HomeMy WebLinkAbout10-27-10SCHMIDT KRAMER PC
BY: TERRY S. HYMAN, ESQUIRE
I.D. # 36807
209 State Street
Harrisburg, PA 17101
(717) 232-6300
In RE:
Attorneys for Platetiff(s)
BETTY L. DELP
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CUMBERLAND COUNTY~~V ~~
PENNSYLVANIA ~, ~;
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COURT OF COMMON PLEAS
ORPHANS COURT DIVISION
FILE NO. 2010-00029
PETITION FOR APPROVAL OF
WRONGFUL DEATH/SURVIVAL SETTLEMF~y~r
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AND NOW come the Petitioners, David A. Delp and Steven C. Delp, as
Co-Administrators of the Estate of Betty L. Delp, Deceased, pursuant to 20
Pa.C.S.A.§ 3323 for approval of a Compromise Settlement in the above matter
and further sets forth as follows:
1 • The Petitioners, David A. Delp and Steven C. Delp, the adult sons
of the decedent, Betty L. Delp.
2. The Petitioners are also Co-Administrators of the Decedent's Estate
by virtue of Letters Testamentary which were granted to them by the Register of
Wills of Cumberland County.
3. Betty L. Delp died as a result of an intracranial bleed sustained in
an accident on October 3, 2009.
4• The facts of the accident were unusual. Mrs. Delp was 87 years
old and unable to release the hand brake on her car. Her neighbor, with Mrs.
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Delp's permission, entered the car and began to release the brake. The
neighbor did not take the vehicle out of gear or shut the door. When she
released the brake the car lurched backward with the open door knocking Mrs.
Delp to the ground.
5. Unfortunately, Mrs. Delp's head hit the driveway pavement causing
an intracranial bleed. She did not recover from that insult, lingering several
months in a nursing home until she succumbed.
6. David A. Delp and Steven C. Delp, both adults, executed a
Contingent Fee Agreement with Schmidt Kramer PC permitting a 30%
attorney's fee for a settlement without litigation, 33 1/3% after suit had been
filed and 40% after start of trial or as result of verdict or settlement. (See
Contingent Fee Agreement attached hereto as Exhibit A).
7. In order to obtain this settlement, Schmidt Kramer was able to
obtain coverage from Mrs. Delp's own carrier under its "permissive driver"
coverage as well as money from the neighbor's coverage as excess.
8 Mrs. Delp was 87 years old at the time of death, and had other co-
morbidities, including lymphoma. Given her age, health and the fact the
defendant was a "Good Samaritan" neighbor, Petitioner's aver $150,000 is a
reasonable settlement.
9. In order to determine .Estate taxes and as part of the process of
obtaining Court Approval, Petitioner has presented this Petition to the
Pennsylvania Department of Revenue, without any suggestion as to the
allocation between Wrongful Death Action and the Survival Action. The
Department, after applying the standard criteria used in all cases involving a
decedent's personal injury claim has allocated 60% to Survival and 40% to
Wrongful death. (See letter from the Department of Revenue attached hereto
as Exhibit B).
10. Having retained the law firm of Schmidt Kramer PC because of
their expertise in these types of cases and signed a Contingent Fee Agreement,
Petitioner, an adult, considers a fee of 30% to be reasonable for the work,
expertise, and effort of the law firm.
11. To accomplish the settlement, Schmidt Kramer PC incurred out of
pocket expenses of $737.77. (Expense list attached as Exhibit C).
12. A conditional Medicare lien of $21,361.83 less a pro rata share of
the cost of recovery must be paid from this settlement under the Medicare
Secondary Payer Act. The exact amount of the payment will not be calculated
by Medicare until this settlement is approved.
13. The Petitioner requests that the following distribution be approved:
TOTAL SETTLEMENT $ 150,000.00
Attorney fees (30%) $ 45,000.00
Attorney expenses -Schmidt Kramer PC $ 739 77
Medicare Lien (estimated) $ 14,953.28
Net Recovery to Client $ 89,306.95
14. Petitioner also requests the Court grant permission to execute a
Release to the Defendants consistent with this Petition.
15. This is a compromised settlement of a disputed claim in which no
party has accepted fault.
16. The client's recovery will be paid to Steven Tiley, Esquire, attorney
for the Estate to be distributed in accordance with this Order and applicable
law.
WHEREFORE, the Petitioners request that this Honorable Court enter
the Order attached to this Petition approving the compromise settlement,
directing the distribution of the proceeds as set forth herein, and authorizing
them to sign a general release.
Respectfully submitted,
SCHMIDTKRAMER PC
~~~°~ 7/02 O/O By:
T~ S. an, Esquire
I.D. # 8
209 Sta e Street
Harrisburg, PA 17101
(717) 232-6300
Attorney for Plaintiffs
CONTINGENT FEE AGREEMENT
THIS AGREEMENT entered into the r` ~ day of~~ 20
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by and between SCHMIDT KRAMER PC and '~
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hereinafter referred to as "Client."
WITNESSETH:
The law firm of SCHMIDT KRAMER PC, will act as Client's attorney in
negotiating for a settlement, and in bringing a claim against _~ /i'CC~~
arising out
of an accident which occurred on /v r ~~ .- ~ 7
In
addition, SCHMIDT KRAMER PC, will pursue all claims for underinsured or
uninsured motorist benefits to which the Client may be entitled under his/her
insurance policy.
In return, the Client will:
1. Promptly supply accurate information, as requested by SCHMIDT
KRAMER PC, and cooperate fully, including making elf available for
meetin s with a ~'~~
g ttorneys and for legal proceedings. Client promises all
information supplied will be truthful and accurate.
2. (a) In any claim brought on Client's behalf, to pay to SCHMIDT
KRAMER PC, for its services an amount equal to thirty percent (30%) of all
funds or property accruing to Client as a result of SCHMIDT KRAMER PC 's
services in securing a settlement of these claims without litigation; an amount
equal to thirty-three-and-one-third percent (33-1 / 3%) of all funds or property
accruing to Client as a result of SCHMIDT KRAMER PC 's services in securing a
settlement of these claims after a suit has been filed; and an amount equal to
forty percent (40%) if such funds or property are secured after start of trial or
as a result of verdict or judgment. Trial begins at the Pre-Trial Conference, or
when testimony is taken for trial, whichever occurs first. In any matter
submitted to arbitration, suit is filed when the arbitrators are appointed or
when a Petition to Appoint Arbitrators is filed, whichever first occurs. In any
matter submitted to 'arbitration, trial starts the first day the arbitrators have
convened to hear testimony.
(b) Client agrees not to settle or negotiate the above claim ar any
proceedings based thereon.
(c) If Client terminates this Agreement before recovery, Client agrees
that SCHMIDT KRAMER PC; shall be entitled to a fee based upon work done
and benefit conferred.
(d) Client agrees to read and follow SCHMIDT KRAMER PC's "Client
Instruction Manual."
3. Client agrees to reimburse SCHMIDT KRAMER PC, out of any
recovery, in addition to attorneys' fees, all costs and expenses incurred on
Client's behalf in order to make the claim. All such costs and expenses will be
advanced by SCHMIDT KRAMER PC as they are incurred. Such costs and
expenses include, but are not limited to, filing fees, cost of medical records,
copying costs, fax costs, long distance telephone costs, expert witness fees and
sheriffs service costs. In the event there is no recovery, the Client will not be
responsible for any costs or interest charges.
Costs will be repaid to SCHMIDT KRAMER PC, out of any funds or
property collected either by settlement or judgment.
4. Claims for first party medical benefits and income loss benefits are
separate items. SCHMIDT KRAMER PC, will help you process these claims. A
separate agreement will have to be entered into for fees if a major dispute
occurs requiring the filing of suit for these benefits.
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The Client has read and does understand this Agreement.
Signed the day and year set forth above.
WITNESS:
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Approved:
SCHMIDT KRAMER PC
By
Client:
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I have received a copy of this Contingent Fee Agreement.
In ti is
~ Pennsylvania
DEPARTMENT OF REVENUE
October 15, 2010
Terry S. Hyman, Esquire
Schmidt Kramer, PC
209 State Street
Harrisburg, PA 17101
Re: Estate of Betty Delp
File Number 2110-0029
Court of Common Pleas Cumberland County
Dear Mr. Hyman:
The Department of Revenue has received the Petition for Approval of Settlement Claim to be
filed on behalf ofthe above-referenced Estate in regard to a wrongful death and survival action. It has
been forwarded to this Bureau for the Commonwealth's approval of the allocation of the proceeds paid to
settle the actions.
Pursuant to the Petition, the 87 year old decedent died as a result of an intracranial bleed.
Decedent is survived by her two sons.
Please be advised that, based upon these facts and for inheritance tax purposes only, this
Department has no objection to the proposed allocation of the net proceeds of this action, $35,728.80 to
the wrongful death claim and $ 53,593.20 to the survival claim. Proceeds ofa survival action are an asset
included in the decedent's estate and are subject to the imposition of Pennsylvania inheritance tax. 42
Pa.C.S.A. §8302; 72 P.S. §9106, 9107. Costs and fees must be deducted in the same percentages as the
proceeds are allocated. In re Estate of Merryman, 669 A.2d 1059 (Pa. Cmwlth. 1995).
I trust that this letter is a sufficient representation of the Department's position on this matter. As
the Department has no objections to the Petition, an attorney from the Department of Revenue will not be
attending any hearing regarding it. Please contact me if you or the Court has any questions or requires
anything additional from this Bureau.
Sin erely,
annon E. Baker
Trust Valuation Specialist
Inheritance Tax Division
Bureau of Individual Taxes ~ PO Box 280601 i Harrisburg, PA 17128 ~ 717.783.5824 ~ shabaker@state.pa.us
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VERIFCATION
We, David A. Delp and Steven C. Delp, in our capacity as Co-
Administrators of the Estate of Betty L. Delp, and in our capacity as a Wrongful
Death beneficiary, hereby swear and affirm that we have read the Petition for
Approval of Settlement and agree with the facts and terms of the Settlement as
set forth in the Petition and affirm my belief that the Settlement set forth in the
Petition is fair and in the best interests of the beneficiaries of the Estate of
Betty L. Delp.
Date f ~ ~z~" f ~~
Date ~~?~~ 5/~ry
David A. Delp, Co-Administrator of the
Estate of Betty L. Delp
Steven C. Delp, o-Administrator of the
Estate of Betty L. Delp