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HomeMy WebLinkAbout99-03194(U 1nf ty{r r nr,{ r li r? T } ,MAY 2 6 9999 to IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Shirley Strite, as parent and natural Civil Action - Law guardian of Keith J. Smith, a minor, and Twyla D. Shaffer, grandmother, Plaintiffs c?Ull? VS. No. -.?/f of 1999 Nichole M. Hamilton, Defendant Legal Action ORDER OF COURT NOW, this z day of -__ 1 La v 1999, the within Petition having been presented, considered, and ordered to be film, h-ereby Ordered that 14 the day of _ (. u_h. 1999, at o'clock c.4 m., in Courtroom No. ! of the Cumberlan Coun y Courthouse, is hereby set as the time and place for a hearing to be held in the above matter. BY THE COURT, David C. Cleaver, Esquire 1035 Wayne Avenue Chambersburg, PA 17201 Attorney for Plaintiffs tit . y 1 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Shirley Strite, as parent and natural Civil Action - Law guardian of Kcith J. Smith, a minor, and Twyla D. Shaffer, grandmother, Plaintiffs vs. No. 319 V of4499- Nichole M. Hamilton, Defendant : Legal Action PETITION FOR LEAVE OF COURT TO SETTLE AND COMPROMISE MINOR'S CLAIM To the Honorable, the Judges of the said Court: The petition of Shirley Strite, as parent and natural guardian of Keith J. Smith and Twyla D. Shaffer, the minor's grandmother, respectfully represents: Your petitioners are Shirley Stritc, a sui juris adult who lives and resides at 3546 White I Church Road, Chambersburg, Pennsylvania and,rwyla D. Shaffer, a sui juris adult who lives and resides at 168 SME, Shippensburg, Cumberland County, Pennsylvania. 2. Yours petitioners are the parent and natural guardian and grandmother of Keith J. Smith. The said minor lives and resides with your petitioner as his natural parent and guardian at the above address, but at the time of the accident lived with his grandmother and was in her custody. 3. In the above cause, the minor plaintiff, on or about July 21, 1997 was riding his bicycle near the intersection of East Orange Street and South Prince Street, The minor plaintiff attempted to drive his bicycle from the sidewalk on the south side of East Orange Street, across East Orange Street to the sidewalk on the northern side, and in doing so, drove his bicycle out onto East Orange Street where he was struck by the defendant. The location of the skid marks and the end of the skid marks indicate that the minor plaintiff was not crossing in a cross walk nor was he crossing at the intersection of East Orange and South Prince Street, but was crossing west of said intersection. However, the police investigation also notes that the defendant left 33' of skid mark, on a street with a 25 mile an hour speed limit, and approaching a stop sign at the intersection of South Prince and East Orange Street. 4. Defendant was insured by a policy of liability insurance issued by Victoria Insurance Company, which policy was in effect at the time of the injury. 5. Your petitioners employed the services of the law offices of David C. Cleaver, P. C., to represent your petitioners in prosecuting a claim against the said Nichole M. Hamilton for injuries received by the minor plaintiff, and pursuant to the employment of counsel entered into a contingent fee agreement whereby your petitioner agreed to pay to the law offices of David C. Cleaver, P. C., one-fourth (1 /4) of any gross recovery received in the event of the settlement or trial of the above claim. The aforesaid agreement is attached hereto and marked Exhibit A. 6. The defendant's insurance policy limit with Victoria Insurance Company is $25,000.00. Plaintiff's counsel and the insurance adjuster for the defendant's insurance company agree that this is a case of comparative negligence, since the minor plaintiff did not cross at a cross walk or at the intersection, but there is evidence that, from 33' of skid mark, the defendant was exceeding the 25 mile per hour speed limit while approaching the intersection which had a stop sign commanding her to stop. 7. Counsel for your petitioner has negotiated a settlement whereby the said insurance company, as liability insurance carrier for the defendant, will pay on behalf of the minor plaintiff, a structured settlement in the total sum of $26,150.00. The aforesaid settlement is a structured settlement which will pay $14,000.00 in cash at the time of settlement, and the remaining $12,150.00 will be paid directly to the minor in the form of a structured settlement which will pay to the minor plaintiff the sum of $2,000.00 on July 24, 2003 when the minor turns 21, will pay him the sum of $3,000.00 on July 24, 2005 when he turns age 23, and will pay him the sum of $7,150.00 on July 24, 2007, when he turns age 25. The total payout will be $26,150.00, guaranteed yield to the minor, at a cost of $22,500.00 to the defendant's insurance carrier, all as shown on a individually designed settlement for the minor by Ringlcr Associates which is attached hereto and marked Exhibit B. 8. At the time of the accident, the minor plaintiff lived and resided with his grandmother, Twyla D. Shaffer, one of your petitioners, and the only automobile insurance policy that was available to provide financial protection to the minor was through his said grandmother. The said grandmother, Twyla D. Shaffer, and her husband, Samuel L. Shaffer, were insured by a policy of insurance issued by Mutual Benefit Insurance Company which provided for $5,000.00 in medical expense but no underinsured motorist coverage. A true and correct copy of the Declaration Sheet from the said insurance is attached hereto and marked Exhibit C. Because only $5,000.00 in medical benefits were available, the remainder of the medical expenses incurred by the minor were paid by the Pennsylvania Department of Public Welfare, as a result of which they have a lien in the amount of $19,892.29 as shown on Exhibit D. Through negotiations with the Commonwealth of Pennsylvania, they have agreed to reduce that lien to $8,400.00. 9. The present value of the settlement is $22,500.00 Your petitioner has agreed that from the total proposed settlement the sum of $5,600.00 in attorney's fees and costs shall be paid to David C. Cleaver, P.C. The Commonwealth of Pennsylvania has a lien which they have agreed to reduce to the amount of $8,400.00. Therefore, the $14,000.00 to be paid up front shall be paid to David C. Cleaver, P.C. in the amount of $5,600.00 for attorney's fees and costs and to the Commonwealth of Pennsylvania in the amount of $8,400.00 to discharge their lien. A copy of the letter from the Commonwealth agreeing to accept $8,400.00 is attached hereto and marked Exhibit D. 10. Your petitioners arc advised and believe that the aforesaid proposed settlement, payment of counsel fees and costs, the discharge of the welfare lien, and the guaranteed structured settlement payments to the minor are fair and just under the circumstances and should be approved by your Honorable Court. WHEREFORE, your petitioners pray your Honorable Court to approve the above indicated settlement proposed on behalf of the minor, to approve the payment of attorney's fees, costs, discharge of the welfare lien, and to approve the structured settlement payments as set forth. And they will ever pray, etc. Shirley Stnte, Petitioner Twyl?i(a ). Shaffer, Petitiodd( We verify that the statements made in this petition are true and correct. We understand that false statements herein are made subject to the penalties of perjury contained in 18 Pa.C.S. Section 4904, relating to unswom falsification to authorities. Date:_/? rte ?G ? Twyla.Shaffer Shirley Strite CONTINGENT FEE AGREEMENT This agreement, made and entered into by /4 l?. 161a f r ,N, ?C?YGrh, hereinafter called client, and David C. Cleaver and Associates, P.C., at orne s at law, of 1035 Wayne Avenue, Chambersburg, Pennsylvania, hereinafter called attorney, WITNESSETH: 1. Client hereby employs attorney to negotiate a settlement, institute, conduct and prosecute to final determination by suit or action, if necessary, a personal injury claim of the client arising out of a motor vehicle accident that occurred on 199 77 ry,,,J ,Yy 2. Client hereby authorizes the attorney to prosecute the claim against and his, her, or their insurance companies, as well as any claims which client may have against his or her own insurance company for payment of first party benefits, uninsured motorist coverage, or underinsurance coverage, 3. Actual out-of-pocket expenses incurred on behalf of the client shall be paid by the client. If necessary, the attorney will advance these costs on behalf of the client, and the attorney will be reimbursed out of any recovery, 4. The fees of the attorney shall be contingent upon recovery. Client shall owe attorney no fee unless the client's claim is settled or prosecuted successfully to final verdict by suit or action. Upon receipt of a recovery by client, the fees of the attorney shall be contingent as follows: A. `- % of the gross recovery if the case is settled before filing suit. B.- % of the gross recovery if suit is filed and the case is settled prior to trial. C. y? % of the gross recovery if the case is tried. D. _ % of the gross recovery if the case is appealed beyond the local county court or federal district court. E. _ % of the gross recovery representing recovery of personal property damages, 5. This agreement may be terminated by either party upon 30 days advance notice to the other. If the agreement is terminated by client, client shall pay to attorney all out-of-pocket expenses incurred by the attorney on the business of the client. If any offers of settlement have been obtained by attorney, attorney shall be entitled to recovery, out of any final settlement or verdict received by client, the applicable percentage of the offer of settlement obtained by attorney. In the event no offer of settlement nas been obtained, attorney shall be compensated for actual time expended on the client's claim by the attorney at the rate of $100.00 per hour, in which case client shall be furnished an itemized billing. IN WITNESS WHEREOF, the parties hereto have hereunto set their hands and seals this 'r- day of ?4-1992. , (SEAL) (SEAL; i:x.,; : t:1 , „a„ RINGLER ASSOCIATES INCORPORATED (216) 292-992 2 (800)585.0434 FAX (216) ?92..9940 Individually Designed Settlement Keith Smith D/O/B 7/24/82 GUARANTEED BENEFIT COST YIELD Immediate Cash and $14,000 $14,000 Attorney Fees Guaranteed Lump Sums $ 2,ODO at Age 21 1,630 2,000 $ 3,000 at Age 23 2,156 3,000 $ 7,150 at Age 25 4,714 7,150 522,500 $26,150 M, ,b., N.,wn.d St,ew"J Swl mcnn U.da A..cia.an 29525 C11.4CRIN 8LV0., SUITE 318 • CLLVELAND, OH 44122 OITTCMO RIRNW(D T. f+RrjN%j UITALO, CNARl OTTT., CHWAGO, CJNCINNAn D^1t ASMRT WORTk. PE1.vU. II f)ETROrr fi KA FC)Fi l AUCIEN ()AI N T. CRCFNY.TCH ((TI. HART FoF"), FA?NCH. l1l U, NOUST'ON, lND1A!«A".IS, KANSAS CITY, l 1,ONI1ON.705 ANCfJ,ES A!iI1R7FD(N)I,I.T,1L ORtFAN.S,hTC'TOSY,NlV'IK7RT NJ,C]t, OMAHA,ORANCE((J,). r ORIANR;,PNII.4f)1 :1`H; A. PIIi'1FtilA. PORT1ANi11MiI ?AfF.A MiT1T0 SiyT IAKECIi'Y. SAN FAANGSQ7. S[ATT,F. ^' !. II.`. ST PLIIR SNURG (R.). T AMPA, WALNi 1T i:P.FIX 1 i:A1, WAS4 NGTt:w. (1C r EXHIBIT "W, l ,IDATE: 03/31/98 COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF PUBLIC WELFARE STATEMENT OF CLAIM NAME. I SMITH, KEITH ID !070132888 I MEDICAL USUAL CHARGES AMOUNT .'. APPROVED `TOTAL 29,647.90 19,892.29 Pf.RIOD. DOLLAR CASH COVERED AMOUNT TOTAL 0.00 TOTAL REIMBURSEMENT TO DPW _ 19,892.29 I HsH I li]'I' "C" COMMON WEALTH OF PENNSYLVANIA DEPARTMENT OF PUBLIC WELFARE III1REAII OF FINANCIAL OPERATIONS TPL SECr1ON - CASIJALTY I INIT PO BOX R4R6 HARRISBURG, PA 17105 DAVID C. CLEAVER ESQ April 26, 1999 1035 WAYNE AVE CHAMBERSBURG PA 17201 RE: KEITH SMITH (MINOR) CID #: 070 132 888 DATE OF INJURY: 07/21/97 1)2ar Attorney Cl.ea Ver: I am in receipt of your correspondence of April. 21., 1999. The Department of Public Welfare maintains a lien in the amount. of. $19.892.29 for this accident. The department lids agreed accept $8,400.00 aq;iirlst the above lien amount. In the evert you have already brought or will. bring any action resulting in a further recovery, we reserve the right: to suelc further recovery of any unpaid portion of our medical./cash lien. This; !a:atorlent in no way affects our further rights. Checks should be made payable to the Department of Public Welfare and should be sent to my attention at the above address. We request that with all transmittals of funds, you provide the Department with a copy of the 949-al t?i_stribution_ s_heet.. ---na- Thank you for your cooperation in this matter. If you have any further questions, please contact me. Sincerely, Elam ?t Q TPL Program I1are2tigator (717) 772-6296 (717) 772-6553 FAY, EW EXHIBIT "D" L I- n Z'e (.J Ci ? V G 69. U `? IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Shirley Strite, as parent and natural Civil Action - Law guardian of Keith J. Smith, a minor, and Twyla D. Shaffer, grandmother, Plaintiffs VS. : No. 9 - 7 / 9Xf 1999 Nichole M. Hamilton, Defendant : Legal Action ORDER OF COURT NOW,_ 1999, a Petition for Leave to Compromise and Settle the above entitled ma er having been presented to the Court and the Court having held a hearing on the Petition on _&&.J' , 1999, at 9 4m., at which hearing the minor plaintiff, and his mother, Shirley St terS 'the petitioner, as parent and natural guardian, and Twyla D. Shaffer, his grandmother, were present, and his attorney, David C. Cleaver, was also present and the Court having heard evidence of the nature of the accident and of the minor plaintiffs injuries, and it appearing to the Court that the total settlement for the causes of action of the minor is the sum of $26;150.00, plus record costs, of which the sum of $14,000.00 is to be paid immediately, and from said sum of $14,000.00 it further appearing to the Court that the sum of $5,600.00 is to be paid as attorney's fees to the Plaintiff's counsel, David C. Cleaver, P. C., the sum of $8,400.00 is to be paid to the Commonwealth of Pennsylvania, and that the balance of the settlement shall be paid as a structured settlement whereby the sum of $2,000.00 shall be paid to the minor plaintiff at age 21, $3,000.00 at age 23, and $7,150.00 at age 25, and it further appearing to the Court that the present value of the settlement is the sum of $22,500.00; NOW, THEREFORE, IT IS HERESY ADJUDGED AND DECREED that the terms of the compromise and settlement are fair and just under the circumstances and the said settlement and payment of counsel fees the payment to discharge the welfare payments, and the future payments to the minor are hereby approved by the Court. Upon payment of the sum of $14,000.00, and the delivery of the annuity guaranteeing the structured settlement to the minor, the said Shirley Strite, as parent and natural guardian of the minor plaintiff, is hereby authorized and directed to execute a full and complete release to the defendant, and her insurance company, Victoria Insurance Company, for all claims, demands, actions, causes of 99 JUL - 7 AF; 9: ?_ 3 CU?? PENNSYL MI AU? action, which the said minor may have against the said defendant for any and all injuries to his person or property arising out of the cause of action set forth in the petition, and the said David C. Cleaver as attorney for the minor plaintiff is hereby, authorized and directed to mark the above captioned action settled and discontinued upon payment of costs of record by the defendant. By the Court, -1?4- lly 9 7/?/s; IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Shirley Strite, as parent and natural Civil Action - Law guardian of Keith J. Smith, a minor, and Twyla D. Shaffer, grandmother, Plaintiffs VS. : No. 99-3194 of 1999 Nichole M. Hamilton, Defendant : Legal Action PRAECIPE FOR DISCONTINUANCE To Curt Long, Prothonotary: Please mark the above referenced case settled and discontinued. avid C. C eaver, squire David C. Cleaver & Associates 1035 Wayne Avenue Chambersburg, PA 17201 717-264-1110 li L - •. 111J (,. Q1 ' J n C C_i