Dianah Green v. CSAA Fire & Casualty, et al.,

Filing 21

MEMORANDUM AND ORDER: The court apportions the $150,000 wrongful death settlement proceeds according to and consistent with this Memorandum and Order. Mr. Leatherman, as plaintiff's counsel, is directed to distribute promptly the funds represented by the settlement check presented during the hearing. Signed by District Judge Daniel D. Crabtree on 2/24/2016. (ms)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

DIANAH GREENE, individually and
on behalf of the heirs-at-law of
EDWARD GREENE, deceased,
Plaintiff,
v.

Case No. 16-4144-DDC-KGS

CSAA FIRE & CASUAL INSURANCE
COMPANY d/b/a/ AAA Insurance, ET AL.,
Defendants.

MEMORANDUM AND ORDER
This 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 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.
Mr. 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. Mr. Griggs (the driver of the vehicle
carrying Mr. Greene) was insured by defendant CSSA Fire & Casualty Insurance Company, a
company that does business under the name AAA Insurance (“AAA”). 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. His
policy was issued by defendant Safeco Insurance Company of America (“Safeco”). The Safeco
policy provided uninsured motorist coverage with a policy limit of $100,000 per person and
$300,000 per accident.
Plaintiff 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 have
reached a partial settlement of the claim, as described more fully below. As the Kansas
Wrongful Death Act requires, the court conducted a settlement apportionment hearing on
February 16, 2017. 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.
I.

Findings of Fact

At the 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. However, 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-atlaw.

2

Dianah, 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 onethird 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.
Dianah, individually and on behalf of Mr. Greene’s heirs-at-law, and defendant AAA
now have agreed to a Limited Release of Claims Subject to Reservation of Specific Claims (“the
Partial Settlement Agreement”). The Partial Settlement Agreement provides that Dianah will
release her claims against defendant AAA in exchange for $150,000, except that she reserves
two claims: (1) a claim for the remaining $100,000 of the $250,000 uninsured motorist coverage
against defendant AAA that may be available after the court decides whether defendant AAA is
liable to pay this amount; and (2) all claims arising from uninsured motorist coverage against
defendant Safeco based on allegations that the acts or omissions of an uninsured driver caused or
contributed to the February 18, 2016 motor vehicle accident including, but not limited to, the
claims asserted against defendant Safeco in this lawsuit.
At the February 16, 2017 settlement apportionment hearing, the parties asked the court to
apportion the $150,000 settlement established by the Partial Settlement Agreement. Specifically,
Dianah asked the court to apportion the settlement as follows: (1) $763.32 to the Palmer Law
Group for expenses; (2) $49,745.56 to the Palmer Law Group for attorney’s fees; and (3) the

3

remaining $99,491.12 to only one of the three heirs—plaintiff Dianah Greene. The court
considers her request below.
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. 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 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

4

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). “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.

5

Kan. 2004). Here, Mr. Leatherman represents that his firm expended $763.32 in costs. Mr.
Leatherman 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 $763.32 from the wrongful death settlement proceeds to compensate plaintiff’s counsel’s
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 entered into a contingency fee agreement with her attorney, LJ
Leatherman. The agreement obligated plaintiff to pay Mr. Leatherman a 40% contingency fee
after a Petition to recover damages is filed. Although the case settled after the filing of the
Petition,1 Mr. Leatherman seeks only a one-third contingency fee instead of the 40% contingency

1
Plaintiff filed a Petition in the District Court of Shawnee County, Kansas. Defendants removed
the lawsuit based on diversity jurisdiction under 28 U.S.C. § 1332(a). Doc. 1.

6

fee provided by the agreement. Mr. Leatherman also has waived any claim for attorney’s fees
under Kan. Stat. Ann. §§ 40-908 and 40-256 for the partial settlement with defendant AAA.
The court finds that plaintiff’s counsel’s requested fee representing one-third of the gross
settlement proceeds less costs is a reasonable one. The Rule 1.5(a) factors support the requested
award. First, Mr. Leatherman obtained a favorable result for plaintiff with the Partial Settlement
Agreement. Mr. Leatherman negotiated an agreement that compensates Dianah for some of the
losses that she sustained under defendant AAA’s insurance policy while reserving claims for
other losses against either the remainder of defendant AAA’s insurance policy or defendant
Safeco’s insurance policy. Second, the contingency agreement reasonably compensates Mr.
Leatherman for accepting the cases on a contingency basis. He accepted the risks and
responsibilities that come with such an agreement, and the one-third award reasonably
compensates him for doing so. Third, the award appears reasonable based on Mr. Leatherman’s
litigation experience and reputation. 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 one-third of the gross settlement proceeds as reasonable in other
cases apportioning wrongful death proceeds under Kan. Stat. Ann. § 60-1905. See Dudley v.
Gagne, No. 05-2030-JAR, 2006 WL 314347, at *2 (D. Kan. Feb. 3, 2006); see also Turman, 125
F. Supp. 2d at 447–48 (Lungstrum, J.) (“in [the court’s] experience . . . a one-third contingency
fee is not uncommon in wrongful death actions.”).
For all these reasons, the court concludes that the one-third contingency fee award
requested by plaintiff’s counsel is reasonable. The court thus awards $49,745.56 to plaintiff’s
counsel as reasonable attorney’s fees.

7

C. Apportionment of Settlement
Last, the court considers how to apportion the remaining wrongful death settlement
proceeds to the heirs-at-law. At the hearing, the court heard testimony from only one of Mr.
Greene’s heirs-at-law. Mr. Greene’s widow, Dianah, testified about the losses she has sustained
from her husband’s death. The two other heirs-at-law—John Igercic-Greene (“John”) and
Rebecca Igercic-Greene (“Becky”)—did not attend the hearing. Plaintiff’s counsel represented
that he had served John and Becky with notice of the hearing in two ways. First, he mailed
notice of the hearing to their last known addresses. Second, he hired a process server to serve
them personally with notice of the hearing.
Dianah testified that Becky could not attend the hearing because she had given birth to
her second child earlier that same morning. Dianah also testified that she had visited Becky at
the hospital shortly before the hearing. Dianah testified that Becky knew about the hearing, and
that the two of them had discussed it during the hospital visit. According to Dianah, Becky told
Dianah to attend the hearing and that she trusted Dianah to handle the matter.
John and Becky are the children of Dianah’s second son. Becky is 20 years old, and John
is 19 years old. Dianah testified that Becky has had problems with controlled substances. She
also has had legal problems. Becky has a 17-month old son and the new baby, born on the day
of the apportionment hearing. Dianah testified that Becky has a history of financial
irresponsibility. For example, Becky received a tax refund last year that she was unable to
manage responsibly.
John graduated from high school last year. He enrolled in college courses, but dropped
out before finishing the first semester. He currently is not employed. Dianah testified that she
does not believe that either John or Becky is capable of managing any of the settlement proceeds

8

in a responsible manner. But the heirs’ ability to manage the settlement proceeds is not a
question the court must entertain. Instead, Kansas law requires the court to apportion the
settlement proceeds in proportion to the loss sustained by each heir. Considering this question,
the court concludes that John and Becky are entitled to none of the wrongful death settlement
proceeds. Because they did not appear at the February 16, 2017 settlement apportionment
hearing, the court has no information before it about the nature of the loss sustained by either
John or Becky. The court thus awards none of the wrongful death settlement proceeds to John
and Becky.
The court also notes that neither John nor Becky has objected to Dianah’s requested
apportionment of the partial settlement. And, based on Dianah’s testimony about her
conversation with Becky at the hospital, it appears that Becky may have waived her claim to the
settlement proceeds. But, to the extent either John or Becky wishes to make a claim on the
remaining damage amounts at issue, they will have an opportunity to do so in the future. The
Partial Settlement Agreement reserves two claims—one against defendant AAA for the
remaining $100,000 under the policy limits, and the other against defendant Safeco for claims
arising from uninsured motorist coverage. Should Dianah recover additional proceeds under
these policies, the court will hold another apportionment hearing to determine the proper
apportionment of those additional settlement amounts. John and Becky must receive notice of
those hearings, and they will have another opportunity to appear at a settlement apportionment
hearing for additional funds that Mr. Greene’s heirs may recover.
After considering the evidence at the hearing, the court concludes that Dianah sustained
the paramount loss from Mr. Greene’s death and is entitled to all of the remaining wrongful
death settlement proceeds. Dianah was married to Mr. Greene for 38 years. They worked

9

together for the University of Kansas in the maintenance department and raised Dianah’s
children and some of her grandchildren together. Dianah testified about the grief and pain she
has experienced since losing her husband. Understandably, Dianah was emotional during her
testimony, making her grief and loss obvious. The court thus finds that Dianah has sustained
non-pecuniary losses in the form of mental anguish, bereavement, loss of spousal
companionship, and loss of marital care, attention, and advice.
Dianah also has sustained pecuniary losses. At the time of his death, her husband was
receiving social security and monthly retirement income payments. Since his death, the amount
of the social security payments has dropped by about $900 per month, and the amount of the
retirement income has dropped by about $500 per month.
Because the court finds that Dianah has sustained significant pecuniary and nonpecuniary losses from the death of her husband, the court awards the entire remaining amount of
the wrongful death settlement proceeds to her.
IV.

Conclusion

Consistent with the findings and conclusions above, the court apportions the $150,000
wrongful death settlement proceeds as follows:

10

$150,000.00

Wrongful Death Proceeds:

$763.32

Costs:
Attorney’s Fees:

$49,745.56

Total Remaining for Apportionment:

$99,491.12

Heir

Proportion

Amount Received

Dianah Greene

100%

$99,491.12

John Igercic-Greene

0%

$0

Rebecca Igercic-Greene

0%

$0

IT IS THEREFORE ORDERED THAT the court apportions the $150,000 wrongful
death settlement proceeds according to and consistent with this Memorandum and Order. Mr.
Leatherman, as plaintiff’s counsel, is directed to distribute promptly the funds represented by the
settlement check presented during the hearing.
IT IS SO ORDERED.
Dated this 24th day of February, 2017, at Topeka, Kansas.
s/ Daniel D. Crabtree
Daniel D. Crabtree
United States District Judge 

11