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Collins v. Hertenstein11/15/2005
cide, on the basis of testimony already presented, whether that sum represents the reasonable value of services rendered. Those services included initial investigation and trial-preparation consultation before trial, and client consultation throughout. Father's lawyer did not represent a named plaintiff during trial, and there is no testimony that he participated in any meaningful way in the appeal that ultimately affirmed the compensatory damages or in the negotiations as to the remanded punitive damages that led to a $700,000 settlement.
As for the attorney's fee that the circuit court ordered Mr. Wilson to pay to Ms. Collins's law firm, this was not error. Mr. Wilson claims that section 537.095.4 only allows the court to order a non-represented person to pay attorney's fees to the lawyer representing the named plaintiff in a wrongful death action. Because he was represented throughout the proceeding, albeit by different lawyers, Mr. Wilson believes he should not have to pay anything to Ms. Collins's law firm. Mr. Wilson forgets, however, that his lawyer had a contract with that law firm, and he was represented by it for about a year-and-a-half, before the contractual relationship between father's lawyer and the law firm terminated several months before trial. Thus, the circuit court did not err in ordering Mr. Wilson to pay fees to the law firm from his share. There has been no contention that the amount ordered was unreasonable in quantum meruit; accordingly, this will not be at issue on remand.
Expenses
Mr. Wilson claims that he should not have been required to pay 36.28 percent of the litigation expenses, particularly as he was only awarded 8.7 percent of the total available for distribution. We have been unable to locate any case that requires litigation expenses to be split between the persons who can share the proceeds of a wrongful death action in proportion to the awards made for their loss. In fact, the statute requires that "the claimant" deduct and pay the expenses of recovery and the attorney's fees before distributing the net proceeds to those persons entitled to share in the proportion ordered by the court. Section 537.095.4(2) & (4). In this case, the claimant is Ms. Collins, and while the various contracts between the parties and their lawyers contemplated the satisfaction of expenses before attorney's fees were to be deducted from the parties' shares, there is no agreement regarding how the parties would divide the expenses.
The expenses that were awarded during the first apportionment hearing came off the top of the settlement, and the remainder was apportioned between Ms. Collins and Mr. Wilson. Mr. Wilson claims that the settlement should have been apportioned first, and then the expenses deducted. While Mr. Wilson is technically correct, this was an interlocutory order that could be accounted for and adjusted in the final judgment. Nor did Mr. Wilson object in any way during the first apportionment hearing to the court's approval of this settlement to which he was a signatory. At the time, the proceeds were needed to pay the considerable expenses that were accruing to prepare the case for trial. Mr. Wilson and Ms. Collins had an agreement stating that Ms. Collins would not object to Mr. Wilson receiving as much as a forty percent share, but as stated above, such agreements cannot bind the court under the express provisions of section 537.095.3. Furthermore, had the circuit court complied with section 537.095.3, Mr. Wilson would not have received any of the settlement proceeds from the first apportionment hearing, because the evidence at that time did not support a finding that he had suffered any loss from the death of his son.
D
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