HomeMy WebLinkAbout12-3211
32.
-<>
CZ)
C-
-
William P. Douglas, Esq. 7i
Supreme Court I.D. #37926
Douglas Law Office L;
43 West South Street
Carlisle, PA 17013
Telephone (717)243-1790
Larry Burkholder as parent & natural IN THE COURT OF COMMON
guardian of Lylliana Burkholder, PLEAS OF CUMBERLAND COUNTY
,
a minor ,
PENNSYLVANIA
Petitioner/Plaintiff /a - 3&I ? TrA4
vs 2012 Civil Term
State Automobile Insurance Company
and Progressive Insurance Company CIVIL ACTION LAW
RespondentlDefendant Approval of Minor Settlement
Petition for Approval of Minor's Settlement
1. Your Petitioner, Larry Burkholder, is the parent and guardian of Lylliana
Burkholder, a minor, all the aforesaid reside at 66 W. Main St., Newville,
Cumberland County, Pennsylvania. Also residing at this residence is Larry
Burkholder, Sr., grandfather of the injured minor and father of the petitioner.
2. The respondent, State Auto Insurance Company, is an insurance company
licensed to do business in the Commonwealth of Pennsylvania, with a business
office located at 4900 Ritter Road, Suite 105, Mechanicsburg, Pennsylvania. Larry
Burkholder, Sr., is their insured.
3. The respondent, Progressive Direct Insurance Company is an insurance
company licensed to do business in the Commonwealth of Pennsylvania with a
mailing address located at 2814 Pleasant Valley Blvd., Altoona, Pennsylvania.
4io3.175 PA ArrY
e -ff 1599
go, a75S0
4. Lylliana Burkholder was born on November 21, 2006, and is the daughter
of Larry Burkholder and Kristine Dietz.
5. On January 4, 2007, the minor plaintiff was injured as the result of a motor
vehicle accident that occurred on Pa. Route 34, in Cumberland County
Pennsylvania. She was a front seat passenger in a vehicle being operated by her
mother, Kristine Dietz, who negligently took a left turn in front of a vehicle
traveling in the opposite direction.
6. The minor child suffered a traumatic brain injury in the accident and as a
result of the injury she has received medical treatment and support services.
Progressive paid the first 5,000.00 in medical expenses and the balance of the bills
has been paid by the department of Public Welfare in the amount of $77,939.47.
The minor child continues to receive services provided by the Department of
Public Welfare.
7. It is in the best interests of Lylliana Burkholder that she continues to
remain eligible for Medical Assistance through the Department of Public Welfare
benefits available to her as a result of her injuries.
8. The parties are desirous to conclude this matter and have agreed upon a
settlement, as follows:
Insurer, Progressive tenders their policy limit available in the amount of (fifteen
thousand dollars) $15,000.00, on behalf of the driver, Kristine Dietz, in addition
Sate Auto Insurance Company is willing to pay their policy limit in the amount
of (one hundred thousand dollars) $100,000.00 in underinsured motorist
coverage benefits..
9. All sums set forth above constitute damages on account of personal
injuries, arising from the occurrence, within the meaning of § 104(a)(2) of the
Internal Revenue Code of 1986, as amended.
10. The outstanding DPW medical bill lien will be paid on behalf of the minor
plaintiff in the amount of $38,812.50 that reduces the lien to zero.
11. Your petitioners would normally request that the Court direct that the
$47,437.50 be placed in a Federally Insured savings account or certificate of
deposit, to marked, "Not to be withdrawn until age 18, or further Order of a
Court." Unfortunately, said request would result in Lylliana Burkholder losing
her public assistance benefits. Therefore, the petitioner requests that the special
needs trust be approved as prepared by counsel for the petitioner. It is further
requested that $47,437.50 be deposited into said trust. A copy is attached hereto.
12. Your Petitioners further requests that the Court direct that the Trustee be
permitted to pay federal and state income tax on the income earned on behalf of
the trust.
13. Your petitioners have entered into a one-third contingency fee agreement
with counsel. In accordance with the fee agreement the fee is $38,333.33. The
agreement is for one third of the recovery, however, due to the tender years of
the minor child, counsel for the plaintiff is reducing the fee to 2570, which is
$28,750.00.
14. Wherefore, it is prayed that the following distribution be approved:
Pennsylvania Department of Public Welfare $38,812.50
Lylianna Burkholder Special Needs Trust $47,437.50
Douglas Law Office $28,750.00
WHEREFORE, Petitioners pray that the settlement and distribution be
approved.
William P. Douglas, Esq.
Attorney for petitioner
William P. Douglas, Esq.
Supreme Court I.D. #37926
Douglas Law Office
43 West South Street
Carlisle, PA 17013
Telephone (717) 243-1790
Larry Burkholder as parent & natural
guardian of Lylliana Burkholder,
a minor
IN THE COURT OF COMMON
PLEAS OF CUMBERLAND COUNTY,
PENNSYLVANIA
Petitioner/Plaintiff
vs
State Automobile Insurance Company
and Progressive Insurance Company
Respondent/Defendant
2012 Civil Term
CIVIL ACTION LAW
Approval of Minor Settlement
AFFIDAVIT
I hereby swear or affirm that the Foregoing is true and correct to the best of my
knowledge and / or information and belief.
This is made subject to the penalties of 18 Pa.C.S. §4904 relating to unworn
falsification to authorities.
William P. Douglas,
Counsel for Petition
Date: '+ , o-IS , I ?L,
Lylliana Burkholder Special Needs Trust
This trust agreement is made in duplicate this day of
, 2012 by and between Larry Burkholder, Sr. "settlor," and
Larry Burkholder, Jr., hereinafter called "trustee."
Funding of Trust
FIRST: Settlor hereby transfers to trustee the liability insurance
proceeds and the under insurance proceeds listed in the attached
Order of Court. Trustee shall hold these assets, together with any
other property that may be added hereto, on the trusts herein set
forth.
SECOND: Settlor has established this trust for the benefit of
Lylliana Burkholder, in recognition that there may be a number of
needs other than support and maintenance which may be
unavailable to Lylliana Burkholder, except through this trust.
This trust is intended to satisfy those non-support needs, as
deemed appropriate in the absolute discretion of the trustee. This
trust is not intended to displace any source of income otherwise
available to Lylliana Burkholder for her basic support (such as food
and shelter), including any governmental assistance program to
which Lylliana Burkholder is or may be entitled. It is not intended
to be a resource of Lylliana Burkholder. It is not available to
Lylliana Burkholder. It is intended to be a discretionary spendthrift
trust created for non-support purposes.
No part of the corpus of this trust shall be used to supplant or
replace any public-assistance benefits received by or through any
county, state, federal or other governmental agency.
Dispositive Provisions
THIRD: Trustee shall hold and distribute the principal and
income of this trust as follows:
A. During the lifetime of Lylliana Burkholder, to the extent that
benefits are not made available to Lylliana Burkholder, for other
than basic living expenses, including food and shelter, trustee, in its
absolute discretion, may distribute from income and principal to or
for the benefit of Lylliana Burkholder, for her needs other than
basic support. For the purposes of this provision, non-support
purchases include, but are not limited to dental care;
unreimbursable medical and dental expenses, including plastic and
reconstructive surgery, diagnostic work and treatment,
rehabilitative training and experimental medical services;
psychiatric/ psychological services; occupational therapy; prosthetic
devices; dietary needs and supplements; the differential in cost
between shelter for a shared and private group home or room;
custodial care or supplemental nursing care; recreation, cultural
experiences, outings and travel, including payment for others to
accompany Lylliana Burkholder; telephone and television,
including cable television; reading and educational materials;
exercise equipment; unreimbursed therapy; and related insurance.
Trustee's discretion in making distributions authorized hereunder
is absolute with regard to distributions from the trust estate and
shall be binding on all interested persons.
As this trust is specifically not intended to provide basic support
and maintenance needs for Lylliana Burkholder, if Lylliana
Burkholder, is unable to maintain and support herself from her
own resources and sources of income, trustee shall seek such
support for Lylliana Burkholder, from public sources. The trust has
specifically not been created to supplant or replace public-
assistance benefits. Trustee should, therefore, seek entitlements that
are available to members of the community who are experiencing
disabilities that are substantially similar to those that Lylliana
Burkholder, experiences. Trustee shall deny any request made by
any agency or governmental entity requesting disbursement of
trust funds to satisfy Lylliana Burkholder's support needs.
Trustee shall take whatever legal steps may be necessary to
initiate or continue any public assistance program for which
Lylliana Burkholder is, or may become, eligible. Trustee shall bring
such action in any court having jurisdiction over the matter, to
secure a ruling or order that this trust is not available to Lylliana
Burkholder for support purposes. Any expenses of the trustee,
including reasonable attorney fees, in connection with matters
relating to determination of eligibility of Lylliana Burkholder for
public support shall be a proper charge to the trust.
B. On the death of Lylliana Burkholder, the then remaining
principal and any accumulated and undistributed income shall be
paid and distributed to the lawful heirs of Lylliana Burkholder by
will or intestacy. If this trust is created with assets otherwise
distributable directly to the beneficiary (i.e., as the result of litigation
for injuries), upon the death of the beneficiary, the trust must first
provide for notice to, and the payment of claims by, the
Department of Public Welfare for the amount of Medical Assistance
(Medicaid) paid on behalf of the beneficiary while the trust was in
existence. If there is any amount to be distributed following the
payment of the claim of the Department, it shall be paid and
distributed to the lawful heirs of Lylliana Burkholder by will or
intestacy.
Minors and Incapacitated Persons
FOURTH: On termination of this trust, if any income or principal
shall be payable to any person who shall be a minor or who shall be
incapacitated for any reason, trustee shall hold such income and
principal during minority or incapacity and shall be entitled to
apply such income and principal to the health, maintenance,
education and support of such person during minority or
incapacity without the appointment of any guardian or committee
or any authority of court. Trustee shall be entitled to make direct
application hereunder or to make application by payment of
income and principal to the parent or other person in charge of
such minor or incapacitated person, or to his or her guardian or to a
custodian under the Uniform Transfers to Minors Act. Any
remaining income and principal to which such person shall be
entitled shall be paid and distributed to such person upon the
termination of minority or incapacity.
Protection of Beneficiaries
(Spendthrift Provision)
FIFTH. No income or principal shall be assignable by a
beneficiary or available to anyone having a claim against a
beneficiary before actual payment to the beneficiary. No part of the
trust shall be subject to the claims of any beneficiary's creditors, or
specifically Lylliana Burkholder's voluntary or involuntary
creditors for the provision of care and services to her during her
lifetime, including payments for residential care and maintenance
by any public entity or private creditor.
Under no circumstances can the beneficiary compel a
distribution from the trust for any purpose. Trustee's discretion in
making non-support distributions is final, even if trustee elects to
make no distributions at all. Further, trustee may be arbitrary and
unreasonable. Trustee's absolute and independent judgment, rather
than any other party's determination, is intended to be the criterion
on which distributions are made. No court or any other person
should substitute its or their judgment for the decision or decisions
made by trustee.
Powers of Trustee
SIXTH. Any Assets, or income generated by said assets,
received from either Progressive Insurance Company or State Auto
shall be held only in Federally insured instruments or Federally
insured deposit accounts until Lylianna Burkholder shall attain the
age of 18 years of age; Upon attaining the age of 18 if a court of
competent jurisdiction finds it in the best interest of the beneficiary,
Lylianna Burkholder that this trust continue in existence then:
A. Trustee and its successors shall have the following
powers in addition to those given by law to be exercised by
them in their absolute discretion, which powers shall be
applicable to all property held by them, including property held
for incapacitated persons, effective without the order of any
court, and until actual distribution of all such property.
B. To invest and reinvest in the trustee's discretion as
permitted under Act 28 of 1999, the "Prudent Investor Act,"
with the specific right to invest in stocks, bonds, and real estate,
including non.-income producing residential real estate for the
occupancy of any present income beneficiary or beneficiaries,
and in such common trust, diversified money market and
mutual funds as the trustee deems appropriate, including any
such funds of any corporate fiduciary hereunder or any
successor or affiliated corporation or a holding company
controlling it;
C. To sell, to grant options for the sale of, or otherwise
to convert any, real or personal property or interest therein, at
public or private sale, for such prices, at such times, in such
manner and on such terms as they may think proper, and to
execute and deliver good and sufficient conveyances,
assignments and transfers thereof without liability of any
purchaser to see to the application of the purchase money;
D. To borrow money and to secure its repayment by
mortgage of real or personal property, pledge of investments or
otherwise, without liability on the part of the lenders, to see to
the application thereof;
E. To compromise claims by or against settlor's trust
created hereunder;
F. To make distributions in cash or in kind, or partly in
each;
G. In any division of principal into separate trusts or
shares, and in any distribution of trusts or shares, to allocate to
any trust, share or beneficiary, property different from the
property allocated to another trust, share or beneficiary as the
(corporate or disinterested) trustee using fair market values on
the date of division or distribution, deems appropriate;
provided, however, this power shall not be exercised in a
manner contrary to any specific allocation of property
elsewhere in this trust in a manner that renders ineligible all or
any part of any gift for any tax deduction;
H. To register investments in the name of a nominee or
to hold the same unregistered in such form that they will pass
by delivery;
1. To join in any recapitalization, merger,
reorganization or voting trust plan affecting investments; to
deposit securities under agreement; to subscribe for stock and
bond privileges; and generally to exercise all rights of security
.holders;
J. To manage, operate, repair, alter or improve real
estate or other property, and to lease real estate and other
property on such terms and for such period as trustee deems
advisable even for more than five (5) years and beyond the
duration of any trust;
K. To receive from settlor or from any other source any
real or personal property as additions to this trust by deed, will
or in any other manner;
L. To associate with them in the absence of a corporate
fiduciary, an accountant, custodian, investment advisor and
other agents and to compensate them from principal or income
or both, as trustees shall determine, such compensation to be a
reduction of the compensation of trustees;
M. To associate with them at any time, in their absolute
discretion and. of their choice, a corporate fiduciary that shall
have the same powers as trustee, such designation by trustee
and acceptance by a corporate fiduciary to be in writing;
N. To delegate to a corporate fiduciary the exercise of
any powers, with the same effect as if the trustee delegating
such power had joined in the exercise of such power, and to
revoke any such power, provided, however, that the revocation
of any such delegation shall be in writing delivered to and
accepted by the corporate fiduciary;
0. To combine, without prior court approval, any trust
herein with any other trust with substantially similar
provisions, although such other trust may have been created by
separate instruments and by different persons, and, if necessary
to protect different future interests, to value the assets at the
time of such combination and to record the proportionate
interest of each separate trust in the combined fund, provided
however, that no such combination shall be permitted if the
effect of such combination would (1) violate the applicable rule
against perpetuities; (2) disqualify any interest in one or more of
such trusts for a deduction for federal estate tax purposes which
would otherwise be allowable; or (3) cause the loss of the
exempt status of one or more of such trusts from the imposition
of the generation-skipping tax;
P. To exercise any stock options which the trustee may
receive; to borrow such funds from any source as the trustee
may deem necessary for the exercise of such options; and to
pledge assets as trustee deems appropriate for this purpose;
Q. To permit any present beneficiary to occupy any
real estate forming part of any trust without rent or on such
other terms and conditions as the [corporate or disinterested]
trustee shall determine;
R. No trustee shall be required to qualify before, be
appointed by, or in the absence of a breach of trust, account to
any court (and failure to account alone shall not be considered
such a breach); nor shall trustee be required to obtain the order
or approval of any court in the exercise of any power or
decision granted hereunder; and
S. To do all other acts and things necessary and
appropriate in the management, administration and distribution
of this trust.
Irrevocable Trust
SEVENTH. This trust shall be irrevocable and settlor
hereinafter shall have no right to alter, amend or revoke this trust.
Voluntary Termination of Trust by Trustee
EIGHTH: If the existence of this trust results in the ineligibility
of Lylliana Burkholder, for any public benefit or any entitlement
program, trustee is authorized, but not required, to terminate this
trust. In the event of such termination, the then remaining principal
and any accumulated and undistributed income shall be distributed
in accordance with the terms of distribution of this trust upon the
death of Lylliana Burkholder, as hereinabove provided.
It is settlor's wish that subsequent to the termination of this trust,
if Lylliana Burkholder, is still living, the distributee shall hold and
distribute the principal and income received by him, to ensure that
Lylliana Burkholder receives sufficient funds from this trust for
basic living needs and non-support benefits as provided for in this
trust when public-assistance benefits are unavailable or insufficient.
This is not mandatory on such distributee, but an expression of
settlor's wishes only.
Appointment of Co-trustee
NINTH. If Larry Burkholder should become unable or
unwilling to continue to act as sole trustee, then application shall be
made to a court of competent jurisdiction to appoint a co-trustee
and/or replacement trustee.
Removal of Corporate Fiduciary
TENTH. The individual trustees shall have the right to remove
any then serving corporate trustee by written notice to such
corporate trustee of such removal and the designation of a
successor corporate trustee. Any such removal shall not be effective
until the successor so designated has qualified to so serve. Any
appointment of a [trustee or a] successor trustee hereunder shall be
in writing and accepted by the trustee so appointed, may become
effective at any time or upon any event, and may be single or
successive, all as specified in the instrument of appointment
Waiver of Bond
ELEVENTH: No fiduciary serving hereunder shall be
required to furnish bond in any jurisdiction, and if any bond is
necessary, no surety shall be required.
Compensation of Fiduciaries
TWELFTH. The parent of Lylliana Burkholder, while acting
as fiduciary, shell serve without compensation. The compensation
of a corporate trustee for its services as trustee hereunder shall be in
accordance with its standard charges for such trust services in effect
from time to time during which such services are performed. Other
than as aforesaid stated, any other individual trustee serving
without a corporate trustee shall receive compensation in
accordance with. the schedule of fees in effect from time to time of a
corporate trustee selected by such individual trustee and qualified
to do business in the jurisdiction in which the beneficiary is
domiciled.
Pennsylvania Law Governs
THIRTEENTH. Questions pertaining to the validity,
construction and administration of the trusts created under this
instrument shall be determined in accordance with the Laws of the
Commonwealth of Pennsylvania.
FOURTEENTH. Words used in the singular may be read to
include the plural or the plural may be read as the singular.
Similarly, the masculine form may be read to include the feminine
and neuter; the feminine may be read to include the masculine and
neuter; and the neuter may be read to include the masculine and
feminine.
Headings
FIFTEENTH. The headings used on the various paragraphs
of this trust agreement are included for convenience only and shall
have no legal significance.
The parties have signed this agreement the day and year first above
written.
Signed, sealed and delivered in the presence of:
Witness
Larry Burkholder, Sr., Settlor
Witness Larry Burkholder, Jr., Trustee
Commonwealth of Pennsylvania
County of Cumberland
On this, the day of , 2012, before me,
the undersigned, Larry Burkholder, Sr., personally appeared,
known to me, or satisfactorily proven, to be the person whose name
is subscribed to the within instrument, and acknowledged that he
executed the same for the purposes therein contained.
I have signed my name and affixed my seal.
Commonwealth of Pennsylvania
County of Cumberland
On this, the day of , 2012, before me,
the undersigned, Larry Burkholder, Jr., personally appeared,
known to me, or satisfactorily proven, to be the person whose name
is subscribed to the within instrument, and acknowledged that he
executed the same for the purposes therein contained.
I have signed my name and affixed my seal.
LARRY BURKHOLDER as Parent &
Natural Guardian of Lylliana Burkholder,
a minor,
Petitioner/Plaintiff
V.
STATE AUTOMOBILE INSURANCE
COMPANY and PROGRESSIVE
INSURANCE COMPANY,
Respondents/Defendants
IN THE COURT OF COMMON PLEAS OF
THE NINTH JUDICIAL DISTRICT
No. 2012-3211 Civil Term
IN RE: PETITION FOR APPROVAL OF MINOR'S SETTLEMENT
SCHEDULING ORDER OF COURT
AND NOW, this 23rd day of May, 2012, upon consideration of the Petition for
Approval of Minor's Settlement, a brief conference on the matter is scheduled
for 1 the -50 day of 2012, at 6:00J0.m., in
Courtroom No. 6, Cumberland County Courthouse, Carlisle, Pennsylvania.
PETITIONER shall effectuate service of the underlying Petition and this Scheduling
Order of Court upon Respondents. PROOF of such service shall be filed of record prior to the
conference set forth above.
--?Y THE COURT,
Thomas lacey, C.P.J.
Distribution:
rd
William P. Douglas, Esq. TM
Douglas Law Office y
43 West South Street -<. c,,
Carlisle, PA 17013 ` C`
For Petitioner y,
c
?? - NIf'I?)Qm arc ?s .
'" eev z
? ?2,5 r?'ss; ? P .?r?.s- L'?
w?,?c
Larry Burkholder as parent & natural
guardian of Lylliana Burkholder,
a minor
Petitioner/ Plaintiff
vs
State Automobile Insurance Company
and Progressive Insurance Company
Respondentl Defendant
e C! MAY 3 I Pry 3, F- 8,
PENNSYLVANIA
IN THE COURT OF COMMON
PLEAS OF CUMBERLAND COUNTY,
PENNSYLVANIA
/a - ?ao2?? aivi(Te-toi
2012 Civil Term
CIVIL ACTION LAW
Approval of Minor Settlement
ORDER
b
AND NOW, on this the -3 L g"- day of K4 2012, the
distribution as outlined in the attached Peh'tion and special needs trust is
approved.
Vim- ( 4..a --c-c c«•c
2S &4-
a?
P,?r?ss v e Co