Wrongful death claims arise when a person is killed as a result of the negligence or recklessness of a business or person. Surviving family members of the decedent or the decedent’s estate will normally bring the claim. Wrongful death claims are founded in state laws, which are very different.
Each state has its own set of complex wrongful death statutes and survival statutes. And these laws are frequently revised by the legislatures. Below are some aspects of the wrongful death laws in Missouri and Kansas.
Missouri and Kansas have different statutes of limitation for wrongful death claims. In Missouri, the statute of limitations is 3 years. R.S.Mo. § 537.100 (1986). But it can be just 2 years if the matter involves medical malpractice. R.S.Mo. § 516.105 (1986). In Kansas, one has a limit of 2 years to bring a wrongful death lawsuit, no matter the basis for liability. K.S.A. § 60-513 (1996).
In Missouri, any member of the highest class of beneficiaries can bring the wrongful death lawsuit. The first class includes spouses, children, and parents. R.S.Mo. §537.080 (1991). If there is no person within the first class, brothers and sisters, or their children, can bring an action for wrongful death. Id. In relevant part, the Wrongful Death Act provides:
Whenever the death of a person results from any act, conduct, occurrence, transaction, or circumstances which, if death had not ensued, would have entitled such person to recover damages in respect thereof, the person or party who, or the corporation which, would have been liable if death had not ensued shall be liable in any action for damages, notwithstanding the death of the person injured, which damages may be sued for: (1) By 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; (2) If there be no persons in class (1) entitled to bring the action, then by the brother or sister of the deceased, or their descendants, who can establish his or her right to those damages set out in section 537.090 (2005) because of the death. Id. If there are no persons in groups one or two, then a plaintiff ad litem appointed by the court may bring the lawsuit. Id.
In Kansas, a wrongful death lawsuit is brought by the estate of the decedent for the benefit of the “heirs at law.” K.S.A. §60-1902 (1963). The action may be commenced by any one of the “heirs at law” of the deceased who has sustained a loss by reason of the death. Any heir who does not join as a party plaintiff in the original action but who claims to have been damaged by reason of the death shall be permitted to intervene therein. The action shall be for the exclusive benefit of all of the heirs who has sustained a loss regardless of whether they all join or intervene therein, but the amounts of their respective recoveries shall be in accordance with the subsequent provisions of this article. K.S.A. §60-1902 (1963).
The term “heir at law” refers to “one who takes by intestate succession (i.e. without a will) under the Kansas statutes.” Baugh v. Baugh, 25 Kan. App. 2d 871 (1999). If the decedent leaves a spouse and no children nor issue of a previously deceased child, all of the decedent’s property shall pass to the surviving spouse. If the decedent leaves a spouse and a child, or children, or issue of a previously deceased child or children, one-half of such property shall pass to the surviving spouse. K.S.A. § 59-504 (1939). If the decedent leaves a child, or children, or issue of a previously deceased child or children, and no spouse, all his or her property shall pass to the surviving child, or in equal shares to the surviving children and the living issue, if any, of a previously deceased child, but such issue shall collectively take only the share their parent would have taken had such parent been living. If the decedent leaves such child, children, or issue, and a spouse, one-half of such property shall pass to such child, children, and issue as aforesaid. K.S.A. § 59-506 (1939).
If the decedent leaves no surviving spouse, child, or issue, but leaves a surviving parent or surviving parents, all of his or her property shall pass to such surviving parent, or in equal shares to such surviving parents, but if the decedent is an adopted child such property shall pass to his or her adoptive parent or parents in like manner including a natural parent who is the spouse of an adoptive parent. K.S.A. § 59-507 (1939). If the decedent leaves no surviving spouse, child, issue, or parents, the respective shares of his or her property which would have passed to the parents, had both of them been living, shall pass to the heirs of such parents respectively (excluding their respective spouses), the same as it would have passed had such parents owned it in equal shares and died intestate at the time of his or her death; but if either of said parents left no such heirs, then and in that event his or her property shall pass to the living heirs of the other parent. K.S.A. § 59-508 (1939).
Missouri wrongful death damages include such damages as the trier of the facts may deem fair and just for the death and loss thus occasioned, having regard to the pecuniary losses suffered by reason of the death, funeral expenses, and the reasonable value of the services, consortium, companionship, comfort, instruction, guidance, counsel, training, and support of which those on whose behalf suit may be brought have been deprived by reason of such death. R.S.Mo. § 537.090 (2005).
In Missouri, there is no dollar limit on recovery in most wrongful death claims. For cases of medical malpractice or negligence, R.S.Mo. §538.210 (2017) provides a cap on noneconomic damages of $400,000 for personal injury arising out of the rendering of or the failure to render health care services, $700,000 for a catastrophic personal injury arising out of the rendering or failure to render health care services, and $700,000 damages for death arising out of the rendering of or the failure to render health care services. In July 2012, the Missouri Supreme Court held that limits set forth in § 538.210 (2005) for personal injury noneconomic damages were unconstitutional as violating one’s right to trial by jury. The cap for personal injury was amended and raised from $350,000 to $400,000 in 2017.
In Kansas, wrongful death damages may be recovered for, but are not limited to: (1) mental anguish, suffering or bereavement; (2) loss of society, companionship, comfort or protection; (3) loss of marital care, attention, advice or counsel; (4) loss of filial care or attention (5) loss of parental care, training, guidance or education; and (6) reasonable funeral expenses for the deceased. K.S.A. § 60-1903 (1998) and 60-1904 (1984).
There is a limitation (or cap) on non-pecuniary damages in Kansas. The current cap on non-pecuniary damages is $250,000.00. K.S.A. § 60-1903 (1998). Any verdict for non-pecuniary damages in excess of the $250,000.00 limit is reduced by the court to $250,000.00. K.S.A. § 60-1903 (1998).
The “cap” in K.S.A. § 60-1903 might lead some to think that in Kansas cases where the decedent was not making financial contributions to the plaintiff, or where the decedent was not employed, that damages would be limited to $250,000.00. This is not the case, despite your legitimate concerns. The legal definition of “pecuniary damages” is not limited to financial contributions. Loss of the decedent’s services, care, guidance, attention, advice, and protection are listed along with loss of earnings and funeral expenses in the pecuniary category. These damages are referred to as Wentling damages. Wentling v. Medical Anesthesia Services, P.A., 237 Kan. 503 (1985).
Recently, the Supreme Court of Kansas held that the non-economic damages cap for personal injury actions under K.S.A. § 60-19a02, violated the Kansas Constitution Bill of Rights because it intrudes upon the jury’s determination of compensation owed personal injury plaintiffs to redress their injury. However, the cap on wrongful death actions has not been modified and is still provided by Kan. Stat. Ann. 60-1903. Hillburn v. Enerpipe Ltd., No. 112,765,2019 WL 2479464 (Kan. June 14, 2019).
In Missouri, all of the elements of damages may be recovered in a single action, including “survival” damages. As set forth in R.S.Mo. § 537.090 (2005):
In addition, the trier of the facts may award such damages as the deceased may have suffered between the time of injury and the time of death and for the recovery of which the deceased might have maintained an action had death not ensued.
Id. These types of “damages” might include medical expenses and lost income, and conscious pain and suffering experienced by the decedent between the onset of fatal injury and his or her death. Again, these damages are in addition to those damages that the wrongful death damages allowed for in Missouri.
Two separate claims arise when death results from another’s negligence or recklessness in Kansas: (1) a survival action under K.S.A. § 60-1801 (1963), and (2) a wrongful death action under K.S.A. § 60-1901 (2013). K.S.A. § 60-1801 reads:
In addition to the causes of action which survive at common law, causes of action for mesne profits, or for an injury to the person, or to real or personal estate, or for any deceit or fraud, or for death by wrongful act or omission, shall also survive; and the action may be brought notwithstanding the death of the person entitled or liable to the same.
A survival action brought under K.S.A. § 60–1801 allows a personal representative of the estate to recover “damages accrued by the injured party between the date of injury and death for the benefit of the decedent’s estate.” Jeanes v. Bank of Am., N.A., 296 Kan. 870, 880-81, (2013)(quoting Mason v. Gerin Corp., 231 Kan. 718, 721 (1982)); Farm & City Ins. Co. v. American Standard Ins. Co., 220 Kan. 325, 337 (1976) (“This survival statute authorizes recovery of damages accruing between the injury and the death of the injured person.”). Examples of these damages might include medical bills, pain and suffering, loss of income, and loss of earning capacity.
In Missouri, “the duty and responsibility of apportionment of losses in a wrongful death action lies within the sound discretion of the trial court.” Wood v. Smith, 359 S.W.3d 526 (Mo. App. E.D. 2012). The relevant statute is Mo. Rev. Stat. §537.095 (1979). The court will consider both pecuniary and non-pecuniary losses in the apportionment. Wright v. Cameron Mutual Insurance Co., 908 S.W.2d 867 (Mo. App. 1995). Depending on the facts, the court can entirely exclude members from the settlement. The trial court will consider apportionment of the settlement to all beneficiaries entitled to sue or join the wrongful death action, regardless of whether they did in fact join the suit. Libberton v. Phillips, 995 S.W.2d 66 (Mo. App. S.D. 1999).
In determining how to apportion a recovery for non-pecuniary damages, the court will analyze the relationships between each class beneficiary and the decedent. In allocating pecuniary damages, the decedent’s financial contribution to each class beneficiary is the primary factor.
Often times, families and beneficiaries come to a private agreement on how to apportion a wrongful death recovery. While this agreement still needs to be approved by the court, the court regularly approves it so long as it is reasonable and consensual.
K.S.A. §60-1905 (1905) governs the apportionment of recovery. This statute almost directly parallels the Missouri statute stating that, “the apportionment shall be in proportion to the loss sustained by each of the heirs, and all heirs known to have sustained a loss shall share in such apportionment regardless of whether they joined or intervened in the action.” Id.
One last piece of advice: Find out the preferences and local rules of the court presiding over the wrongful death settlement hearing. Some judges are more formal than others. For example, there are judges who will not accept an affidavit from the plaintiff in lieu of live testimony. This will affect the type and amount of evidence needed to get the settlement approved.
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