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HomeMy WebLinkAbout05-6290 F:\WP Directories\BWS\Minor's Compromise\Lexis C Hymon.wpd lEXIS C. HYMON, a minor, by : and through her natural parent: and guardian, ERIN lA VIA, Petitioners IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA No. 2005 -t,:1.9D Civil Term v. PROGRESSIVE CASUALTY INSURANCE COMPANY, Respondent CIVIL ACTION - lAW MINOR'S COMPROMISE PETITION FOR lEAVE TO COMPROMISE MINOR'S ACTION Pursuant to Pennsylvania Rule of Civil Procedure No. 2039, Erin LaVia, the natural parent and legal guardian of minor, Lexis C. Hymon, by her attorneys, HANDLER, HENNING & ROSENBERG, llP, by Matthew S. Crosby, Esquire, petition this Honorable Court to enter an Order permitting settlement and compromise of this action, and in support thereof, avers: 1. Lexis C. Hymon was born on February 21, 1999, and is, therefore, 6 years old and a minor. She currently resides at 7 North Fourth Street, Steelton, Dauphin County, PA 17113. 2. Petitioner, Erin LaVia, is an adult individual and said minor's natural parent and legal guardian and she currently resides with Lexis at 7 North Fourth Street, Steelton, Dauphin County, PA 17113. 3. Respondent, Progressive Casualty Insurance Company, is a corporation licensed to sell motor vehicle insurance in the Commonwealth of Pennsylvania and -- Respondent regularly conducts its business in the Commonwealth of Pennsylvania, with offices located inter alia, at 3347 West 12th Street, Suite 100, Erie, Erie County, PA 16505. 4. At all times material hereto, the minor, Lexis C. Hymon, was a passenger in a 1997 Buick operated by the to rtfeasor, Melody Sheppard, bearing Pennsylvania registration number FSG5704 (hereinafter "the tortfeasor's vehicle"). 5. On or about July 8, 2004, at approximately 4:09 p.m., tortfeasor's vehicle was lawfully traveling on Route 114 in Silver Spring Township, Cumberland County, Pennsylvania. 6. At approximately the same time and place, the tOrtfeasor, Melody Sheppard, failed to observe the vehicle in front of her, driven by Donna Livering, and violently struck the rear of Livering's vehicle that had been slowing down to make a turn. 7. As a direct and proximate result of the negligence of the tortfeasor, Ms. Sheppard, the minor, Lexis C. Hymon, suffered multiple injuries including, but not limited to, an acute closed-head injury with a forehead contusion, blunt abdominal trauma, and contusions to her right elbow and right ankle. 8. At all times material hereto the tortfeasor was uninsured. , 9. At all times material hereto said minor was an insured under her mother's automobile insurance policy with Progressive Casualty Insurance Company. Under said policy, minor's mother, Erin LaVia, selected limited-tort coverage. However, the policy also provided Uninsured Motorist coverage of $15,000 per person. , 10. In light of the tortfeasor's uninsured status, Petitioner pursued an Uninsured Motorist claim under her Progressive Casualty Insurance Policy. -2- - 11. Minor, Lexis C. Hymon, had two followup visits with her pediatrician at University Pediatric Associates and has made a full and complete recovery from her collision-related injuries. She was discharged from medical care on or about July 9, 2004, and has required no additional medical attention for her collision-related injuries. 12. After protracted negotiations, Respondent has offered to settle the minor's Uninsured Motorist claim against them for a gross settlement of $1,000.00. Enclosed herewith, made a part hereof, and marked "Exhibit "A," is a copy of Respondent's proposed Uninsured Motorist Release and Indemnity Agreement. 13. Petitioner, Erin LaVia, believes said settlement is in the best interests of her minor daughter and proposes to accept said settlement offer of $1 ,000.00. 14. Matthew S. Crosby, 'Esq., of HANDLER, HENNING & ROSENBERG, LLP, has been the attorney for the minor in this action and he requests reasonable counsel fees of $250.00 for services rendered, plus costs and expenses of $299.08, pursuant to a Contingent Fee Agreement signed by Petitioners. The 25% represents a reduction from the 33-1/3% fee agreement signed by the Petitioner for Lexis C. Hymon. Thus, the total amount requested for attorney's fees and costs is $549.08. (See "Exhibit S," the fee agreement and "Exhibit C," a true copy of the billing summary, attached hereto and made a part hereof). 15. Petitioners request this Honorable Court order a payment of said balance of $450.92 to be placed in an account investing only in securities guaranteed by the United States government or a Federal governmental agency managed by responsible financial institutions, bearing the name of the minor, Lexis C. Hymon, that is marked "Not to be -3- - withdrawn until minor reaches the age of 18 or without the Order of a Court of competent jurisdiction." WHEREFORE, Petitioners request this Honorable Court to: a. Approve the Compromise above-stated; b. Authorize the payment of above-stated fees from funds due the minor; and c. Direct payment of the net funds due, in accordance with the Compromise above-stated. Attorneys for Petitioners Respectfully submitted, Date: PIle/zoos ...--..--.. HANDLER, HE~& ROSENBERG, LLP / BY~ I.D. No.69367 1300 Linglestown Road Harrisburg, PA 17110 (717) 238-2000 ., -4- , vY~ PARENTS' UNINSURED MOTORIST RELEASE & INDEMNITY AGREEMENT Page I of 2 KNOW ALL BY THESE PRESENTS: That the undersigned, individually and as legal parent and guardian of Lexis Hymon, a minor (hereinafter "Releasors"), for the sole consideration of One Thousand and No/IOO Dollars ($1,000.00), receipt of which is hereby acknowledged, have remised, released, and forever discharged and covenant to hold harmless Progressive Casualty Insurance Company, its agents, employees, subsidiaries and affiliates (hereinafter "Releasee") and Releasee's Successors and assigns, from any and all claims, actions, and causes of action, demands, costs, and expenses arising under the above-numbered policy for bodily injury or damages of any kind sustained or that may be hereafter sustained by the said minor, or on behalf of said minor. or by the undersigned. on account of or in any way arising out of an accident caused by an uninsured motorist at or near Hogestown Road, Silver Spring Township, Pennsylvania, on or about July 8, 2004. EXHIBIT I A To procure the payment of the stated consideration, the Releasors hereby declare: that no representations about the nature and extent of the said injuries, disabilities or damages made by any physician, attorney or agent of Releasee, nor any representations regarding the nature and extent oflegalliability or financial responsibility, have induced the Releasors to make this Release & Indemnity Agreement; that this Release is entered into in consideration of all known and unknown injuries, disabilities and damages, and also the possibility that the injuries sustained may be permanent and progressive and recovery therefrom uncertain and indefinite, so that consequences not now anticipated may result from the said accident. The payment made to the undersigned is upon Re1easors warrant that no consideration has been received heretofore from any person, firm or corporation, nor has Releasors released heretofore any person, firm or Corporation from any claim or liability for the said accident. Releasors agree to indemnify and hold harmless said Releasee from any additional sum of money that Releasee may hereafter be compelled to pay on account of the injuries to said minor because of said accident. To the extent of any payment made hereunder, the Releasors agree to hold in trust for the benefit of Releasee all rights of recovery the Re1easors have against any person or corporation who may be liable for damages arising out of the accident indicated above. The Releasee is hereby authorized to take any action which may be desirable or necessary in law or in equity, either in the name of the Releasee or in the name of the Releasors. against any person or organization who may be liable for such injuries or damages. The Releasors covenant and agree to cooperate fully with the Releasee in the presentation of such claims and to furnish all papers and documents necessary in such proceedings, submit to such physical or testimonial examinations as may be required in such proceedings, and to attend court and testify if the Releasee deems it to be necessary PARENTS' UNINSURED MOTORIST RELEASE & INDEMNITY AGREEMENT Page 2 of 2 Witness date Erin LaVia, as mother and natural guardian of Lexis Hymon, a minor. I have read this release and understand it. Signed: date State of: County of: On this _ day of ,2_, before me personally appeared , to me known to be the person(s) who executed the foregoing instrument, and acknowledged this as a free act and deed. IN TESTIMONY WHEREOF, I have hereto subscribed my name and affixed my seal this day of ,2_. My commission expires Notary Public Claim No.: 01?J-/374~1 , . Q.J' fJ ~'j-v j PLAINTIFF'S EXHIBIT B CONTINGENT FEE AGREEMENT I, Erin Lavia, natural parent and guardian of Lexis Hymon, a minor, do hereby retain HANDLER, HENNING & ROSENBERG, LLP., of Harrisburg, Pennsylvania, as my attorneys in this matter to represent me and to process, negotiate, arbitrate a settlement or to institute in my name, any legal proceedings or actions that, in their judgment are necessary, against AN AS-YET UNIDENTIFIED PARTY OR PARTIES as a result of injuries and damages my daughter sustained in an incident that occurred on July 8, 2004. I agree not to settle, negotiate or adjust the above claim or any proceedings based thereon without the written consent of my said attorneys. In consideration of the s.ervices so to be rendered by Handler, Henning & Rosenberg, LLP, I hereby covenant, promise and agree to pay them for their professional services rendered, THIRTY-THREE AND ONE-THIRD PERCENT (33 %%) of whatever sum is recovered as a result of settlement without lawsuit; or FORTY PERCENT (40%) of whatever sum is recovered after lawsuit is filed or in the event of arbitration or mediation. I will reimburse Handler, Henning & Rosenberg, LLP. for any necessary expenses advanced on my behalf in pursuing my claim. Examples of typical expenses include Court filing fees, investigation, auto mileage, photocopies, court reporters, medical records, expert witness fees, etc. If no money is obtained, client will not owe a legal fee or expenses. I also agree to take possession of my medical files at the conclusion of this case. My failure to take possession of these files within 60 days after the conclusion of the case will authorize my lawyers to destroy said files. I agree that HANDLER, HENNING & ROSENBERG, LLP. may associate additional lawyers to assist with this case and I agree to the sharing of fees between lawyers. I understand the terms herein apply to other lawyers associated on this case. I understand that the association of other lawyers does not increase the amount of the attorney fees at the conclusion of the case. Counsel reserves the right to withdraw if they desire to do so, for any reason(s) they deem proper. I acknowledge that I have read, approved and understood the above Contingent Fee Agreement and I acknowledge having received a copy of the same. The terms set forth herein are accepted. \ IN WITNESS WHEREOF, I have hereunto set my hand and seal this 15 day of _ J.l..<.\9 ' 2004. _' 'j .' ( ,,----- y~CJt!() tu~ \~ (SEAL) /Er~avla, natural parent and guardian of Lexis Hymon, a minor r ! ! .~ i.;>' V ~y~ ~ndlllr , llnningrr --1 oSllnbllrg,LLP ATTORNEYS AT LAW 1300 Linglestown Road, Harrisburg. PA 17110 Client No: 209604 Matter: 00000 Attorney: MSC MV Pre-Bill No: 16539 Bill Date: October 27. 2005 Lexis Hyman 7 North 4th Street Steelton, PA 17113 EXPENSES 07/16/2004 CASE 08/26/2004 CASE 08/26/2004 CASE 08/31/2004 CASE 09/17/2004 AUTO 10/07/2004 CASE 10/27/2005 CASE 10/31/2005 COpy 10/31/2005 FAX 10/31/2005 ISI 10/31/2005 MILE 10/31/2005 POS 10/31/2005 POST 10/31/2005 TELE INVOICE PAYMENT DUE UPON RECEIPT Vendor SILVER SPRINGS TWP POLICE; General Case 07/16/2004 $15.00 Vendor HERSHEY MEDICAL CENTER; General Case 15.00 Vendor 8.80 Fax 19.80 Costs Costs $11.84 11.84 9.93 TOTAL EXPENSES $299.08 I EXHIBIT (~ $299.08 Total due this invoice VERIFICATION I, ERIN LaVIA, natural parent and guardian of LEXIS C. HYMON, minor, hereby verify that the statements made in the foregoing pleading are true and correct to the best of my knowledge, information, and belief. I understand that false statements herein are made subject to the penalties of 18 Pa. C.SA, Section 4904 relating to unsworn falsification to authorities. o ~V l U~rn ( L I()~ ERIN LaVIA, natural parent and guardian of LEXIS C. HYMON, a minor DATE: 1;:;>)'5ILOC'5' N (J ~ 1. 0 t II( ,(\ .., (9 ~ -... ]-J I -... W ~ - D ~ :"" .~ 1-_.' , " . LEXIS C. HYMON, a minor, by and through her natural parent and guardian, ERIN LAVIA, PETITIONERS IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. PROGRESSIVE CASUALTY INSURANCE COMPANY, RESPONDENT 05-6290 CIVIL TERM ORDER OF COURT AND NOW, this L" day of December, 2005, IT IS ORDERED: (1) Approval of the settlement of this minor's claim for $1,000 for Lexis C. Hymon, a minor, born February 21, 1999, IS GRANTED. (2) From the settlement, a counsel fee of $250, IS APPROVED. (3) Costs of $209.36 are approved to be paid to petitioners' counsel. (4) The net proceeds of $540.64 shall be placed in a federally insured interest bearing investment in Fulton Bank, in the name of Lexis C. Hymon, born February 21, 1999. (5) The account shall contain the following notation: "NO WITHDRAWAL CAN BE MADE PRIOR TO LEXIS C. HYMON, BORN FEBRUARY 21,1999, OBTAINING HER MAJORITY EXCEPT BY AN ORDER OF A COURT OF COMPETENT JURISDICTION." (6) Erin LaVia is authorized to sign any release necessary to effectuate this settlement, and to then settle and satisfy the docket. (7) Counsel for petitioners, Matthew S. Crosby, Esquire, shall file with the Prothonotary, and forward a copy to this chambers, proof of compliance with this order. By the Court, "'7 I/f~e\ t ~Dc.5 t\o..~ e AA'atthew S. Crosby, Esquire / , For Petitioners Edgar B. Bayley, J. (' . ~ :sal .,.. i.~ <::. \-_. 'U(.J }f r~~ i"?r.', .~ff~ 1..11(-'- =--lU u..::J: .....- \5 N C'-! .;0 x "'" o N W W Cl o.n = = <'" --) () ,- -, LEXIS C. HYMON, a minor, by : and through her natural parent : and guardian, ERIN LA VIA, Petitioners IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA No. 20056290 Civil Term v. PROGRESSIVE CASUALTY INSURANCE COMPANY, Respondent CIVIL ACTION - LAW MINOR'S COMPROMISE PROOF OF DEPOSIT AND NOW, comes the Petitioner,' by and through her attorneys, HANDLER, HENNING and ROSENBERG, LLP by Matthew S. Crosby, Esq., and attaches the Proof of Deposit for the minor's settlement proceeds that were deposited for the minor on April 25, 2006, into a Fulton Bank 25-month-term Certificate of Deposit account, as evidenced by Fulton Bank's Certificate of Deposit Terms and Conditions - Summary, and pursuant to the December 19, 2005, Court Order signed by The Honorable Edgar B. Bayley, Judge, both made a part hereof and marked, "Exhibit A." BY: Matthew S. Crosby, Esq. Atty. 10 No. 69367 Date: r;; J \ ~ \ Z.OO~ Attorneys for Petitioners .-- Clndler. . . 'Inning li I osenberg ATTORNEYS AT LAW HARRISBURG OFFICE 1300 Unglestown Road Harrisburg, PA 171 10 717 -238-2000 1-800-422-2224 717-233-3029 (fax) Leslie B. Handler. Retired W. Scott Henning David H Rosenberg IPA. FL) Carolyn M. Anner (PA. NY. RN) Matthew S. Crosby fPA. NJ) Gregory M. Feather (PA. NJ) Stephen G. Held Jason C. Imler LANCASTER OFFICE 140A E King Street Lancaster, PA 17602 717-431-4000 April 21, 2006 www.HHRLaw.com LorieS@HHRLaw.com Robin Strauser Fulton Bank Third and Locust Streets Harrisburg P A 17101 Dear Robin: Enclosed you will find a completed Retail Account Agreement to open a new account in the name of: Lexis Hymon Tax Identification # 185-78-3129 This deposit in the amount of $540.64 shall be placed in a College Savings Plan Account marked not to be withdrawn without a court order until Lexis reaches the age of 18. Her date of birth is February 21, 1999 which means these funds may not be released until February 21, 2017. Thank you for your immediate attention to this matter. 5k~11~ A S1~ Lorie A. Snyder Assistant Administrator BANK CERTIFICATION:: Term of CD: 'd S me>'\ +-v, Type of Account Opened '1 50 (hon-+I-) CD Interest Rate L{ . fa l-( Account # Olr;} - OJ Y 3) C4 Withdrawal Restrictions :2 I d. "'Joe> >:7 Lf 1'2.5 , OC. Amount of Deposit $ 5Jt G Lj _ ~. rt Order Received __ Account Opened J). ~ -p A , . .. Date 4/2 <; Lo c. / v~ EXHIBIT A ~ ." Fulton Bank Cl\P1'tAL OIVlSION . UNCASTER/CII&:S'I1lt OIVI5IO"," DkOVIRS BANK DIVISION . GREAT V"u.n DIVISION Downtown Harrisburg CERTIFICATE OF DEPOSIT TERMS AND CONDITIONS, SUMMARY Certificate of Deposit Type: Renewed CD #: I r Account No.: ! Issue Date: Maturity Date: Principal Amount: Interest Rate: Annual Percentage Yield: i f " '. , I , 't Registered Holder Name(s) and Address: LEXIS HYM:JN, COURT ORDERED ERIN LAVIA, GUARDIAN NO WD TILL MAJ 2/21//1 CASE # 05-6290 CIVIL TER-l 19 N HARRISBURG STREET STEELTON, PA 17113 Interest Distribution Method: Deposit to Account Savings Checking Add to Principal Issue Check Frequency of Payment: Tax ID Number(s): LEXIS #185-78-3129 Individual(s) Sole Proprietor ERIN # l"Ilo - ~l..p -~OO'? Partnership Corporation Lodge/Similar Org. Bus. Trust Ltd. Liability Co. TJ Combined Statement, Transaction Account Number Fulton Bank acknowledges receipt of the above-described deposit, subject to collection of any portion thereof made in other than cash, in accordance with the Rules and Regulations for Certificates of Deposit. Fulton Bank Py: Authorized Signature Christine Delgado ,iWe have received a copy of the Rules and Regulations For Certificates of Deposit and agree, on behalf of all Registered Holders, to the terms and conditions of the certificate of deposit. Non-Individuals: Name IRle ~Ignature .~~hature {seconaary} Name Title ::Signature ~::~~nawre (seaJI1Csry) Name T~1e ~Ignalure Un.der penalties of perjury, I certify that: 1. The number shown on this form Is my correct taxpayer identification number (or I am waiting for a number to be issued to me), and 2. I am not SUbject to backup withholding because: (a) I am exempt from backup withholding. of (b) I have not been notified by the Internal Revenue Service that I am subject to backup withholding as a result of a failure to report all interest or dividends, or (c) the IRS has notified me that I am no longer subject to backup withholding. .~.". ',. . 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