Section 38 Allocation of Damages Among Survivors

• Library: Damages 2012

Section 537.095, RSMo 2000, also sets forth the manner in which damages are to be apportioned among the survivors in a wrongful death action. Basically, in the case of a verdict, the jury is to state the total damages found. The court then, not the jury, apportions the award among those persons entitled to the award in proportion to the losses suffered by each as determined by the court.

In the event of a settlement, a petition or application for approval of settlement is filed. The court then, after approving and stating the total settlement, apportions the damages among the survivors. Section 537.095.3.

While there is, then, one indivisible claim for wrongful death vested in all parties, once the cause of action becomes merged in a judgment, the interests of the respective parties become separate. State ex rel. Slibowski v. Kimberlin, 504 S.W.2d 237, 241 (Mo. App. W.D. 1973). It is at this point, with the court’s apportionment of the judgment, that the discretion of the court comes into play.

The court’s apportionment of damages must be supported by substantial evidence and is not interfered with unless grossly excessive or inadequate. Farr...