Brown et al v. Davis

Filing 161

MEMORANDUM AND ORDER ( SEE ORDER FOR COMPLETE DETAILS ) IT IS HEREBY ORDERED that Plaintiffs motion for apportionment of the verdict is GRANTED. (Doc. No. 146.) IT IS FURTHER ORDERED that the judgment of $3,000,000 shall be apportioned as follows: 33 1/3% to Plaintiff Kristen Brown ($1,000,000); 33 1/3% to Plaintiff A.B. ($1,000,000); 33 1/3% to Plaintiff R.B. ($1,000,000). Signed by District Judge Audrey G. Fleissig on 1/26/15. (JWJ)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
KRISTEN BROWN, individually, and as
next friend, et al.,
Plaintiffs,
v.
KENNETH L. DAVIS, JR., et al.,
Defendants.

)
)
)
)
)
)
)
)
)
)

Case No. 4:12CV00649 AGF

MEMORANDUM AND ORDER
This matter is before the Court on the motion (Doc. No. 146) of Plaintiff Kristen
Brown, individually and as next friend of minor Plaintiffs A.B. and R.B. (collectively,
“Plaintiffs”) to apportion the $3,000,000 jury verdict in this case, pursuant to Mo. Rev. Stat.
§ 537.095.3. The Court held a hearing on this matter on January 26, 2015.
BACKGROUND
Plaintiff Kristen Brown was appointed by the Court as next friend of her children,
minor Plaintiffs A.B. and R.B., in this wrongful death action arising from the death of her
husband, Kyle Brown. (Doc. No. 68.) All Plaintiffs were represented by the same counsel
through trial.
On June 19, 2014, a jury returned a verdict in favor of Plaintiffs and against
Defendants Kenneth Davis, Jr., William Davis, and William Davis Logging, Inc. (Doc. No.
130.) The jury found Plaintiffs’ total damages to be $3,000,000. Id. The Court entered
judgment on the verdict on June 20, 2014. (Doc. No. 133.) On October 24, 2014, the Court
denied Defendants’ renewed motion for judgment as a matter of law, and on December 22,

2014, Defendants filed a notice of appeal.1 (Doc. Nos. 142 & 149.)
On December 15, 2014, after the entry of judgment but before Defendants filed their
notice of appeal, Plaintiffs moved for the Court to apportion the verdict, pursuant to Mo.
Rev. Stat. § 537.095.3. (Doc. No. 146.) In order to determine the best interests of minor
Plaintiffs A.B. and R.B. at the apportionment stage, Plaintiffs’ counsel moved, with the
consent of all Plaintiffs, for the appointment of a guardian ad litem. (Doc. No. 156.) On
January 16, 2015, the Court appointed Sarah Pleban as guardian ad litem for A.B. and R.B.
for the purpose of representing the minor Plaintiffs’ interests at the apportionment stage.
(Doc. No. 157.) All Plaintiffs agreed that Ms. Pleban’s fees of $300 per hour would be paid
out of the distributive shares of Plaintiffs A.B. and R.B. (Doc. No. 156.) At the hearing, Ms.
Pleban testified that she invoiced a total of $720 for her services in this case, but she offered
to reduce her fees to half that amount, or $360.
The motion seeks apportionment among the Plaintiffs, who are the wife and only
surviving children of the decedent, in proportion to the losses each suffered. The motion also
seeks to deduct from Plaintiffs’ respective portions of the judgment an award of attorneys’
fees and expenses in the amount contracted by the parties. In support of the motion for
apportionment, Plaintiffs state that, other than Plaintiffs, the only living persons entitled to
recover under Missouri’s wrongful death statute, Mo. Rev. Stat. § 537.080.1, are decedent’s
parents, and Plaintiffs have submitted verified waivers signed by both parents waiving all
rights to participate in the wrongful death judgment. (Doc. No. 146-1.) Plaintiffs also state
that they have no notice of any outstanding liens applicable to this action.
1

The Court granted Defendants’ unopposed motion for extension of time to file a
notice of appeal, pursuant to Federal Rule of Appellate Procedure 4(a)(5). (Doc. No.
145.)
-2-

Plaintiffs have filed a proposed plan for apportionment, agreeing that an
apportionment of one third (33 1/3 %) of the judgment to each Plaintiff would serve the
interests of all Plaintiffs. At the hearing, Ms. Pleban confirmed that she believes this
apportionment would serve the best interests of A.B. and R.B.
Plaintiffs’ attorneys have also requested attorneys’ fees in the amount of 33 1/3% of
the total recovery, as well as reimbursement of their costs and expenses advanced in this
matter. The contingent fee contract between Plaintiffs and counsel, which has been
submitted to the Court for review, states that the attorneys’ fees shall be calculated as
follows:
10% of all amounts recovered from liability insurance policies covering
[Defendant] Kenneth L. Davis, provided the total Attorneys’ time to recover
from said insurance policies is less than 300 hours. If more than 300 hours of
Attorneys’ time is expended to recover the amounts from all liability insurance
policies covering Kenneth L. Davis, the attorney fee shall be 33 1/3% of the
total amount recovered from all insurance policies covering Kenneth L. Davis;
[and]
33 1/3% of all amounts recovered from all other sources[.]
(Doc. No. 158-1.) Plaintiffs’ attorneys have testified that they spent more than 300 hours of
work on this case.
The contract further provides that the legal fees shall be shared between the two law
firms representing Plaintiffs, Witzel, Kanzler, Dimmitt & Kanzler, L.L.C. (“Witzel”) and
Lewis, Rice & Fingersh, L.C. (“Lewis Rice”),2 with Witzel to receive two thirds of the fees,
2

Plaintiffs were originally represented by Witzel and The Stolar Partnership, but
Lewis Rice replaced The Stolar Partnership, and the contingent fee contract was amended
to reference Lewis Rice instead of The Stolar Partnership. (Doc. No. 158-2.) The
amendment provides that any legal fees to which the Stolar Partnership may be entitled
for its prior work under the original contract shall be paid out of Lewis Rice’s share of
the fees. Id.
-3-

and Lewis Rice to receive the remaining one third. (Doc. No. 158-2.)
Regarding costs, the contingent fee contract provides that Plaintiffs shall reimburse
counsel for costs and expenses out of their portions of recovery to the extent their portions of
recovery are sufficient to satisfy the costs and expenses. (Doc. No. 158-1 at 1.) Plaintiffs’
attorneys have submitted affidavits testifying that the total amount of costs and expenses
advanced in this matter is $11,412.10, of which $3,622.09 has already been awarded as costs
by the Court (Doc. No. 138) and paid to Plaintiffs’ attorneys. Therefore, the total amount of
costs and expenses that remains due is $7,790.01.
Plaintiffs have received a check for $705,000.00 as partial satisfaction of the
judgment from the liability insurance policy covering Defendant William Davis. (Doc. No.
158-3.)
DISCUSSION
Section 537.095.3 of the Missouri Revised Statutes states that, “in any action for
damages under section 537.080,” the wrongful death statute under which Plaintiffs brought
suit in this case, “the trier of the facts shall state the total damages found . . . . The court
shall then enter a judgment as to such damages, apportioning them among those persons
entitled thereto in proportion to the losses suffered by each as determined by the court.” Mo.
Rev. Stat. § 537.095.3.
After apportioning the verdict, the trial court must then order the claimant to do the
following:
(1) To collect and receipt for the payment of the judgment;
(2) To deduct and pay the expenses of recovery and collection of the judgment
and the attorneys’ fees as contracted, or if there is no contract, or if the party
sharing in the proceeds has no attorney representing him before the rendition
-4-

of any judgment or settlement, then the court may award the attorney who
represents the original plaintiff such fee for his services, from such persons
sharing in the proceeds, as the court deems fair and equitable under the
circumstances;
(3) To acknowledge satisfaction in whole or in part for the judgment and costs;
(4) To distribute the net proceeds as ordered by the court; and
(5) To report and account therefor to the court. In its discretion the court may
require the claimant to give bond for the collection and distribution.
Mo. Rev. Stat. § 537.095.4.
The trial court is required to apportion damages before allocating attorneys’ fees, and
the court must then order payment of attorneys’ fees as contracted. Hess v. Craig, 43 S.W.3d
457, 458–59 (Mo. Ct. App. 2001) (citing Parr v. Parr, 16 S.W.3d 332, 338 (Mo. 2000));
Bishop v. Nico Terrace Apartments, LLC, No. 4:09–CV1718 MLM, 2010 WL 2556846 at *4
(E.D. Mo. June 23, 2010).
Pursuant to Mo. Rev. Stat. §§ 537.095.3-537.095.4 and the evidence and testimony
presented in this case, the Court finds each Plaintiff should be apportioned one third (33
1/3%) of the judgment, or $1,000,000. Accordingly, of the $705,000 partial satisfaction of
judgment received thus far, each Plaintiff shall receive 33 1/3%, or $235,000.3
Next, pursuant to Mo. Rev. Stat. § 537.095.4, the Court orders Plaintiffs, upon
collection and receipt of their portions of the judgment, to pay any attorneys’ fees and
expenses as contracted out of their respective portions. Therefore, out of the $705,000
partial satisfaction of judgment received thus far, each Plaintiff shall pay $78,333.33 in
attorneys’ fees, totaling $235,000, and $2,596.67 in costs and expenses, totaling $7,790.01.
3

At the request of Plaintiffs and Ms. Pleban, the Court will order the funds
apportioned to Plaintiffs A.B. and R.B. to be deposited into a restricted account and
distributed to A.B. and R.B. when they turn 18 years old, on September 30, 2016.
-5-

Further, Plaintiffs A.B. and R.B. shall pay $180 each, totaling $360, in fees for the services
of their guardian ad litem, Ms. Pleban. After making these payments, Ms. Pleban’s fees and
the costs and expenses advanced by Plaintiffs’ attorneys in this matter will be fully satisfied.
However, Plaintiffs will continue to be required to pay attorneys’ fees out of their respective
portions of any future amounts recovered as satisfaction of the judgment.
Plaintiffs’ attorneys have represented that the total amount of $7,790.01 in costs and
expenses shall be paid to Witzel; and the attorneys’ fees recovered out of the $705,000
partial satisfaction of judgment shall be distributed as follows: $156,667.00 to Witzel and
$78,333.00 to Lewis Rice and The Stolar Partnership.
CONCLUSION
Accordingly,
IT IS HEREBY ORDERED that Plaintiffs’ motion for apportionment of the verdict
is GRANTED. (Doc. No. 146.)
IT IS FURTHER ORDERED that the judgment of $3,000,000 shall be apportioned
as follows: 33 1/3% to Plaintiff Kristen Brown ($1,000,000); 33 1/3% to Plaintiff A.B.
($1,000,000); 33 1/3% to Plaintiff R.B. ($1,000,000).
IT IS FURTHER ORDERED that the partial satisfaction of judgment of $705,000
shall be apportioned as follows: 33 1/3% to Plaintiff Kristen Brown ($235,000); 33 1/3% to
Plaintiff A.B. ($235,000); 33 1/3% to Plaintiff R.B. ($235,000).
IT IS FURTHER ORDERED that each Plaintiff shall pay his or her attorneys’ fees,
costs, and expenses as contracted, to be paid out of his or her respective portion of recovery.
Therefore, out of the $705,000 partial satisfaction of judgment received thus far, Plaintiffs
are required to pay fees and costs as follows:
-6-

 Plaintiff Kristen Brown is required to pay $78,333.33 in attorneys’ fees and
$2,596.67 in attorneys’ costs and expenses;
 Plaintiff A.B. is required to pay $78,333.33 in attorneys’ fees, $2,596.67 in
attorneys’ costs and expenses, and $180 for the services of his guardian ad litem,
Sarah Pleban; and
 Plaintiff R.B. is required to pay $78,333.33 in attorneys’ fees, $2,596.67 in
attorneys’ costs and expenses, and $180 for the services of his guardian ad litem,
Sarah Pleban.
IT IS FURTHER ORDERED that Plaintiffs shall continue to pay their attorneys’
fees as contracted, in the amount of 33 1/3% of any amount recovered, to be paid out of each
Plaintiff’s respective portion of recovery.
IT IS FURTHER ORDERED that Plaintiffs’ counsel shall distribute the proceeds of
attorneys’ fees, costs, and expenses received out of the $705,000 partial satisfaction of
judgment as follows:
 $156,667 in attorneys’ fees and $7,790 in costs and expenses to Witzel, Kanzler,
Dimmitt & Kanzler, L.L.C.;
 $78,333 in attorneys’ fees to The Stolar Partnership and Lewis, Rice & Fingersh,
L.C.
IT IS FURTHER ORDERED that all funds apportioned to minor Plaintiff A.B.
shall be received by Plaintiff Kristen Brown as next friend, and after deducting the attorneys’
fees, guardian ad litem fees, and costs and expenses discussed above, Plaintiff Kristen Brown
shall deposit the funds into a restricted account with a federally insured bank, such funds to
be restricted from withdrawal, except upon order of this Court, until September 30, 2016, at
which time said funds shall be delivered to Plaintiff A.B.
IT IS FURTHER ORDERED that all funds apportioned to minor Plaintiff R.B. shall
be received by Plaintiff Kristen Brown as next friend, and after deducting the attorneys’ fees,

-7-

guardian ad litem fees, and costs and expenses discussed above, Plaintiff Kristen Brown shall
deposit the funds into a restricted account with a federally insured bank, such funds to be
restricted from withdrawal, except upon order of this Court, until September 30, 2016, at
which time said funds shall be delivered to Plaintiff R.B.
IT IS FURTHER ORDERED that Plaintiff Kristen Brown, individually and as next
friend for Plaintiffs A.B. and R.B., shall execute a partial satisfaction of judgment for the
amount of $705,000 upon such funds being received from Progressive Premier Insurance
Company of Illinois. After the amounts set forth herein have been distributed, Plaintiff
Kristen Brown shall report to the Court advising that the payments have been distributed as
ordered herein.

_______________________________
AUDREY G. FLEISSIG
UNITED STATES DISTRICT JUDGE
Dated this 26th day of January, 2015.

-8-