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Lipp v. Ginger C, L.L.C.

United States District Court, W.D. Missouri, Central Division

April 7, 2017

JOHN P. LIPP and STEPHANIE S. LIPP, Plaintiffs,
v.
GINGER C, L.L.C., et al., Defendants.

          ORDER

          NANETTE K. LAUGHREY United States District Judge

         Pursuant to Mo. Rev. Stat. § 537.095, Plaintiffs John and Stephanie Lipp, Defendant Ginger C, Defendant Roland Management, and ACC Defendants have asked the Court to approve their settlement agreement in this wrongful death suit [Doc. 477]. For the following reasons, the settlement is approved.

         I. Background

         Plaintiffs, the surviving parents of Jack Lipp, filed suit under Missouri's wrongful death statute, Mo. Rev. Stat. § 537.080, alleging negligence against Defendants Ginger C, L.L.C., several American Campus Communities entities (ACC), Roland Management, and Pi Kappa Phi Fraternity (both national and local chapters). The suit stems from Jack Lipp's death, which occurred when he fell off a balcony at 507 South Fourth Street in Columbia, Missouri while attending a fraternity party allegedly hosted by PKP Chapter, the local chapter of PKP National.

         Plaintiffs agreed to a settlement of all claims against Defendant PKP Chapter (through Scott Swafford) and PKP National, which was approved by the Court on November 1, 2016. Thereafter, Plaintiffs reached a settlement with the remaining Defendants ACC, Ginger C, and Roland Management. This motion for approval of the wrongful death settlement, [Doc. 477], followed.

         II. Discussion

         The parties ask the Court to approve a final settlement of $5, 000, 000.00. Of that total, Defendants will pay 40%, or $2, 000, 000.00, directly to Plaintiffs' counsel-A.W. Smith Law Firm and Horn, Aylward, and Bandy Law Firm. Litigation expenses left in this case total $150, 616.66.[1] The parties have agreed that $150, 616.66 of the settlement funds will be applied to satisfy Plaintiffs' counsel's litigation costs and expenses.

         As such, the parties ask the Court to approve their settlement and distribute the settlement funds as follows: $2, 849, 383.32 to Plaintiffs (half to John Lipp and half to Stephanie Lipp); $2, 000, 000.00 to Plaintiffs' counsel in attorneys' fees; and $150, 616.66 to Plaintiffs' counsel in costs and expenses.

         Section 537.095 provides that the trial court must approve any settlement in a claim for damages under Missouri's wrongful death statute, Mo. Rev. Stat. § 537.080. Specifically, “upon the approval of any settlement for which a petition or application for such approval has been filed, the court shall state the total settlement approved. 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. If multiple parties have standing to sue under the wrongful death statute, “any one or more of them may compromise or settle the claim for damages with approval of any circuit court, . . . provided that the claimant or petitioner shall satisfy the court that he has diligently attempted to notify all parties having a cause of action under Section 537.080.” Mo. Rev. Stat. § 537.095.1.

         In entering judgment, “[t]he court shall order the claimant: (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 . . . (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.” Mo. Rev. Stat. § 537.095.4.

         Therefore, before granting judgment, the Court must resolve four questions: whether (1) the Plaintiffs attempted to notify all parties having a cause of action arising from Jack Lipp's death, (2) the proposed settlement is properly apportioned, (3) the attorneys' fees provided in the proposed settlement are proper, and (4) the parties' proposal for distributing the settlement proceeds complies with the statutory requirement.

         A. Notice

         As a prerequisite to approval, any settlement under the Missouri wrongful death statute must demonstrate “a diligent attempt to provide notice to all parties having a cause of action.” Snead by Snead v. Cordes by Golding, 811 S.W.2d 391, 395 (Mo.Ct.App. 1991). A party has a cause of action if he is “the spouse or children or the surviving lineal descendants of any deceased children, natural or adopted, legitimate or illegitimate, or by the father or mother of the deceased, natural or adoptive.” Mo. Rev. Stat. § 537.080.1(1).

         Plaintiffs Stephanie and John Lipp have each signed an affidavit stating that “John Lipp and Stephanie Lipp are the only Class I beneficiaries entitled to bring a cause of action for the wrongful death of Jack Lipp” because “Jack Lipp was an adult over the age ...


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