60-1905. Apportionment of recovery. The net amount recovered in any such action, after the allowance by the judge of costs and reasonable attorneys fees to the attorneys for the plaintiffs, in accordance with the services performed by each if there be more than one, shall be apportioned by the judge upon a hearing, with reasonable notice to all of the known heirs having an interest therein, such notice to be given in such manner as the judge shall direct. 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; but in the absence of fraud, no person who failed to join or intervene in the action may claim any error in such apportionment after the order shall have been entered and the funds distributed pursuant thereto.
History: L. 1963, ch. 303, 60-1905; January 1, 1964.
Source or prior law:
G.S. 1868, ch. 80, § 422; L. 1909, ch. 182, § 419; R.S. 1923, 60-3203; L. 1939, ch. 233, § 2; L. 1947, ch. 319, § 1; L. 1955, ch. 277, § 1.
Law Review and Bar Journal References:
"Comparative Negligence Update—A Discussion of Selected Issues," Donald W. Vasos, 44 J.B.A.K. 13, 43, 44 (1975).
"Recovery of Attorney Fees in Kansas," Mark A. Furney, 18 W.L.J. 535, 561 (1979).
"Maximizing Recovery under the Kansas Wrongful Death Act," Mark V. Parkinson, Vol. VIII, No. 3, J.K.T.L.A. 21 (1984).
"Settlement of a Personal Injury Case: Some Issues to Consider," John M. Parisi, J.K.T.L.A. Vol. XX, No. 2, 20 (1996).
CASE ANNOTATIONS
Prior law cases, see G.S. 1949, 60-3203 and the 1961 Supp. thereto.
1. Statutes in pari materia must be construed together. Flowers, Administratrix v. Marshall, Administrator, 208 Kan. 900, 903, 494 P.2d 1184.
2. Act applied in construing provisions of no fault insurance act (K.S.A. 40-3109 and 40-3113); insurer's right as to reimbursement and indemnity determined. Farm & City Ins. Co. v. American Standard Ins. Co., 220 Kan. 325, 340, 552 P.2d 1363.
3. Wrongful death action not a true "joint" action; all injured need not join. Frost v. Hardin, 1 Kan. App. 2d 464, 468, 469, 571 P.2d 11.
4. Recovery hereunder may be apportioned only among heirs (or heirs at law); widow of childless deceased has exclusive right to recovery. Johnson v. McArthur, 226 Kan. 128, 130, 135, 137, 596 P.2d 148.
5. Cited in holding one spouse may not sue the other for torts occurring during marriage. Guffy v. Guffy, 230 Kan. 89, 95, 631 P.2d 646 (1981).
6. Evidence that widow remarried in less than seven months after death not admissible on question of mitigation of her damages. Pape v. Kansas Power & Light, 231 Kan. 441, 445, 647 P.2d 320 (1982).
7. Whether court erred in instructing jury to allocate damages between plaintiff and her children examined. Griffith v. Mt. Carmel Medical Center, 842 F. Supp. 1359, 1369 (1994).
8. Attorney fees awarded in wrongful death case; court approves client's waiver of conflict of interest. Baugh v. Baugh, 25 Kan. App. 2d 871, 973 P.2d 202 (1999).
9. Maximum statutory nonpecuniary damages award was warranted for plaintiffs. Turman v. Ameritruck Refrigerated Transport, Inc., 125 F. Supp. 2d 444, 447 (2000).
10. Contingency fee charged by counsel for widow in wrongful death action was reasonable. Newton v. Amhof Trucking, Inc., 385 F. Supp. 2d 1103, 1108 (2004).
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