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HomeMy WebLinkAbout05-3396EMILY A. SWINK, a minor, by TIMOTHY M. and LISA A. SWINK, parents and natural guardians, and TIMOTHY M. and LISA A. SWINK in their own right, Plaintiffs V. GREGORY SHEFFER and DEBI SHEFFER, husband and wife, Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 65- 2 ff &-(e CIVIL ACTION - LAW IN TRESPASS JURY TRIAL DEMANDED PRAECIPE FOR ISSUANCE WRIT OFSUMMONS TO THE PROTHONOTARY: Kindly issue a writ of summons upon Defendants Gregory and Debi Sheffer, husband and wife, and have them served by the Sheriff at the following address: 1176 Rhoda Blvd. , Mechanicsburg, Pa 17055 Respectfully submitted, NESTICO DRUBY & HILDABRAND, L.L.P. Date: 7,7-(-Os By: c SF?? _ _ ? ail R. Hildabrand Attorney I.D. No. 30102 840 E. Chocolate Avenue Hershey, PA 17033 (717) 533-5406 Telephone Attorney for Plaintiffs ° N ? C I - ? lJ c `^ W G a Commonwealth of Pennsylvania County of Cumberland WRIT OF SUMMONS EMILY A. SWINK, a minor by TIMOTHY M. AND LISA A. SWINK, parents and natural guardians, and TIMOTHY M. AND LISA A SWINK, in their own right Court of Common Pleas Plaintiff Vs. No. 05-3396 In CivilAction-Law GREGORY SHEFFER and DEBI SHEFFER, husband and wife 1176 RHODA BLVD. MECHANICSBURG PA 17055 Defendant To GREGORY SHEFFER AND DEBI SHEFFER: You are hereby notified that TINMOTHY M. SWINK AND LISA A SWINK ETC. the Plaintiff has / have commenced an action in Civil Action-Law against you which you are required to defend or a default judgment maybe entered against you. (SEAL) CURTIS R. LONG Prothonotary Date JULY 5, 2005 By r ?h A? Deputy Attorney: Name: KARL R. HILDABRAND, ESQ. Address: 840 E. CHOCOLATE AVENUE HERSHEY PA 17033 Attorney for: Plaintiff Telephone: (717) 533-54406 Supreme Court ID No. SHERIFF'S RETURN - REGULAR CASE NO: 2005-03396 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND SWINK EMILY A ET AL VS SHEFFER GREOORY ET AL MICHAEL BARRICK , Sheriff or Deputy Sheriff of Cumberland County,Pennsylvania, who being duly sworn according to law, says, the within WRIT OF SUMMONS SHEFFER GREGORY was served upon DEFENDANT the , at 2003:00 HOURS, on the 11th day of July , 2005 at 1176 RHODA BLVD MECHANICSBURG, PA 17055 GREGORY SHEFFER by handing to a true and attested copy of WRIT OF SUMMONS together with and at the same time directing His attention to the contents thereof. Sheriff's Costs Docketing 18.00 Service 6.40 Postage .37 Surcharge 10.00 .00 34.77 Sworn and Subscribed to before me this /,ja, day of 2005 A.D. ? r C Q. ?12.?Pew [.P.a? Prothonotary'T? So Answers: R. Thomas Kline 07/12/2005 NESTICO DRUBY H D By: Deputy S riff SHERIFF'S RETURN - REGULAR CASE NO: 2005-03396 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND SWINK EMILY A ET AL VS SHEFFER GREOGRY ET AL MICHAEL BARRICK Sheriff or Deputy Sheriff of Cumberland County,Pennsylvania, who being duly sworn according to law, says, the within WRIT OF SUMMONS was served upon SHEFFER DEBI the DEFENDANT at 2003:00 HOURS, on the 11th day of July , 2005 at 1176 RHODA MECHANICSBURG, PA 17055 by handing to DEBI SHEFFER a true and attested copy of WRIT OF SUMMONS together with and at the same time directing Her attention to the contents thereof. Sheriff's Costs Docketing 6.00 Service .00 Affidavit .00 Surcharge 10.00 .00 16.00 Sworn and Subscribed to before me this h 4?, day of aet) S? A. D. Prothonotary So Answers: R. Thomas Kline 07/12/2005 NESTICO DRUBY HILDAB D By i Deputy Sheriff EMILY A. WINK, a minor, by TIMOTHY M. and LISA A. SWINK, parents and atural guardians, and TIMOTHY V. and LISA A. SWINK in their ov;i right, Plaintiffs V. GREGORY SHEFFER and DEBI SHE FER, husband and wife, Defendants LION FOR C( IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 05-3396 CIVIL CIVIL ACTION - LAW IN TRESPASS JURY TRIAL DEMANDED OR'S Petitioners Timothy and Lisa Swink, on behalf of their minor daughter, Emily Swink, respectfully represent the following: 1. Timothy and Lisa Swink reside at 852 Lexington Place, Lewisberry, York County, Pe sylvania 17339. 2. Minor Plaintiff Emily A. Swink (SSN 076-86-3838) was born on November 2 , 1996, is currently 10 years of age, and resides with her parents Timothy and Lisa Swink, at the above stated address. 3. Minor Petitioner Emily A. Swink will reach the age of majority (i.e. eighteen (18 years of age) on November 24, 2014. 4. On or about July 8, 2003, at approximately 7:30 p.m., Emily A. Swink was bitten b a German Shepard dog owned by the Defendants, on the Defendants' property in illsburg, Cumberland County, Pennsylvania. 3 R ? 5 At the aforesaid time and place Emily was six (6) years of age and attempted tq hug the dog, which was present on the Defendants' property during a picnic, and the dog Jbit her about the face and head. 6. Emily was taken immediately by ambulance to the Hershey Medical Center for 7. Emily was treated at the Hershey Medical Center Emergency Room for a large laceration on the forehead and irregular cheek wounds. Bleeding was initially a problem. T?e wounds were irrigated, debrided and closed with sutures. IV antibiotics were 8. Currently, Emily was seen by Dr. Fred Fedok, Dr. Brendan Stack, Harry P. Meyers, IPDS and A. Mark Boustred, M.D. for treatment of the wounds. 9. The injuries sustained by Emily have healed but have resulted in substantial sparring, which she will have for the remainder of her life. 10. On March 29, 2005 Emily underwent plastic surgery performed by Dr. Boustred at ?he Hershey Medical Center. The scar on the left cheek was revised by excising the existing scar and closing the wounds with sutures. Emily saw Dr. Boustred for follow uo visits on April 15 and June 10, 2005 11. Dr. Boustred's December 30, 2005 report (attached hereto as Exhibit A) notes the followi She had required a scar revision of the scar of the left cheek and the left and the left front region with significant improvement to these. Her cial nerve palsy has improved significantly to the point where she now as mild weakness manifest by a down turn to the corner of her mou on the left side and subtle alteration in her smile. As she is several years following the injury, I anticipate that the deficit in her movement will be permanent. In the future she could 4 ben fit from a further scar revision of the scar on the central forehead exte ding into the hairline. This would be done under general anesthesia as a ay surgery and the surgery would be "scar revision/complex repair." CPT Codes 13132 and 13133. The cost for these procedures, assuming that is procedure would be done as an out-patient, and as of this date, the cost would be approximately $3,744.00 which comprises of the surgeon's fees anesthesia, and facility fees. The age at which this would be performed would depend on Emi y's decision as to when she would like to have this done. She would have permanent scars in the above sites; the scar on the left hair line is bare y visible, the scar on the left cheek and the one extending onto the skin of the forehead will always be visible in the form of a thin, white line. 12. Emily is not currently treating with any physicians for these injuries. 13. Petitioners retained the law firm of Nestico, Druby & Hildabrand, LLP to represent th m in pursuing legal action as a result of the incident in question and to provide prokssional services on a contingent fee basis. The attorneys are entitled to a total continent fee of twenty five percent (25%) plus expenses, under the agreement. See Exhibit $ attached hereto. 14. 1 Erie Insurance Company provided liability coverage to the Defendant in the amount 4f $500,000.00. See Exhibit C attached hereto. 15. Complaint of $110,000. 16. Defendants, 1. 2. Suit was commenced by the filing of a Writ of Summons but no ever filed. The parties were able to negotiate a settlement in the amount The Petitioners and Erie Insurance Exchange, the carrier for the ve agreed to structure a portion of the settlement as follows: Payment due at the time of settlement $31,308.17. American General Life Insurance Company will provide the periodic payments according to the following schedule to Emily Swink: 5 x } $7,5 0 guaranteed lump sum, payable on November 24, 2014 (age 18) $27,35 5 guaranteed lump sum, payable on November 24, 2017 (age 21) $27, 55 guaranteed lump sum, payable on November 24, 2018 (age 22) $27, 55 guaranteed lump sum, payable on November 24, 2019 (age 23) $27,355 guaranteed lump sum, payable on November 24, 2020 (age 24) $27,355 guaranteed lump sum, payable on November 24, 2021 (age 25) The ayments are guaranteed. 17. All claims or expenses arising from the injuries sustained by minor Petitioner hive either been or will be provided for and settled from the funds payable to minor Petitioner from the settlement. 18. 1 Petitioners believe this settlement to be fair, reasonable and in the minor Petitioner's 19. by Primax pay said lie 20. (a) (b) interest, set forth in their verification appended hereto. To date, a subrogation lien in the amount of $2,894.34 has been asserted overies, Inc. on behalf of Aetna Healthcare. Counsel for Petitioners will out of the proceeds itemized above. Distribution of said proceeds is proposed as follows: Attorney fees to Nestico, Druby & Hildabrand, LLP (representing a 25% contingent fee) $27,500.00 Litigation costs/expenses Nestico, Druby & Hildabrand, LLP. Attached hereto, marked as Exhibit D and incorporated herein by reference is an itemized accounting of all litigation costs/expenses for Petitioners counsel $493.83. 6 it } (c) (d) (e) Litigation costs/expenses reimbursed to Timothy and Lisa Swink (mediation fee) $420.00. Proceeds to be held in escrow by counsel for Petitioners for payment of a medical lien with Primax in the amount of $2,894.34. (See Exhibit E attached hereto). Balance to be paid pursuant to the structured schedule set forth above in paragraph 16. Total amount of settlement: $110,000 21. Petitioners fully understand that the aforesaid agreement will result in a full, final and complete settlement of the claims against Defendants, despite any issues that might se in the future, and that there will be no further recovery against Gregory Sheffer or Debi Sheffer in connection with this claim. 22. Plaintiffs have been asked to sign a Settlement Agreement and Release, a copy of whi h is attached hereto as Exhibit F. 23. Petitioners believe that the above described settlement is reasonable and in the best ini 24. agreement. t of the minor Petitioner. Petitioners have considered the advice of counsel in reaching this 7 RE, Petitioners request that this Honorable Court enter an Order approving proceeds above-described compromised settlement, and directing the distribution of in accordance with the request made in the Petition. Respectfully submitted, NESTICO, DRUBY & HILDABRAND, LLP r Karl R. Hildabrand, Esquire Attorney I.D. No. 30102 840 East Chocolate Avenue Date: /0 Hershey, PA 17033 / (717) 533-5406 Attorney for Plaintiffs/Petitioners 8 k PENNSTATE Milton College 3. Hershey Medical Center of Medicine 30, 2005 Karl R. Hildabrand, Esq. Nestic Druby & Hildabrand, LLP 840E t Chocolate Avenue Hershe , PA 17033 Re: Emily A. Swink SHMC #: 1332248 DOB: 11/24/1996 SN: 076-86-3838 Dear Mr. Hildabrand: ?' 1 ?r Division of Plastic Surgery M.C. H-071 P. O. Box 850 By ----- -- Hershey, PA 17033 Administrative Office: 717 531 8372 Tel. 717 531 4339 Fax. Practice Site: 717 531 8952 Tel. 717 531 0098 Fax. Emily as first seen by me on August 7, 2003. She was injured from a dog bite to her face on July 8, 2003 and her injuries were entirely consistent with the history given to me of a do bite. When i side of made g She ha: with si; to the I her mo As she mover of the general repair" proced, approx fees. seen, she had multiple facial scars, two on the forehead and a third on the left face. She also had a facial.nerve palsy affecting the buccal branch. She has progress following her injuries. required a scar revision of the scar of the left cheek and the left frontal region aificant improvement to these. Her facial nerve palsy has improved significantly >int where she now has mild weakness manifest by a downturn to the corner of on the left side and a subtle alteration in her smile. is several years following the injury, I anticipate that the current deficit in her lent will be permanent. In the future she could benefit from a further scar revision car on the central forehead extending into the hairline. This would be done under anesthesia as a day surgery and the surgery would be "scar revision/complex CPT codes 13132 and 13133. The cost for these procedures, Assuming that this tre will be done as an outpatient, and as of this date, the cost would be mately $3,744.00 which comprises of the surgeon's fees, anesthesia, and facility A ik I An Equal Opportunity University I r W Emily MSHN 12/30/2 The agi when sl three si one ext white I Please A. Mar Assista Divisic Copy b AMB:1 Swink #: 1332248 15 ...................page 2 at which this would be performed would depend upon Emily's decision as to e would like to have this done. She would have permanent scars in the above rs; the scar in the left hairline is barely visible, the scar on the left cheek and the nding on to the skin of the forehead will always be visible in the form of a thin, not hesitate to contact me if you require any further information. 0 4 oustred, M.D. Professor of Surgery of Plastic Surgery Medical Records t j k Ti CONTINGENT FEE AGREEMENT and Lisa Swink, clients, of 852 Lexington Place, Lewisberry, York County, Pennsylvania, 17339, hereby employ KARL R. HILDABRAND, Esquire of Nestico, D ruby & Hildabrand, LLP, as our attorney to negotiate a settlement, institute, conduct, superintend and prosecute to final determination by suit or action, if necessary, any and all claims arising out of a dog bite incident on or about July 8, 2003, in which our daughter Emily was injured against all responsible parties. 1. Attorney's Fees: The fee of the attorney shall be contingent as follows: (a) Twenty-five percent (25%) of gross recovery if case is settled prior to suit. (b) Twenty-five percent (25%) of gross recovery if case is settled subsequent o suit or of gross amount recovered if tried with respect to the minor's claim. (c) Thirty-three and one-third (33 1/3%) of gross recovery if case is settled sub quent to suit or of gross amount recovered if tried with respect to any remaining (d) Forty percent (40%) of gross amount recovered if post trial motions are filed or if the case is appealed beyond the local county or district court. (e) SHOULD THERE BE NO RECOVERY BY SUIT OR SETTLEM NT, SAID ATTORNEY IS TO HAVE NO CLAIM AGAINST US OF ANY KIND FOR ? EGAL SERVICES RENDERED. It Q11 l? x w 2. the client Expenses of Litigation: Actual expenses incurred on the business of 311 be borne by the client and our attorney shall be reimbursed out of the balance of a#y recovery for all legal expenses incurred in the prosecution of this claim. We gree to pay all expenses incurred by our attorney in the preparation and presentation of this case and do understand that these expenses include, but may not be limited to, urt costs, stenographic expenses connected with depositions, expert witness fees, photocopying charges, travel and mileage charges, telephone charges and related expenses connected with the rendering of legal services. We understand that we are responsible or payment of these expenses regardless of the eventual outcome of the case and further understand that if our attorney deems it necessary, we may be asked to advance the a costs prior to the incurring of any such expenses or the scheduling of any deposition. and comproi lawful acts r 4. he will inve! to handle t recoverable, 5. reasonable n We further agree that our attorney is authorized to bring suit or to settle se the said claim, to execute all documents pertaining thereto, and to do all for effecting the claim on our behalf. We agree that our attorney accepts this employment on the condition that this claim, and if it appears to be a recoverable claim, he will proceed claim; but if, after investigation, the claim does not appear to be then said attorney shall have the right to rescind this Agreement. We agree that our attorney may withdraw from this case at any time after otice to us, and we agree to keep him advised of our whereabouts at all times and to coop rate at all times in the preparation and trial of this case, to appear upon reasonable otice for depositions and court appearances, and to comply with all x r x reasonable Irequests made of us in connection with the preparation and presentation of this case. IN ITNESS WHERE OF, we have signed below on this _day of 2003. namM seas Vd* C. , niomry Pubk Lower TtNp., Gxtt akm Caxtly E*mA*1=2006 4SWi mbar. Assodadon of Ndodes C. K Lisa S ink NESTICO, DRUBY & HILDABRAND, LLP / 10- "0" By. A%.e `?.`..?.? Karl R. Hildabrand 840 East Chocolate Avenue Hershey, PA 17033 (717) 533-5406 I- r % ?i Z?13 Erie Insure Branch Office 717.795.8200 Kerry J. Ri CPCU, AIC F E B = ?006 Claims ma-9w By -------------------- I Louise Drive • Rossmoyne Business Center • P.O. Box 2013 - Mechanicsburg, PA 17055-0710 Free 1.800.382.1304 • Fax 717.795.2315 • www.erieinsurance.com February 23, 2006 Nestico, Druby ATTN: Karl R 840 East Chocc Hershey, PA 1 z Hildabrand, LLP Hildabrand, Esq. ite Avenue Re: ERIE Claim ERIE Insured: Date of Loss: Your Client: Dear Mr. #010170690285 Gregory Sheffer 7/8/03 Emily Swink As requested in your February 17, 2006 correspondence, we supply a copy of our insured's Declarations page which confirms his personal liability coverages with a limit of $500,000.00. We will again wait your production of a demand packet on the claim. Sincerely, Dan Peron, AIC Claims Adjuster P.O. Box 90086 Harrisburg, PA 17109-0086 (717) 657-2081 (717) 652-8164 (Fax) DP: gjp Enclosure: Declarations age cc: Home Office cc: File C21 1259670_1.DOC The ERIE Is A4 All In Service. We commit, care and serve. It's our true blue promise. L 31b 11 L3W ION NOTICE AA7373 J P GREGORY L SH DEBRA L SHEF 1176 RHODA B MECHANICSBUR WOLFE INSUR INC VD PA 17055-9765 AGENT - J P WOLFE INSUR INC ***** AGENT PHONE - (71 ) 737-4981 ERIE INSURANCE EXCHANGE HOMEPROTECTOR POLICY EXTRACOVER 05/16/03 TO 05/16/04 Q53 1600662 H AS LISTED BELOW OR ON REVERSE SIDE 23B WEST MAIN STREET SHIREMANSTOWN PA 17011 6327 COVERAGE BEGINS ANV ENDS AT 12.01 AM STANDARD TIME AT THE LOCATION OF THE INSURED PROPERTY. UNTIL TERMINATED, THIS POLICY WILL CONTINUE IN FORCE. LOCATION OF RESIDENCE PREMISES IF OTHER THAN STATED IN ITEM 1 OR IF SPECIFIC DESIGNATION IS NEEDED. ZIP CODE - 17055 MONROE TWP, CUMBE CO 1 MI S OF BRANDTSV LLE ON S/S RD FROM BRANDTSVILLE TO MOUNTAIN. PROPERTY INFORMATI N - PRIMARY RESIDENCE, FRAME, PROTECTION CLASS C. PROPERTY IS OVER 000 FEET FROM A FIRE HYDRANT AND WITHIN 5 MILES OF A RESPONDING FIRE DEPARTMENT. AUTOMATIC ADJUSTME9T OF COVERAGE WAS APPLIED. YEARLY INCREASE ON DWLG IS 3%. COVERAGE IS PROVIDED ONLY IF A SPECIFIC AMOUNT OF INSURANCE IS SHOWN. SECTION I - PROPERT Y PROTECTION AMOUNT OF INSURANCE PREMIUMS DWELLING $ 188,000 $ 466.00 OTHER STRUCTURES $ 18,800 PERSONAL PROPERTY $ 118,125 $ 23.000 LOSS OF USE LOSS SUSTAINED NOT TO EXCEED 1 2 CONSECUTIVE MONTHS SECTION II - HOME FAMILY LIABILITY PROTECTION PERSONAL LIABILIT - EACH OCCURRENCE $ 500,000 MEDICAL PAYMENTS 0 OTHERS - EACH PERSON $ 1,000 PREMIUM CHARGE FO INCREASED LIABILITY LIMITS $ 20.00 FULL TERM PREMIUM FOR THIS RESIDENCE - - - - - - $ 463.00 FULL TERM ADDITIONAL COVERAGE PREMIUM - - - - - $ 9.000 TOTA L PREMIUM FOR THIS POLICY - - - - - - - - - $ 454.00 SECTION I DEDUCTIBL E $ 250. AUTOMATIC NO-DEPREC IATION SETTLEMENT APPLIES TO DWEL LING AND OTHE R STRUCTURES. APPLICABLE FORMS - 2003 02/01, HP-PA 02/01, OF-8705 06/96*, OF-65 23 08/98, UF9013 04/01*, HP FN 02/03*, UF4043 02/03*, HP-AAN 01/97, HP-BD 02/01, UF2106 05/01*. PRIMARY RESIDENCE- ORTGAGEE LN 0018207712 PHH MORTGAGE SERVICES ITS SUCCESSORS AND OR ASSIGNS P 0 BOX 5954 4 r? 30 SPRINGFIELD OH 45501-5954 SEE REVERSE SIDE AGTLJW 04/05/03 R r• D NO BUSINESS PURSUI'T'S ARE CONDUCTED AT THE PREMISES, EXCEPT AS FOLLOWS - ADDITIONAL COVERAG ES PREMIUMS PREMISES ALARM SY TEM - TYPE 2 $ 25.000R REPLACEMENT COST ETTLEMENT - PERSONAL PROPERTY $ 66.00 MULTI-POLICY DISC OUNT APPLIES $ 50.000R e ,? W Mr. Karl Hildab Attorney at La, 840 East Choc Hershey, PA 1' Dear Mr. Hild nd: February 20, 2007 Emily Swink 4293320 07/08/2003 CIGNA HealthCare Enclosed please find an itemized list of Medical Providers, Dates of Service, Claim Amounts and Benefits Paid. s you can see our lien amount to date is $2,894.34. Please call prior to settlement or ju gment to determine the total amount of benefits paid by our client. Also, would you kindly provide us with a list of the medical specials you have submitted to the insurance carrier. The purpose for this list is to crosscheck with our information to verify that we are not making a claim for any expenses that were not a result of the above accident, and to ensure that all charges that are related to the accident are included in the claim. Thank you for cooperation. Very ly yours, la R and Alexand r A S Recovery Services (860) 723-6311 CS Recovery Services formerly Primax Recoveries Incorporated P.O. Box 4003, Schaumburg, IL 60168-4003 nd ate Ave )33 Claimant: Our Case ID: Date of Loss: Our Client: 11 b of L '? 1 LIST OF EXPENSES EXPENSE AMOUNT Central Peru t Oral Maxillofacial records $24.33 UPS Store - photocopies 20.99 Recordex A cquisition - medical records 40.89 Hershey Me dical Center - medical records 15.00 Prothonotary - filing fee 55.50 Sheriff - se ice fee 100.00 Travel expe nse 38.00 Travel expe nse 15.00 Photograph eveloping 8.57 UPS Store - photocopies 2.23 Postage - ov ernight mediation notebook 44.40 Travel expe nse 45.00 Parking 9.00 TOTAL $493.83 it E of r li t Settlement Agreement and Release This Settler entered into "Claimants" "Insured" "Insurer" Recitals A. accident c County, in resulting r omissions made a cl.- t Agreement and Release (the "Settlement Agreement") is made and day of , 2007, by, between, and among: Emily A. Swink, a minor, by and through Thomas M. Swink and Lisa A. Swink, her parents and natural guardians, and Thomas M. Swink and Lisa A. Swink, individually Gregory L. Sheffer and Debra L. Sheffer Erie Insurance Exchange On or about July 8, 2003, Emily A. Swink was injured as a result of an urring at or near 1176 Rhoda Boulevard, Mechanicsburg, in Cumberland Commonwealth of Pennsylvania. Claimants allege that the accident and sical and personal injuries arose out of certain alleged negligent acts or Insured, which is covered under Erie Policy No. Q53 1600662, and have i seeking monetary damages on account of those injuries. B. Insurer is the liability Insurer of the Insured, and as such, would be obligated to ay any claim made or judgment obtained against Insured which is covered by its policy ith Insured. C. The parties desire to enter into this Settlement Agreement in order to provide for Wain payments in full settlement and discharge of all claims which have, or might be made, by reason of the incident described in Recital A above, upon the terms and c nditions set forth below. The Oarties agree as follows: 1.0 Release and Discharge 1.1 In consideration of the payments set forth in Section 2, Claimants hereby completely release and forever discharge Insured and Insurer from any and all past, present or future claims, demands, obligations, actions, causes of action, wrongful death clai s, rights, damages, costs, losses of services, expenses and compensation 11 -F11 11 . I x of any nature which the C acquired, on A above inch and persona Claimants' re acts or omiss 1.2 past, successors whom any i ,hatsoever, whether based on a tort, contract or other theory of recovery, mants now have, or which may hereafter accrue or otherwise be count of, or may in any way grow out of the incident described in Recital ing, without limitation, any and all known or unknown claims for bodily injuries to Emily A. Swink, or. any future wrongful death claim of esentatives or heirs, which have resulted or may result from the alleged of the Insured. This release and discharge shall also apply to Insured's and Insurer's and future officers, directors, stockholders, attorneys, agents, servants, s, employees, subsidiaries, affiliates, partners, predecessors and interest, and assigns and all other persons, firms or corporations with he former have been, are now, or may hereafter be affiliated. 1.3 This release, on the part of the Claimants, shall be a fully binding and complete se lement among the Claimants, the Insured and the Insurer, and their heirs, assigns and uccessors. 1.4 The Claimants acknowledge and agree that the release and discharge set forth above i a general release. Claimants expressly waive and assume the risk of any and all clai for damages which exist as of this date, but of which the Claimants do not know or uspect to exist, whether through ignorance, oversight, error, negligence, or otherwise, a d which, if known, would materially affect Claimants' decision to enter into this Settlem nt Agreement. The Claimants further agree that Claimants have accepted payment of 1he sums specified herein as a complete compromise of matters involving disputed iss es of law and fact. Claimants assume the risk that the facts or law may be other than Claimants believe. It is understood and agreed to by the parties that this settlement i a compromise of a disputed claim, and the payments are not to be construed a an admission of liability on the part of the Insured, by whom liability is expressly d ied. 1.5 The Claimants hereby discharge and agree to indemnify and save harmless th Insured and the Insurer from any liens asserted by any health care provider, ho pital, insurer, or attorney for medical expenses, hospital expenses, lost earnings, p yments, attorneys liens, subrogation claims or liens and any workers' compensati in liens as a result of this accident or occurrence. Page 2 of 7 2.0 In consideration of the release set forth above, the Insurer on behalf of the Insured agrees to pay to the individual named below (the "Payee(s)") the sums outlined in this Sectio 2 below: 2.1 Oavments due at the time of settlement as follows: $ 28,413.83 up front cash, including attorney fees and expenses, payable to Thomas M Swink, Lisa A. Swink and Karl R. Hildabrand, their attorney $ 2,894.34 for a medical lien payable to Primax 2.2 Periodic payments made to Emily A. Swink ("Payee") according to the schedule as follows (the "Periodic Payments"): $ 7,500 guaranteed lump sum, payable on November 24, 2014 (age 18) $ 27,855 guaranteed lump sum, payable on November 24, 2017 (age 21) $ 27,855 guaranteed lump sum, payable on November 24, 2018 (age 22) $ 27,855 guaranteed lump sum, payable on November 24, 2019 (age 23) $ 27,855 guaranteed lump sum, payable on November 24, 2020 (age 24) $ 27,855 guaranteed lump sum, payable on November 24, 2021 (age 25) pursuant to Emily A. Svc Insurer or th or from Emil designated said Payee'; such design delivered to acceptable i physical inji Internal Re% Any payments to be made after the death of Payee, Emily A. Swink, the terms of this Settlement Agreement shall be made to the Estate of ink or to such person or entity as shall be designated in writing to the Insurer's Assignee by the guardian of Emily A. Swink with court approval V A. Swink, upon attaining the age of majority. If no person or entity is so oy Emily A. Swink, or if the person designated is not living at the time of death, such payments shall be made to the Estate of said Payee. No ition, nor any revocation thereof, shall be effective unless it is in writing and the Insurer or the Insurer's Assignee. The designation must be in a form the Insurer or the Insurer's Assignee before such payments are made. All sums set forth herein constitute damages on account of personal ies or physical sickness, within the meaning of Section 104 (a)(2) of the ?nue Code of 1986, as amended. Page 3 of 7 r i i ,. , 49 3.0 claimants' Rights to Payments Claimants acknowledge that the Periodic Payments cannot be accelerated, deferred, increased or decreased by the Claimants; nor shall the Claimants have the power to sell, mortgage, encumber, or anticipate the Periodic Payments, or any part thereof, by assignment or otherwise. 4.0 Consent to Qualified Assignment 4.1 Claimants acknowledge and agree that the Insured and/or the Insurer may make "qualified assignment", within the meaning of Section 130 (c) of the Internal Revenue Code of 1986, as amended, of the Insured's and/or Insurer's liability to make the Periodic Payments set forth in Section 2.2 to American General Annuity Service Corporation ("the Assignee"). The Assignee's obligation for payment of the Periodic Payments shall be no greater than that of Insured and/or the Insurer (whether by judgment or agreement) immediately preceding the assignment of the Periodic Payments o ligation. 4.2 Any such assignment shall be accepted by the Claimants without right of rejection an shall completely release and discharge the Insured and the Insurer from the Periodic Payments obligation assigned to the Assignee. The Claimants recognize that the As ignee shall be the sole obligor with respect to the Periodic Payments obligation, a d that all other releases with respect to the Periodic Payments obligation that pertain the liability of the Insured and the Insurer shall thereupon become final, irrevocable nd absolute. Claimants acknowledge and agree that Insurer shall not be the owner of any 'qualified funding asset" and Insurer does not guarantee any payments to be made pursuant to said annuity. 4.3 AGC Life Insurance Company will issue a letter guaranteeing the performance of the obligations assigned to American General Annuity Service Corporation by way of a Qualified Assignment Agreement and for which American General An ity Service Corporation purchases an annuity from American General Life Insurance C mpany to cover these same obligations. 5.0 right to annuity the sole Right to Purchase an Annuity The Insured and/or the Insurer, itself or through its Assignee, reserve the the liability to make the Periodic Payments through the purchase of an y from American General Life Insurance Company. The Assignee shall be er of the annuity policy and shall have all rights of ownership. The Insured, Page 4 of 7 ,, v the Insurer c payments di current maili 6.0 the Assignee may have American General Life Insurance Company mail ctly to the Payee. The Claimants shall be responsible for maintaining a address with American General Life Insurance Company. of Obligation he obligation of the Insured, the Insurer and/or Assignee to make each Periodic Payment shall be discharged upon the mailing of a valid check in the amount of such payment to the designated address of the Payee named in Section 2 of this Settlement A reement, or the deposit by electronic funds transfer in the amount of such payment to a account designated by the Payee identified in Section 2. 7.0 Representation of Comprehension of Document n entering into this Settlement Agreement, the Claimants represent that Claimants have relied upon the advice of their attorneys, who are the attorneys of their own choice, nceming the legal and income tax consequences of this Settlement Agreement; that the terms of this Settlement Agreement have been completely read and explained to Claimants by their attorneys; and that the terms of this Settlement Agreement a fully understood and voluntarily accepted by Claimants. 8.0 Warranty of Capacity to Execute Agreement Claimants represent and warrant that no other person or entity has, or has had, any interest in the claims, demands, obligations, or causes of action referred to in this Settlement Agreement, except as otherwise set forth herein; that Claimants have the sole right and exclusive authority to execute this Settlement Agreement and receive the sums specified in it; and that Claimants have not sold, assigned, transferred, conveyed or therwise disposed of any of the claims, demands, obligations or causes of action referred to in this Settlement Agreement. 9.0 conditions of attorneys noi agreed to in amounts, nur lity Except as may be necessary to plead and give effect to the terms and this Settlement Agreement, the parties agree that neither they nor their representatives shall reveal to anyone, other than as may be mutually writing, any of the terms of the Settlement Agreement or any of the nber or terms and conditions of any sums payable to payee hereunder. Page 5 of 7 Is 10.0 overning Law his Settlement Agreement shall be construed and interpreted in accordance ' h the laws of the Commonwealth of Pennsylvania. 11.0 (Additional Documents . All parties agree to cooperate fully and execute any and all supplementary documents aid to take all additional actions which may be necessary or appropriate to give full force and effect to the basic terms and intent of this Settlement Agreement. 12.0 jEntire Agreement and Successors in Interest This Settlement Agreement contains the entire agreement between the Claimants, t Insured and the Insurer with regard to the matters set forth in it and shall be binding upon and enure to the benefit of the executors, administrators, personal representati s, heirs, successors and assigns of each. No promise, inducement or agreement not herein expressed has been made to CI imant, and this Settlement Agreement contains the entire agreement between the arties hereto. 13.0 execution Effectiveness This Settlement Agreement shall become effective immediately following each of the parties. Claimant: Bv: Thomas M. Swink, individually, and as parent and natural guardian of Emily A. Swink, a minor Date: Claimant: Bv: Lisa A. Swink, individually, and as parent and natural guardian of Emily A. Swink, a minor Date: Page 6 of 7 I 1 1 '4W Insurer: Erie Insurance Exchange By: Title: Date: NOTICE: Any or other pers materially fal concerning a crime and sul person who knowingly and with intent to defraud any insurance company >n files an application for insurance or statement of claim containing any se information or conceals for the purpose of misleading, information ,y fact material thereto commits a fraudulent insurance act, which is a jects the person to criminal and civil penalties. Page 7 of 7 10 a t .r Uniform Qualified Assignment, Release and Pledge Agreement Claimant-Secured Patty: Assignor: Assignee-Debtor. Annuity Issuer. Annuity (Policy No.): Effective Date: This Qualified Assignment, R Agreement is made and entered the parties hereto as of the I reference to the following facts: A. Claimant-Secured Party hre ment Agreement or release (the "Settlement Agreeme Assignor to make certain p or for the benefit of Claimo stated in paragraph 16 of "Periodic Payments"). B. The parties desire to i assignment" within the the conditions of Section I Revenue Code of 1996, "Code") C. The Assignee-Debtor d Claimant-Secured Party secure the liability Assignee-Debtor to ir, Payments. NOW THEREFORE, in foregoing and for other i consideration, the parties agree Subject to qualification i the Code, Assignor Assignee-Debtor heret Assignor's liability to Payments. Assignee-C liability to make any oth Secured Party hereby a the assignment by assumption by Assigneeto make the Periodic Pt Effective Date, Cla releases Assignor from e Periodic Payments. 2. The Periodic Payments account of personal injur involving physical injur within the meaning of 104(a)(2) and 130(c) oft 3. Assignee-Debtor's liab Periodic Payments is a Assignor as determined this Agreement. Non Payments may be i increased or decrease assigned, pledged, i Claimant-Secured Party. A. Swink, a minor, by and through Timothy M. Swink and Lisa A. Swink, individually and as her parents and guardians Insurance Exchange GENERAL ANNUITY SERVICE CORPORATION MERICAN GENERAL LIFE INSURANCE COMPANY lease, and Pledge into by and among ffective Date with executed a settle- ated 5. it") which requires niodic payments to nt-Secured Party as his Agreement (the 6. ffect a "qualified sing and subject to 10(c) of the Internal as amended (the sires to grant to security interest to ing assumed by ke the Periodic 7. sideration of the od and valuable follows: der section 130(c) of =by assigns and assumes all of make the Periodic rtor assumes no payment. Claimard- pts and consents to assignor and the ebtor of the liability nents, and upon the ant-Secured Parry liability to make the institute damages on or sickness in a case or physical sickness xtions 104 (a)(1) or c Code. Ity to make the greater than that of mmediately prior to of the Periodic elerated, deferred, anticipated, sold, encumbered by 4. The obligation assumed y Assignee-Debtor to make each applicable P 'odic Payment shall be fully discharged upon the mailing of a valid check or wire transfer o funds on or before the 8. 9. due date for such Periodic Payment to the address of record specified by Claimant- Secured Party if such check is duly negotiated or such wire transferred funds are duly received. This Agreement shall be governed by and interpreted in accordance with the laws of Texas (without giving effect to the choice-of- law rules thereof). Assignee-Debtor may fund the Periodic Payments by purchasing the Annuity from Annuity Issuer to serve as a "qualified funding asset" within the meaning of section 130(d) of the Code. All rights of ownership and control of the Annuity shall be and remain vested in Assignee-Debtor except as provided in paragraphs k I and 12 of this Agreement, and Assignor shall not be the owner of any "qualified funding asset" and does not guarantee any payments to be made pursuant to said annuity. Assignee-Debtor may have Annuity Issuer send payments from the Annuity directly to the payee(s) specified in paragraph 16. Such direction of payment shall be solely for Assignee-Debtor's convenience and shall not provide Claimant-Secured Party or any payee with any rights of ownership or control over the Annuity or against Annuity Issuer. Assignee-Debtor's liability to make the Periodic Payments shall continue without diminution regardless of any bankruptcy or insolvency of Assignor. In the event that the Settlement Agreement is declared terminated by a court of competent jurisdiction, the parties shall act in accordance with the orders of the court; provided however, that nothing in this paragraph shall preclude a party to this Agreement from appealing any order or judgment of a court In the event that section 130(c) of the Code has not been satisfied, (i) the assignment by Assignor to Assignee-Debtor of the liability to make the Periodic Payments to Claimant-Secured Party described in paragraph 1 of this Agreement shall be of no force and effect, (ii) the Assignee-Debtor shall be acting in the transaction as the agent of the Assignor and the Annuity shall be owned by the Assignor which will continue to have the liability to make the Periodic Payments to Claimant-Secured Parry, (iii) Assignee-Debtor shall have no liability to make any Periodic Payments to Claimant- Secured Party, and (iv) the parties hereto agree to cooperate in taking such actions as are reasonably necessary or appropriate to achieve the foregoing. 10. This Agreement shall be binding upon the respective representatives, heirs, successors and assigns of the parties hereto and upon any person or entity that may aaert any right hereunder or to any of the Periodic Payments. 11. Assignee-Debtor hereby pledges and grants to Claimant-Secured Party a lien on and security interest in all of the Assignee-Debtor's right, tide, and interest in the Annuity and all payments therefrom in order to secure the obligation of Assignee-Debtor to make the Periodic Payments. Assignee-Debtor and Claimant-Secured Party shall notify Annuity Issuer of the lien created under this Agreement, and Assignee-Debtor shall deliver the Annuity to Claimant-Secured Party upon execution of this Agreement and receipt by Assignee- Debtor of the Annuity from Annuity Issuer. 12. Assignee-Debtor shall have all rights of ownership and control in the Annuity, including the right to receive and retain all benefits under the Annuity, which are not inconsistent with the security interest granted under paragraph 11, and Claimant-Secured Party shall have no right to anticipate, sell, assign, pledge, encumber, or otherwise exercise any right with respect to the Annuity, so long as Assignee-Debtor has not failed due to insolvency or bankruptcy to make any of the Periodic Payments. If such a failure occurs and is continuing, Claimant-Secured Party shall have all of the rights and remedies of a secured party under the law then in effect in the State of Texas. 13. The Annuity will bear the following legend: 1 " "This annuity contract has been delivered to the possession of Emily A. Swink for the sole purpose of perfecting a lien and security interest of such person in this contract. Emily A. Swink is not the owner of, and has no ownership rights in this contract and may not anticipate, sell, assign, pledge, encumber, or otherwise use this contact as any form of collateral. Please contact the issuer of this contract for further information". 14. In entering into this Agreement, Claimant- Secured Party represents that he or she has relied on the advice of his or her attorneys, who are the attorneys of his or her choice, concerning the legal and income tax consequences of this Agreement; that the terms of this Agreement have been completely read by and explained to Claimant-Secured Party; and that the terms of this Agreement we fully understood and voluntarily accepted by Claimant-Secured Party. AGSS04-UQARP (03= t , , % 15. Any notice to a party 16. Beneficiary Designation ar er shall be in writing and shall be deemed to have been given when mailed to the party's address of record. Statement of Payee's Rights to Alter such Beneficiary Designation, if any. Description of Periodic Payments: Payee: Benefits: Emily A. Swink $ 7,55rui guaranteed lump sum, payable on November 24, 2014 (age 18) $ 27,85 guaranteed lump sum, payable on November 24, 2017 (age 21) $ 27,85 guaranteed lump sum, payable on November 24, 2018 (age 22) $ 27,85 guaranteed lump sum, payable on November 24, 2019 (age 23) 27,85 guaranteed lump sum, payable on November 24, 2020 (age 24) $ 27,85 guaranteed lump sum, payable on November 24, 2021 (age 25) Beneficiary: The Es a of Emily A. Swink A request for change of b neficiary may be submitted in writing from the guardian of Emily A. Swink prior to Emily A. Swink reaching age of majority ith Court approval or from Emily A. Swink herself beginning at age 18. Assignor: Erie Insurance Bv: Authorized Representative Title: Claimant-Secured Party: EMily A. Swink, a minor By: Signature of Claimant Timothy M. Swink, individ Emily A. Swink, a minor Bv. eG tarty and as parent and guardian of Lisa A. Swink, indivi of Emily A. Swink, a i i 1 Acsso+-UQAar (03M) and as parent and guardian Assignee-Debtor: American General Annuity Service Corporation By: Authorized Representative Title: Approved as to Form and Content: BY, Claimant-Secured Party's Attorney Karl R. Hildabrand, Esquire 4W 9 We, minor Plain information knowledge, to the nenall further state in the best ii VERIFICATION nothy A Swink and Lisa A. Swink, parents and natural guardians of Emily A. Swink, D.O.B. 11/24/96, hereby verify that the statements and forth in the foregoing Petition are true and correct to the best of our brmation and belief. We understand that false statements are made subject of 18 Pa.C.S. §4904, relating to unsworn falsification to authorities. We tt we believe the aforesaid described settlement to be fair, reasonable and est of our daughter, Emily A. Swink. 410 Date A? Date Timothy ,& Swink 4 Lisa A. Swink CERTIFICATE OF SERVICE I, Karl R. Hildabrand, Esquire of the law firm Nestico, Druby & Hildabrand, LLP, hereby certi that I served a true and exact copy of the foregoing document referenced to the foregoing action by First Class Mail, postage prepaid, this -2 ? day of October 2007, on the I following: Jeff Shipman, Esquire Johnson, Duffle, Stewart & Weidner 301 Market Street PO Box 109 Lemoyne, PA 17043-0109 Karl R. Hildabrand 9 L.._.7 -TI • { i 1 it EMILY A. SWINK, a minor, by TIMOTHY M. and LISA A. SWINK, parents and natural guardians, and TIMOTHY M. and LISA A. SWINK in their own right, PLAINTIFFS IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. GREGORY SHEFFER and DEBI SHEFFER, husband and wife, DEFENDANTS : 05-3396 CIVIL TERM ORDER OF COURT AND NOW, this© day of October, 2007, IT IS ORDERED that a hearing shall be conducted on the within petition in Courtroom Number 2, Cumberland County Courthouse, Carlisle, Pennsylvania at 8:45 a.m., Tuesday, November 27, 2007. Karl R. Hildabrand, Esquire For Plaintiffs sal By the Edgar B. Bay . 1 6) 7-- cr, 00 L . El l t j_j C""J ! R OCT 2 9 2007 EMILY A. SWINK, a minor, : IN THE COURT OF COMMON PLEAS OF by TIMOTHY M. and LISA A. SWINK, : CUMBERLAND COUNTY, PENNSYLVANIA parents and natural guardians, and TIMOTHY M. and LISA A. SWINK in their own right, Plaintiffs NO. 05-3396 CIVIL V. GREGORY SHEFFER and CIVIL ACTION - LAW DEBI SHEFFER, husband and wife, IN TRESPASS Defendants JURY TRIAL DEMANDED ORDER AND NOW, this2!?day of n , 2007, upon consideration of the Petition filed in the above matter by Plaintiffs/Petitioners for Court Approval of a Minor's Settlement, it is hereby ordered, adjudged and decreed as follows: 1. The settlement of any and all claims by Emily A. Swink, a minor, by Timothy M. and Lisa A. Swink, parents and natural guardians, and Timothy M. and Lisa A. Swink in their own right, against Defendants Gregory Sheffer and Debi Sheffer, husband and wife, for the sum of One Hundred Ten Thousand Dollars ($110,000.00), is hereby approved as reasonable, fair and equitable. 2. The distribution of the settlement proceeds in the amount of $110,000 is hereby directed to be paid as follows: a. Attorney fees to Nestico, Druby & Hildabrand, LLP in the amount of $27,500 (representing a 25% contingent fee) b. Reimbursement to Nestico, Druby & Hildabrand, LLP for litigation costs/expenses in the amount of $493.83. C. Reimbursement to Timothy and Lisa Swink for mediation fees in the amount of $420.00. d. Proceeds to be held in escrow by counsel for Petitioners for payment of the Primax medical subrogation lien in the amount of $2,894.34. e. Structured settlement with Erie Insurance Exchange to provide the following structured payments: 1. Payment due at the time of settlement $31,308.17 (for payment of attorney fees, costs and medical lien). (as represented by paragraphs a-d above). 2. American General Life Insurance Company will provide the periodic payments according to the following schedule to Emily Swink: $7,500 guaranteed lump sum, payable on November 24, 2014 (age 18) $27,855 guaranteed lump sum, payable on November 24, 2017 (age 21) $27,855 guaranteed lump sum, payable on November 24, 2018 (age 22) $27,855 guaranteed lump sum, payable on November 24, 2019 (age 23) $27,855 guaranteed lump sum, payable on November 24, 2020 (age 24) $27,855 guaranteed lump sum, payable on November 24, 2021 (age 25) The payments are guaranteed. 3. Petitioners, through counsel, are to satisfy any and all legitimate subrogation liens from the settlement proceeds held in escrow for the benefit of Emily A. Swink. 4. Petitioners, individually and collectively, are hereby authorized to execute the Settlement Agreement and Release attached t WV L? AON LCH -jHi JO EMILY A. SWINK, a minor, by TIMOTHY M. and LISA A. SWINK, PENNSYLVANIA parents and natural guardians, and TIMOTHY M. and LISA A. SWINK in their own right, Plaintiffs V. GREGORY SHEFFER and DEBI SHEFFER, husband and wife, Defendants : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, NO. 05-3396 CIVIL CIVIL ACTION - LAW IN TRESPASS JURY TRIAL DEMANDED PRAECIPE TO SETTLE AND DISCONTINUE Kindly mark the above action settled and discontinued. ' d Date: 3,0 Respectfully submitted, NESTICO, DRUBY & HILDABRAND, L.L.P. i By: arl R. Hildabrand Attorney I.D. No. 30102 840 E. Chocolate Avenue Hershey, PA 17033 (717) 533-5406 Telephone (717) 533-5717 Fax Attorney for Plaintiffs CERTIFICATE OF SERVICE I, Karl R. Hildebrand, Esquire of the lave firm Nestico, Druby & Hildabrand, LLP, hereby certify that I served a true and exact copy of the foregoing document referenced to the foregoing action by First Class Mail, Postage prepaid, this J o day of Novembere 2007, on the following: Jeff Shipman, Esquire Johnson, Duffie, Stewart & Weidner 301 Market Street PO Box 109 Lemoyne, PA 17043-0109 4 R. arl Hildabrand