$6.72 millionJudgment

Kansas Court Enters $6.72 Million Wrongful-Death Judgment After Head-On Crash Kills Wife

Judgment · Coffey County District Court, Kansas · 2015

After trial: We found no appeal of the judgment itself. Under the pretrial agreement, none of it could be collected from the defendants, so any recovery depended on their insurers, and the Tenth Circuit later affirmed summary judgment for Progressive on the follow-on bad-faith counterclaims.

Won by Wagstaff & Cartmell.

Kathryn Gant died at the scene of a head-on crash on K-58 in Kansas on June 10, 2011, after a driver crossed the center line in a no-passing zone. Her husband sued the driver, the driver's parents and the family oil company. After a five-day bench trial in June 2015, a Coffey County judge found all of them liable and awarded $6,723,021. Under a pretrial agreement, none of the judgment could be collected from the defendants themselves.

What happened

At about 7:50 on the morning of June 10, 2011, Kathryn Gant was driving east on K-58 in Kansas on her way to work. Justin Birk was heading west in a 2007 Cadillac Escalade. According to police reports, he crossed the center line in a no-passing zone and hit her vehicle head-on. Kathryn Gant suffered severe injuries and died at the scene. Birk later pleaded guilty to vehicular homicide, on March 5, 2013.

Her husband, Gabriel Gant, sued on April 26, 2013, as an individual and as heir and administrator of her estate. The petition named Justin Birk, his parents Edward and Linda Birk, and the family business, B&B Cooperative Ventures, doing business as Birk Oil Company. It pleaded wrongful death and survival claims against the driver. It also claimed the parents had negligently entrusted the Escalade to a son with a long history of traffic violations, and that Birk Oil answered for the driver as his employer.

The defense side of the case went badly. The defendants' original lawyer was sanctioned twice for failing to follow court orders, and a Kansas appellate panel later described the record of missed discovery obligations in detail. He withdrew in May 2015, shortly before trial. Wagstaff & Cartmell attorneys Adam S. Davis, Jonathan P. Kieffer and Vanessa H. Gross appeared for Gant in the appeals that followed.

Before trial, Gant and the Birks signed an agreement under which no judgment could be collected from the Birks personally. That left the insurers as the only possible source of payment, and it let the case be tried on liability and damages without the family fighting to protect its own assets.

The Coffey County bench trial ran five days, June 1 to 3 and June 10 and 11, 2015. The judge found Justin Birk liable for Kathryn Gant's death, Edward and Linda Birk liable for negligent entrustment, and Birk Oil liable under respondeat superior, because Justin was on the job for the company when the crash happened. The court entered judgment for $6,723,021, and the journal entry was filed July 15, 2015.

The judgment itself was not undone. The litigation that followed concerned the insurers. Progressive, the Birks' auto carrier, sought a declaration that it owed nothing beyond its policy, and Gant, holding the Birks' assigned rights, counterclaimed that it had mishandled their defense. The Tenth Circuit affirmed summary judgment for Progressive on April 30, 2020. A separate Kansas Court of Appeals decision in 2017 dealt only with the sanctions imposed on the original defense lawyer.

Sources

This account is drawn from contemporaneous public reporting and the court record.

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