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Collins v. Hertenstein11/15/2005
in, Mr. Brian Keeney, and Mr. Troy Thomas, have filed a response to Mr. Wilson's claim that interest is due on the $700,000 settlement.
Standard of Review
We review the denial of a motion for a new trial under an abuse of discretion standard. City of Pleasant Valley v. Baker, 991 S.W.2d 725, 727 (Mo. App. W.D. 1999). In a wrongful death action, it is within the circuit court's discretion to apportion the losses, and we reverse the judgment only where it is not supported by substantial evidence, it is against the weight of the evidence, or it erroneously declares or applies the law. Parr v. Parr, 16 S.W.3d 332, 336 (Mo. banc 2000). We will not interfere unless the judgment is grossly excessive or inadequate. Kavanaugh v. Mid-Century Ins. Co., 937 S.W.2d 243, 246 (Mo. App. W.D. 1996). Nor do we approve or disapprove the apportionment; rather, we rule on whether the circuit court acted within the discretion granted by section 537.095. Wright v. Cameron Mut. Ins. Co., 908 S.W.2d 867, 868-69 (Mo. App. S.D. 1995).
Legal Analysis
Apportionment Procedure
Section 537.095 provides in relevant part:
3. In any action for damages under section 537.080, the trier of facts shall state the total damages found, or 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.
4. The 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, or if there is no contract, or if the party sharing in the proceeds has no attorney representing him before the rendition of any judgment or settlement, then the court may award the attorney who represents the original plaintiff such fee for his services, from such persons sharing in the proceeds, as the court deems fair and equitable under the circumstances;
(4) To distribute the net proceeds as ordered by the court; . . .
In Parr the Missouri Supreme Court established the procedure that the courts must follow in apportioning wrongful death damages under this statute, noting that the apportionment, based on the parties' respective losses, must occur before the expenses and fees, as contracted, are deducted. 16 S.W.3d at 338-39. Under the Parr method of apportionment, the court first establishes the total recovery amount and then divides it among those entitled to share in proportion to their losses. In that case, the parents and children of the decedent were each apportioned $10,000, and the decedent's wife was apportioned $925,000. Then the decedent's wife, as the claimant, was ordered to (i) "collect and receive said settlement amount . . . receipt therefore, and . . . stipulate for dismissal of this cause"; (ii) " rom the settlement proceeds . . . deduct and pay the expenses of recovery and collection of the judgment" to her law firm; (iii) from the "settlement proceeds apportioned" to her, deduct and pay to her law firm attorney's fees as contracted; (iv) from the "settlement proceeds apportioned" to decedent's mother, to deduct and pay attorney's fees to decedent's mother's law firm as contracted; (v) acknowledge satisfaction for judgment and costs; and (vi) "distribute the net proceeds" in the amounts of $10,000 each to decedent's father and children, and $7,500 to decedent's mother. Id. at 339.
Of the w
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