United States District Court, W.D. Missouri, Western Division
MICHAEL P. BRUNING, as Next Friend for ECB, a minor child, Plaintiff,
CHIZEK ELEVATOR & TRANSPORT, INC. Defendant.
ORDER APPROVING WRONGFUL DEATH SETTLMENT
KAYS, CHIEF JUDGE
case arises from the death of Heather N. Thompson (“Ms.
Thompson”), who passed away when the car she was
driving rear-ended a tractor-trailer on the highway.
Plaintiff Michael Bruning (“Plaintiff”) has
brought a wrongful death lawsuit against the company which
owned the tractor-trailer, Defendant Chizek Elevator &
Transport, Inc. (“Defendant”), on behalf of Ms.
Thompson's minor child, ECB. Ms. Thompson's other
minor child, DBO, and Ms. Thompson's parents, Dennis
Thompson and Debra Butts, are also potential wrongful-death
mediation, the parties reached a proposed settlement which
would resolve all the wrongful-death beneficiaries'
claims against Defendant. Now before the Court is the
parties' Joint Motion to Approve Wrongful Death
Settlement (Doc. 17-1).
Missouri law, a wrongful death settlement requires court
approval. See Mo. Rev. Stat. § 537.095.1. To
obtain approval, the plaintiff must demonstrate that: (1) he
or she diligently attempted to notify all spouses, children,
and parents of the decedent, and if none of those relatives
survive, then the siblings of the decedent, id.;
id. § 537.080.1; (2) the settlement amount is
fair and reasonable, see Id. § 537.095.3; and
(3) the attorneys' fees are paid in accordance with the
Missouri Rules of Professional Conduct, see Id.
§ 537.095.4(2); see, e.g., Eng v. Cummings,
McClorey, Davis & Acho, PLC, 611 F.3d 428, 435 (8th
Court holds the parties have demonstrated the settlement
complies with Missouri law. First, Plaintiff has fulfilled
the notice requirement because the settlement covers all
potential wrongful-death beneficiaries: Ms. Thompson was
unmarried and ECB, DBO, Dennis Thompson and Debra Butts are
the only known individuals who could be wrongful death
the Court finds the gross settlement amount of $300, 000 is
fair and reasonable under the facts and circumstances of this
case. Although $300, 000 is a modest amount for a wrongful
death claim involving a tractor-trailer, several facts here
detract from the value of this case. Among other things, a
witness reported seeing Ms. Thompson putting on her make-up
while driving at over 70 mph shortly before the accident.
Further, the physical evidence supporting Plaintiff's
theory of liability-that a defective or poorly maintained
underride guardrail on the truck allowed Ms. Thompson's
car to drive under the truck, causing Ms. Thompson's
death-is limited. After reading the affidavits from
Plaintiff's counsel Timothy Morgan and Robert Sullivan,
the Court is convinced the gross settlement amount is a good
outcome for the wrongful death beneficiaries. At the very
least, it falls in the range of reasonable.
Court also finds the apportionment of the proceeds between
the beneficiaries, with the children splitting eighty-six
percent of the net recovery and the parents splitting the
remaining fourteen percent, is fair and reasonable.
third question, whether the attorneys' fees charged are
in accord with the Missouri Rules of Professional Conduct, is
a closer call. The fee arrangement is a bona fide written
contingency fee agreement between the beneficiaries (or their
next friends) and four law firms: Sullivan Law, LLC; the
Shactman Law Firm; the Porto Law Firm, LLC; and TRM Law Firm,
LLC. Pursuant to the agreement, Plaintiff's counsel are
collectively receiving a forty-percent fee ($120, 000) from
the gross recovery ($300, 000), then deducting approximately
$6, 134.40 for litigation expenses advanced by Sullivan Law,
LLC. The remaining $173, 865 is going to the clients.
the litigation expenses are modest and reasonable, a
forty-percent contingency fee is presumptively high for a
case settled before any substantive motion work or discovery
occurred. However, the detailed affidavits filed by Mr.
Morgan and Mr. Sullivan demonstrate that they performed a
substantial amount of work on this case before it was filed
investigating the accident and researching possible theories
of recovery. Further, both attorneys have substantial
experience and expertise litigating tractor-trailer cases.
Although neither kept records of their time spent on this
matter,  Mr. Morgan estimates he spent 400 hours
working on the case over three years, and Mr. Sullivan
assisted him in much of this work. Their estimates of the
time spent on this case are reasonable. Their affidavits also
demonstrate this case was sufficiently risky, and the value
of the claim so limited, that charging a forty-percent fee
was not unreasonable under the circumstances. For their work
on this case, Mr. Morgan and Mr. Sullivan will collectively
receive a fee of $93, 134.40, which is fair.
Court is more concerned about the fees sought by two other
attorneys in the case, Scott Shachtman and Nicholas Porto,
who will receive fees of $18, 000 and $15, 000, respectively,
under the proposed settlement. Neither attorney kept time
records, but Mr. Shachtman estimates he spent 50 hours on the
case. He states his time was spent meeting with, and being
retained by, DBO's father, entering a co-counsel
arrangement with the Sullivan Law Firm, keeping DBO's
father apprised of developments in the case, explaining the
joint attorney contract to his client, discussing litigation
strategy with co-counsel Morgan and Sullivan, and attending
the mediation. Mr. Porto does not estimate how much time he
spent on the case. He describes his contributions as:
fielding a phone call from Plaintiff, recommending Plaintiff
retain Mr. Sullivan and Mr. Morgan, utilizing his knowledge
of tow truck law to help Mr. Morgan locate the decedent's
vehicle and take pictures of it, helping Plaintiff get
documentation of his status as next friend for ECB, and
holding detailed conversations with Mr. Sullivan and Mr.
Morgan about case strategy.
fees sought by these attorneys are arguably disproportionate
to their contributions to the case. Attorneys' fees must
be earned. See Neilson v. McCloskey, 186
S.W.3d 285, 287 (Mo. Ct. App 2005) (noting that to be
entitled to a given fee, attorneys must perform an
appropriate share of work or assume a share of the financial
risk and ethical responsibility). Neither attorney appears to
have shared the financial risk here by advancing litigation
expenses. And while both attorneys spent some time on the
case, it is a close call whether they performed enough work
to justify charging the wrongful death beneficiaries $18, 000
and $15, 000 respectively.
Court has considered these issues at length. While it has
concerns, particularly given the paucity of records
documenting the amount of work performed, it cannot say the
requested fees violate the Missouri Rules of Professional
Conduct. Accordingly, the third element is satisfied.
the parties have demonstrated the settlement complies with
Missouri law, the parties' Joint Motion to Approve
Wrongful Death Settlement (Doc. 17-1) is GRANTED.