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HomeMy WebLinkAbout10-7144°l CRISTOFER V. BROWNING and IN THE COURT OF COMMON PLEAS KATARZYNA A. KANCLERZ- OF CUMBERLAND COUNTY, PA BROWNING as Parents and Natural Guardians of VICTORIA BROWNING Plaintiffs V. GUNNAR SPENCER Defendant No: 10 - 714q 6\6 (7&m---' 4- VICTORIA BROWNING, BY AND THROUGH HER PARENTS AND NATURAL GUARDIANS, CRISTOFER V. BROWNING AND KATARZYNA_A. KANCLERZ- BROWNING, PETITION FOR APPROVAL OF MINOR PLAINTIFF'S COMPROMISE AND SETTLEMENT PURSUANT TO PA. R.C.P. 2039 Cristofer V. Browning and Katarzyna A. Kanclerz-Browning, as Parents and Natural Guardians of Victoria Browning, a minor, hereby files this Petition for Court Approval through counsel for United Services Automobile Association ("USAA"), and in support thereof avers as follows: 1. Petitioners, Cristofer Browning and Katarzyna A. Kanclerz-Browning, are an adult individuals who resides presently at 14859 Cartagena Drive, Gainesville, Virginia 20155. 2. Petitioners are the Parents and Natural Guardians of the Minor Plaintiff, Victoria Browning, who resides with him and who is five (5) years of age, having been born on October 15, 2004. 3. Minor Plaintiff has selected Petitioners as legal guardian to represent her interests in this Petition, and Petitioners, Cristofer Browning and Katarzyna A. Kanclerz-Browning, has permitted counsel for USAA to submit this Petition as evidenced by the attached Verification. 4. On or about June 21, 2008, the Minor Plaintiff, Victoria Browning, was attending a picnic at Gunnar J. Spencer's residence in Camp Hill, Pennsylvania. 442.00 Pb A'ml a? a?8 ?* a5/lo?B 5. The Minor Plaintiff, while carrying a plate of food and walking towards her parents, passed Mr. Spencer's mixed breed Labrador Retriever, and in doing so, the dog bit the Minor Plaintiff, lacerating her left upper lip from just under the left nostril, through the Vermillion line and left Cupid's Bow of the lip, piercing the lip completely. 6. As a result of this accident, the minor Plaintiff injured her lip and was treated at the Milton S. Hershey Medical Center where the lip was sutured by a plastic surgeon. 7. As a result of the accident, the Minor Plaintiff suffered a permanent scar and partial paralysis to the left upper lip region. 8. Approximately eighteen (18) months after the incident, the Minor Plaintiff consulted with a plastic surgeon for the possibility of revision to the Minor Plaintiffs scarring. The physician at that time determined that there was no medical treatment that would improve the scarring, however, additional medical treatment in the future may be available. See November 2, 2009 progress noted attached hereto as Exhibit A. 9. All of Plaintiffs medical expenses incurred to date have been paid by Mr. Spencer's insurance carrier, USAA. 10. Petitioners believe that it is possible that the Minor Plaintiff may incur future medical expenses as a result of the accident, specifically potential revision to the scar on the Minor Plaintiffs left upper lip. See Exhibit A. 11. Aside from the above, Petitioners believe that the Minor Plaintiff will not suffer from any long term or continuing ill effects from this accident. 12. Petitioners and Minor Plaintiff chose to settle this matter without counsel. 13. Petitioners contend that the injury sustained was caused by the negligence of the Defendant and have made a claim to USAA, Defendant's insurer. 2 14. "The parties have amicably resolved this matter for a settlement in the amount of $100,000.00 in exchange for a Settlement Release. A true and correct copy of the executed Settlement Release is attached hereto and identified as Exhibit B. 15. The settlement proceeds, $100,000.00, is the full policy limits for Defendant Spencer. See Declarations Page attached hereto as Exhibit C. 16. The settlement proceeds will be used to fund a structured settlement that will pay the Minor Plaintiff $231,700.00 in lump sum payments consistent with the terms outlined in the Settlement Agreement and Release by her 35`" birthday. See a true and correct copy of the structured settlement attached as Exhibit D. 17. Minor Plaintiff and Petitioners believe that the settlement terms are fair and reasonable for the reasons set forth above and in the best interest of the Minor Plaintiff, Victoria Browning. 18. There are no attorneys fees or other related expenses associated with the Minor Plaintiff s claim. 19. Petitioners request that this Court approve the compromise settlement of this claim as set forth in this Petition. 20. All parties to this action concur with the filing of the Petition and seek approval of the Minor's Compromise Settlement under the terms set forth herein. WHEREFORE, Petitioners respectfully request that this Honorable Court approve the Minor Plaintiff s Compromise and Settlement and enter the Order attached hereto. 3 Respectfully submitted, DENNEHEY, WARNER, GGIUGIN L. , ESQUIRE Q2.O rCrums Mill Road, Suite B Harrisburg, PA 17112 Dated: _ (717) 651-3500 051628007.v I 4 ?? jl ???? ow 14,1vt its PROGRESS MOTES us* Th" Date, Time and Sigma km* by Physk*m is R "Ji € ,c...-'-"?" ? ''r?.rir i??e1... ?4.?.,. '?4-i? .!' r'-?_ _ _ ?..r?l.,r'?',..t'I?"""?. 5 F <_ Q -'e --? 11 HEALTH PROD tES3 No 'ms i llmmw? m,mmoll MIS omos"t « s or to <__r*r" IN' i )901119c865ce03a Usu co .r? t ?? ?i RELEASE AND SETTLEMENT AGREEMENT 1. RELEASE AND SETTLEMENT A. THE UNDERSIGNED, Victoria Browning, a minor, by and through Cristofer V. Browning and Katarzyna A. Kanclerz-Browning, parents and natural guardians of Victoria Browing, and Cristofer V. Browning and Katarzyna A. Kanclerz-Browning, individually, ("RELEASORS") on this & ""4 day of Oe r- , 2010, for and inconsideration of the sum of One Hundred Thousand Dollars and no cents ($100,000.00), to fund the periodic payments as provided for in Section 104, Subsection (a) (2) of the Internal Revenue Code of 1986, as amended, specified in Section 11, paragraph F of this AGREEMENT, which United Services Automobile Association (USAA) ("INSURER") contracts and agrees to pay or cause to be paid to the persons or entities named in Section Il, paragraph G, the receipt and legal sufficiency of all of which are expressly acknowledged, does hereby forever RELEASE, ACQUIT AND DISCHARGE Gunnar Spencer ("RESPONDENT"), INSURER and their servants, agents, officers, attorneys, claim adjusters, successors, heirs, assigns and all other persons, firms or corporations ("RELEASEES"), from any and all claims, actions, causes of action, damages, liens of every kind and character, and/or other obligations of every kind and character, including all expenses incurred or to be incurred, on account or arising out of or in any way related to any and all injuries or damages to me, as a result of all occurrences involving RELEASORS and RESPONDENT on or about the 21st day of June, 2008, at or near the City of Camp Hill, in the Commonwealth of'Pennsylvania. B. THIS RELEASE IS INTENDED TO AND DOES COVER ALL CLAIMS FOR INJURIES AND/OR DAMAGES, WHETHER OR NOT KNOWN TO THE PARTIES AT THE TIME THIS SETTLEMENT AGREEMENT IS EXECUTED, WHICH HAVE, RESULTED, MAY HEREAFTER RESULT FROM, MAY HAVE BEEN, OR MAY BE CLAIMED TO HAVE BEEN CAUSED BY OR RESULTED FROM THE DESCRIBED OCCURRENCES. C. I hereby declare and represent that the injuries sustained may be permanent and progressive and that recovery there from is uncertain and indefinite, and in making this Release and Agreement it is understood and agreed that I rely wholly upon my own judgment, belief and knowledge of the nature, extent and duration of said injuries, and that I have not been influenced to any extent whatever in making this Release by any representations or statements regarding said injuries, or regarding any other matters, made by the persons, firms or corporations who are hereby released, or by any person or persons representing them, or by any physician or surgeon by them employed and/or engaged. D. In entering into this Release and Settlement Agreement, 1 represent that I have had the opportunity to seek the legal advice of an attorney of my own choice, and I have read this Settlement Agreement and Release and I have had the opportunity of asking questions of my attorney of my own choice with regard to the terms and implications of entering into this Settlement Agreement and Release, and those terms and implications are fully understood and voluntarily accepted by me. E. Nothing in this Settlement Agreement and Release shall constitute a waiver of my right to pursue claims for Social Security Disability benefits, disability insurance, medical insurance or other disability benefits and is not a release of such claims, notwithstanding such disability claims which may arise from the injury or injuries sustained in the incident of June 21, 2008. Nothing contained in this Settlement Agreement and Release shall constitute a waiver of my right to pursue claims for medical negligence and/or medical malpractice notwithstanding that such claims may arise from the injuries sustained in the incident of June 21, 2008. F. It is understood and expressly agreed that 1 will indemnify and hold harmless the Releasees and will satisfy any claim, including litigation costs, expenses and attorneys' fees incurred by any Releasee regarding any and all liability arising from any workers' compensation lien, Heart & Lung Act lien, health insurance lien, Medicare lien, Medicaid lien and any other lien with regard to any medical, disability or compensations paid or payable in connection with the incident of June 21, 2008. G. Additionally, it is expressly understood and agreed that I shall satisfy or cause to be marked satisfied, any final decree, judgment or award for contribution or indemnity or assessment of damages against Releasees which is the direct or indirect result of any claim that I may bring for medical negligence and/or medical malpractice as a result of injuries sustained in the incident of June 21, 2008 and/or medical treatment, care and/or attention that I have sought and/or received with respect to those injures. I understand and hereby expressly agree to hold harmless the Releasees for any litigation costs, expenses and attorneys' fees incurred by any Releasee which is the result of any Releasee being joined as an additional or third-party defendant in such actions and/or for claims made against any Releasee for contribution and/or indemnification as a result of claims brought by me or on my behalf for medical malpractice and/or medical negligence. H. As additional consideration for the described payments, RELEASORS, for themselves, their heirs, executors or administrators, and assigns, agrees to and does indemnify and hold harmless RELEASEES from any and all claims, demands and causes of action or any nature or character which have been made, or which may in the future be made by any person, firm or corporation claiming by, through or under them, including, but not limited to, all hospital, medical or other expenses or liens which are or could be asserted. 11. PERIODIC PAYMENTS A. Notwithstanding any other provision of this AGREEMENT, INSURER is and will remain contractually responsible for all periodic payments under this AGREEMENT. B. RESPONDENT and INSURER agree that RELEASORS (to whom, or upon whose behalf, the periodic payments contracted for in the AGREEMENT are to be made) made claim against RESPONDENT for damages arising from or involving physical injuries or physical sickness. Those claims, among others, are being released and settled by this AGREEMENT. C. The Parties further agree that all periodic payments specified in Section II, paragraph F, of this AGREEMENT are being funded by the purchase of a "Qualified Funding Asset," as defined in Section 130(d) of the Internal Revenue Code of 1986, from USAA Life Insurance Company, which will provide for payment of the periodic payments, INSURER will be the sole owner of the "Qualified Funding Asset." INSURER guarantees that the periodic payments will be made as specified in the PERIODIC PAYMENT SCHEDULE. RELEASORS acknowledge that USAA Life Insurance Company is an affiliate of INSURER and that, because of this affiliation, an indeterminate profit might eventually inure to the benefit of the INSURER. D. RELEASORS agree: (1) that INSURER is not required to set aside specific assets to secure the periodic payments; (2) that the periodic payments cannot be accelerated, deferred, increased or decreased 2 by RELEASORS; and (3) that the periodic payment(s) shall not be, and cannot be, subjected in any manner to sale. transfer, assignment, pledge, mortgage, encumbrance, lien, collateral, or any similar transaction. Any attempted sale, transfer, assignment, pledge, mortgage, encumbrance, lien, collateral, or similar transaction is void. E. RELEASORS shall have no legal, equitable, vested, or contingent interest in the "Qualified Funding Asset" and their rights against INSURER, the company from whom the "Qualified Funding Asset" is purchased, or against the "Qualified Funding Asset" will be solely those of a general creditor. F. PERIODIC PAYMENT SCHEDULE: $15,000.00 annually, for only four (4) years, guaranteed, beginning on June 1, 2024, with the last benefit payable on June 1, 2027 $10,000.00 guaranteed lump sum, payable on October 15, 2022 $25,000.00 guaranteed lump sum, payable on October 15, 2028 $35,000.00 guaranteed lump sum, payable on October 15, 2031 $45,000.00 guaranteed lump sum, payable on October 15, 2034 $56,700.00 guaranteed lump sum, payable on October 15, 2039 G. THE PERIODIC PAYMENT(S) WILL. BE MADE PAYABLE TO: Victoria Browning H. Any periodic payments to be made after the death of CLAIMANT, Victoria Browning, under this SETTLEMENT AGREEMENT will be made to the Estate of Victoria Browning, as designated at the time of settlement (or in writing from time to time thereafter by the guardian of said CLAIMANT with Court Approval) by said CLAIMANT, upon attaining the age of majority, and delivered to INSURER. If no person or entity is designated by said CLAIMANT, or if the person or entity designated is not living at the time of said CLAIMANT'S death, the payment will be made to the Estate of said CLAIMANT. 1. All sums set forth herein constitute damages on account of personal physical injuries or physical sickness, within the meaning of Section 104 (a)(2) of the Internal Revenue Code of 1986, as amended. J. Discharge of Obligation: The obligation of the RESPONDENT and the INSURER 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 each Payee named in Section 11 of this Release, or by deposit by electronic funds transfer in the amount of such payment to an account designated by each Payee identified in Section 11, III. GENERAL PROVISIONS A. It is expressly understood and agreed that this settlement is a compromise of a disputed claim, that the payments provided for may not be construed as an admission of liability by RESPONDENT or INSURER, and that RELEASEES expressly deny any liability to RELEASERS. 3 B. RELEASORS covenant that no representations or promises other than those expressed in this SETTLEMENT AGREEMENT have been made to them in regard to this settlement, that they have carefully read and fully understand this SETTLEMENT AGREEMENT, and that they understand that upon execution of this SETTLEMENT AGREEMENT, all rights, claims or demands RELEASORS may have against RESPONDENT and INSURER, except the contract to make periodic payments included in this SETTLEMENT AGREEMENT, are completely extinguished. C. SETTLEMENT AGREEMENT is to be construed and interpreted under the laws of the Commonwealth of Pennsylvania. Any person who, with intent to defraud or knowing that he/she is facilitating a fraud against an insurer, submits an application or files a claim containing a false or deceptive statement is guilty of insurance fraud. EXECUTED BY ALL PARTIES as of the date first stated above. CAUTION: THIS IS A RELEASE READ BEFORE SIGNING WITNESS our hands and seals this day of 4/C? - , 2010. --- -(SEAL) SBROWNING, s P nt AES and Natural Guardian of VICTORIA BROWNING (SEAL) KAT RZYNA A. KANCLERZ- I TNTE-S BROWNING as Parent and Natural Guardian v ?'"'e- W of VICTORIA BROWNING p? MIR7A C. MORALES To wM NOTARY PUBLIC b11au ?i 1 dlgr a COMMONWEALTH OF VIRGINIA MY COMMISSION EXPIRES AUG. 31, 2012 COMMISSION M 7163451 (111Ni19a INSURER: United Services Automobile Association (USAA) ONPUBLIC: MYcown" Name Title EXECUTED at , this _ day of 20 12.1 4 09/07/2010 12:53 2104984581 NE P(4(,E ) B. RELEASOW1 covenant that no representations or promises other than those expres,ed in ih SETTLEMENT AG;a',EMENT have been made to them in regard to this settlement, that they hx carefully read and fidly understand this SETTLEMENT AGREEMENT, and that they understand th:t1 upon execution of this SETTLEMENT AGREEMENT, all rights, claims or demands RELEA?()RS m. i y have against RESPONDENT and INSURER, except the contract to make periodic payments included I c this SETTLEMENT AGREEMENT, are completely extinguished. C. SETTLEME141' AGREEMENT is to be construed and Commonwealth of Pe.insylvania. Any person who, with intent to facilitating a fraud against an insurer, submits an application or deceptive statement is guilty of insurance fraud. EXECUTED BY ALL PARTIES as of the date first stated above. interpreted under the laws of i;t( defraud or knowing that he/she i files a claim containing a false .) CAUTION: THIS IS A RELEASE READ BEFORE SIGNING WITNESS c w hands and seals this . day of , 2010. _ (SEA L) CRISTOFER BROWNING, as Parent WITNESS and Natural Guardian of VICTORIA BROWNING (SE/,I,) KATARZYNA A. K,'kNCLERZ- WITNESS BROWNING as Pfreut and Natural Guardian of VICTORIA BROWNING INSURER: Uni &l Services Automobile Association (USAA) s .jL'0144'- e4.A,*j^ S Name Title EXECUTED at , this day of , Z)_ 4 Sworn to and subscribed before me this day of e??' , 2010. t7 _ No "!g p my Commissio expires: 05/629951.v1 by MY ANI MIRZA C. MORALES NOTARY PUBLIC F ONWEALTH OF VIRGINIA SION EXPIRES AUG. 31, 2012 MMIfiSk'S'# a , i4 11LUq Ole cD ? C?e ?2. D?i?ec 5 i? ?? L?'?5 b,? C ?/ PAGE 3 UNITED SERVICES AUTOMOBILE ASSOCIATION MAIL -dENR-I s 8000 Frederlolksburp Road - Son Antonio. Texas 78288 RENEWAL DECLARATIONS PAGE Named Inured and Residence Premises Policy Number GUNNAR J SPENCER USAA 00489 51 40 90A 3015 YALE AVE CAMP HILL, CUMBERLAND, PA 17011-5251 POLICY PERIOD From: 04/D5/08 TO: 04/05/09 02A1 A.M. standard time at location of the residence premises) COVERAGES AND LIMITS OF LIABILITY SECTION I A Dwelling $207,000 C. Personal Property 1155, 250 D. Loss of Use (UP TO 12 MONTEB) UNLIMITED SECTION II E. Personal Liability - Each Occurrence $100, Don F. Medical Payments to Others - Each Person ------------ ------------------ 11,000 -- - Your premium has already been reduced by the following: FIRS/BURGLARY CREDIT ----------- 17.13 CR --------------- BASIC PREMIUM 137D.56 OTHER COVES AND ENDORSEMENTS Form and Endorsements are printed on the following page. 04D.00 DEDUCTIBLES (SECTION I ONLY) We cover only that part of the loss over the deductible stated. ALL PERILS 15DD TOTAL POLICY PREMIUM 1410.56 THIS 10 NOT A BILL. STAT2I91INT TO HOLLOW. FIRST MORTGAGEE: SUNTRUST MORTGAGE INC. ITS SU0 CES0OR0 AND/OR ASSIGNS PO BOX 57028 IRVINE, CA 92619-7028 In Witness Whereof, this policy Is signed on 02/05/Dg LOAN NR 0134035518 REFER TO YOUR POLICY FOR OTHER COVERAGES, LIMITS AND EXCLUSIONS. HO-D1 (04-93) ATTACS THIS DECLARATION TO PREVIOUS POLICY 09011191861 d 3 860 USAA Confidential ? ? 1/ ??"' b ?? ? II NA1 T}C jNAL SETTLEMENT CONSULTANTS individually Designed Sei#lement Victoria Browning DATE OF BIRTH: October 15, 2004 AQ9Ud 11, 2010 GUARANTI *D BENEFIT COST YIELD $10,000.00 At Age 18 $6,600,00 $10,000.00 GutxttnJoed Tm-1 Payrnerits $15,000 per year, guaranteed for 4 years (4 payments). Payments beginning 6/01/2024, lost payment 6/01/2027. Guarcrhftd Way- Sum $25,000.00 At Age 24 $35,000.00 At Age 27 $45,000.00 At Age 30 $56,700.00 At Age 35 $34,000.00 $12,300.00 $14,700.00 $16;100.00 $16,300.00 $60.000.00 $25,000.00 $35,000.00 $+15,000.00 $56,700.00 Grand' Total $100,000.00 $231,700.00 UMM RMNud I USAA Life Insurance Company, Rated A++ By AM. Best Company Asfurned Funding Date: September 1, 2010 The enclosed figures are for illustrative purposes only and should not be construed as a contract. All figures are valid for 7 days froi toda)(s date and are subject to approval by the life carrier prior to contract issuance. Please contact our office to verify fitipues prior to court approval as the figures are time-sensitive and vary upon funding dates. WWW..SETTLE MENTCONSULTANTS COM 800-229-2228 VERIFICATION I hereby affirm that the following facts are correct: I, Cristofer Browning, as Natural Parent and Legal Guardian of Victoria Browning, am authorized to execute this Verification on my own behalf and on behalf of Victoria Browning. The attached Petition for Approval of a Minor Plaintiffs Compromise Settlement, is based upon information which has been gathered by counsel in the defense of this lawsuit. The language of the Petition for Approval of a Minor Plaintiff's Compromise Settlement is that of counsel and not of me. I have read the Petition, and to the extent that the Petition is based upon information which I have given to counsel, it is true and correct to the best of my knowledge, information and belief. To the extent that the contents of the Petition is that of counsel, I have relied upon counsel in making this Verification. I hereby acknowledge that the facts set forth in the aforesaid Petition for Approval of a Minor Plaint if s Compromise Settlement, are made subject to the penalties of 18 Pa. C.S. Section 4904 relating to unsworn falsification to authorities. DATE: 4RISTOWR BROWNING 05/639117.0 VERIFICATION I hereby affirm that the following facts are correct: I, Katarzyna A. Kanclerz-Browning, as Natural Parent and Legal Guardian of Victoria Browning, am authorized to execute this Verification on my own behalf and on behalf of Victoria Browning. The attached Petition,for Approval of'a Minor PlaintiffCompromise Settlement, is based upon information which has been gathered by counsel in the defense of this lawsuit. The language of the Petition for Approval of a Minor Plaintiff's Compromise Settlement is that of counsel and not of me. I have read the Petition, and to the extent that the Petition is based upon information which I have given to counsel, it is true and correct to the best of my knowledge, information and belief. To the extent that the contents of the Petition is that of counsel, I have relied upon counsel in making this Verification. I hereby acknowledge that the facts set forth in the aforesaid Petition _for Approval of a Minor Plaintiffs Compromise Settlement, are made subject to the penalties of 18 Pa. C.S. Section 4904 relating to unsworn falsification to authorities. v DATE: KATARZY4A A. KA CLERZ- BROWNING 051639118.v I NPV 11 5 2010 CRISTOFER V. BROWNING and KATARZYNA A. KANCLERZ- BROWNING as Parents and Natural Guardians of VICTORIA BROWNING IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PA Plaintiffs No: 10 - ri* a;Va v. c o -n GUNNAR SPENCER a m m r Z: --D CZD ? -Or Defendant r :X> - n DC W o? ? ORDER co n AND NOW this i N day of lV a vc- 010 u ? on consideration of the C . , p , , 1 Petition for Approval of Minor Plaintiffs Compromise Settlement, it is hereby ORDERED and DECREED that the settlement set forth in the Petition for the gross sum of $100,000.00, as more fully set forth in the Release attached as Exhibit B to the Petition, it is APPROVED. There are no counsel fees. The distribution of the proceeds will be made in accordance with the Release attached as Exhibit B to the Petition and will be paid to the Minor Plaintiff, Victoria Browning, consistent with the structured Settlement Agreement, all said proceeds to be placed in a restricted federally insured account until the Minor Plaintiff, Victoria Browning, achieves the age of 18 or earlier pursuant to Court Order. 05/62801 O.v 1 .s Distribution List ristofer Browning Katarzyna A. Kanclerz-Browning 14859 Cartagena Drive Gainesville, VA 20155 onald L. Carmelite, Esquire Marshall, Dennehey, Warner, Coleman & Goggin 4200 Crums Mill Road, Suite B Harrisburg, PA 17112 &pt'Er malr?.I ?ia