Loading...
HomeMy WebLinkAbout05-26-09IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY NINTH JUDICIAL DISTRICT OF PENNSYLVANIA ORPHANS' COURT DIVISION ~~ n -.:~ <__, In Re: Summer Marie Spangler c~ ~ -; No.: 21-09-0267 r ~ ~? n = ~ ~-' ; rn ~ • ., _ .~,, , ~ s., c~ -.r. AMENDED PETITION FOR APPROVAL < ; cam' r~, OF MINOR'S (INCOMPETENT'S)SETTLEMENT -~-' ~-~:: ~~ c~ =-~ -- ~, -- AND NOW, comes Susan May Spangler, the Plenary Guardian of Summer M24~e ' Spangler, and requests this Court approve a settlement as follows, and amends and extends the same as follows: 1. Petitioner has erroneously styled this a minor's settlement, when it is actually an incompetent's settlement, and therefore clarifies this. 2. During the period of time when Summer Marie Spangler (hereinafter Summer) was a minor child, she was involved in two (2) bussing related accidents on both August 20, 2007, and February 15, 2008, while being transported by H. E. Rohrer, Inc. 3. The Natural Mother in her capacity as Natural Mother hired undersigned counsel on a contingency fee agreement to recover monies on behalf of the then minor child. 4. After the child turned eighteen (18), and after being appointed Plenary Guardian, Susan May Spangler, reaffirmed this fee agreement in her capacity as Plenary Guardian, and the reaffirmed fee agreements where identical to those originally signed. 5. There are some medical bills as a result of both accidents, but those bills have been paid by first party auto insurance and/or other medical coverage, and there are no known liens. 6. The Child did suffer some injury, none of which was permanent in nature and all of which has healed. 7. Counsel has negotiated a $100,000.00 settlement with the carrier Zurich Insurance, who is represented by Attorney Steven Lipski in this matter, and who has been served a copy of this petition, and who has reviewed the proposed structure and release. 8. The Plenary Guardian and the Insurance Company wish to settle this claim, but pursuant to the Rules of Civil Procedure, because it involves the estate of an incompetent, this Court's approval is required. 9. The parties propose to sign a release and divide the funds as follows and herein incorporate the Settlement Agreement and Release attached hereto as if fully setout herein. (Exhibit A): a. $60,000.00 to be used to create a structured settlement which would begin paying at age 25 for a period of thirty (30) years in monthly installments of $465.68 per months. (For a total guaranteed payout of $167,644.80) b. $15,000.00 to the Estate of the incompetent for use by the Plenary Guardian for care maintenance and securing a vehicle with a lift. c. $25,000.00 as twenty-five (25%) percent of the amounts recovered pursuant to the fee agreements, payable to Karl E. Rominger, Esquire. 10. Counsel and Plenary Guardian have chose to use a structure in this matter so a majority of the proceeds are spread out over a period of years, both to increase the available funds to the incompetent, and also because many forms of disability including social security disability, which the incompetent may begin receiving, will penalize the recipient for the receipt of a lump sum, but do allow for supplemental monthly income. 11. An affidavit of the Plenary Guardian indicating she is in favor of the Court granting this Petition was attached to the original. 12. Pursuant to the rules of Civil Procedure this Honorable Courts approval is required, which may be done with or without a hearing. 13. A proposed Order has been attached to this Petition. Date: / ~ ~~~ ~ ~ ~ ~ i;%~ I' Respectfully Submitted, Rominger & Associates Karl E. Rominger, Esquire 155 South Hanover Street Carlisle, Pennsylvania 17013 (717) 241-6070 Supreme Court ID # 81924 Settlement Agreement and Release This Settlement Agreem®nt and Release (the "Settlement Agreement") is made and entered into this day of 2009, by and between: "Claimant" - Susan May Spangler, natural Mother and Plenary guardian of Summer Marie Spangler "Insured" - H.E. Rohrer, Inc. "Insurer" - Zurich American Insurance Company Recitals A. On or about August 20, 2007 and February 15, 2008, Summer Marie Spangler was injured in accidents occurring while being transported by H.E. Rohrer, Inc. Claimant alleges that the accidents and resulting physical and personal injuries arose out of certain alleged negligent acts or omissions of the Insured, and has made a claim seeking monetary damages on account of those injuries. B. Insurer is the liability insurer of the Insured, and as such, would be obligated to pay any claim made or judgment obtained against the Insured which is covered by its policy with the Insured. C. The parties desire to enter into this Settlement Agreement in order to provide for certain payments in full settlement and discharge of all claims which have, or might be made, by reason of the incident described in Recital A above, upon the terms and conditions set forth below. Agreement The parties agree as follows: 1.0 Release and Discharge 1.1 In consideration of the payments set forth in Section 2, Claimant hereby completely releases and forever discharges the Insured and Insurer from any and all past, present, or future claims, demands, obligations, actions, causes of action, wrongful death claims, rights, damages, costs, losses of services, expenses and compensation of any nature whatsoever, whether based on a tort, contract or other theory of recovery, which the Claimant now has, or which may hereafter accrue or otherwise be acquired, on account of, or may in any way grow out of the incidents described in Recital A above, including, without limitation, any and all known or unknown claims for bodily and personal injuries to Claimant, or any future wrongful death claim of Claimant's representatives or heirs, which have resulted or may result from the alleged acts or omissions of the Insured. 1.2 This release and discharge shall also apply to Insured's and Insurer's past, present and future officers, directors, stockholders, attorneys, agents, servants, representatives, employees, subsidiaries, affiliates, partners, predecessors and successors in interest, and assigns and all other persons, firms or corporations with whom any of the former have been, are now, or may hereafter be affiliated. 1.3 This release, on the part of the Claimant, shall be a fully binding and complete settlement among the Claimant, the Insured and the Insurer, and their heirs, assigns and successors. 1.4 The Claimant acknowledges and agrees that the release and discharge set forth above is a general release. Claimant expressly waives and assumes the risk of any and all claims for damages which exist as of this date, but of which the Claimant does not know or suspect to exist, whether through ignorance, oversight, error, negligence, or otherwise, and which, if known, would materially affect Claimant's decision to enter into this 2 Settlement Agreement. The Claimant further agrees that Claimant has accepted payment of the sums specified herein as a complete compromise of matters involving disputed issues of law and fact. Claimant assumes the risk that the facts or law may be other than Claimant believes. It is understood and agreed to by the parties that this settlement is a compromise of a doubtful and disputed claim, and the payments are not to be construed as an admission of liability on the part of the Insured, by whom liability is expressly denied. 1.5 The Claimant further understands and agrees that this Release is inclusive of any and all present and future liens or claims for subrogation against the payments to be made in accordance with this Release. The Claimant understands and agrees that Claimant is responsible for the payment of any liens or charges against the payments to be made hereunder should any such liens, subrogation claims, or claims for expenses and charges be asserted. This includes, but is not limited to, medical expense liens, workers' compensation liens, ERISA liens, liens asserted by any federal, state, or local governmental entity or agency or any health care benefit claim. Should any person or entity make claim for payment of any liens or charges against Insured, the Claimant agrees to indemnify and hold harmless Insured from any such liens, charges, fees, claims, attorney fees, costs, interest and any other sum. 2.0 Payments In consideration of the release set forth above, the Insurer on behalf of the Insured agrees to pay to the individual{s) named below ("Payee (s}") the sums outlined in this Section 2 below: 2.1 Payments due at the time of settlement to the Claimant and their attorney: The sum of Forty Thousand Dollars ($40,000.00) 3 on or before fourteen (14) days from receipt of this fully and properly executed document. The Claimant agrees to pay from said sum attorney fees, costs and expenses incurred by or on their behalf in connection with the settlement set forth herein, including payments to subrogees, if applicable. 2.2 Periodic Payments. Insurer through a Qualified Assignment to Prudential Assigned Settlement Services Corporation agrees to make payanent to Claimant "Payee" in the following manner: (i) Monthly guaranteed payments: Commencing on September 17, 2015, Four Hundred Sixty-Five Dollars and Sixty-Eight Cents {$465.68) per month guaranteed for thirty (30) years. All sums set forth herein constitute damages on account of personal injuries and sickness, within the meaning of Section 104{a}(2} of the Internal Revenue Code of 1986, as amended. 3.0 Claimant's Rights to Payments Claimant acknowledges that the Periodic Payments cannot be accelerated, deferred, increased or decreased by the Claimant or any Payee; nor shall the Claimant or any Payee have the right or power to sell, mortgage, encumber, or anticipate the Periodic Payments, or any part thereof, by assignment or otherwise. 4.0 Summer Marie Spangler's Beneficiary Any payments to be made after the death of Summer Marie Spangler, pursuant to the terms of this Settlement Agreement, shall be made to her named beneficiary. If no person or entity is so designated or if the person designated is not living at 4 time of the Summer Marie Spangler's death, such payments shall be made to the Estate of Summer Marie Spangler. Claimant may request in writing that Assignee change the beneficiary designation under this Agreement. Assignee will do so but will not be liable, however, for any payment made prior to receipt of the request or so soon thereafter that payment could not reasonably be stopped. 5.0 Consent to Qualified Assignment 5.1 Claimant acknowledges and agrees that the Insurer will make a "qualified assignment", within the meaning of Section 130 (c} of the Internal Revenue Code of 1986, as amended, of the Insurer's liability to make the Periodic Payments set forth in Section 2.2 to Prudential Assigned Settlement Services Corporation ("the Assignee"}. The Assignee's obligation for payment of the Periodic Payments shall be no greater than that of Insurer (whether by judgment or agreement} immediately preceding the assignment of the Periodic Payments obligation. 5.2 Such assignment shall be accepted by the Claimant without right of rejection and shall completely release and discharge the Insured and the Insurer from the Periodic Payments obligation assigned to the Assignee. The Claimant recognizes that the Assignee shall be the sole obligor with respect to the Periodic Payments obligation, and that all other releases with respect to the Periodic Payments obligation that pertain to the liability of the Insurer shall thereupon become final, irrevocable and absolute. 6.0 Right to Purchase an Annuity The Insurer, through its Assignee, will fund the liability to make the Periodic Payments through the purchase of an annuity policy with a present day value of $60,000 from the Prudential Insurance Company of America. The Assignee shall be the sole 5 owner of the annuity policy and shall have all rights of ownership. The Assignee may have the Prudential Insurance Company of America mail payments directly to the Claimant. The Claimant shall be responsible for maintaining a current mailing address with the Prudential Insurance Company of America. 7.0 Discharge of Obligation The obligation of the Assignee to make each Periodic Payment shall be discharged upon the mailing of a valid check in the amount of such payment to the designated address of the Payee(s) named in Section 2 of this Settlement Agreement or upon completion of an electronic funds transfer in the amount of such payment to the deposit account of such Payee. $.0 Attorney's Fees Each party hereto shall bear all attorney's fees and costs arising from the actions of its own counsel in connection with this Settlement Agreement, the matters and documents referred to herein, and all related matters. 9.0 Representation of Comprehension of Document Tn entering into this Settlement Agreement the Claimant represents that Claimant have relied upon the advice of her attorney, who is the attorney of her own choice, concerning the legal and income tax consequences of this Settlement Agreement; that the terms of this Settlement Agreement have been completely read and explained to Claimant by her attorney; and that the terms of this Settlement Agreement are fully understood and voluntarily accepted by Claimant. 6 10.0 Warranty of Capacity to Execute Agreement Claimant represents and warrants that no other person or entity has, or has had, any interest in the claims, demands, obligations, or causes of action referred to in this Settlement Agreement, except as otherwise set forth herein; that Claimant has the sole right and exclusive authority to execute this Settlement Agreement and receive the sums specified in it; and that Claimant has not sold, assigned, transferred, conveyed or otherwise disposed of any of the claims, demands, obligations or causes of action referred to in this Settlement Agreement. 11.0 Governing Law This Settlement Agreement shall be construed and interpreted in accordance with the laws of the Commonwealth of Pennsylvania. 12.0 Additional Documents All parties agree to cooperate fully and execute any and all supplementary documents and to take all additional actions which may be necessary or appropriate to give full force and effect to the basic terms and intent of this Settlement Agreement. 13.0 Entire Agreement and Successors in Interest This Settlement Agreement contains the entire agreement between the Claimant, the Insured and the Insurer with regard to the matters set forth in it and shall be binding upon and inure to the benefit of the executors, administrators, personal representatives, heirs, successors and assigns of each. 7 14.0 Effectiveness This Settlement Agreement shall become effective immediately following execution by each of the parties. Claimant By: Susan May Spangler, natural Mother and Plenary guardian of Summer Marie Spangler Date: Claimant's Attorney Karl E. Rominger By: Date: Insurer Zurich American Insurance Company By: Title: Date: 8 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY NINITI JUDICIAL DISTRICT OF PENNSYLVANIA ORPHANS' COURT DMSION In Re: Summer Marie Spangler No.:21-09-0267 PETITION FOR APPROVAL OF MINOR'S SETTLEMENT AND NOW, comes Susan May Spangler, the Plenary Guardian of Summer Marie Spangler, and requests this Court approve a settlement as follows: 1. Susan May Spangler is the natural Mother of Summer Marie Spangler who was appointed Plenary Guardian on or about April 21, 2009, by the Honorable M. L. Ebert, Jr. 2. During the period of time when Summer Marie Spangler (hereinafter Summer) was a minor child, she was involved in two (2) bussing related accidents on both August 20, 2007, and February 15, 2008, while being transported by H. E. Rohrer, Inc. 3. The Natural Mother in her capacity as Natural Mother hired undersigned counsel on a contingency fee agreement to recover monies on behalf of the then minor child. 4. After the child turned eighteen (18), and after being appointed Plenary Guardian, Susan May Spangler, reaffirmed this fee agreement in her capacity as Plenary Guardian, and the reaffirmed fee agreements where identical to those originally signed. 5. There are some medical bills as a insult of both accidents, but those bills have been paid by first party auto insurance and/or other medical coverage, and there are no liens. 6. The Child did suffer some injury, none of which was permanent in nature and all of which has healed. 7. Counsel has negotiated a $100,000.00 settlement with the carrier Zurich Insurance, who is represented by Attorney Steven Lipski in this matter, and who has been served a copy of this petition. 8. The Plenary Guardian and the Insurance Company wish to settle this claim, but pursuant to the Rules of Civil Procedure, because it involves the estate of an incompetent, this Court's approval is required 9. The parties propose to divide the funds as follows: a. $60,000.00 to be used to create a structured settlement which would begin paying at age 25 for a period of thirty (30) years in monthly installments of approximately $486.00 per months. (For a total payout of $168,480.00) b. $15,000.00 to the Estate of the incompetent for use by the Plenary Guardian for care maintenance and securing a vehicle with a lift. c. $25,000.00 as twenty-five (25%) percent of the amounts recovered pursuant to the fee agreements, payable to Karl E. Rominger, Esquire. 10. Counsel and Plenary Guardian have chose to use a structure in this matter se a majority of the proceeds are spread out over a period of years, both to increase the available funds to the incompetent, and also because many forms of disability including social security disability, which the incompetent may begin receiving, will penalize the recipient for the receipt of a lump sum, but do allow for supplemental monthly income. 11. An affidavit of the Plenary Guardian indicating she is in favor of the Court granting this Petition will be provided when it is executed. 12. Ptusuant to the rules of Civil Procedure this Honorable Courts approval is required, which may be done with or without a hearing. 13. The attached quotes for the individually designed settlement expire on or before May 12, 2009, and the exact monthly proposed payout may change either up or down depending upon market interest rates and upon the day it is locked, and therefore counsel asks that this matter be decided expeditiously. 14. A proposed Order has been attached to this Petition. Respectfully Submitted, Rominger & Associates Date: Karl E. Rominger, Esquire 155 South Hanover Street Carlisle, Pennsylvania 17013 (717)241-6070 Supreme Court ID # 81924 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY NINTH JUDICIAL DISTRICT OF PENNSYLVANIA ORPHANS' COURT DIVISION In Re: Summer Marie Spangler No.: 21-09-0267 AFFIDAVIT I, Susan May Spangler, Plenary Guardimi far Summer Marie Spangler, engaged the services of Karl E. Rominger, Esquire, at the time Summer Marie Spangler was a minor and again in my capacity as Plenary Guardian, and ask the Court to approve the attached settlement which I am in favor of. Date: Susan May Spangler, Plenary Guardian For Summer Marie Spangler IN TIFIE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY NaVTH JUDICIAL DISTRICT OF PENNSYLVANIA ORPHANS' COURT DIVISION in Re: Summer Marie Spangler . No.:21-09-0267 ORDER OF COURT AND NOW, this day of , 2009, approval is granted to the Plenary Guardian, Susan May Spangler, to finalize a settlement on behalf of the incompetent Summer Marie Spangler. The Guardian and her counsel, Karl E. Rominger, Esquire are directed and Ordered to make disbursement of the funds as follows; $6t?,000.00 to a structured settlement, $25,000.00 to counsel as fees, and $15,000.00 to the Estate of the incompetent to be used as the Plenary Guardian's discretion as allowed by law. The Guardian and Counsel are authorized to execute any and all necessary documents to effectuate this settlement including any applicable release or structured fee agreement.. J. Distribution: Karl E. Rominger, Esquire 155 South Hanover Street Carlisle, Pennsylvania 17013