HomeMy WebLinkAbout08-21-08IN RE:
ESTATE OF
RICHARD E. BOTTORF,
DECEASED
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNT~Y~ ..~:;
PENNSYLVANIA ~,~~ ``:
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ORPHANS' COURT DIVISION ~~~~
NO. 2007 - 00641 _.:
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PETITION FOR COURT APPROVAL OF SETTLEMENT ~ ~n
1. Richard E. Bottorf passed away on June 24, 2007, and his wife, Emelyn R.
Bottorf, was appointed Executor of his estate.
2. On October 28, 2006, Mr. Bottorf was involved in a motor vehicle accident in
Virginia in which he suffered personal injuries primarily involving a fracture to his left wrist. As a
result of his injuries, Mr. Bottorf underwent medical care that included surgery for his fracture.
3. At the time of his death, Mr. Bottorf had not yet fully recovered from the injuries
he suffered in the motor vehicle accident.
4. Mr. Bottorfs death is not related to the motor vehicle accident. With respect to
the motor vehicle accident $361.33 of Mr. Bottorfs medical expenses were paid by Medicare
(see Exhibit "A" hereto). The balance of his medical expenses were paid pursuant to the first-
party benefits available under Mr. Bottorfs automobile insurance policy.
5. Medicare has a claim for reimbursement of $361.33.
6. Mr. and Mrs. Bottorf had been married for 52 years and resided together.
7. As a result of the injuries suffered by Mr. Bottorf, Mrs. Bottorf has a claim for
loss of consortium for the loss of companionship, comfort, services and support of her husband.
8. Mr. Bottorf did not have a loss of income or earning capacity claim arising out of
the injuries suffered in the motor vehicle accident.
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9. For damages arising out of the injuries suffered by Mr. Bottorf, $31,000 has been
offered by the insurance company for the vehicle in which Mr. Bottorf was a passenger.
10. It is appropriate to allocate a portion of the settlement to Mrs. Bottorf for her loss
of consortium claim and part of this settlement to Mr. Bottorfs estate for the injuries that he
suffered.
11. Mrs. Bottorf is the sole beneficiary of Mr. Bottorfs estate and the allocation of
funds to the estate and the allocation of a portion of the proceeds to Mrs. Bottorfs loss of
consortium claim does not affect the amount of inheritance taxes, if any, due from the estate.
12. Mrs. Bottorf proposes that $9,000.00 of the settlement be allocated to her loss o~f
consortium claim and the balance, $22,000.00, be allocated to the estate of Mr. Bottorf for his
personal injury claim.
13. Tucker Arensberg, P.C. entered into a fee agreement with Mr. and Mrs. Bottorf
pursuant to which one-third of any settlement was to be paid to Tucker Arensberg, P.C. as its
fee. A copy of the fee agreement is attached hereto as Exhibit "B".
14. Tucker Arensberg, P.C. has agreed to accept $10,000.00 as payment in full of its
fee.
15. Tucker Arensberg, P.C. has incurred costs in pursuing Mr. Bottorfs claim in the
amount of $330.87 for the following items:
Postage $ 20.93
Photocopies 50.08
Telephone ,1 g
Facsimile Charges 6.50
Medical Records--
Beach Medical Care 10.00
Charan's Family Medicine 45.00
Orthopaedic Surgeons of Central PA 75.83
Holy Spirit Hospital 91.43
Pinnacle Health 30.92
-2-
16. Prorating the fees and costs of Tucker Arensberg, P.C., based upon the
allocation of the settlement proceeds to the loss of consortium claim and the claim of Mr.
Bottorff s estate for the personal injuries he suffered as a result of the motor vehicle accident
results in the following:
Claim of Estate of
Richard Bottorf
$22, 000 _ $31, 000 = .71
Fees $ 7,100.00
Costs 234.92
Total $ 7,334.92
Loss of Consortium Clairri
of Emelyn Bottorf
$9,000 = $31,000 = .29
$ 2,900.00
95.95
$ 2,995.95
17. Emelyn Bottorf, as executrix of the estate of Richard Bottorf, requests that the
court approve the settlement of the claims for damages arising out of the injuries suffered by Mir.
Bottorf in the motor vehicle accident of October 28, 2006, and further approve:
a. the allocation of the settlement proceeds,
b. reimbursement of Medicare, and
c. payment of attorneys' fees and costs to Tucker Arensberg, P.C.
WHEREFORE, Emelyn Bottorf respectfully requests that the Court enter an order
approving:
A. settlement of all claims against Melvin Fetzer and Joan Fetzer for the
injuries and damages sustained by Richard E. Bottorf as a result of the motor vehicle
accident that occurred on October 28, 2006;
B. the execution of a General Release by Emelyn Bottorf of $31,000.00 for
all claims for damages arising from the injuries and damages sustained by Richard E.
Bottorf in the motor vehicle accident of October 28, 2006;
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C. the allocation of $22,000.00 of the settlement proceeds to the Estate of
Richard Bottorf and $9,000.00 of the settlement proceeds to the loss of consortium clainn
of Emelyn Bottorf;
D. reimbursement to Medicare of $361.33 for the medical expenses paid on
behalf of Mr. Bottorf by Medicare or in such other amount as finally determined by
Medicare with appropriate adjustments to the amount payable to Medicare for Medicare's
share of the fees and costs incurred; and
E. payment to Tucker Arensberg, P.C. of $7,100.00 as fees and $234.9?_ as
costs from the proceeds of the settlement payable to the Estate of Richard E. Bottorf with
the balance of the fees and costs due to Tucker Arensberg, P.C. to be paid from that
portion of the settlement allocated to the loss of consortium claim of Emelyn Bottorf.
Respectfully subm
By:
DATE: ,_~ ,~ C) IG-
102440.1
TUCKER
,zstepnen~ivi. ~reecner, ~r.
Attorney's I.D. No. PA-36803
111 North Front Street
P. O. Box 889
Harrisburg, PA 17108-0889
(717) 234-4121
ATTORNEYS FOR PETITIONER
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® CENTERS 7oi iNfO/CARE & Mf0/G4/D SERE%Cf5
MSPRC ,
~~ Learn about your letter at www.mSprC.info
07/04/?003
423 1 MB 0.369
***AUTO**MIXED AADC 720- R:423 T:5 P:5 PC:2 F:20701
TUCKER ARENSBERG, P. C.
111 NORTH FRONT STREET
PO BOX 889
HARRISBURG PA 17108-0889
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o ~~ Name of Beneficiary: BOTTORF SR, RICHARD E
HIC#: 164300047A
o Date of Injury/Illness/Incident: 10/28/2006
z Policy/Claim#: 14667255-000
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° Dear PROGRESSIVE:
We are writing to advise you that Medicare has identified a claim or number of claims for
which you have primary payment responsibility and Medicare has made primary payment.
The Medicare Secondary Payer provisions of the statute, 42 CFR 1395y(b)(2), precludes
Medicare from paying for a beneficiaryy's medical expenses when payment "has been made.
or can reasonably be expected to be made ... under no-fault insurance". However,
Medicare may pay for a beneficiary's covered medical expenses conditioned on
reimbursement to Medicare from proceeds received pursuant to a third party liability
settlement, award, judgment, recovery or from any entity responsible for making primary
payment. Medicare must recover these payments from the entity responsible for paymf;nt
or when payment has been made from the entity/individual who has received payment i=or
these claims.
Enclosed is an itemization of conditional payments made by Medicare on behalf of the
Medicare beneficiary referenced above. Currently, Medicare has paid $361.33
in conditional payments related to your claim.
EXHIBIT
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RCNPD~
Please be advised that we are still investigating this case file to obtain any other
outstanding Medicare conditional payments. Therefore, the enclosed listing of current
conditional payments (including a response of a zero amount) is not a final listing and
will need to be updated once we receive final settlement information from you. It
would be in your best interest to keep Medicare's payments and the statutory
obligation to satisfy Medicare in mind when the final dollar amount is negotiated and
accepted in resolution of the claim with the third party.
If monies were available through personal injury, med-pay or another form of coverage,
please provide in writing the type of coverage, the amount of coverage and an itemiza.tioti
of the benefits paid. Send this information to the address below within 30 days of your
receipt of this letter.
If you believe that any of the services in the enclosed itemization of conditional payments
are related to the above-mentioned accident, or that you are not responsible for repaying
Medicare for these payments, please provide written documentation to support your
rebuttal to the address listed below within 30 days of your receipt of this letter.
Medicare does not supply bills, claim details or medical records. If we do not hear from
you within 30 days, a formal recovery demand letter will be issued stating the amount to be
repaid, the due date for such repayment and when interest will accrue. If you have amy
duestions, please contact this office at 1-866-677-7220 (TTY/TDD: 1-866-677-
7294 for the hearing and speech impaired).
Sincerely,
Medicare Secondary Payer Recovery Contractor
PO BOX 33828
DETROIT MI 48232-5828
Enclosures: Payment Summary Form
cc: RICHARD E BOTTORF
TUCKER AREN~BERG, P.C.
RCNPD2
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LAW OFFICES
TUCKER ARENSBERG, P.C.
ATTOR//NEY'S AGREEMENT ,~ /,~
THIS AGREEMENT, entered into this /~~day of ~ ~~- ~"; by and betweer TUCKER
ARENSBERG, P.C., Attorneys-at-Law, (hereinafter "Attorney"), and C ~a ~ Hit yt/ Q,,t.~.~_~~(hereinaftf~r "Cli-
ent"). W ITNESSETH: That Attorney, for the consideration hereinafter stipulated, has undertaken and does hereby undertake
and agree with Client to act as legal counsel in negotiating a settlement, and if the same is not effected, in bringing, conducting
and prosecuting an action against ~ LcrZ c e /'-f ~t ; ti /L to recover damages for
~~ G S U ~d ~ i K ~ urn ~J ~ ,which occurred on or about /~
ATTORNEY FEE:
In consideration for services so rendered by Attorney, it is hereby agreed by and between the parties hereto that
Attorney shall be compensated as follows:
(a) Thirty-Three and One-Third Percent (33-1/3%) of gross recovery if the case is settled before jury
selection in a jury trial case, before commencement of trial in a non-jury trial case, or before the commencement of the hearing
in a matter first heard by arbitrators; or
(b) gory Percent (4U%) of the gross recover if the case is settled any time after it proceeds to jury selection
at trial or if a gross recovery is obtained in any other manner at or after the selection of the jury in a jury trial case, after
commencement of the trial in a non-jury trial case or after the commencement of the hearing in a matter first he<~rd by
arbitrators.
The Attorney's fee as set forth above covers only the Attorney's services through and including the trial of the C;lient's
case and any post trial proceeding before the trial court. If the case is appealed to a court beyond the trial court, then the Client
must enter a new agreement with the Attorney or make additional arrangements for the Attorney's fee for services for
representing the Client in the appeal.
"Gross recovery" shall mean the full amount of settlement proceeds or the full amount of verdict, including any pre-
judgment interest, without reduction for expenses or costs advanced or incurred.
Attorney shall have a lien on any sum or sums recovered, whether by settlement or judgment, for services ren~jered,
costs advanced and expenses incurred under this Agreement.
FEES ON TERMINATION
If for any reason the services of the Attorney are terminated, either by the Attorney or by the Client, Attorney shat! have
a right to be compensated for the reasonable value of the services provided to Client. The reasonable value of the Attorney's
services shall be the greater of the amounts determined as follows:
(a) by applying the hourly rates ordinarily charged by the Attorney during the time of Attorney's
representation to the time expended by Attorney in this matter; or
(b) Thirty-Three and One-Third percent (33-1/3%) of the highest offer to settle Client's case received
prior to termination.
The right of Attorney to receive any such compensation will be contingent upon Client obtaining a recovery ire this case
by settlement, verdict or otherwise, subsequent to the termination of Attorney's services. Additionally, the Client will then also
become responsible for the payments of all the expenses and costs incurred by TUCKER ARENSBERG, P.C. on the Client's
case. Said expenses and costs will become immediately due and owing to TUCKER ARENSBERG, P.C. upon the ~~lient
obtaining a recovery in this case by settlement, verdict, or otherwise subsequent to the termination of Attorney's services.
EXPENSES OF LITIGATION:
Any necessary and reasonable costs advanced by Attorney in the preparation and presentation of Client's claim, and
all expenses attendant thereto, shall be the responsibility of the Client to pay upon the Client's obtaining a recovery in the case.
Attorney retains the right to request that the Client advance said expenses and costs. Attorney may apply any funds held in
escrow on behalf of Client to the costs and expenses of litigation.
EXHIBIT
~ nBn
SETTLEMENT PROVISIONS:
All offers to settle, adjust or compromise the above claim shall be reviewed between Client and Attorney before any
such offer is either accepted or rejected. Client further agrees to consider seriously any recommendation for settlement made
by Attorney and not to unreasonably withhold consent to such settlement recommendation.
DISCHARGE OR WITHDRAWAL:
In the event that Attorney subsequently determines that the claim or suit lacks merit, or Client unreasonably wii:hholds
consent to any bona fide settlement recommendation made by Attorney, or Client refuses or fails to cooperate with ,4ttorney, or
Client conceals or misrepresents facts regarding the above claim, or Client commits a breach of this Agreement, AttornE~y shall
have the right to terminate his services upon giving reasonable notice to Client.
MISCELLANEOUS:
Client understands, acknowledges and agrees that Attorney does not guarantee the outcome or eventual result. of the
above claim.
This agreement contains the final and entire agreement between the parties hereto and expresses the embodiment of
all negotiations and agreements prior to its execution. The parties hereto shall not be bound by any terms, s~taternents,
conditions or representations, oral or written, expressed or implied, not specifically set faith in this agreement.
IN WITNESS WHEREOF, the parties hereto, intending to be legally bound, have hereunto set
this Agreement, in execution thereof, the day and year first above written.
WITNESSES:
SEAL)
EAL)
ADDENDUM
Client understands that \
Attorney Fee payable to Attorney in th
case to
rendered in this case.
WITNESSES:
does not i
TUCKER Ai~E
BY;
Client hereby autho
It is
tease the Attornev~
~s/a right for services rendered to receive part of the
/Attorney to distribute a part of the Attorney F=ee in this
derstood by Client that said payment to
for which Client is liable to Attorney for they services
TUCKER ARENSBERG, P.C.
ands acid seals to
SEAL)
26118v1.
VERIFICATION
I, EMELYN R. BOTTORF, as Executor of the Estate of Richard E. Bottorf, Deceased,
acknowledge that the facts stated in the foregoing document are true and correct to the best of
my knowledge, information and belief.
I understand that any false statements herein are made subject to the penalties of
18 Pa. C.S.A. § 4904 relating to unsworn falsification to authorities.
Emelyn . Bottorf, Executor of the
Estate of Richard E. Bottorf, Deceas
102945.1
CERTIFICATE OF SERVICE
AND NOW, this ~~ ~sr day of AUGUST, 2008, I, Jacquelyn Zettlemoyer, Secretary to
Stephen M. Greecher, Jr., Esquire, for the law firm, Tucker Arensberg, P.C., attorneys for
Plaintiff, hereby certify that I have this day served the within document by depositing a true and
correct copy of the same in the United States Mail, first class, postage prepaid, at Harrisburg,
Pennsylvania, addressed as follows:
Emelyn R. Bottorf
108 Beech Cliff Drive
Carlisle, PA 17015
Scott M. Dinner, Esquire
3117 Chestnut Street
Camp Hill, PA 17011
ATTORNEY FOR ESTATE OF RICHARD E. BOTTORF
Debra L. Wallace, Claims Adjuster
Erie Insurance
4902 Carlisle Pike, PNB 312
Mechanicsburg, PA 17050
102440.1
x>. ~ r~--~--~ ~~
h
Jacquelyn ettlemoyer '