Farr v. Schoeneman

• Decision Date: 24 December 1985
• Docket Number: 49210,Nos. 49232,s. 49232
• Parties: Karen L. FARR, Plaintiff-Appellant, and Mary E. Green, Plaintiff-Respondent, v. Brian K. SCHOENEMAN, Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 512

702 S.W.2d 512

Karen L. FARR, Plaintiff-Appellant, and Mary E. Green, Plaintiff-Respondent, v. Brian K. SCHOENEMAN, Defendant-Appellant.

Nos. 49232, 49210.

Missouri Court of Appeals,

Eastern District,

Northern Division.

Dec. 24, 1985.

Mary L. Rhodes, Robert M. Clayton, Hannibal, for Karen L. Farr, plaintiff-appellant.

Edward Rex Bradley, Louisiana, for Mary E. Green, plaintiff-respondent.

John W. Briscoe, New London, Herbert A. Parham, Hannibal, for Brian K. Schoeneman, defendant-respondent.

KAROHL, Judge.

Decedent's daughter by a first marriage appeals apportionment of structured settlement in claim for wrongful death of her father. The bulk of the settlement was awarded to respondent's second wife and widow, Mary E. Green. The death resulted from injuries sustained in an automobile collision with defendant Brian K. Schoeneman. Defendant Schoeneman cross-appeals claiming the court erred in ordering interest from the date the structured settlement was approved, March 26, 1984, rather than the later date when apportionment was determined and judgment entered, July 21, 1984.

On April 1, 1983, plaintiff-respondent, Mary E. Green, and her husband, Robert D. Green, were traveling in a vehicle that was struck by an automobile operated by defendant-appellant Brian K. Schoeneman. Robert Green was killed and Mary Green sustained personal injuries. On May 28, 1983, Mary Green filed an action against Brian Schoeneman for wrongful death of her husband and personal injuries. Plaintiff-appellant Farr intervened in the action on September 19, 1983. Subsequently, an amended petition was filed on behalf of Mary E. Green and Karen L. Farr. The petition recognized that Robert Daren Green was survived by his widow and two adult, emancipated children, to-wit: Karen L. (Cashmann) Farr and Gerald L. Green. Gerald Green was not a party but benefited from the apportionment and has not appealed.

On March 26, 1984, the parties presented to the trial court a structured settlement which the court approved and found to have a present value of $321,398.50. This proceeding complied with part of the requirements of § 537.095.3, RSMo.Supp.1979. What remained was the requirement that "[t]he 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." On the same day the court approved the structured settlement the court held a hearing to receive evidence from Mary E. Green and Karen L. Farr on the issue of apportionment. At the conclusion of the hearing the court took the matter under advisement and permitted counsel to file suggested findings of fact.

On July 21, 1984, the court made findings of fact, conclusions of law and entered judgment. It ordered the judgment effective "as of March 26, 1984." The approved structured settlement required defendant to pay $150,000.00 cash, $50,000.00 to Mary E. Green at age 65 on June 18, 1989, and $1500.00 per month to Mary E. Green for her life with payments guaranteed until May 1, 1994. The court's duty of apportionment under § 537.095.3, RSMo.Supp.1979, was satisfied by apportioning the $150,000.00 cash payment as follows: (1) $17,500.00 to Mary E. Green for her personal injuries; (2) cash payments to Mary E. Green of $123,664.02, to Karen L. Farr of $6,417.99, and to Gerald Green of $2,417.99. The judgment also adopted the settlement provisions for monthly payments and the delayed $50,000.00 to the widow.

Plaintiff-appellant Farr claims the trial court erred in apportioning the $150,000.00 because the court failed to comply with the provisions of § 537.095.3, RSMo.Supp.1979. She claims that the judgment does not compensate her for the loss she suffered as a daughter in proportion to the loss sustained by Mary E. Green as a widow. She contends that the widow received 97% of the settlement, over $311,756.00. She also contends that the widow received life insurance proceeds, unpaid employment compensation, inheritance and property as a tenant by the entirety, together with Social Security benefits which should be added to the amount of the settlement and considered by the trier of fact when apportioning the $150,000.00 among the beneficiaries. In her view the award of 97% of the settlement, without regard to the additional sums received by reason of the death of Robert D. Green, is shocking to the moral conscience, wholly unconscionable and excessive.

There are no Missouri cases interpreting these recent changes in the Wrongful Death Statute which would serve to guide a trial court in a decision of apportionment. Similar statutory provisions for apportionment may be found in at least 15 states. See 22 Am.Jur.2d Death § 179 f.8 (1985). Some states have adopted statutes of distribution and descent for intestate estates as a guideline. In Re Badgett, 226 N.C. 92, 36 S.E.2d 658 (1946); Mayer v. Mayer, 119 N.W. 217 (Minn.1909); Snedeker v. Snedeker, 58 N.E. 4 (N.Y.E.D.1900); Murphy v. Duluth-Superior Business, 174 N.W. 515 (Minn.1937); Abbott v. Abbott, 112 Vt. 449, 28 A.2d 375 (Vt.1942).

Appellant Farr acknowledges that § 537.095.3, RSMo.Supp.1979, does not expressly or impliedly state guidelines for the trial court in determining the loss suffered by each person entitled to share damages as are available for apportionment. Appellant Farr suggests that the elements of damage mentioned in § 537.090, RSMo.Supp.1979, present a point of beginning or a first step for the trial court. Under § 537.090, effective in 1979 and before the death of Robert D. Green, the trier of fact is authorized to consider pecuniary losses, the reasonable value of services, consortium, companionship, comfort, instruction, guidance, counsel, training and support. There is no longer an "age of majority" limitation on such loss.

As a second step appellant Farr suggests the trial court should adopt the laws of descent and distribution as the basis of apportionment. Although § 537.095.3 makes no reference to statutes of descent and distribution the preceding subsection, § 537.095.2 directs that a plaintiff ad litem shall distribute any settlement or recovery among those entitled to share in the proceeds "according to the laws of descent unless special circumstances indicate that such a distribution would be inequitable, in which case the court shall apportion the settlement or recovery in proportion to the losses suffered by each person or party entitled to share in the proceeds...." Appellant Farr would have us read the two subsections together and apply the laws of descent and distribution to the present case where the parties were before the court and offered an opportunity to present evidence on the losses suffered by each.

Plaintiff-respondent Mary E. Green answers that the legislature expressly applied the laws of descent and distribution only to plaintiff ad litem wrongful death proceedings and did not adopt that standard where special circumstances indicate such distribution would be inequitable. She argues that on the facts of this case subsection 537.095.3 placed the responsibility on the court without reference to intestate guidelines. On her theory the court properly looked to the evidence and determined the respective losses suffered, apportioned those losses and entered a judgment supported by the evidence. Accordingly, we turn to the facts.

Mary E. Green is 60 years of age. She was married to Robert D. Green two months less than 7 years. During the marriage she was not employed for wages outside of the home, her husband was her sole support. He earned $2700.00 per month. She will receive no retirement benefits because her husband had made other arrangements with his employer. Karen L. Farr is 39 years of age and Gerald L. Green, 37. Mary E. Green sustained obligations for expenses in respect of her husband's death in the approximate amount of...