The amount of damages is generally dependent upon factors, such as the size of the family and how much support the deceased was providing that family. Emotional, physical and monetary support make up the particular element of each type of damages listed in K.S.A. 60-1904. In order to calculate each one of these damages, you have to assess each case on its merits in terms of the type of mental anguish, suffering and bereavement that was suffered and explain to a jury how your case is different in regard to that particular damage and try to quantify the significance of that particular type of damage.
Damages are based, to some extent, on an economist looking at your situation but also the facts of your case, which might also require some expertise in the different types of damages and how they are valued. For example, it takes some expertise to understand the loss of the value of a homemaker and that value to the family because, in most situations, a homemaker doesn’t get paid for services, but those services to the family have a significant value, and many experts can testify about how that value is calculated on a dollar basis for each particular service provided to the family.
Unfortunately, under Kansas law, punitive damages are not recoverable in a wrongful death case. Wrongful death actions arise out of the death of a person whereas there is another type of cause of action, called a survival cause of action that also arises from the death of a person. This would involve a case where a person survived the original assault, tort or accident for some period of time and had conscious pain and suffering and then died as a result of that accident, which would then both be a wrongful death cause of action and a survival cause of action, and in a survival cause of action, you can pursue punitive damages.
However, if a person dies instantaneously in an accident with no conscious pain and suffering, then there is only the wrongful death cause of action, and there can be no recovery of punitive damages in Kansas for that type of case alone.
Damages are divided up by the court in an apportionment hearing under K.S.A. 60-1905; these damages are divided up, regardless of whether the heirs joined or intervened in the action. The court typically will look at a situation and say, “Here are two kids that are the heirs and have a wrongful death, and they’re both of approximately the same age and have the same needs,” so they might divide the wrongful death benefits or recovery 50/50 to each heir.
If, on the other hand, one child is an adult child and another is a minor, the minor child might have significantly more damages than the adult child, so the court will apportion a greater percentage, typically, to the minor who survives the loss of a parent. The court, in its equity, is supposed to divide the settlement of a wrongful death recovery in an apportionment hearing after giving reasonable notice to all of the known heirs with an interest in making that recovery.
When it comes to the apportionment process, we always say that there needs to either be a family settlement agreement, where all the family members who are going to recover agree on how to apportion the settlement; or if there is no such agreement, then each individual should obtain his/her own attorney at that point in the proceedings. When a case first comes into our office for a wrongful death, we advise the heirs that there is the potential that there may not be an agreement on apportionment but try to advise them that they should have a unified front when it comes to proving the overall case and the value of the case for the purposes of settlement or litigation.
If each heir has his or her own attorney in the liability phase of the process, that can create a lot of problems in trying to successfully obtain a judgment or a settlement in a wrongful death because the heirs’ attorneys could fight among themselves as to the theory of recovery and end up doing more damage to their case. But in the grand scheme of things, if the parties truly are conflicted on how the damages should be divided from the very beginning and can’t come to a family agreement, then it’s perhaps best suited for each party to have their own attorney.