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HomeMy WebLinkAbout11-24-10IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA ORPHANS' COURT DIVISION In Re: No. 21-10-0958 Steven Joshua Bergey, an Incapacitated Person N c~ ° G A ~ x a ~r ~ rn N ~~~ ~ ;"a~© 3 ``7.-tea w v~ i- rn PETITION TO APPROVE PERSONAL INJURY SETTLEMENT AND NOW, this 15th day of November, 2010, comes the Petitioner, Jessica Bergey, by and through her attorneys, Menges, McLaughlin, and Kalasnik, PC, and Matthew D. Menges, Esquire, and files the within Petition, of which the following is a statement: The Petitioner is Jessica E. Bergey (hereinafter "Petitioner"), the plenary guardian of the person and estate of Steven Joshua Bergey (hereinafter "Josh") by this Court's Order dated October 22, 2010. 2. Josh was adjudicated incapacitated as a result of a traumatic brain injury sustained in a vehicle versus pedestrian collision on Apri125, 2010. 3. The collision occurred on State Route 501 in Bethel Township, Berks County, Pennsylvania. A true and correct copy of the Pennsylvania State Police report is attached hereto, incorporated herein by reference, and marked Exhibit "A." 4. Josh sustained the following injuries as a result of the collision: A. Oblique comminuted, depressed fracture of the left frontal bone, including extension of the fracture to involve the medial and lateral portions of the left orbit as well as _~, -T't ~; r _7 ~,-,d7 ~~,-~ n;~ ::) <: _..:, _- '~ ~Trn ~ Ca --r, frontal sinus and ethmoid air cells with associated small epidural hematoma; B. Left zygomatic arch fracture; C. Bilateral Transverse process fractures of L1; D. Fracture of the right L2 transverse process; E. Left planum sphenoidalis fracture; F. Possible fracture of the left cribreiform; G. Comminuted fracture of the left iliac wing; H. Bilateral fractures of the L1 transverse processes and L2 right transverse process; I. Tiny foci of pnuemomediastinum; J. Bilateral tib/fib fractures; K. Ventilator-associated pneumonia. A true and correct copy of Josh's discharge summary from Hershey Medical Center is attached hereto, incorporated by reference, and marked Exhibit "B." 5. Josh has been hospitalized or required skilled nursing care since the date of the collision, and will need similar care for the unknown future. 6. The driver of the vehicle that struck Josh is Jeffrey L. Schaeffer, Jr. (hereinafter "tortfeasor"), whose last known mailing address is 501 American Legion Blvd., Pine Grove, PA 17963. 7. Tortfeasor was insured with Nationwide Mutual Insurance Company at the time of the collision. 8. Nationwide Mutual Insurance Company has tendered its liability policy limits of $100,000.00 to settle Josh's claims. A true and correct copy of Nationwide's October 25, 2010 letter is attached hereto, incorporated herein by reference, and marked Exhibit "C." 9. Petitioner, through counsel and other means, has investigated the tortfeasor's assets and believes that the tortfeasor has little, if anything, which Josh, through Petitioner, could execute upon to satisfy a judgment that exceeded $100,000.00. 10. Josh has received medical payment benefits from the Department of Public Welfare in the amount of $139,682.59 as of October 20, 2010. A true and correct copy of the Department's Statement of Claim Summary is attached hereto, incorporated herein by reference, and marked Exhibit "D." 11. Petitioner has requested that the Department waive its lien with respect to this matter. 12. In the event that the Department does not approve a complete waiver of its lien, the Department can only recovery one-half of the net settlement amount, after attorney fees and costs. 13. Josh does not receive Medicare benefits and will not receive future payments subject to Medicare recovery. 14. Petitioner executed a fee agreement with the law firm of Menges, McLaughlin and Kalasnik, PC (hereinafter "the Firm") whereby the firm receives a 1/3 contingent fee of the gross recovery made on Josh's behalf. A true and correct copy of the fee agreement is attached hereto, incorporated herein by reference, and marked Exhibit "E." 15. The Firm has advanced all costs associated with the pursuit of this claim, to date: a. Commonwealth of Pennsylvania -State Police Crash Report - $8.00 b. HealthPort -Hershey Medical Center Discharge Summary - $27.93 c. Cumberland County Orphans' Court -Incapacity Petition Filing fee - $63.50 d. Pulmonary & Critical Care Medicine Associates, PC - Dr. Rommel Bebe's testimony at incapacity hearing - $117.00 e. Cumberland County Orphans' Court -Settlement Petition Filing fee - $15.00 TOTAL ADVANCED = $231.43 16. Petitioner is also pursuing an Underinsured Motorist claim against her own insurance policy in place at the time of the collision. Said claim could provide an additional $30,000.00 in funds recoverable for Josh. Any potential settlement for this claim will be the subject of a later petition. 17. Petitioner has been advised of her right to take Josh's claim to a trial on the merits. 18. Petitioner has been advised that by accepting a settlement, she is giving up all Josh's future rights to make a claim against tortfeasor. 19. Petitioner believes that Josh meets the definition of disabled as set forth in the Social Security Regulations. 20. Petitioner believes that Josh may be otherwise eligible for benefits in the future, including Social Security Insurance and Social Security Disability Insurance. 21. Petitioner therefore requests that the settlement funds hereby disbursed to Josh be placed in a special needs trust for the benefit of Josh. WHEREFORE, Petitioner respectfully requests that this Court issue and order authorizing Petitioner to execute a release on behalf of Josh releasing tortfeasor and his insurer of all claims arising from the collision herein described in exchange for the amount of $100,000.00, authorize Petitioner to comply with the contingent fee agreement she executed with Menges, McLaughlin & Kalasnik, PC by paying them $33,333.33 in attorney fees and $231.43 in costs, and authorize Petitioner to compromise the claim asserted by the Department of Public Welfare by paying no more than 50% of the net settlement proceeds to settle its claim. Respectfully Submitted, ILta~D~-/ Matthew D. Menges, Esquire Attorney ID No. 208132 145 East Market Street York PA 17401 Tel: (717) 843-8046 Fax: (717)854-4362 mmenges(u~yourlawfirmforlife. com AA ru.~0 TX Incident Nufhber: L04-1118548 Commonwealth of Pennsylvania PAGE 1 crash Involves: Police Crash Report REPORTABLE CRASH O DUI O Fatality O Hit and Run O Commercial Vehicle O State Police Vehicle O Local Police Vehicle Q WA O Work Zone O AN O Snowmobile O Commonwealth Vehicle O Local Gov Vehicle Agency Name Case Closed Patrd Zone Investigation Date. PA STATE POLICE -HAMBURG NO 07 04/2512010 Dispatch Time 'vat Time Investigator Badge Number 20:34 ~ 20:50 hrs REIFSNYDER, SHAWN R 08420 ~ Approval Date Reviewer Reviewer Badge Number 05/11/2010 MINCHHOFF, CHRISTOPHER F 05213 Date of Crash ime of Crash Day of the Wleek Crash Description 04/2512010 20:30 hrs. SUNDAY HIT PEDESTRIAN County Nlunidpality BERKS BETHELTWP Weather Conditions Relation to Roadway RAIN SHOULDER z Illumination Road Surface Conditions ~ DARK - NO STREET LIGHTS WET # of Units # of People # of Injured # Kilkid EMS Agency Medical Fadlity 003 003 002 000 BETHEL HERSHEY MEDICAL CENTER School Bus Related Sctad Zone Related PennDOT Notified Type of Intersection Spedal Lotatian NO NO NO MIDBLOCK NOT APPLICABLE Work Zone Work Zone Type Where in Wbric Zone NO Speed Limit Workers Present Officer Present Work Zone Characteristics F logger Road Closed Work on StwWder Intermittent or ^ Lane Closure ^ ,,viyi Detour ^ or Median ~ Moving Work ^ Control ^ Other 4 Route Signing Route Number Segment Number Travel Lanes Speed Limit t)rieMation d8 STATE HIGHWAY 0501 02 55 MPH NORTH i .a Hone Number Street Name St. Ending t STATE HWY 501 HIGHWAY a va,' Route Signing. Route Number Segment Number Travel Lanes Speed Limit Orientation I i ~ Used in Intersection Crashes Street Name SL Endi n9 i ~ ~ Route Number Or Mile Poet Tenths Or Segment Marker Ramp Use Only Feet. , ~ 8004 00528 ~ ~ Street Name Veet ing Or Miles Tenftu u. ~ N : Route Number Or Mile Post Tenths Or Segment Marker Ramp Use Only The above entry js the ~ distancefrom the Crash ~ t E di s street Name tree ng n HIGHWAY Scene to Landmark 1 t?LD ROUTE 22 Degrees Minutes Seconds Decimal Degrees Minutes Secartds Decmal ~ latitude: 40 28 28 967 Longitude: ~ 76 17 ~ 38 - 432 . ~ Traffic Conlyd Device Traffic Control Functioning ~ v NOT APPLICABLE NO CONTROLS Lane Closed Lane Closure Direction Traffic Detoured Estimated Time Cored ~ NOTAPPUCABLE Environmental I Roadway Potential Factors (EIR) Factor 1 Factor 2 Factor 3 i NONE co First Harmful Event in the Crash Most Harmful Event in the Crash Unit Nurtrber Ftarrnful Evert Unit Number . Harmful Event I 001 _ HIT UNIT 3 001 NIT UNIT 2 I Indicated Prime Factor Unit Number Prime Fedor Driver Action ~ _ DRIVER ACTION 001 OVER/UNDER COMPENSATION AT CURVE Prime Factor EnviromentaURoadway Prime Fedor Vehide Failure Prime Factor Pedestrian Action W Road surface type EXHIBR Printed At: PA State Police -Hamburg 06/08/2010 0 1 Fonn #: L041118546 Aa,-goo Tx Incident Number: Loa-1118546 Commonwealth of Pennsylvania PAGE 2 crash Involves: POIiCe Ct"a3h R@port REPORTABLE CRASH O °U1 O FataUty O Hit and Run O Commercial Vehicte O State Police Vehicle O Local Police Vehicle Q WA O Work Zone O ATV O Snowmobile O Commonwealth Vehicle O Local Gov Vehicle Urtit Number Type Unit Commerdal Vehicte 'i 001 Motor Vehicle in Transport No ' First Name MI Last Name Ballot DOB Telephone Nurtter JEFFREY L SCHAEFFER Jr 1 0/0 211 97 6 (570) 345.6435 Street Address City State Zip Code 501 AMERICAN LEGION BVD PINE GROVE PA 17963 Gander License Number License State Class radon Date Ownerroriver MALE 24053849 PA C 10/0312013 PRIVATE VEHICLE NOT OWNEO/LEASED BY DRIVER ' Driver Presence Physical Condition Primary Vehicte Code Vitiation Parson Charged DRNER OPERATED VEHICLE APPARENTLY NORMAL 3714 YES Alootgl/Drugs Suspected oohd Test Type Alwhd Test Results NO ~ TEST NOT GIVEN Driver Action OVERIUNDER COMPENSATION AT CURVE I Pedestrian Action Pedestrian Signals Pedestrian Clothing Pedestrian Loption 1st Harmful Event Left or Right Side Most Harmful Utility Pde Number ~ HIT UNIT 3 NO 2nd Harmful Event Left or Right Slde Most Harmful Utility Pde Nurt~er HIT UNIT 2 YES 3rd Harmful Evert Left or Flight Side Most Harnful Utility Pde Number' 4th Hartnlul Event Left or Right Side Most Harmful Utility Pde Number i Owner First Name Owner MI Owner Last Name or Business Name uMix JEFFREY L SCHAEFFER Street Address City State Zip Code I 508 AMERICAN LEGION PINE GROVE PA 17963 Vehicte Type Spedal Usage Government Equipment Number I AUTOMOBILE NOT APPLICABLE I Model Year Vehicle Make Vehicte Model Vehicte Cdor VIN 1988 PONTIAC PARISIENNE BLUE 1G2BL69Y5GX277884 'tense Plate Reg. State Est. Speed Vehicle Towed Taved By GTE5986 PA 035 YES C.J. WAGNER nSUrdrlCe Insurance Company Policy Number Expiration Date YES NATIONWIDE MUTUAL 5837D282732 redion of Travel Vehicte Position Vehicte Movement I nitial Impact Pdnt NORTH SHOULDER RIGHT NEGOTWTING CURVE -RIGHT 2 O'CLOCK Dartrage Indicator Gradient Road Alignment Possible Vehicte Failaes ~ MINOR LEVEL CURVED NONE 3 # of Unils Type Unit ~ Tag A:umuer ~ ~ Tag Year ~ Tag Stale D ~ ~ r it O U ~ Unit Make n wne g' Type Unit 2 Tag Number Tag Year Tag State 'e I Unit Make Unit Owner i Engine Size Passenger? Saddle Bag/Trunk? TraileR Driver Educatioh? 8 ~ Oriver Helmet Type Helmet Stayed On7 DOT/Shell Designation? Eye Prdedion? Long Sleeves? Long Pardsl Over Ankle Boots? i assenger Helmet Type Helmet Brayed On? DOTlSnell Designation? Eye Prdedion? Long Sleeves? Long Pants? Over Ankle Boots? i i passenger? Helmet? Head Lights? Rear Reflectors? Printed At: PA State Police -Hamburg 06/09/2010 07:48 AM Page 2 Forth N: 1.041118546 AA-5i)0 Tx Incident Number: Loa-1118546 Commonwealth of Pennsylvania PAGE 3 crash Invoroes: Police Crash Report REPORTABLE CRASH DUI ~ Fatality ~ Hit and Run Q Commercial Vehicle Q State Police Vehicle Q Local Police Vehicle Q WA ~ Work Zone ~ ATV Q Snowmobile Q Commonwealth Vehicle Q Local t3ov Vehicle Unit Number 002 Type Unit PedesWan CartxTrerd~ Vehide j Nc j First Name STEVEN MI J Last Name BERGEY Sutfix DOB 09/01/1991 Telephone Number (717) 202264 Street Address 40 BENNETT ST. City BETHEL State PA Zip Code 19507 bender MALE Lioanse Number License State Class 'ration Date Ovrtler/Driver j i ' Driver Presence Physical Condition UNKNOWN Primary Vehide Code Vidation WA Person Charged NO _ AICOfgI/Dnige Suspectetl UNKNOWN Cdtd Test Type TEST NOT GIVEN Alcohd Test Results Driver Action Pedestrian Action WALKING, RUNNING, JOGGING OR PLAYING Pedestrian Signals NOT AT INTERSECTION Pedestrian Clothing DARK Pedestrian Location SHOULDER 1st Harmful Event STRUCK BY UNIT 1 Left or Right Side Most Harmful YES Utility Pde Number ~ 2nd Harmful Event Lett or Right Side Most Harmful Utility Pde Number I 3rd Harmful Event Left or Right Side Moat Harmful Utlity Pde Number 4th Harmful Event Lelt or Right Side Most Harmful lJtiliry Pde Number j Omer First Name Owner MI • Owner last Name or Business Name ufnx I Street Address City State Zip Code Vehide Type Spedal Usage Government Equipment Number Model Year Vehide Make Vehide Model Vehide Color VIN I i Plata Reg. State Est. Speed Vehide Towed Towed By ~ nsurance Insurance Company Pdicy Number Expiration Date 'redbn of Travel Vehide Position Vehide Movemertt Initial Impact Pdnt i ~ Damage Indicator Gradient Road Alignment Possible Vehide Failures ; I ~ # of Units Type Unit t lag Number Tag Year lag State i ~ ~ Unit Make Unit Owner ,~ Type Unit 2 Tag Number Tag Year Tag State Unit Make Unit Owner Engine Size PassengeR Saddle Bag/Trunk? Treilefl Driver Education? ~ Driver Helmet Type Helmet Stayed On7 DOT/Snell Designation? Eye ProtedionT Long Sleeves? Long Pants? Over Ankle Boots? assenger Helmet Type Helmet Stayed On? DOT/Shell Designation? Eye Protection? Long eaves? Long Panb? Over Ankle Boots? ~ u Passenger? Helmet? Heatl Lights? Rear Reflectors? i Printed At: PA State Police -Hamburg 08109/2010 07:48 AM Page 3 Forth M: Ll14.1118548 AA-5oo rx Incident Number: Loa-1118546 Commonwealth of Pennsylvania PAGE a Crash Involves: POIICe Crash Report REPORTABLE CRASH Q DUI Q Fatality ~ Hit and Run ~ Commercial Vehicle ~ State Police Vehicle Q Local Police Vehicle Q WA Q Work Zone ~ ATV ~ Snowmobile Q Commonwealth Vehicle Q Local Gov Vehicle Unit Number .003 Type Unit Pedestrian Commercal Vehicle No First Name COREY MI Last Name FENSTERMACHER Suffix DOB 09/09!1991 Teleptxxie Number (484) 345-1512 ' Street Address 388 WYOMISSING RD. City MOHNTON State PA Zip Code i 19540 Gerxfer MALE License Number License State Class Expiration to OwnerlDriver ~ Driver Presence Physical Condition UNKNOWN Primary Vehicle Code Vitiation WA Person Charged NO ~ ~ PJcoFtol/Drups Suspected UNKNOWN cdtd Test Type TEST NOT GIVEN Alcohd Tact Results Driver Action Pedestrian Adian WALKING, RUNNING, JOGGING OR PLAYING Pedestrian Signals NOT AT INTERSECTION Pedestrian Clothing DARK Pedestrian Location SHOULDER 1 at Harmful Event ~ STRUCK BY UNIT 1 Left or Right Side Most Harmful YES Utility Pole Number 2nd HamNW Event Left or Right Side Most Harmful Utility Pde Number 3rd Harmful Event Left or Right Side Most Harmful Utillry Pde Number i 4th Harmful Event Left or Right Side Most Harmful UtIHry Pde Number e I Owner First Nine Owner MI Owner Last Name or Business Name affix i Street Address Ciry State Zip Cade Vehicle Type Spatial Usage Govemment Equipment Number I Model Year Vehicle Make Vehicle Model Vehicle Cdor VIN ioense Plate Reg. State Est. Speed Vehicle Towed Tawed By i I nsurerx~e Insurance Company Pdicy Number Expiration Date I I 'rection of Travel Vehicle Position Vehicle Movement Initial Impact Print , ~ Damage Irxiicetor Gradient Road Alignment Possible Vehicle Failures ' ~ Y r& z of Units . 0 Type Unit S Tag Nur.;.~,er Tag Year Tag State ~ 31 .E D Unit Make Unit Owner ' i c Type Unit 2 Tag Number Tag Year Tap State Unit Make Unit Owner Engine Size ~ Passenger? Saddle Bap/Tnink? TraileR Driver Education? 1 Driver Helmet Type Helmet Stayed On7 DOT/Spell Desipnationl Eye Protection? Lomg Sleeves? Long Pants? Over Mkle Boots? assenger Helmet Type Helmet Stayed On? DOT/Spell Designation? Eye Protection? Long Sleeves? Long Pants? Over Ankle Boots? ~ g Passenger'! Helmet? d Head Lights? Rear Reflectors? i Printed At: PA State Police -Hamburg 06/09/2010 07:48 AM Page 4 Form S: LO4.1118546 AA-5U0 TX Incident Number: Loa-1118546 Commonwealth of Pennsylvania PAGE 5 Crash Involves: Police Crash Report REPORTABLE CRASH O DUI O Fatality O Hit and Run O Commercial Vehicle O State Poilce Vehicle O Local Polies Veh1Ge Q WA O Work Zone O ATV O Snowmobile O Commonvreanh Vehicle O Local Gov Vehicle Unit # Person No. First Name MI Last Name Suffix DOB 001 001 JEFFREY L SCHAEFFER JR 10/02H976 Veal Address City State Zip Code ~ S01 AMERICAN LEGION BVD PINE GROVE PA 17983 Phone Number EMS Transport Person Type Gender Injury Severity (570) 345-5435 NO DRIVER MALE NOT INJURED ~ Seat Position Safety Equipment 1 s} DRIVER-ALL VEHICLES LAP AND SHOULDER BELT USED a Safety Equipment 2 Extrication NONE USED I NOT APPLICABLE NOT APPLICABLE _ Ejection Ejection Path NOT APPLICABLE NOT EJECTED/NOT APPLICABLE Unit # Person No. First Name MI Last Name Suffix DOB 002 002 STEVEN J BERGEY 09/0111991 treat Address City State Zip Code 40 BENNETT ST. BETHEL PA 19507 ~ o Phone Number EMS Transport Person Type Gender Injury Severity (717) 202.5264 YES PEDESTRIAN MALE MAJOR INJURY j Seat Position Safety Equipment t NOT A PASSENGER !OCCUPANT NONE USED I NOT APPLICABLE Safety Equipment 2 Extrication NONE USED I NOT APPLICABLE NOT APPLICABLE Ejection Ejection Path ~ ~ NOT APPLICABLE NOT EJECTED/NOT APPLICABLE Unit # Person No. First Name MI Last Name SuffiX DOB 003 003 COREY FENSTERMACHER 09/09M991 treat Address City State Zp Code 388 VWOMISSING RD. MOHNTON PA 19540 Phone Number EMS TranspoR Person Type Gender Injury Severity (484) 345-1512 NO PEDESTRIAN MALE MINOR INJURY ~ ~ Seat Position Safety Equipment 1 ~ _ NOT APASSENGER /OCCUPANT NONE USED /NOT APPLICABLE Safety Equipment 2 Extrication NONE USED /NOT APPLICABLE NOT APPLICABLE Ejection Ejection Path NOT APPLICABLE NOT EJECTED/NOT APPLICABLE First Name MI Last Name Suffix Phone Number FLOYD FREEMAN (717) 933-8283 Street Address City State Zip Code 9280 OLD 22 BETHEL PA 19507 Printed At: PA State Poliu -Hamburg 06109!2010 07:48 AM Page S Form #: L04.1118646 AA-fioo Tx Incident (~luiflb@f: t_04.1'I'18546 Commonwealth of Pennsylvania PAGE 6 Crash Involves: POIIC@ Cil'8Sh R@port REPORTABLE CRASH Q Otll ~ Fatality ~ Hit and Run Q Commercial Vehicle Q Sfate Pollee Vehicle ~ Local Police Vehicle WA ~ Work Zone ~ AN Q Snowmobile 0 Commonwealth Vehicle Q Local Gov Vehicle N ~~ ~~, Srraiastoe, saagh tfpoc5rtiles `' eshiai #3 shalda Ste, / NOT TO SC.~,L~E This crash occurred as unit #1 was traveling north on SR0501. Pedestrian #2, pedestrian #3 and witness #1 were walking south on SR0501 in the north berm. Unit #1 crossed slightly into the berm and struck pedestrian's #2 and #3. Unit #1's passenger side mirror struck pedestrian #3 and its front passenger side struck pedestrian #2. Pedestrian #2 was then thrown against unit #1's hood and windshield. Pedestrian #2 was transported to the Hershey Medical Cerrter by Bethel EMS. This crash occurred as unit #1 was traveling north on SR0501. Pedestrian #2, pedestrian #3 and witness #1 were walking south on SR0501 in the north berm. Unit #1 crossed slightly into the berm and struck pedestrian's #2 and #3. Unit #1'a passenger side mirror struck pedestrian #3 and its front passenger side struck pedestrian #2. Pedestrian #2 was then thrown against unit #1's hood and windshield. Upon my arrival to the scene, unit #1's passenger side tires were on the north berm of SR0501 while the driver side tires were on the northbound lane of SR0501 and it was facing north. Witness #1 was interviewed at approx. 2055 hrs. on 04!25/10 in the parking lot of the Exxon service station. He related "we were walking in the berm of SR0501 against traffic." "I saw the car coming aroung and yelled to Corey and Steven." "Corey and I were able to move. out of the way but Steven got hit by the car." "He flew up in the air and landed on the side of the road." 'The car was at least 1 Printed At: PA State Police -Hamburg 06/09/2010 07:48 AM Page 6 Form A: L04-1118646 AP'~D0 "` Commonwealth of Penns Ivania PAGE 7 InciclentNutnber: L04-1118546 y crash Involves: Poiice Crash Report REPORTABLE CRASH DUI ~ Fatality ~ Hit and Run Q Commercial Vehicle ~ State Police Vehicle Q Local Police Vehicle Q WA Q Work Zone Q ATV ~ Snowmobile ~ Commonwealth Vehicle Q Local Gov Vehicle foot inside of the berm when it hit Steven:' Operator #1 was interviewed at approx. 2110 hrs. on 04/25/10 at the scene. He related "I was coming around the curve and I really couldn't see because of the rain." "I saw the guy in the light colored clothing and I hit the brakes." "I couldn't get stopped in time though before impacting the other guy.". "I couldn't see either of the guys in the dark colored Clothing." "I was on my way home from work at AWI in Robesonia, PA." On 04/25/10 at approx. 2300 hrs. unit #1 was towed to PSP-Hamburg's impound lot and logged into evidence as L4-3645. Pedestrian #3 was interviewed at approx. 2315 hrs. on 04/25/10 by telephone. He related "we were walking in the berm of the roadway Floyd was on my left and Steven was right behind me." "I saw the car coming and it looked like it was in the berm." 'The side view mirror of the car hit my right arm and then it hit Steven." On 04/26/10 at approx. 0815 hrs. I spoke to Tpr. John MIPIAIDA (CARS) who related he would take a look at the vehicle. On 04/26/10 at approx. 1030 hrs. l spoke to Hershey Medical Center Chaplain, Tyler KRUGER who related pedestrian I#2 was induced in. to coma and that Doctors were operating on his legs. On 04/28/10 at 2300 hrs. Steven Godshall BERGEY (pedestrian #2's father) who told me that pedestrian #2 was still unconscious and that both of his legs vvere broken. On 05/03/10 at 0030 hrs. I spoke to a nurse in the Hershey Medical Center Surglcai intensive Care Unit who related pedestrian #2 is still unconscious, but he is able to move his arm. This crash will remain open pending Tpr. John MINALDA's inspection of unit #1. Upon inspection charges will be filed against operator #1. Cross reference: L04-1118605. Printed At: PA State Police -Hamburg 06/08!2010 07:48 AM Page 7 Form #: L04-1118546 PENNSTATE HERSHEY Milton S. Hershey Medical Center Patient Name: BERGEY, JOSHUA MRN: 7507222 Date of Birth: 9/1/1991 Patient Gender: Male Penn State Hershey Tel: (717) 531-8055 Milton S. Hershey Medical Center Health Information Services, HU24 500 University Drive P.O. Box 850 Hershey, PA 17033-0850 Visit Number: 10507222 Visit Type: Inpatient Patient Location: 5MBW; 5256; 01 ~.•.~•,....w ----------------------~...w..~-,..............,...................~.w..~.u.~....~.............~.~..~.-......M.~.M..a....~..~.......,...~.~.~,,.~..w..u.~...~.~.........~.. ~~~~,~„Nw,~~~ W~__ ,,, Discharge Summary RESULT STATUS: DOCUMENT SUBJECT: ELECTRONICALLY SIGNED BY: Name: BERGEY, STEVEN J HMC Number: 7507222 DOB: 09/01/1991 Date of Admission: 04/25/2010 Date of Discharge: 05/21/2010 Physician: Galvan, ,Dan A Service: Trauma Surgery Destination: Spring Creek Rehab &HeaRh Care Ctr (717)565-7000 Final :D/C Summary Watkins,Daniel S (5/24/201009:53 EDT); Galvan,Dan A (5/22/2010 18:43 EDT) DISCHARGE SUMMARY Discharge Diagrwais: Ped v Car, 4/25/10, multitrauma. Severe closed head injury with Diffuse Axonal Injury and Small left occipital subdural hematoma. Dictation: Other Diagnoses: Oblique comminuted, depressed fracture of the left frontal bone including extension of this fracture to involve the medial and lateral portions of the left orbit as well as the frontal sinus and ethmoid air cells with associated small epidural hematoma. There is associated left periortMtal emphysema and pneumocephalus. Left zygomatic arch fracture. Bilateral transverse process fractures of L1. Fracture of the right L2 transverse process Left plenum sphenoidalis fracture. Possible fracture of the left cribriform plate. Comminuted fracture of the left iliac wing. Bilateral fractures of the Li transverse processes and L2 right transverse process. Tiny foci of pneumomediastinum. Bilateral tib/fib fractures. Ventilator-associated pneumonia UTI, >100k GNR's Date~me Printed: 9/28/2010 10:57 EDT Printed By: Tice,Cindy L Page 1 of 4 EXHIBIT a PENNSTATE HERSHEY ~I Milton S. Hershey Medical Center Patient Name: BERGEY, JOSHUA MRN 7507222 .....~........~.w.....~~..~...~....~.w...~........~ .....~ Discharge Summary~........._...~...~ ...................~.a...~..~.,~.. Surgical Procedures: 26 April: I&D of right open tibia fracture; Intramedullary nail placement of right tibia fracture; Left intramedullary nail placement of left tibia fracture; and Bilateral bwer leg fasciotomy releases for compartment syndrome. 29 April: Bilateral irrigation and dAbridements and VAC dressing change bilateral. 30 April: Open tracheostomy and Percutaneous Endoscopic Gastrostomy placement. 1 May: I&D B/L leg wounds, VAC change R leg, closure L leg 3 May: closure R leg wound Vaccinatfona Received This Hospital Stay: No vaccinations were given this hospital stay. Discharge Medicatbns: 1. Acetaminophen (Tylenol) See Instructions as needed for Fever/Pain. 650 mg PEG tube sg4h 2. Bisacodyl (Dukolax Laxative) 10 mg rectally once daily, as needed for Constipation: 3. Dafteparin (Fragmin) 5000 Int_Unit subcutaneously every 12 hours. 4. Guaifenesin (Robitussin) 100emg by PEG-tube every 4 hours, as needed for Cough. 5. Insulin regular (Sliding Scale Adult Critical Care) See Instructions subO q6h 6. Menthol-zinc oxide topical (Calmoseptine topical ointment) 1 app! topically 2 times daily, as needed for Incontinence. 7. Modafinil (Provigil) 100 mg by PEG-tube 2 times daily. 8.000lar lubricant (Artificial Tears ophthalmic ointment) 1 app! in both eyes as indicated, as needed for Discomfort. 9.Oxycodone 5 mg by PEG-tube every 6 hours, as needed for Pain -Mild. 10. Metoprobl 50 mg by PEG-iube 2 times daily. 11. Insulin isophane (Novolin N) 3 unit subcutaneously every 8 hours. 12. CefePIME 1 g intravenously every 12 hours. for Urinary tract infection Brief History of Present Illness: Patient is an 18 year old male that presented to Hershey Medical Center as a major trauma; automobile versus pedestrian. Per friends, patient was crossing the street and was struck by a car at an unknown rate of speed, flew up and over auto, impacted pavement, non-responsive since. At the scene, patient was breathing spontaneously but with reduced LOC during transport, obvious right fibula & tibia fracture, abrasion of the left knee, left eye, and left chest wall. Patient was intubated in the trauma bay for GCS 3. Hospital Course: 4/25/21010, patient was admitted to the surgical ICU incubated in critical condition with muRiple traumatic injuries and severe traumatic brain injury with ICP monitoring. 4/26: patient went to OR for I&D of right open tibia fracture, bilateral IMN of tibia, bilateral fasciotomies with vac dressings applied. IVC filter was placed. 4/27: ICPs < 20, ICP monitor discontinued. 4/28: Patient started on tube feeds but with continually high residuals, pro-motiNry agents added. 4 units pRBCs given for bw hematocrit. 4/29: To OR for 1&D of bilateral fasciotomies, medial fascia closure, and VAC dressing change. 4/30: To OR for trach & peg. 5/1: to OR for VAC change R LE and closure L LE. 5/3: To OR for cosure R LE. 5/4: c-spine cleared with negative MRI. 5/5: erythromycin stopped and patient had dramatic increase in residuals, erythromycin was restarted on 5/7. 5/8 Patient with a respiratory culture positive for MRSA and was treated with a 7 day course of vancomycin. Patient remained stable and was downgraded to IMC status due to bng trach while awaiting evaluation for placement. Patient was declined for several neuro rehabs due to a low rancho score of 2.5/15: trach changed to #8 Shiley nonfenestrated cuffed tracheostomy tube. The patient continued to remain stable during his hospitalization and was cleared for discharge on 5/21!10. DatelTime Printed: 9/28/2010 10:57 EDT Page 2 of 4 Printed By: Tice,Cindy L PENNSTATE HERSHEY Milton S. Hershey Meclical Center Patient Name: BERGEY, JOSHUA MRN 7507222 ..........................~.....~ ~~~...,....~..............~.....~.......~. Discharge Summary .~...............~...~~....~..~.~.~......~.....~~....~.. Exam on Discharge: Vitals Temp Pulse BP RR SpO2 FIO2 Date Wt(kg) Wt(Ib) 05/21 11:00 ---- --- ----- -- 98 --- 05/19 69.8 154 05/21 10:11 36.4 106 151/86 22 97 --- 05/18 69.4 153 05/21 08:45 ----111 135/91 -- --- --- 05/16 63.7 140 05/21 06:47 35.3 102 128/74 22 100 311% 05/15 67.5 148 05/21 02:35 35.8 118 160/88 20 99 31 24 Hr Tmax: 37.0 at 05/2018:04 36 Hr Tmax: 37.0 at 05/20 18:04 Vital Signs are the last 5 in the past 48 hours. Weights display the last 5 within 7 days. Initial Wt: 04/25 74.1 kg 163 Ib trashed male on tc in nad trash clear cta bilaterally RRR without M,G,R s1s2 abd soft nt/nd +bs 2+pedals Care Instructions: 1. dry dressing changes daily to all wounds. 2. dry dressing changes daily to PEG tube site. 3. Continue Provigil untiifollowup with Neurology. Trash collar with 309'° FIO2 Continued chest PT and suctioning every 2 hours and prn Trach care Soft air bed PT/OT/Speech Therapy and aggressive neuro rehab Glucometer checks with continued tube feedings Insulin sliding scale per facility protocol. Trach change today 5/21/2010 #8 trash Cefepime 1 gram q 12 hours for 10 days MRSA isolation Diet Guidelines: 1. Fibersource, 1.2 cal/ml, at 75 ml/hour. 2 scoops of Beneprotein per liter of tube feeds. Nutritional care consuR. Folbw weight Enterostomal care consult Activity Guidelines: Passive range of motion by PT/OT Patient may be up in chair with assistive care, non weight bearing tNlateral bwer extremities. DatelTime Printed: 9/28/201 0 1 0:57 EDT Page 3 of 4 Printed By: Tice,Cindy L PENNSTATE HERSHEY !~ Milton S. Hershey Medical Center Patient Name: BERGEY, JOSHUA MRN 7507222 Discharge Summary ~.. ~.a................,~ .......~ ~..~.~..........~._....~......_..~...~.~...~....~ ~.V.... .......w.w..~.~.~,~.~.......,._....~..~.~„~.~......~........~....~.......~... Call your doctor if: Call531-8521 and ask for the trauma or SICU resident on call if you have questions about this hospitalization. Other Instructions: Folbw up with Neurosurgery Dr. Villanueva in 6 weeks with head CT scan. Faalitylfamily will lie contacted with time and date of appointment after discharge. Please call 717-531-4191 to confirm/canceUchange an appointment. Please call 531-8887 with any followup appt issues Please folow-up with Trauma Surgery in UPC 3100 in 3-4 weeks. Please folow-up Neurology for Provigil follow-up care call 717-531-8887 for appointment 4 weeks Folbw-Up Appointments: Scheduled Penn State -Hershey Appointments Within the Next 90 Days. 1. Folbw-Up with Moyer, Kurtis at Plastic Surgery - Univ Phys Ctr Suite 3200 on 05/24/2010 at 02:45 pm As per consultant services. 48939 Electronic Signature on Ffle Electronically Aeviewed/Signed by: Daniel S Watkins, PA Author Signature Dt?m:24.05.2010 09:53 AM Electronically Reviewed/Signed by: Dan A Galvan, MDCosigner Signature DUTm: 22.05.2010 06:43 PM DSW /VEH DD: 05/21/10 DT.' 05/22/10 11:46 Datelfime Printed: 9/28/2010 10:57 EDT Page 4 of 4 Printed By: Tice,Cindy L Natlonwida Inaurana AIMad Inturand NaNonwfda AgrtbYtMaaa Titan Ina~rntta On Your Side' Victoriahuurarxa One Nationwide Gateway 'Dept 5867 'Des Moines, IA 50391-5878 October 25, 2010 Matthew D. Menges, Esquire Menges, McLaughlin, Kalasnick, PC 145 East Market Street York, PA 17401 OUR INSURED : Jeffrey L Schaeffer OUR CLAIM NUMBER : 58 37 D 282732 04252010 01 YOUR CLIENT :Steven J. Bergey DATE OF LOSS : 04-25-2010 Dear Mr. Menges: I received the dischafge summary you sent on October 5, 2010. Nationwide is wiAing to tender the $100,000 bodily injury liability limits in settlement, however, no payment will be made by Nationwide before there is a resolution of the potential Medicare set-aside issue which 1 mentioned in my earlier letter to you on September 22, 2010 (enclosed). As I explained in my earlier letter, under federal law, all parties to an insurance claim settlement are required to give consideration to any lien for medical services conditionally paid by Medicare for injuries resulting from accident, or, for any future medical expenses that may be paid by Medicare for treatment of those accident-related injuries. In order for Nationwide to fulfill its obligation under the current law, I will need your client's hospital records and rehab records to determine what future medical expenses your client may incur which would be paid by Medicare. I will also need a copy of the order showing the appointment of Jessica Bergey as guardian ad Iltem for Steven J. Bergey. Feel free to call me to discuss these issues. Thank you for your attention to this matter. Yours truly, l Clay Sc r eder Claims partment Nationwide Mutual Insurance Company (610)234-2894 fax (866) 364-4501 encl. R~C~IVE6~ OCT 2 ~ 2Q~3 I~Y ~M I~s Any person who knowingly and with inte company or other person files an application for insurance or statement of ~ ~ Tally false information or conceals for the purpose of misleading, information c thereto commits a fraudulent insurance act, which is a crime and subj al and civil penalties. ._---~ COMMONWEALTH OF PENNSYLVANIA. DEPARTMENT OF PUBLIC WELFARE BUREAU OF FINIWCULL OPERATIONS TPL SECTION -CASUALTY UNfi PO BOX -8486 HARRISBURG PA 17105488 October 20, 2010 STATEMENT OF CLAIM SUMMARY BERGEY,STEVEN 090 163 289 CLAIMS 348,005.38 139,882.59 CURRENT SOC - .00 r 139,682.59 CONTINGENT FEE AGREEMENT -INJURY By this agreement, I (also referred to herein as "client") appoint /"Yc~{~e~./ /~Q~ s, and the firm of Menges, McLaughlin & I{alasnik, P.C. (also "my attorneys" and "law office") as my attorneys to prosecute my claim(s) for damages for personal apd/or property injuries on ~~, ~ Z S , 2010, at or near Pennsylvania. I agree to the following arrangement for payment of costs, expenses and attorneys fees in connection with this claim: 1. Client Responsible for Costs Incurred by Attorneys I will pay, as billed, all court costs and out-of-pocket expenses. Such "court costs" include any and all filing fees, appeal fees or other fees associated with the court. "Expenses" include such items as, but not limited to, photocopy charges, fax charges, long distance telephone charges, expert witness fees, travel expenses, stenographic charges, deposition transcript charges, expenses for trial preparation and all other reasonably necessary costs and expenses necessary to pursue my claim. Any single fax, phot©copy or mailing job less than $5 will not be billed to your account as part of our service to you. 2. Client Responsible for Own Expenses and Medical Expenses I am responsible to pay for my own expenses and medical bills in connection with my claim. I will pay all hospital and medical expenses including, but not limited to, fees for preparation of physicians' reports, fees needed to obtain medical documents and expert witness fees including depositions costs of physicians and/or physician's fees to appear in court to testify. 3. Prompt Payment Unless my attorneys agreed otherwise in writing, I will promptly pay all costs and expenses, as set forth in pazagraphs 1 and 2 above, within 30 days upon the request of my attorneys to make such payment. If I fail to make such payment, my attorneys may terminate their relationship with me and do no further work on my case. If my attorneys terminate their relationship with me due to my failure to make prompt payments as stated herein, I agree that they will send me and I will pay them a reasonable compensation as stated in paragraph 14 below. In the event my attorneys advance any costs and expenses by paying them for me, then I agree that my attorneys shall deduct from my share of any settlement, award, or verdict, an amount sufficient to reimburse my attorneys for these costs and expenses paid by them. 4. Recovery Recovery means all sums of money received on my behalf as a result of my claim(s) by way of settlement, award, or verdict, whether payment is for medic enses, costs, or for any item related to my claim(s). evu~RlT www.~~ 5. No Fees For Recovery If there is no recovery as a result of my claim(s), I will not owe nor have to pay my attorneys a fee for their professional services in connection with my claim(s). In any event, I will still be responsible for and have to pay all costs and expenses mentioned above. 6. Withholding for Medical Bills and Costs I authorize my attomeys to withhold sufficient money from my share of any settlement, award or verdict in order to pay any and all medical bills and other expenses as described in paragraphs 1 and 2 above. My net recovery shall be the sum of money I receive after all expenses and costs have been paid from my share of the settlement or verdict. 7. Recovery Before Commencement of Suit If a recovery is obtained before a complaint, summons, or other manner of commencing action is filed on my behalf, my attorneys will receive 33.33% of the gross recovery as a fee for and in consideration of the professional services rendered by them in the investigation and general preparation and prosecution of my claim. The remainder of the recovery, less expenses, will go to me as described herein. 8. Recovery Before Trial If a recovery is obtained after a complaint or summons is filed, but before any depositions are taken, my attorneys will receive 35% of the gross recovery as a fee for and in consideration of the professional services rendered by them in the investigation, institution and general preparation and prosecution of my claim. The remainder of the recovery, less expenses, will go to me as described herein. 9. Recovery During or After Trial If a recovery is obtained after any depositions are taken, or at or after arbitration or trial, my attomeys will receive 40% of the gross recovery as a fee for and in consideration of the professional services rendered by them in the investigation, institution, and general preparation and prosecution of my claim. The remainder of the recovery, less expenses, will go to me as described herein. 10. Recovery After Appeal If my case is appealed by any party, including by me, to any appeals court and a recovery is obtained after such an appeal is filed, my attorneys will receive 50% of the gross recovery as a fee. The remainder of the recovery, less expenses, will go to me as described herein. 11. In Kind Recovery (Non-Cash Recovery) In the event that my recovery from settlement, award, or verdict is not made in cash but is made in some other form of payment, then the percentage of fees to go to my attomeys as stated herein shall be based upon the reasonable value of the thing or value I receive. www. YouxLawFIIUvtFoxLi~. coM TOLL Fx~E 1-866-464-5297 12. Pursuit of Claim I agree to pursue my claim(s) in a prompt manner to verdict, judgment, execution, levy, sheriff's sale and/or garnishment thereon if deemed necessary by my attorneys. In the event of execution and levy and/or levy and/or sheriff's sale thereon and/or garnishment, my attorneys' contingent fee shall be 10% greater than provided for above. 13. Manner of Distribution a) If a recovery is obtained, my attorneys will direct that payment be made by a check or draft jointly to me and them. b) I will endorse the check or draft and return it to my attorneys for deposit in their escrow account. c) When the original check or draft clears, my attorneys will distribute the funds in accordance with this agreement. d) I understand and agree that I may be required to sign a release, a settlement agreement, a distribution memorandum, or all of these, in order to conclude this matter. 14. Termination By Client If I terminate this agreement before any recovery is obtained and do not pursue my claim(s) with this law office (regardless of whether anyone else pursues my claim(s)), I specifically agree that my attorneys shall be entitled to reasonable compensation for all work done and costs incurred in connection with my claim up to the point of termination. I agree that the following rates constitute "reasonable compensation" $200 -240.00 per hour for the work ofpartners; $135-180.00 per hour for the work of associates; $105-120 per hour for the work of paralegals; and $70-85 an hour for the work of secretaries and other firm personnel. If I terminate this agreement, my attorneys may send me a bill for these reasonable expenses and I shall pay it within 30 days of receipt thereof. Any such termination on my part will be provided to my attorneys in writing. I will inform any new attorney of this Agreement and this paragraph, and that this law office shall be paid from any settlement;proceeds hereafter received before my right to tie paid there from. In the event my attorneys have obtained an offer of settlement (verbal or written) from the opposing party or their insurer or anyone acting on their behalf, prior to my termination of this law firm, my attorneys shall be entitled to the applicable contingent fee percentage stated above in paragraphs 7-10, or the hourly rate due for all work performed as stated immediately above in this paragraph, whichever is greater. 15. Termination By Attorneys I understand that my attorneys may terminate their relationship with me in the furtherance of my claim(s) if I insist upon any action which my attorneys consider to be repugnant or imprudent, or if I insist upon my attorneys pursuing any course of conduct that is illegal, fraudulent etc., or is one with which my attorneys have a fundamental disagreement. My attorneys shall provide any such termination of their involvement in my case in writing to me. If my attorneys terminate their involvement in my case in writing as described in this paragraph, then I will pay their reasonable compensation for all work done and costs incurred as those rates are set forth in paragraph 14. W W W.YOURLAWFIRMFORLIFE. COM TOLL FREE 1-866-464-5297 16. Intent to Be Legally Bound I intend to be legally bound by this agreement. 17. Work on Case You understand that you aze engaging this law firm and that a firm attorney other than the attorney who initially met with you or who was initially assigned to work on your case may appear at hearings or perform work for you on your case. 18. Copy Received I have received a copy of this agreement. DATE: 5= ll -1~ DATE: DATE: ~G~SC~~ ~/~` MENGES McLAUGHLIN & KALASNIK, P.C. 5~~~ j vSC.u~ ~o ~~ "Attorneys" Revised z.zolo N:\Company\Administration\Fee Agrcements & Schedules\Fee Agreements\Revised Agreements\Contingent Fee Agreement -Injury 2.2010.doc www.YouRI,AwF~vrFoxL~.coM TOLL FxEE 1-866-464-5297