By Timothy W. Monsees
KANSAS CITY OFFICE
4717 Grand, Suite 820
Kansas City, Missouri 64112
1021 E. Walnut
Springfield, Missouri 65806
PERSONAL INJURY AND WRONGFUL DEATH LAWYERS
Wrongful death law is a much evolving field. The wrongful death laws in both Kansas and Missouri have gone through significant changes in the last 25 years. Both states have attempted to eliminate injustices within the wrongful death statutes through amendments. Kansas has raised the cap on non-pecuniary damages while Missouri amended its statute to include a broader list of parties who can bring the wrongful death suit.
While the statutes in the two states have several similarities, their differences are significant and can be a source of difficulty. Among the differences are the length of the statute of limitations, the proper parties to bring the suit, and the existence of a cap on damages in Kansas while not in Missouri.
This short introduction to wrongful death law in Kansas and Missouri will outline each state’s applicable statutes while highlighting the significant differences between them and explaining what these differences mean.
Proper Parties to Bring the Suit
The proper parties to bring a cause of action for wrongful death in Missouri are enumerated in V.A.M.S. 537.080:
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:
- 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;
- 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 because of the death;
- If there be no person in class (1) or (2) entitled to bring the action, then by a plaintiff ad litem . Such plaintiff ad litem shall be appointed by the court having jurisdiction of the action for damages provided in this section upon application of some person entitled to share in the proceeds of such action. Such plaintiff ad litem shall be some suitable person competent to prosecute such action and whose appointment is requested on behalf of those persons entitled to share in the proceeds of such action. Such court may, in its discretion, require that such plaintiff ad litem give bond for the faithful performance of his duties.
Initially, the category of children included only the decedent’s biological, minor children, obviously due to their dependant nature. However the decedent’s adult children have now been included in this category, along with adopted and illegitimate children of the decedent. Holt v. Burlington N. RR., 685 S.W.2d 851 (Mo.App.W.D.1984). A group that continues to be excluded is stepchildren. Although they are allowed to testify as to the significance of their relationship with the decedent, they are not allowed to take part in the recovery. However, when the child will suffer great financial detriment Missouri allows for something known as, equitable adoption. Id . Equitable adoption is a device used for the child’s benefit and protection. Where applicable, the date of adoption relates back allowing the child to take part in a wrongful death action.
The clause allowing for recovery by a spouse is seemingly self-explanatory. Only those who were legally married to the decedent at the time of his or her death are allowed to recover. In Missouri, couples living together who are not legally married may not sue in wrongful death for loss of a partner. However, Kansas does recognize common law marriage and the term “spouses” has been interpreted to include this group. A person that is legally married by common law and survives his or her spouse is entitled to take part in the recovery for wrongful death. Gillaspie v. E.W. Blair Const. Corp.,388 P.2d 647 (Kan. 1964). It is important to note that when a suit is brought by a surviving spouse, evidence that the spouse has since remarried is not allowed to be introduced as a mitigating circumstance in the wrongful death action. Elmahdi v. Ethridge , 987 S.W.2d 366 (Mo.App.W.D. 1999). Fudge v. City of Kansas City, 720 P.2d 1093 (Kan.1986).
Parents have priority, over all other potential parties to file suit for the wrongful death of an unmarried, childless, minor child. Oldfield v. Giblin , 595 S.W.2d 447 (Mo.App.W.D.1980). This is true regardless of a number of circumstances. A parent who failed to legitimize or shoulder any responsibility for the deceased child is not precluded from taking part in the settlement. Even parents who, due to neglect have lost custody of the deceased child, have standing to sue. Sims v. Arvin Industries, 170 S.W.2d 711 (Mo.App.W.D.1989). Only if parental rights have been terminated, does a parent lose the legal right to sue for the wrongful death of a child. Malone By and Through Alexander v. Jackson, 652 S.W.2d 170 (Mo.App.E.D.1983). The parents do not have to be married for either or the both of them to take part in the suit. However, if paternity is in question, it must be proven before the settlement can be approved and apportioned. Snead by Snead v. Cordes by Golding, 811 S.W.2d 391 (Mo.App.W.D.1991).
When there is no eligible party in the first category to bring the suit, it can be properly brought by a brother or sister of the decedent or their descendants. This includes all brothers and sisters, except of course those that are stepsiblings.
K.S.A. 60-1902 governs actions for wrongful death. The action may be commenced by any one of the heirs at law of the deceased who has sustained a loss by a 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 or 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.
Although the Kansas statute seems to be less restrictive than the Missouri statute, using only the term “heir”, it is not. The term “heir” refers to “one who takes by intestate succession under the Kansas statutes.” Baugh v. Baugh, 25 Kan.App. 2d 871 (1999). When a Kansas decedent leaves a surviving spouse and/or children, Kansas rules of intestate succession exclude, as heirs, parents or siblings. Carter v. City of Emporia, Kan., 543 F.Supp. 354, 357 (D.C. Kan.,1982). The intestate succession laws in Kansas do not give the parents and children in wrongful death actions the same priority and rights as they receive in Missouri. In Kansas, when the parental rights have been severed, neither the parent of a decedent child nor the child of a decedent parent has standing to bring the wrongful death action. Wilson v. Kansas Gas & Electric Co., 744 P.2d 139 (Kan.App.1987). This directly contradicts the law in Missouri where a biological relationship, regardless of parental rights and custody, allows a parent to bring the wrongful death action of decedent child and vice versa. In Kansas the argument supporting the statute is that the wrongful death action is intended to compensate those harmed by the wrongful death of decedent, and if the only relationship that exists is biological then there cannot be any real harm.
In Missouri, all of the elements of damages may be recovered in a single action, including survival damages. V.A.M.S. 537.090 provides for the following:
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.
Among these damages are expenses for the last illness including lost earnings and medical bills, as well as conscious pain and suffering the decedent may have suffered between the onset of injury and death. To maintain a claim for pre-death pain and suffering, the plaintiff must be able to prove by a preponderance of the evidence, ” that the victim survived the initial injury and that he was conscious following the initial injury for an appreciable amount of time.” Green v. Fleishman, 882 S.W.2d (Mo.App.W.D.1994). This can be proven through the testimony of witnesses to the injury, coroners, and medical experts. The definition of “appreciable” seems to be a jury question and depends greatly on the types of injures the decedent sustained.
In Kansas, two separate and distinct causes of action arise when death results from negligence; a survival action, K.S.A. 60-1801, and a wrongful death action, K.S.A. 60-1901. K.S.A. 60-1801 states that:
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 bought notwithstanding the death of the person entitled or liable to the same.
The survival action must be brought by the administrator of the decedent’s estate. Luther v. Danner, 995 P.2d 865 (Kan.2000).
In Missouri, in addition to survival damages, damages are recoverable for pecuniary loss, funeral expenses, and the reasonable value of the services, consortium, companionship, comfort, instruction, guidance, counsel, training, and support that the deceased provided. At this time and in contrast with the Kansas statute there is no dollar limit on recovery in a wrongful death claim in Missouri. However, there is a cap on damages recoverable in a suit against a health care provider.
In any action against a health care provider for damages for personal injury or death arising out of the rendering of or the failure to render health care services, no plaintiff shall recover more than three hundred fifty thousand dollars per occurrence for noneconomic damages from any one defendant V.A.M.S. 538.210.
This statute takes precedent over the wrongful death statute because Missouri law states that “specific statutes pertaining to medical malpractice actions prevail over the general statutes.” Laughlin v. Forgrave , 432 S.W.2d 308 (Mo. 1968). As with the non-pecuniary cap in Kansas the jury is not to be informed of this cap.
The test of the right of recovery for claimed pecuniary loss to the plaintiff is the following: “Is there a reasonable probability of pecuniary benefit to the plaintiff from the continued life of the deceased; or is there a pecuniary injury to the plaintiff from the decedent’s death?” Domijan v. Harp , 340 S.W.2d 728 (Mo. 1960). In assessing damages of this nature, the jury may consider the health, life expectancy, talents, age, habits, character, and earning capacity of the decedent. Kilmer v. Browning , 806 S.W.2d 75 (Mo.App.1991).
Previously, funeral expenses were collectable only where a minor child was the decedent, where a husband sued for a wife’s death, where a legal or moral obligation to pay existed, or where an administrator paid to prevent burial at public expense. Now funeral expenses are collectable by whoever brings suit. Taylor v. Aspey , 567 S.W.2d 670 (Mo.App. 1978).
Before the 1979, amendment Missouri’s wrongful death statute specifically followed the traditional rule that only pecuniary losses were compensable.Caen v. Feld, 371 S.W.2d 209, 211 (Mo. 1963). Now the Missouri statute allows for the recovery of uncapped non-pecuniary damages such as the reasonable value of: services, consortium, companionship, comfort, instruction, guidance, counsel, training, and support. The reasoning behind allowing non-pecuniary losses such as these was explained by the Missouri State Supreme Court, long before the amendment was passed:
They are founded upon the theory that the wrongdoer ought not be permitted to destroy the home or to take away the support, society, comfort, and care which one enjoys, and of which he has a moral right to expect the continuance, and escape liability to the extent of purely pecuniary compensation for the wrong, on the ground that these things, however important they may be to the life and future of the sufferer, are too intangible to be cognized by the law. Miller v. Southern Pacific Co., 178 S.W. 885, 893 (1915).
Claims of this nature are often very detailed. Testimonial evidence recounts the list of chores that the decedent used to perform, the recreational activities he or she used to participate in with the plaintiff, and the details of the physical, emotional, and psychological relationship that the plaintiff had with the decedent. Letz v. Turbomeca Engine Corp., 975 S.W.2d 155, 176 (Mo.App.W.D., 1997). Non-pecuniary damages account for the loss of the decedent’s presence in the life of the plaintiff. “The plaintiff must establish the case by substantial evidence with probative value or by reasonable interferences that may be properly drawn from the plaintiff’s evidence.”Helmtec Indus., Inc. V. Motorcycle Stuff, Inc., 857 S.W.2d 334 (Mo.App.1993). A person claiming non-pecuniary damages must prove that he or she personally sustained actual damages, such as those described above. The plaintiff will not prevail merely by showing that the decedent was injured.
Two items not included in the list of recoverable damages and explicitly excepted are grief and bereavement. Parr v. Parr , 16 S.W.3d 332 (Mo. 2000) Damages must relate to a loss of money, or something by which money or something of value may be acquired. Grief and bereavement do not meet this standard in the eyes of most courts.
In contrast to the Missouri statute, in Kansas, non-pecuniary losses include mental anguish, and suffering or bereavement are included in the calculation of damages.
(a) 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. (b) If no probate administration for the estate of the deceased has been commenced, expenses for the care of the deceased which resulted from the wrongful act may also be recovered by any one of the heirs who paid or became liable for them. Those expenses and any amount recovered for funeral expenses shall not be included in the limitation of K.S.A. 60-1903 and amendments thereto. K.S.A. 60-1904.
As noted, there is a cap on non-pecuniary damages in Kansas. Due to this cap, the distinction between pecuniary and non-pecuniary damages is far more significant under the Kansas statute. The previous limit on non-pecuniary damages under K.S.A. 60-1903 was $100,000. On July 1, 1998 House Bill 2143 raised the limitation to $250,000. The court cannot instruct the jury on this limitation. Wentling v. Medical Anesthesia Services, 237 Kan.503, 701 P.2d 939 (1985). It is argued that this creates what is known as the “cap trap.” Any verdict for non-pecuniary damages in excess of the $250,000 limit is reduced by the court to $250,000.
The cap might lead some to believe that in cases where the decedent was not making financial contributions to the plaintiff that the value of the case would be limited to $250,000. This is not the case. The legal definition of “pecuniary” damages goes beyond financial contributions. Loss of services, attention, care, parental or filial, advice and protection are listed along with loss of earnings and funeral expenses in the pecuniary category, and are often referred to as Wentling damages. Id . In Wentling, the decedent’s husband and two children brought the suit following her death during the delivery of the second child. A nurse working for Defendant administered a spinal anesthetic, without a doctor’s order, causing decedent to go into cardiac arrest and eventually causing her to lose her life. The Defendant admitted 100% liability so only damages were determined in the trial. The trial court awarded the Plaintiffs $25,000 in limited damages, and $761,166.64 in unlimited damages. On appeal the Defendant argued that the categories of “unlimited damages” as they were instructed to the jury were an error because they were supported by “absolutely no evidence of pecuniary loss.” In rejecting Defendant’s argument the court stated that it was not necessary in an action for wrongful death to show the actual monetary value of the loss of services as it is difficult to value services such as those provided by a parent, spouse, or child, in terms of money. Additionally the court found that the jury is as competent as any witness could be in determining the answer to such a question. Id .
Aggravating Circumstances and Punitive Damages
The Missouri statute allows the jury to consider aggravating and mitigating circumstances when calculating damages. Aggravating circumstances are punitive in nature, and are permissible only if the decedent would have been entitled to punitive damages had he lived. Letz v. Turbomeca Engine Corp.,975 S.W.2d 155 (Mo.App.W.D.1997). In a negligence action, punitive damages may be awarded if defendant knew or had reason to know a high degree of probability existed that the action would result in injury. Id. The purpose of aggravating circumstances is to punish the defendant and deter future wrongdoing by the defendant or by others. “In order to establish aggravating circumstances the plaintiff must show willful misconduct, wantonness, recklessness, or want of care by the defendant.” Kilmer v. Browning, 806 S.W.2d 75 (App. S.D. 1991). Defendant’s conduct must indicate that he or she was indifferent to the consequences of his or her actions, and that this indifference lead to the injury.
In Kansas there is no statute specifically recognizing punitive damages or aggravating circumstances in wrongful death cases, however the common law seems to allow it. Smith v. Printup, 938 P.2d 1261 (Kan.1997). The procedure for determining punitive damages in Kansas is set forth by K.S.A. 60-3701, which provides:
In any civil action in which exemplary or punitive damages are recoverable, the trier of fact shall determine, concurrent with all other issues presented, whether such damages should be allowed. If such damages are allowed, a separate proceeding shall be conducted by the court to determine the amount of such damages to be awarded. K.S.A. 60-3701.
Apportionment and Settlement
In Missouri “the duty and responsibility of apportionment of losses in a wrongful death action lies within the sound discretion of the trial court.” Parr v. Parr, 16 S.W.3d 332 (Mo.2000). The applicable statute is V.A.M.S. 537.095. The court must consider both pecuniary and non-pecuniary losses. Not every person in the class who can bring the action is automatically entitled to a share of the settlement in the trial court’s apportionment order. Wright v. Cameron Mutual Insurance Co., 908 S.W.2d 867, 868 (Mo.App.1995). In its discretion, the court may exclude members entirely from the settlement. The trial court apportions the settlement to any or all members of the class of persons 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). The trial court’s discretion in apportioning the verdict is so broad that the appellate court will not interfere unless the apportionment is grossly excessive or inadequate. Bridges v. Van Enterprises, 992 S.W.2d 322 (Mo.App.S.D.1999).
Apportionment of a settlement for non-pecuniary damages is determined by the relationships between each member of the class and the decedent. In distributing pecuniary damages, the financial contribution of the decedent to each member of the class is the determining factor. In apportioning the settlement each relationship should be looked at in relation to the others. For instance in one class you may have a surviving spouse as well as a parent. The spousal relationship, both financial and non-pecuniary generally entitles the spouse to a more significant portion of the settlement. This is due to the significance of the relationship at the time of death in comparison with the parental relationship. Bragg v. Missouri Pacific R. Co., 791 S.W.2d 776 (Mo.App.E.D.1990). Likewise, the relationship between a deceased parent and their child would entitle the child to a greater portion of the settlement than the decedent’s parents. This is illustrated in the case ofWright v. Cameron Mut. Ins. Co . The parents, husband and child of the decedent all had standing to bring the wrongful death suit. The settlement was apportioned as follows: decedent’s husband received $6,300; decedent’s parents received $0; and decedent’s child received $56,000. Wright v. Cameron Mutual Ins. Co., 908 S.W.2d 867 (Mo.App.S.D.1995). A Kansas case was similarly decided. The parents and the mother of decedent’s child reached a settlement that excluded the decedent’s child. However the court rejected the settlement and apportioned one hundred percent of the recovery to the child. Baugh v. Baugh ex rel. Smith, 973 P.2d 202 (Kan.App.1999).
K.S.A. 60-1905 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.” K.S.A. 60-1905.
Lost Chance of Survival
Under Missouri law a lost chance of survival action is not a wrongful death action; it is a personal injury action which belongs solely to the injured party, which if the party dies, must be brought by the personal representative, or a plaintiff ad litem. State ex rel. Tang v. Steelman, 897 S.W.2d 202 (Mo.App.S.D. 1995). In 1992 the Missouri Supreme Court recognized “a cause of action for lost chance of recovery in medical malpractice cases.” Wollen v. DePaul Health Center , 828 S.W.2d 681, 685 (Mo.banc. 1992). In Wollen , the Supreme Court explained the policy behind such a cause of action as follows: A patient with cancer would pay to have a choice between three unmarked doors-behind two of which were death, with life the third option. A physician who deprived a patient of this opportunity would have caused real harm. In light of this reality, the patient does suffer a harm when the doctor fails to diagnose or inadequately treat a serious injury or disease. Id.
Unlike a wrongful death action the harm is not the loss of life, rather it is the loss of the chance of recovery. The plaintiff must prove that a “statistically significant” chance of survival or recovery was lost. Once liability has been determined damages are calculated by multiplying the value of a lost life by the chance of recovery lost. V.A.M.S. 516.105. There is a two-year statute of limitations on lost chance of survival cases in Missouri. The statute begins to run on the date that the negligence occurred, or on the date that the occurrence was complained of. This is the case in instances of medical malpractice where the injury is not noticeable until the Plaintiff experiences some pain. Caldwell v. Lester E. Cox Medical Center South, 943 S.W.2d 5 (Mo.App.S.D.1997). By contrast, a cause of action for wrongful death may be commenced within three years of the date of death. Baumgartel v. American Family Mut. Ins. Co . 29 S.W.3d 416 (Mo.App.E.D.2000).
Kansas as well as Missouri allows for actions based on the lost chance of survival. In Delany v. Cade, 873 P.2d 175 (Kan.1994), the court in recognizing this cause of action set the standard of proof for such cases. The plaintiff must prove three elements by a preponderance of the evidence: a physician or other health care provider, was negligent in treatment of patient; the negligence resulted in actual harm to the plaintiff. The court added that the “lessened degree of recovery resulting from the medical malpractice must be a substantial one, and plaintiff cannot recover for loss of chance that is nothing more than a token or de minimis one.” Id .
In Kansas the cap on non-pecuniary damages created a problem in the calculation of damages for such actions. Kansas uses the same formula to determine damages of this nature. The lost value of life is multiplied by the chance of recovery. Plaintiffs argued that damages should be calculated using the un-capped amount that the jury awarded for the lost value of life and not factoring in the cap until after the damages have been calculated. Defendants of course argued the opposite, that damages should be calculated using either the damages found by the jury or the $250,000 cap for the lost value of life, whichever was lowest. This issue was resolved in a 1996 case which found that “non-pecuniary damages awarded by the jury are to be multiplied by the percentage of lost chance of survival before application to the statutory cap in K.S.A. 60-1903.” Dickey on Behalf of Dickey v. Daugherty, 917 P.2d 889 (Kan., 1996).
If a family member died due to someone else’s carelessness or negligence, contact the Kansas City wrongful death lawyers of Monsees & Mayer P.C. today.