His Father-in-Law Paid a Hit Man $3,000 to Beat Him to Death With a Hammer Over Custody of His Little Girl. A Cass County Judge Entered $9.66 Million for the Daughter He Left Behind.
After trial: A bench judgment on damages, entered July 8, 2013, after liability was established on summary judgment from the criminal conviction. No appeal of the damages judgment was found and nothing was reduced. No cap applied: N.D.C.C. 32-42-02's $500,000 noneconomic limit reaches only health care malpractice, and the $250,000 exemplary award was far below the ceiling of the greater of $250,000 or twice compensatory damages under 32-03.2-11(4). North Dakota diverts no share of punitive damages to the state. Collectability: Kirkpatrick is serving life without parole, told the court his $1,000,000 bail had gone to his lawyers, and his wife said the family could not pay any amount; the judge herself wrote that he was unlikely to pay the noneconomic damages. The figure here is what the court ordered, not what the family has received.
Won by Robins Kaplan LLP.
Dr. Philip Gattuso, a 49-year-old Fargo dentist, was beaten to death with a hammer in his home in October 2009. His father-in-law, Gene Kirkpatrick, had paid a hit man $3,000 with $10,000 more promised, because he wanted custody of Gattuso's young daughter. Kirkpatrick is serving life without parole. In July 2013, after a bench trial on damages, Judge Lisa Fair McEvers entered a $9,656,139.50 wrongful-death judgment for the girl and the estate. Kirkpatrick says he cannot pay any of it.
What happened
Dr. Philip Gattuso was a dentist in Fargo. His wife had died seven months earlier, and he was raising their young daughter alone. His father-in-law, Gene Kirkpatrick of Oklahoma, wanted custody of the girl, and the two were fighting over it.
In October 2009 Kirkpatrick paid a man named Michael Nakvinda $3,000, with a promise of $10,000 more, to kill Gattuso. Nakvinda beat him to death with a hammer in his own home, staged the apartment to look like a burglary and drove off in Gattuso's Porsche. Gattuso was 49.
A Cass County jury convicted Kirkpatrick of conspiracy to commit murder in July 2011. He was sentenced to life without parole. Nakvinda also received a life sentence.
The wrongful-death case was brought by Gattuso's brother, Roy Gattuso, as next friend of the daughter, with the estate as plaintiff. She was a minor, the court identified her only by initials, and she is not named here. Because the criminal conviction settled the question of who was responsible, the plaintiffs won summary judgment on liability and on their motion for exemplary damages. Kirkpatrick waived a jury, so the only thing left to try was how much.
Judge Lisa Fair McEvers of the Cass County District Court heard the damages case and issued her decision on July 8, 2013. She awarded exactly what the plaintiffs asked for: $4,406,139.50 in economic damages, $5,000,000 in noneconomic damages and $250,000 in exemplary damages, a total of $9,656,139.50. Kathleen Flynn Peterson and Brandon Thompson of Robins, Kaplan, Miller & Ciresi, now Robins Kaplan, represented the family, and had told the court that figure was what it would take to even come close to counterbalancing the loss.
No cap touched it. North Dakota's $500,000 limit on noneconomic damages, in N.D.C.C. 32-42-02, reaches only health care malpractice, so the $5,000,000 stood in full. The exemplary damages statute, 32-03.2-11(4), allows the greater of $250,000 or twice the compensatory award, which here would have permitted something near $19,000,000; the $250,000 awarded was the floor of that range, not the ceiling.
The money is another matter. Kirkpatrick had posted $1,000,000 in cash bail during the criminal case and then said it had all gone to his lawyers; in a June 2013 letter he said he still owed $85,000 in legal fees. His wife told the Fargo Forum, "If it was $10,000 or $10 million, I can't pay it." Judge McEvers wrote in her decision that it was unlikely he would be able to pay any of the noneconomic damages. Flynn Peterson said she was working with lawyers in Oklahoma to see what could be collected.
It is the largest individual personal-injury judgment we have found in North Dakota. It is also, on the record as it stands, unpaid.
Sources
This account is drawn from contemporaneous public reporting and the court record.
- 1.The Forum of Fargo-Moorhead, 10 July 2013: Judge Lisa Fair McEvers of the Cass County District Court entering the July 8, 2013 judgment; the $4.4 million economic, $5 million noneconomic and $250,000 breakdown; Roy Gattuso as the filing relative for the daughter; Sharon Kirkpatrick's statement that the family cannot pay; Kirkpatrick's letter on his legal debts; and the judge's note that he is unlikely to pay the noneconomic damages
- 2.Associated Press via Claims Journal, 12 July 2013: the $9.6 million award and its components; the October 2009 murder-for-hire killing of the Fargo dentist by Michael Nakvinda; and the life sentences for Kirkpatrick and Nakvinda
- 3.Grand Forks Herald: the nearly $10 million wrongful-death award for Gattuso's orphaned daughter
- 4.Robins Kaplan LLP (firm)
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