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Brown v. Davis

United States District Court, Eastern District of Missouri, Eastern Division

January 26, 2015

KRISTEN BROWN, individually, and as next friend, et al., Plaintiffs,
v.
KENNETH L. DAVIS, JR., et al., Defendants.

MEMORANDUM AND ORDER

AUDREY G. FLEISSIG UNITED STATES DISTRICT JUDGE

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.

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, 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. ...


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