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`CHRISTOPHER Y. MEEK, Individually and
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`On Behalf Of All Others Similarly Situated,
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`Plaintiff,
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`vs.
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`KANSAS CITY LIFE INSURANCE COMPANY, )
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`Defendant.
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`Case No. 4:19-cv-472-BP
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`PLAINTIFF’S REPLY IN SUPPORT OF BILL OF COSTS
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE WESTERN DISTRICT OF MISSOURI
`WESTERN DIVISION
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`The Court rejected Defendant Kansas City Life Insurance Company’s (“KCL”)
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`interpretation of its standardized universal life insurance policies and found that KCL has not
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`complied with its contractual obligations for nearly four decades in calculating the cost of
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`insurance (“COI”) charges, resulting in repeated monthly breaches of those policies. A jury found
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`KCL’s conduct caused over $5 million in damages to a class of Kansas policyholders since the
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`early 1980s, and the Court entered judgment in excess of $900,000 in damages caused by KCL
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`between 2014 and 2021, along with post-judgment interest. KCL’s assertion that Plaintiff is not
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`the “prevailing party” under these circumstances lacks any legal or factual basis and should be
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`rejected. KCL’s fundamentally flawed argument rests on a misinterpretation of the term
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`“prevailing party,” reliance on inapplicable case law, and a distorted account of the procedural
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`history of this case. Plaintiff requests that the Court reject KCL’s arguments and approve Plaintiff’s
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`Bill of Costs.
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`I. PROCEDURAL BACKGROUND
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`Plaintiff initiated this case on June 18, 2019, by filing a complaint on behalf of himself and
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`a nationwide class of policyholders. Plaintiff alleged that KCL breached certain universal life
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`insurances policies issued to those policyholders in three respects. First, because KCL’s policies
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`identified only mortality factors and its expectations as to future mortality experience as the basis
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`for its determination of COI rates, KCL breached its policies because it used unlisted, and therefore
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`unauthorized, non-mortality factors—such as profits and expenses—in determining COI rates,
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`thus resulting in repeated monthly COI overcharges (Count I). Second, Plaintiff alleged KCL’s
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`inclusion of unlisted expense amounts in the COI also separately breached the monthly expense
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`charge provisions of those same policies (Count II). Third, Plaintiff alleged the COI rates provision
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`required KCL to use its then-current expectations as to future mortality experience to calculate
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`each monthly COI charge as those expectations changed over time, but that it had breached its
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`policies by using outdated mortality expectations that were worse than its updated, improved
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`mortality expectations, further resulting in higher COI charges than the policies authorized (Count
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`III). Plaintiff additionally asserted a claim for conversion arising out of the same facts (Count IV).
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`Plaintiff’s Counts II-IV involved overlapping damages with those pled under Count I. Plaintiff
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`also asserted a claim requesting declaratory and injunctive relief (Count V). See Doc. 1 (Compl.);
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`see also Doc. 8 (Am. Compl). KCL denied liability. See Doc. 17 (Answer). KCL asserted no
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`counterclaims. Id.
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`On February 7, 2022, the Court certified a class of Kansas owners of certain policy forms
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`(“Class Policies”) for Counts I–IV (“Class”). See Doc. 136 at 15. Thereafter, the parties filed cross-
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`motions for summary judgment on Plaintiff’s claims. In its March 23, 2023 Order on the parties’
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`summary judgment motions, the Court rejected KCL’s interpretation of the Class Policies, agreed
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`with Plaintiff’s interpretation under Counts I through III, and entered summary judgment in favor
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`of the Class on KCL’s liability for breaches of contract under Plaintiff’s Counts I and II, declined
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`to issue a ruling on breach on Count III, and entered summary judgment for KCL on Count IV for
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`conversion because the Court found there was no conversion claim under Kansas law on these
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`facts. See Doc. 243 at 13-19.
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`The case proceeded to trial where the jury awarded damages of over $5 million to the Class
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`for the nearly four decades KCL breached the Class Policies by considering unlisted non-mortality
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`factors, such as profits and expenses, when determining COI rates, and over $900,000 for that
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`conduct for the period between June 18, 2014 (within the five year statute of limitations period
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`before the case was filed) and February 28, 2021 (the last date through which Plaintiff’s expert
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`calculated damages). While the Court found KCL liable for breaching the policies’ expense charge
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`provisions by considering expenses when determining the COI rates, the jury found $0 in damages
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`for that claim. The jury also found in KCL’s favor on its alleged failure to apply its then-current
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`mortality rates when determining the monthly COI rates. Doc. 311. Following trial, the Court
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`entered an order partially decertifying the class to remove claims for breaches that occurred prior
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`to June 18, 2014 (outside the five year statute of limitations) and dismissing those claims without
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`prejudice, directing judgment to be entered on the jury’s verdict of over $900,000 in damages
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`caused by KCL between June 18, 2014 and February 28, 2021, and dismissing without prejudice
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`Plaintiff’s Count V for declaratory and injunctive relief. See Doc. 329. The Court denied KCL’s
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`post-trial Motion for Decertification of the Class and to Alter or Amend Judgment (Doc. 335) and
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`its Renewed Motion for Judgment as a Matter of Law on Count I (Doc. 336), denied Plaintiff’s
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`Motion for a New Trial or, in the Alternative, Motion for Additur (Doc. 333), and granted
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`Plaintiff’s Motion to Alter or Amend Judgment to include an award of post-judgment interest at
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`the rate of 5.23% (Doc. 334). See Doc. 352; see also Doc. 353 (Judgment).
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`Plaintiff then filed his first Bill of Costs. See Doc. 358. KCL objected to the taxation of
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`certain costs but did not, at that time, argue that it was the prevailing party instead of the Plaintiff.
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`Doc. 371. The Court denied that Bill of Costs without prejudice pending resolution of the parties’
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`appeals to the Eighth Circuit. See Doc. 380. The Eighth Circuit affirmed the Court’s judgment,
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`including providing a full-throated rejection of KCL’s interpretation of the Class Policies. Meek v.
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`Kansas City Life Ins. Co., 126 F.4th 577, 585-88 (8th Cir. 2025).
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`Now, Plaintiff has filed a renewed Bill of Costs and supporting Affidavit. Docs. 385-386.
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`KCL opposes again, now contending that KCL, not Plaintiff, is the prevailing party, but otherwise
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`not challenging the costs Plaintiff seeks to tax. Doc. 390.
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`II. LEGAL STANDARD
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`Under Federal Rule of Civil Procedure 54(d)(1), taxable costs are allowed to the prevailing
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`party unless a federal statute, the federal rules, or a court order provides otherwise. Fed. R. Civ. P.
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`54(d)(1). “There is a presumption that the prevailing party is entitled to costs.” Bathke v. Casey’s
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`Gen. Stores, Inc., 64 F.3d 340, 347 (8th Cir. 1995) (citing Fed. R. Civ. P. 54(d)); Abt Sys., LLC v.
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`Emerson Elec. Co., No. 4:11CV00374 AGF, 2016 WL 5470198, at *2 (E.D. Mo. Sept. 29, 2016)
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`(“[T]he Eighth Circuit has long held that there is a strong presumption that the prevailing party is
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`entitled to an award of costs.”) (emphasis added) (citing Thompson v. Wal Mart Stores, Inc., 472
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`F.3d 515, 517 (8th Cir. 2006)). “The losing party bears the burden of overcoming the presumption
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`that the prevailing party is entitled to costs . . . .” 168th & Dodge, LP v. Rave Revs. Cinemas, LLC,
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`501 F.3d 945, 958 (8th Cir. 2007). To successfully challenge an award of costs, the losing party
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`must provide specific reasons or evidence showing inequity. Nicholson v. Biomet, Inc., 537 F.
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`Supp. 3d 990, 1032 (N.D. Iowa 2021), aff’d, 46 F.4th 757 (8th Cir. 2022) (“A general statement
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`of fairness, however, is insufficient to rebut Rule 54(d)(1)’s presumption.”). Courts have broad
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`discretion in awarding costs, but they must provide a rationale if they decide to deny costs to the
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`prevailing party.” Thompson, 472 F.3d at 517.
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`III. ARGUMENT
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`Plaintiff prevailed in this action by compelling the Court to adopt his proffered
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`interpretation of the Class Policies on behalf of the Class (which KCL should employ going
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`forward) and by further securing more than $900,000 in damages, fully compensating the Class
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`for overcharges within the limitations period due to KCL’s use of unlisted non-mortality factors
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`in pricing the COI rates. KCL’s assertion that it is the prevailing party after having the key policy
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`language at issue interpreted against it, after having liability found against it as a matter of law on
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`Plaintiff’s primary theory of liability, after having $900,000 in damages awarded against it, and
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`after having unsuccessfully appealed those determinations, is entirely unfounded and contradicts
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`the clear outcome of this litigation. The fact that Plaintiff did not obtain the full relief originally
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`sought does not negate Plaintiff’s entitlement to costs under Rule 54. Accordingly, the Court
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`should grant Plaintiff’s Bill of Costs.
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`A. Plaintiff is the “Prevailing Party” under Rule 54(d).
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` A
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` “prevailing party” for the purpose of awarding costs is defined as the party in whose
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`favor a judgment is rendered, regardless of the amount of damages awarded. Buckhannon Bd. &
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`Care Home, Inc. v. W. Virginia Dep’t of Health & Hum. Res., 532 U.S. 598, 603 (2001).1
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`1 While Buckhannon analyzes the “prevailing party” under the fee-shifting provisions of the Fair
`Housing Amendments Act (FHAA) and Americans with Disabilities Act (ADA), courts have
`concluded that the term “prevailing party” has the same legal meaning for the purpose of awarding
`costs under Rule 54(d) as it does across various fee-shifting and cost-shifting statutes that employ
`that term. See, e.g., Royal Palm Properties, LLC v. Pink Palm Properties, LLC, 38 F.4th 1372,
`1376 (11th Cir. 2022) (noting that because Congress has used this term consistently in such
`statutes, there is no reason to apply a different interpretation in the context of costs: “While the
`majority of the Supreme Court’s prevailing party jurisprudence . . . comes from civil rights actions,
`there is no reason to believe that its definition of the legal term ‘prevailing party’ varies across
`different legal contexts,” and there is “no reason to depart from that meaning in the context of
`costs.”); Farrar v. Hobby, 506 U.S. 103, 119–20 (1992) (O’Connor, J., concurring) (suggesting
`that the prevailing party standard under § 1988 and Rule 54(d) are the same); CRST Van Expedited,
`Inc. v. E.E.O.C., 578 U.S. 419, 422 (2016); Manildra Mill. Corp. v. Ogilvie Mills, Inc., 76 F.3d
`1178, 1183 (Fed. Cir. 1996); Tunison v. Continental Airlines Corp., 162 F.3d 1187, 1190 (D.C.
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`Traditionally, this means the party who won at trial, regardless of whether the party prevailed on
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`all issues and regardless of the amount of damages awarded. Green Const. Co. v. Kansas Power
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`& Light Co., 153 F.R.D. 670, 674 (D. Kan. 1994) (citing American Ins. Co. v. El Paso Pipe &
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`Supply Co., 978 F.2d 1185, 1192-93 (10th Cir.1992); Laura B. Bartell, Taxation of Costs and
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`Awards of Expenses in Federal Court, 101 F.R.D. 553, 564 (1984)).
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`For example, courts have routinely ruled that a plaintiff qualifies as a prevailing party based
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`on an award of nominal damages or a final victory on a material but not predominant claim. See,
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`e.g., Lackey v. Stinnie, 145 S. Ct. 659, 668 (2025); Tyler v. Corner Const. Corp., 167 F.3d 1202,
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`1204 (8th Cir. 1999); Fair Isaac Corp. v. Fed. Ins. Co., No. 16-CV-1054 (DTS), 2025 WL 399899,
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`at *1 (D. Minn. Jan. 17, 2025) (rejecting defendant’s argument that there was an “absence of clear
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`victory” and awarding plaintiff costs under Rule 54(d), even though the plaintiff did not prevail on
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`every argument or obtain the full verdict it sought); Leonard v. Sw. Bell Corp. Disability Income
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`Plan, 408 F.3d 528, 533 (8th Cir. 2005) (finding that the plaintiff was the prevailing party despite
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`losing on most issues and recovering only a small portion of the requested award, because she
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`successfully “chang[ed] her legal position and that of other similarly situated beneficiaries with
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`respect to the plans, in addition to recovering over $20,000”); Osseiran v. Int’l Fin. Corp., 68 F.
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`Supp. 3d 152, 156 (D.D.C. 2014) (finding that the plaintiff was the prevailing party and eligible
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`for an award of costs, even though he succeeded on only one of three claims and received only one
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`dollar in nominal damages, reasoning that the monetary judgment altered the defendant’s behavior
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`by requiring a payment that would not have otherwise been made).
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`Cir. 1998); Miles v. State of California, 320 F.3d 986, 989 (9th Cir. 2003); Andretti v. Borla
`Performance Indus., Inc., 426 F.3d 824, 835–36 (6th Cir. 2005); Dattner v. Conagra Foods, Inc.,
`458 F.3d 98, 101–02 (2d Cir. 2006) (per curiam).
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`In other words, the prevailing party is typically the party who wins the lawsuit, either by
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`judgment in its favor or some other resolution that provides the primary relief requested. Here,
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`“Defendant cannot be deemed the prevailing party. Although a defendant can attain prevailing-
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`party status whenever the plaintiff’s challenge is rebuffed . . . Defendant did not fully rebuff
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`Plaintiff’s challenge here.” See, e.g., McDonald v. City of Pompano Beach, Fla, No. 20-CV-60297,
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`2024 WL 5319013, at *4 (S.D. Fla. Nov. 27, 2024), report and recommendation adopted, No. 20-
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`CV-60297, 2025 WL 71962 (S.D. Fla. Jan. 10, 2025). “Here, the parties did not rebuff each other’s
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`claims (Defendant did not file any counterclaims) and end up in the status quo ante. Rather . . .
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`Plaintiff prevailed on at least one of his claims and obtained . . . relief that materially altered the
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`legal relationship between the parties.” Id. “The Supreme Court’s decisions make clear that
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`Plaintiff becomes the prevailing party even with partial success . . . the prevailing party inquiry
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`depends on plaintiff succeeding on ‘any significant issue,’ not the magnitude of that relief
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`obtained.” Id. at *3. See also Leonard, 408 F.3d at 532-33 (holding the district court abused its
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`discretion in denying costs where the plaintiff “succeeded in changing her legal position” despite
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`“having lost on most issues raised, and having recovered only a relatively small part of the award
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`she sought . . . [W]hat counts as prevailing for purposes of an award of costs is a question of law”).
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`Plaintiff prevailed in this action. The Court adopted Plaintiff’s interpretation of the Class
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`Policies on behalf of the Class, which KCL should employ going forward. The Court ruled KCL
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`liable as a matter of law under Plaintiff’s primary theory of liability and awarded $900,000 in
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`damages, fully compensating the Class for overcharges within the limitations period. Plaintiff also
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`successfully upheld these victories by defeating KCL’s appeal.
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`Contrary to KCL’s argument, courts determine prevailing party status based on the overall
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`litigation outcome, not by tallying claims. See Jenkins by Jenkins v. State of Mo., 127 F.3d 709,
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`714 (8th Cir. 1997) (“[S]tatus as a prevailing party is determined on the outcome of the case as a
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`whole, rather than by piecemeal assessment of how a party fares on each motion along the way.”);
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`Republic Tobacco Co. v. N. Atl. Trading Co., 481 F.3d 442, 446–47 (7th Cir. 2007) (“[Plaintiff]
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`prevailed … because the district court entered a $7.44 million judgment in its favor” despite
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`defendant’s post-trial success in reducing plaintiff’s damages award). KCL distorts the record and
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`misapplies legal precedent by claiming as so-called “wins” the dismissal of claims without
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`prejudice (Plaintiff’s Count V and claims for breaches occurring prior to June 18, 2014), and partial
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`summary judgment on secondary or overlapping claims that do not negate Plaintiff’s core victory
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`on Plaintiff’s primary and inclusive Count I claim. Doc. 390 at 6. At the same time, KCL ignores
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`Plaintiff’s decisive successes: obtaining certification of a class, securing a pretrial determination
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`of KCL’s breach in the Class’s favor that is entitled to collateral estoppel effect (see Doc. 351 at
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`11), and winning a jury verdict on the Class’s principal claim. Accordingly, Plaintiff prevailed in
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`proving KCL misinterpreted and failed to comply with its policies. The only discrete win for KCL
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`that had any even arguable impact on its monetary exposure was in the jury finding KCL had not
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`failed to use its then-current mortality expectations, which was a relatively small portion of the
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`overall damages caused by KCL breaches.
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`KCL’s claim that it is the prevailing party merely because it reduced Plaintiff’s recovery
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`is fundamentally flawed and contradicts well-settled legal precedent. Every case KCL cites is
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`either entirely inapplicable or actually supports Plaintiff’s position. Doc. 390 at 7. In three of the
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`cases relied on by KCL, the fact that the defendant was successful on one or more counterclaims
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`was integral to the court’s determination regarding the prevailing party. In Hoffman Brothers, the
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`court determined the defendant was the prevailing party because it secured the larger judgment via
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`counterclaim. Hoffmannn Bros. Heating & Air Conditioning, LLC v. Hoffmann Air Conditioning
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`& Heating, LLC, No. 4:19-CV-00200-SEP, 2023 WL 2681994, at *25 (E.D. Mo. Mar. 29, 2023).
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`In Hillside, the court’s prevailing party determination hinged on the party’s success on
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`counterclaims and securing a larger judgment. Hillside Enters., 69 F.3d at 1416. Likewise, in
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`Employers Reinsurance Corp., the defendant succeeded on multiple counterclaims in addition to
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`successful summary judgment on most of the plaintiff’s claims. Employers Reinsurance Corp. v.
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`Massachusetts Mut. Life Ins. Co., No. 06-0188-CV-FJG, 2012 WL 1438704, at *1 (W.D. Mo. Apr.
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`25, 2012). Here, KCL asserted no counterclaims, much less counterclaims that it won on the merits.
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`KCL also puzzlingly cites Boswell, a case that directly contradicts its argument. The court
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`in Boswell explicitly held: “Here, the Court finds that, although they did not succeed on all of their
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`claims, Plaintiffs’ substantial success on their breach of contract claim makes them the prevailing
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`parties in this case against Defendant Panera, LLC.” Boswell v. Panera Bread Co., No. 4:14-CV-
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`01833-AGF, 2016 WL 4415350, at *2 (E.D. Mo. Aug. 19, 2016). Finally, KCL references Tanner
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`in support of its argument, yet that case also bolsters Plaintiff’s position. The Tanner court found
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`the plaintiff to be the prevailing party because the plaintiff altered its legal relationship with the
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`defendant by securing an award of damages. Tanner v. City of Sullivan, No. 4:11-CV-1361 NAB,
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`2013 WL 3287168, at *2 (E.D. Mo. June 28, 2013).
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`Contrary to KCL’s strained reading of these cases, absent any successful counterclaims,
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`courts have consistently held that a party remains prevailing despite not succeeding on every
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`argument or obtaining the full relief requested. Fair Isaac Corp., 2025 WL 399899, at *2 (“Simply
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`put, the fact that [Plaintiff] did not prevail on every argument or receive as large of a verdict as it
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`desired is not sufficient to overcome the presumption of awarding fees to a prevailing party.”);
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`Jenkins, 127 F.3d at 718 (“[C]hanges in the scope of the remedy may not change a prevailing party
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`into a non-prevailing party[.]”); Am. Steel Works v. Hurley Const. Co., 46 F.R.D. 465, 471 (D.
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`Minn. 1969) (“Furthermore, even though a party does not recover on his entire claim, he still may
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`be the ‘prevailing party.”)
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`In sum, KCL’s objection to Plaintiff’s Bill of Costs is a baseless attempt to avoid its
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`obligation to pay costs. The Court should reject KCL’s arguments and award Plaintiff his costs as
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`the prevailing party.
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`B. Apportionment of Costs is Inappropriate
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`KCL alternatively argues that the Court should exercise its discretion to “apportion” costs,
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`thus requiring each party to bear its own costs. Doc. 390 at 7. But KCL did not submit a bill of
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`costs, so it was always going to bear them, and its purported “alternative” request thus seeks the
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`same thing as its primary position that no costs should be taxed against it. In any event,
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`apportionment would be improper under well-established precedent. “There is no rule requiring
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`courts to apportion costs according to the relative success of the parties.” Anchor Wall Sys. v.
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`Rockwood Retaining Walls, Inc., 610 F. Supp. 2d 998, 1024 (D. Minn. 2009) (citing Kemin Foods,
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`L.C. v. Pigmentos Vegetales Del Centro S.A. de C.V., 464 F.3d 1339, 1348 (Fed. Cir. 2006)
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`(finding a jury verdict was sufficient to make plaintiff the “prevailing party” for purposes of
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`awarding costs and stating: “In fact, apportioning costs according to the relative success of parties
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`is appropriate only under limited circumstances, such as when the costs incurred are greatly
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`disproportionate to the relief obtained”); Shum v. Intel Corp., 629 F.3d 1360, 1367, 1367 n.8 (Fed.
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`Cir. 2010) (holding that “in mixed judgment cases, ... [a] court must choose one, and only one,
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`‘prevailing party’ to receive any costs award.”); Anchor Wall Sys., 610 F. Supp. 2d at 1024 (court
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`rejected the argument that costs should be apportioned according to the relative success of the
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`parties and instead held that a party who wins a monetary judgment is considered the prevailing
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`party, even if they did not succeed on all claims).
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`None of the cases cited by KCL support its position that the Court should “apportion” costs
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`by making Plaintiff bear his own costs here. See Doc. 390 at 7-8 (citing Concord Boat Corp. v.
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`Brunswick Corp., 17 F. App’x 491, 493 (8th Cir. 2001) (involving apportionment of costs among
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`jointly and severally liable parties); Crawford Fitting Co. v. J.T. Gibbons, Inc., 482 U.S. 437, 442
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`(1987) (involving congressional limitations on certain costs, not general cost apportionment);
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`Johns v. Nordstorm-Larpenteur Agency, Inc., 623 F.2d 1279, 1282 (8th Cir. 1980) (apportioning
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`costs where a party prevailed on a counterclaim); Env’t Def. Fund, Inc. v. Froehlke, 368 F. Supp.
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`231, 253 (W.D. Mo. 1973), aff’d sub nom. Env’t Def. Fund, Inc. v. Callaway, 497 F.2d 1340 (8th
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`Cir. 1974) (plaintiff was not the prevailing party where the plaintiff lost all of its claims); Ortho-
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`McNeil Pharmaceutical, Inc. v. Mylan Laboratories Inc., 569 F.3d 1353 (Fed. Cir. 2009)
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`(involving cost allocation following a settlement where a party had already received costs as part
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`of the settlement). KCL’s reliance on these cases is misplaced, as none support its position that
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`Plaintiff should bear his costs under the present circumstances.
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`IV. CONCLUSION
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`Plaintiff—not KCL—is the prevailing party. KCL does not otherwise challenge Plaintiff’s
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`costs. Accordingly, Plaintiff respectfully requests that the Court grant his Bill of Costs in full.
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`Date: March 21, 2025 SCHIRGER FEIERABEND LLC
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`/s/ John J. Schirger___________
`John J. Schirger, MO Bar No. 60583
`Joseph M. Feierabend, MO Bar No. 62563
`Schirger Feierabend LLC
`6811 Shawnee Mission Parkway, Suite 312
`Overland Park, KS 66202
`Tel: (816) 561-6500
`Fax: (816) 561-6501
`Email: Schirger@SFlawyers.com
`Email: Feierabend@SFlawyers.com
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`Patrick J. Stueve, MO Bar # 37682
`Bradley T. Wilders, MO Bar # 60444
`Lindsay Todd Perkins, MO Bar # 60004
`Ethan M. Lange, MO Bar # 67857
`David A. Hickey, MO Bar # 62222
`STUEVE SIEGEL HANSON LLP
`460 Nichols Road, Suite 200
`Kansas City, Missouri 64112
`Tel: 816-714-7100
`Fax: 816-714-7101
`Email: stueve@stuevesiegel.com
`Email: wilders@stuevesiegel.com
`Email: perkins@stuevesiegel.com
`Email: lange@stuevesiegel.com
`Email: hickey@stuevesiegel.com
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`Counsel for Plaintiff and the Class
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`CERTIFICATE OF SERVICE
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`I hereby certify that on March 21, 2025, I electronically filed the foregoing with the Clerk
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`of the Court using the CM/ECF system, which will automatically send a notice of electronic filing
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`to all counsel of record in this matter.
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`/s/ John J. Schirger
`John J. Schirger
`Counsel for Plaintiff
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`13
`Case 4:19-cv-00472-BP Document 392 Filed 03/21/25 Page 13 of 13
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