).
Here, the public and press have manifested an apathy for the details of this particular
case. The court thus evaluates the public’s interest in access to the gross amount as slight. This
takes the analysis to the second factor: the interests, if any, that favor sealing the settlement’s
gross value. The parties have explained that confidentiality of this settlement’s gross settlement
amount played a meaningful role in their negotiations and agreement. The factors favoring
mutually agreeable compromise of litigated disputes are well known. Lowery v. Cty. of Riley,
738 F. Supp. 2d 1159, 1168 (D. Kan. 2010) (“The law favors agreements to compromise and
settle disputes . . . .”). The court will not repeat them here. It suffices to say that a conclusion
reached by compromise saves members of the public from having to take time away from work
to serve as jurors for trial. It also saves judicial resources. Given these factors and the
importance that confidentiality played in this dispute’s resolution, the court evaluates this factor
as a significant one.
Finally, the court recalls the reason for conducting a settlement hearing in the first place.
The Kansas Wrongful Death Act requires such a hearing to ensure that: (a) the amount
recovered in such a case is fairly apportioned among the decedent’s heirs; and (b) the fee paid to
counsel in such cases is a reasonable one. See Turman v. Ameritruck Refrigerated Transp., Inc.,
125 F. Supp. 2d 444, 447–455 (D. Kan. 2000) (discussing whether a settlement agreement in a
Kansas Wrongful Death Act case fairly apportioned the proceeds to the heirs and whether the fee
charged by the lawyers was reasonable). The court can discharge these functions without
publishing the settlement’s gross amount in its order.

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Last, this ruling is a provisional one. By this order, the court has advised members of the
public and the media of its reasoning and conclusions. If anyone contends that the court has
overlooked important contrary factors or misapplied the Nixon analysis, they may file a motion
seeking to unseal the gross amount. In sum, the court finds that the Nixon factors favoring
sealing the settlement’s gross amount outweigh those that favor public access to that figure.
Turning to the parties’ request, they ask the court to disperse the settlement as follows:
(1) $3,072.91 to Mr. Florez for expenses incurred; (2) 40% of the gross settlement amount minus
costs to Mr. Florez for his attorney’s fee; and (3) the remaining amount split evenly between
plaintiff and Ms. Hidalgo—the decedent’s only heirs.
II.

Legal Standard
As a court presiding over a case in federal court on diversity jurisdiction, 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 explained 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 Kansas Wrongful Death Act allows for recovery of damages for: (1) mental anguish,
suffering, or bereavement; (2) loss of society, companionship, comfort, or protection; (3) loss of

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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, 125 F. Supp. 2d at 450–55; 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 “ʻcan 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 are “ʻequivalent 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 “ʻmental anguish, bereavement, loss of society[,] and 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.

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

Ann. § 60-1905 presents them.

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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, Mr. Florez represents that his firm expended $3,072.91 in costs. Mr. Florez
has submitted an itemized statement of those costs. The court has reviewed the costs and finds
that they are reasonable and incurred during litigation of this case. The court thus deducts
$3,072.91 from the wrongful death settlement proceeds to compensate plaintiff’s counsel for
reasonable costs.
B.

Attorney’s 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
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).
Here, plaintiff and Ms. Hidalgo entered into a contingency fee agreement with their
attorney, Mr. Florez. The agreement obligated them to pay Mr. Florez a 40% contingency fee.

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The court finds that plaintiff’s counsel’s requested fee representing 40% of the gross
settlement proceeds less costs is a reasonable one. The Rule 1.5(a) factors support the requested
award. First, Mr. Florez obtained a favorable result for plaintiff with the settlement agreement.
Mr. Florez negotiated an agreement that compensates plaintiff and Ms. Hidalgo for the losses
that they sustained because of Adrian’s death. Second, the contingency agreement reasonably
compensates Mr. Florez for accepting this risky case on a contingency basis. He accepted the
risks and responsibilities that come with such an agreement, and the 40% award reasonably
compensates him for doing so. While the court wouldn’t necessarily approve a 40% fee in every
case, it’s a reasonable fee for this case. The facts presented a significant challenge for making
any recovery at all. The gross settlement amount is correspondingly modest and will not produce
a large or excessive fee. Third, the award appears reasonable based on Mr. Florez’s litigation
experience and reputation. Fourth, the award reasonably compensates Mr. Florez for the work
he already has performed. He took several depositions, responded to defendants’ summary
judgment motion, and prepared for trial. Finally, the attorney fee award is reasonable compared
to contingency fees charged and awarded in other wrongful death cases. Indeed, our court has
approved attorney’s fees of 40% of the gross settlement proceeds as reasonable in other cases
apportioning wrongful death proceeds under Kan. Stat. Ann. § 60-1905. See Self v. Uhl, No. 16cv-4088-DDC-KGS, 2017 WL 2264488, at *3 (D. Kan. May 24, 2017) (awarding a 40%
contingency fee in a Kansas Wrongful Death Act case and compiling cases where courts have
approved a similar contingency fee for plaintiff’s lawyers).
For all these reasons, the court concludes that on the circumstances presented here, the
40% contingency fee award requested by Mr. Florez is reasonable. The court thus awards 40%
of the gross recovery after costs to Mr. Florez as reasonable attorney’s fees.

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C.

Apportionment of Settlement

Finally, the court considers how to apportion the remaining settlement proceeds. Because
Adrian never was married and has no children, his parents—plaintiff and Ms. Hidalgo—are his
only heirs. Kan. Stat. Ann. § 59-507. Both testified at the hearing. And they testified that they
both believed that the settlement was fair and in their best interests. As his parents, the court
finds that plaintiff and Ms. Hidalgo suffered the paramount losses from Adrian’s death—both
economic and non-economic ones. Because both plaintiff and Ms. Hidalgo suffered significant
pecuniary and non-pecuniary losses from Adrian’s death, the court divides the remaining
settlement proceeds equally.
IV.

Conclusion
As explained above, the court divides the proceeds as follows: (1) $3,072.91 to Mr.

Florez for expenses; (2) 40% of the remaining proceeds to Mr. Florez as his attorney’s fees; and
(3) the remaining settlement amount to plaintiff and Ms. Hidalgo to be divided equally.
IT IS THEREFORE ORDERED BY THE COURT THAT the court apportions the
settlement proceeds according to and consistent with this Memorandum and Order. Mr. Florez,
as plaintiff and Ms. Hidalgo’s counsel, is directed to distribute promptly the funds represented by
the settlement check.
IT IS SO ORDERED.
Dated this 21st day of March, 2018, at Topeka, Kansas.

s/ Daniel D. Crabtree
Daniel D. Crabtree
United States District Judge

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