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

Filing 36

MEMORANDUM AND ORDER: The court apportions the $100,000 wrongful death settlement proceeds according to and consistent with this Memorandum and Order. Signed by District Judge Daniel D. Crabtree on 11/21/2017. (mls)

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 & CASUALTY
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’ car 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. Defendant CSSA Fire & Casualty Insurance
Company, a company that does business under the name AAA Insurance (“AAA”), insured Mr.
Griggs (the driver of the vehicle carrying Mr. Greene). 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. Defendant Safeco
Insurance Company of America (“Safeco”) issued this policy. 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 initially
reached a partial settlement of the claim for $150,000 in early 2017, which the court approved on
February 24, 2017 (Doc. 21). AAA and Safeco filed cross summary judgment motions on
January 31 and February 1, respectively, to determine who owed plaintiff $100,000, which is the
greatest amount of money plaintiff could recover from either insurance company. On September
15, 2017, the court ruled that AAA owed the $100,000 (Doc. 27).
Shortly afterwards, the parties informed the court that they had reached a full settlement.
As the Kansas Wrongful Death Act requires, the court conducted a settlement apportionment
hearing on November 15, 2017 by phone. 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. But, he helped

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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-at-law.
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 Release of All Claims (the “Settlement Agreement”). The Settlement
Agreement provides that Dianah will release her claims against defendant AAA in exchange for
$100,000.
At the November 15, 2017 settlement apportionment hearing, the parties asked the court
to apportion the $100,000 settlement established by the Settlement Agreement. Specifically,
Dianah asked the court to apportion the settlement as follows: (1) $435.39 to the Palmer Law
Group for expenses; (2) $33,188.20 to the Palmer Law Group for attorney’s fees; and (3) the
remaining $66,376.41 to one of the three heirs—plaintiff Dianah Greene. The court considers
her request below.

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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 attorney’s 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

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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.

Discussion
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, Mr. Leatherman represents that his firm expended $435.39 in costs. The

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court thus deducts $435.39 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, Mr.
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
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 settlement with defendant AAA.

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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.

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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 Settlement
Agreement. Mr. Leatherman negotiated an agreement that compensates Dianah for some of the
losses that she sustained under defendant AAA’s insurance policy to the fullest extent allowed by
law. Second, the contingency agreement reasonably compensates Mr. Leatherman for accepting
the case 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 448 (Lungstrum, J.) (“[I]n [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 $33,188.20 to plaintiff’s
counsel as reasonable attorney’s fees.
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. She testified that her situation has not

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changed since the last hearing on February 16, 2017. The two other heirs-at-law—John IgercicGreene (“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 by personally
serving them, and the record confirms as much. See Docs. 32, 33. Because they did not appear
at the February 16, 2017 or the November 15, 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 for the
reasons stated in its February 24, 2017 Memorandum and Order (Doc. 21).
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, it appears that both
individuals want Dianah to receive all of the settlement.
After considering the evidence at the hearing, including that presented at the February 16,
2017 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. The court
incorporates its conclusion that Dianah sustained the paramount loss and the reasoning for that
conclusion from the February 24, 2017 Memorandum and Order (Doc. 21) here.
IV.

Conclusion
Consistent with the findings and conclusions above, the court apportions the $100,000

wrongful death settlement proceeds as follows:

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$100,000.00

Wrongful Death Proceeds:

$435.39

Costs:
Attorney’s Fees:

$33,188.20

Total Remaining for Apportionment:

$66,376.41

Heir

Proportion

Amount Received

Dianah Greene

100%

$66,376.41

John Igercic-Greene

0%

$0

Rebecca Igercic-Greene

0%

$0

IT IS THEREFORE ORDERED THAT the court apportions the $100,000 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 21st day of November, 2017, at Topeka, Kansas.

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

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