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Sekscinski v. Welch

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

April 29, 2019

JASMIN SEKSCINSKI, Plaintiff,
v.
WESTON WELCH, Defendant.

          ORDER AND JUDGMENT APPROVING WRONGFUL DEATH SETTLEMENT

          Roseann A. Ketchmark, United States District Judge.

         Before the Court is the parties' Joint Motion for Disbursement of Funds and Application for Approval of Wrongful Death Settlement (“the Motion”). (Doc. 46.) The Court held a wrongful death settlement hearing on April 17, 2019. (Doc. 47.) After careful consideration, the Motion is GRANTED. The settlement proceeds shall be distributed in accordance with this Order.

         Background

         The suit stems from Thomas Sekscinski (“Decedent”)'s death. Plaintiff Jasmin Sekscinski (“Plaintiff”) is an adult and one of Decedent's five children. Plaintiff filed suit under Missouri's wrongful death statute, RSMo. § 537.080 alleging wrongful death, assault and battery for purported violations of 42 U.S.C. § 1983, and attorney's fees under 42 U.S.C. § 1988. Plaintiff has agreed to a settlement of all claims against Defendant Weston Welch (“Defendant”). The parties seek Court approval for a settlement sum of $150, 000. The settlement amount is to be allocated as follows: (1) $60, 000 for attorney's fees; (2) $13, 229.91 for case expenses; and (3) $76, 770.09 apportioned equally to the Decedent's five children.

         Discussion

         A. Standard

         RSMo. § 537.095 requires court approval for any settlement of a wrongful death claim brought under RSMo. § 537.080. RSMo. § 537.095 requires “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 to the losses suffered by each as determined by the court.” 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 attorney's 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.” RSMo. § 537.095.4. “Therefore, before granting judgment, the Court must resolve four questions: whether (1) the Plaintiff attempted to notify all parties having a cause of action arising from decedent []'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.” Lewis v. Blue Springs School District, 2018 WL 1126751, at *2 (W.D. Mo. Mar. 1, 2018).

         B. Notice

         If there are multiple parties with standing to sue under RSMo. § 537.080, before a settlement may be approved by the Court, the plaintiff must “satisfy the court that he has diligently attempted to notify all parties having a cause of action under section 537.080.” RSMo. § 537.095.1. “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.” Lewis, 2018 WL 1126751, at *2 (quoting RSMo. § 537.080.1).

         Plaintiff asserts there are no surviving parents or spouse of Decedent, and she is one of five surviving children of Decedent. Plaintiff provided documentation establishing that notice to the other four surviving children was provide in accordance with RSMo. § 537.080. Accordingly, the Court finds Plaintiff and the other four children of Decedent are the only surviving parties with a cause of action under RSMo. § 537.080; therefore, the notice requirement is satisfied. See Lang v. Mino Farms, Inc., 2016 WL 4031230, at *2 (W.D. Mo. July 26, 2016) (the court held the plaintiffs satisfied the notice requirement because the plaintiffs are the only individuals that may recover for the decedent's death “because they are his only known spouse, children, parents, or siblings”).

         C. Conservatorship of Minor Parties

         Decedent has two adult children and three minor children. Decedent's two adult children are Plaintiff and Kyle Mclain. Decedent's three minor children are O.S.; L.S.; and W.S. On April 22, 2019, the Circuit Court of Cole County Court appointed Monica Sekscinski as conservator for L.S., O.S., and W.S. See (Docs. 48, 49, 50.); In the Estate of L.S., No. 19AC-PR00065; In the Estate of O.S., No. 19AC-PR00066; In the Estate of W.S., No. 19AC-PR00067.

         D. Bond

         RSMo. § 537.080(1) and (2) describes the class of persons who can sue for damages in a wrongful death action, and the statute provides that a wrongful death action may be brought by: “(1) the spouse or children . . . of the deceased.” RSMo. § 537.080 states that if there is no class of persons in RSMo. § 537.080(1) or (2) to bring the action, a plaintiff ad litem should be appointed and the “court may, in its discretion, require that such plaintiff ad litem give bond for the faithful ...


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