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Tanner v. City of Sullivan

United States District Court, E.D. Missouri, Eastern Division

October 7, 2014

DEBORA D. TANNER, et al., Plaintiffs,
v.
CITY OF SULLIVAN, et al., Defendants.

MEMORANDUM AND ORDER

NANNETTE A. BAKER, Magistrate Judge.

REDACTED[1]

The Eighth Circuit Court of Appeals has remanded this action, pursuant to Fed. App. R. 12.1 for the limited purpose of the Court ruling on Plaintiffs' Request Pursuant to the Court's Order of March 24, 2014 to file Plaintiffs' Joint Application Pursuant to § 537.095 RSMo for Apportionment and Distribution of the Settlement Herein and Approval of Apportionment and Distribution to Minor Pursuant to § 507.188(2) RSMo." [Doc. 264.] In their motion, Plaintiffs seek a court order apportioning and distributing a settlement of $1, 200, 819.50 among the three plaintiffs and approving the settlement amount for minor Plaintiff C.B. Defendants have not filed a response to the motion. [Doc. 260.] The Court held a hearing on this matter on October 7, 2014.

I. Background Information

On January 18, 2013, a jury returned a verdict in favor of Plaintiffs on a wrongful death claim regarding decedent Karen Palmer. [Doc. 199]. Defendants appealed this matter to the Eighth Circuit Court of Appeals. [Doc. 240.] After briefing had concluded in the court of appeals, the parties settled this action. Pursuant to Fed. R. App. 12.1, the court of appeals remanded this action to the district court for proceedings required under Missouri law for settlements involving wrongful death claims and settlement of claims involving a minor. [Doc. 264.]

II. Discussion

A. Testimony at the October 7, 2014 Hearing

At the October 7, 2014 hearing, Plaintiffs Debora Tanner and Danny Palmer, biological parents of the decedent, testified regarding the settlement of this action. They both testified that they were kept apprised of this case during the appellate process and participated in settlement negotiations of this matter. They also testified that they agreed that the proposed apportionment of the settlement of fifty percent (50%) to Plaintiff C.B., decedent's only child, and twenty-five percent (25%) each to Debora Tanner and Danny Palmer was in everyone's best interests. Further, they testified that they understood that approval of this settlement concluded this action and they would not be able to contest this action or seek any additional damages after the settlement is approved.

Attorney Taylor Goodale also testified. He stated that his firm, Law Firm of Aubuchon, Buescher & Goodale, LLC, and his law partner Daniel Buescher were appointed as the conservators of the estate of C.B. He also testified regarding the submission of a letter from Daniel Buescher to the Court stating that he also believed that the apportionment of the settlement proposed by Plaintiffs is in the best interest of minor C.B.

B. Apportionment and Distribution of Settlement

The parties have agreed to settlement of this action in the amount of $1, 200, 000.00 as well as appellate costs of $819.50. First, the Plaintiffs' attorneys request that the Court award them a contingency fee of $480, 000.00. Plaintiffs' attorneys also request litigation and appeal expenses in the amount of $91, 440.47 from the gross settlement amount. Then, Plaintiffs request that the Court apportion the net settlement amount as follows: Plaintiff C.B.- 50% of net proceeds, Plaintiff Debora Tanner- 25% of net proceeds, and Plaintiff Danny C. Palmer- 25% of net proceeds.

In any action for damages for wrongful death, the trial court must state the total damages found and enter a judgment as to such damages apportioning them among those entitled in proportion to the losses suffered by each as determined by the court. Mo. Rev. Stat. § 537.095.3. "The duty and responsibility of apportionment of losses in a wrongful death action lies within the sound discretion of the trial court. Parr v. Parr, 16 S.W.3d 332, 336 (Mo. 2000). "There is no minimum amount that must be awarded to any party designated as a taker under § 537.095.4." Parr, 16 S.W.3d at 337. "The trial court is not bound by a set percentage or a minimum; rather, the trial court must exercise its discretion and, as instructed by the statute, distribute the proceeds in proportion to the losses suffered by each as determined by the court. Id. The trial court can consider what it deems fair and just for the death and loss thus occasioned, having regard to the pecuniary losses suffered by the reason of the death, funeral expenses, and the reasonable value of the services, consortium, companionship, comfort, instruction, guidance, counsel, training, and support of those on whose behalf suit may be brought have been deprived by reason of such death. Banner ex rel. Bolduc, 305 S.W.3d 498, 500 (Mo.Ct.App. 2010) (although factors in Mo. Rev. Stat. § 537.090 are directed toward a trial court's initial determination of damages, the factors are also applicable in determining the apportionment of losses pursuant to § 537.095.3.)

After determining apportionment, the trial court is then required to order the ...


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