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HomeMy WebLinkAbout06-3118 IN THE COURT OF COMMON PLE S OF CUMBERLAND COUNTY, PENNSY ANIA IN RE: TERRY OTT, JR., a minor By Parent and Natural Guardian, MARTY ANN RODGERS Docke No. B"<s II Yo..oJ fer/>\.. PETITION FOR LEAVE TO COMPRO ISE MINOR'S CLAIM Petitioner, Marty Ann Rodgers, natural guardian of Ter Ott, Jr., by her attorney Edmund J. Berger, and pursuant to Pennsylvania Rules of Civ I Procedure 2039 and/or 20 Pa.C.S.A. ~~ 5144(10) and 3323 , petitions this Court to en er an order approving the compromise and settlement of the claim of Terry Ott, Jr., a d in support of the peti- tion avers as follows: 1. Terry Ott, Jr. is a minor, born on December 29, 1 89 and now 16 Y:. years of age. Terry Ott, Jr. resides with his mother and natural guar ian, Marty Ann Rodgers, at 59 West Main Street, Newville, PA 17241. 2. Terry Ott, Jr. was injured on July 6, 2005 while at home exercising with dumbbell weights manufactured by Bollinger, Inc. when the wel ht broke apart and a portion of it struck him above the eye on his eyebrow, resulting n a laceration at his eyebrow. 3. Terry Ott, Jr. sustained a 2.5 em laceration to the ubcutaneous tissue just above his right eye in the area of his eyebrow. Terry was treat in the emergency room in Carlisle with dermapond adhesive. Terry also had a arge bump over his eye for several weeks. A CT Scan was performed and found to b negative. Subsequently, Terry followed up with his family physician and was seen at H rshey Medical Center by Donald R. Mackay, M.D., a plastic surgeon. Appendix A. Dr. Mackay noted the lacera- tion and a small indentation in the area of the scar. However, no further treatment was considered necessary and Terry's scar has substantially abat at this point in time and is largely covered by his eyebrow. Further, most of the hair vering his eyebrow has regrown. 4. The minor has had no treatment for his injuries s nce seeing Dr. MacKay in October 2005. 5. Medical expenses for treatment of Terry were pa d by medical insurance and the subrogation claim is currently being ascertained but is believed to be approxi- mately $270. 6. The manufacture of the dumbbell weight, Bolling r, Inc. has offered Peti- tioner $20,000 in full settlement of this claim. A copy of the rei ase of claim is attached as Appendix B. 7. The Petitioner, Marty Ann Rodgers, is satisfied th t the offer of settlement is just and reasonable and is willing to accept said offer if appr ved by the Court. Peti- tioner believes that such amount fairly and adequately compen ates Terry Ott, Jr. for injuries and expenses, including counsel fees and expenses a the medical lien. 8. No legal action was filed in this matter as settlem nt was reached prior to the filing of any legal action. -2- 9. Terry Ott, Jr. is represented in this matter by Ed und J. Berger who was retained by Marty Ann Rodgers, Terry's mother and natural g ardian, on a 40% contin- gent fee basis, given that this claim was one for products liabi ity. A copy of the fee agreement is attached as Appendix C. In representing minor, counsel has also incurred the following expenses to date: $266.10. 10. Petitioner approves the payment of counsel fee as set forth at Appendix B and legal expenses as set forth in Paragraph Nine above. 11. Petitioner requests that, given that the amount 0 money to be retained by Terry Ott, Jr. is less than $12,000 and that Terry Ott, Jr. is no over 16 years of age, the Court should direct that this amount be paid either directly 0 Terry Ott, Jr. or paid for his benefit to his natural guardian, Marty Ann Rodgers, unti he reaches the age of 18 at which point all remaining amounts should be paid to Te Ott, Jr.. Such disposi- tion of funds is consistent with the provision of Rule 2039((b) ( ) of the Pennsylvania Rules of Civil Procedure. -3- WHEREFORE, Petitioner respectfully requests this Co rt enter an order approv- ing (1) the settlement as set forth in the Release (Appendix B , (2) approving the pay- ment of counsel fees and expenses as set forth in the Contin ent Fee Agreement (Ap- pendix C), and (3) approving payment of the settlement funds less counsel fees, ex- penses, and the medical lien, directly to Terry Ott, Jr. or to his mother and natural guardian, Marty Ann Rodgers for the benefit of Terry Ott, Jr. u til he reaches the age of 18, at which time they should be turned over to Terry Ott, . Edmund J. Attorney I.D. # 2104 Market S reet Camp Hill, PA 7011 -4- VERIFICATION I, the Petitioner, Marty Ann Rodgers, parent and natu I guardian of Terry ott, Jr., a minor, hereby verify that the statements set forth herein re true and correct to the best of my knowledge, information and belief. I am satisfied at the offer of settlement referred to in this Petition for my son, Terry Ott's, injuries is ju t and reasonable and I am willing to accept that offer. I have reviewed the contents 0 the Petition for Compromise and concur with all the facts and statements. I nderstand that intentional false statements herein are made subject to the penalties of 1 Pa. C.S. ~904 relating to unswom falsification to authorities. Date:S' /30/oG ~ Q~:K~ Marty Ann R gena, as Parent and Natural uardian of Terry Otto Jr., Minor CERTIFICATE OF SERVICE I hereby certify that I have this day served the ~ regoing document, Petition for Leave to Compromise Minor's Claim, upon the foil wing persons and in the manner indicated. FIRST CLASS MAIL Mr. Thom Parks Vice President, Corporate Affairs Bell Sports 380 Encinal Street Santa Cruz, CA 95060 Date: May 31, 2006 PENN STATE I!Sl Milton S. Hershey Medical Center . College of Medicine Donald R. Mackay, MD, FACS, FAAP William P. Graham III Professor of Plastic Surgery Professor of Surgery & Pediatrics Chief, Division of Plastic Surgery Penn State CoUege of Medic The Milton S. Hershey Medi al Center Division of Plastic Surgery, 011 500 University Drive, Hershey. PA 17033 October 24, 2005 Edmund J. Berger 2104 Market Street Camp Hill, PA 17011 RE: Teny Eugene Ott MSHMC #: 1008713 DaB: 12/29/89 Dear Mr. Berger, Thank you very much for asking me to see Teny Otto Tel: (717) 531-4340 Fax: (717) 531-4339 As you know this fifteen year old man suffered a laceration above his right yebrow when he was lifting a 10 lb. dumbbell on 7/9/05. Apparently the dumbbell either broke or slippe and Mr. Ott suffered this laceration. He presents to me today for evaluation of this scar. On examination, Mr. Ott is an otherwise healthy 15 year-old. He has lem. aeeration on the right eyebrow. He also has a small indentation in this area. The sear is not very bvious. It is still fairly immature and it is difficult to tell how this is going to mature. We normall wait a year or so before contemplating any revision. The redness of the scar that is evident now wil definitely improve with time. Normally I would evaluate this in a year and would be able to give you a m re definite answer but my impression at this stage is that he is unlikely to benefit from a scar revision. DRM/jem CC: Medical Records Office Files An Equal Opportunity University .. FULL 1. Persons Releasing Claims The persons releasing claims is Terry Eugene Ott, Jr. by h' mother Marty Ann Rodgers and their attorneys Berger Law Firm, P.C., who execu s this on behalf of themselves, their heirs, executors, administrators and assigns. 2. Consideration for This Release This Release is executed in exchange for Twenty Thousand LLARS ($20,000.00). 3. Persons Being Released The persons being released are Kmart Holding Corporatio , BELL SPORTS, INC., and their parents, subsidiaries, affiliates, predecessors, successors, v contractors, consultants, sellers, officers, directors, employees, agen ,attorneys, insurers, and anyone who may be liable on the claims described below. 4. Claims Being Released By this Release, the persons releasing claims hereby release e persons being released, from any and all actions, claims, damages, or liabilities, of any na whatsoever, known or unknown, in connection with any incident or incidents occurring on about July 7,2005 involving a Bollinger 101b DumbelI. This Release shall be broadly nstrued to include, but shall not be limited by including, any and all actions, claims, damage ,or liabilities raised or which could have been raised in the incident. This Release shall be broadly construed to extinguish any cl' , demand, action, cause of action, or liability which the persons releasing claims may now have, own or unknown. 5. Waivers. Representations. Warranties Marty Ann Rodgers represents and warrants that with the sol exception of the representations and promises made herein, neither they nor their co el have relied upon anything said or not said, represented or not represented, done or not one, by the persons being released. Further, the persons releasing claims represent and warrant t if the facts of this case .... turn out to be different than presently believed, the persons releasi claims stipulate that this Release cannot be rescinded or set aside, nor may an action be brou t against the persons being released for affirmative relief. It is further stipulated that the descri tions of the persons being released by category are done for the sole purpose of preventing the !persons releasing claims from bringing any other action, making any other type of claim, or yother type of demand, in regard to the matters referred to in paragraph 4, herein. The perso releasing claims expressly assume the risk of any ambiguity from the descriptions, and agree at summary judgment may be brought and granted on behalf of anyone generally described tho gh not specifically named. As a further inducement for this compromise, the persons releasing laims specifically waive the provisions of section 1542 of the California Civil Code, which reads as follows: "A general release does not extend to claims which the c ditor does not know or suspect to exist in his favor at the time of execu' g the release, which ifknown by him must have materially affected his ettlement with the debtor." 6. Warranty ofOwnershio of Claim The persons releasing claims warrant that they are the sole 0 ers of the claims, actions, causes of action, damages, and alleged liabilities, encompassed by . s Release. Out of the proceeds of this compromise, the persons releasing claims agree to y their own attorneys' fees, their own costs, and any other person who may have any claim to th settlement proceeds. The persons releasing claims agree to defend, indemnify, and hold harml ss the persons being released from any claim, cause of action, action, or liability by any rson with a claim to the settlement proceeds. The persons releasing claims represent that the are no liens, from any health care provider, attorney, or anyone else, concerning this matter 7. DisDOsition ofPendiru! Action The persons releasing claims agree to promptly dismiss with rejudice the entire claim. 8. No Public Dissemination The persons releasing claims agree that the terms of this settl ment, the operative facts which gave rise to the complaint, and the content of any information r material provided by Kmart Holding Corporation and/or BeD Sports, Inc. shall not be released to the media, shall not be released to any other attorneys or any person not associated .th this case, and shall not be provided to any publication which publishes settlements, verdic ,or publications which disseminate litigation-related information. 9. Construction It is stipulated that the parties cooperated in the drafting and reparation of this Release, such that it shall be deemed to be their joint work product, and may ot be construed against one party or another because that party was the sole drafter of a provisio sentence, word, or punctuation. 11. Modifications and Amendments The terms of this Release are contractual, and not a mere rec' . This Release shall not be changed, modified, altered, amended, interlineated, or supplemen d, nor may any covenant, representation, warranty or other provision hereof be waived, except by agreement in writing signed by each and all of the parties hereto. 12. Enforceabilitv The parties hereto stipulate that any dispute arising hereunde shall be decided by binding arbitration before a retired Superior Court Judge of the State of Calif, rnia in the County of Santa Cruz, California. Specifically, the parties hereto waive their respecti e rights to trial by jury. Any dispute arising hereunder shall be decided in accordance with C ifornia law, pursuant to the California Rules of Evidence and California Code of Civil Proc ure. Furthermore, the parties hereto agree that this Release shall constitute a written stipula . on for purposes of enforcement of settlement pursuant to Code of Civil Procedure ~664. ,and that judgment may be entered in accordance with the terms set forth herein. The parties hereto agree that this Release shall be construed ording to and governed by the laws of the State of California. 13. DisDOsition of Settlement Proceeds The persons releasing claims direct the persons being rei d to prepare one settlement check in the amount of Twenty Thousand (520,000.00). They further direct the persons being released to deliver that settlem check to: Edmund J. Berger Berger Law Firm, P.C. 2104 Market Street Camp HiD, PA 17011 The persons releasing claims agree to hold harmless, defend, and in emnify the persons being released in regard to the ultimate disposition and distribution of the 14. Countemarts and Facsimile Sionatures This Release may be executed in counterpart, and signatures transmission shall have the same force and effect as an original si THIS IS A RELEASE. READ IT CAREFULLY BE Dated: Marty Ann Rodgers Dated: Berger Law Firm, P.C. Taxpayer Identification umber (SSN) .,-. . -' Contingent Fee Agreemen~ page I of 4 CONTINGENT FEE AGREEMENT THIS AGREEMENT, entered into this 5th day of Augu ,2005, by and between Jr. BERGER LAW FIRM, P.C. and Terry Eugene Ott, a minor, y Marty Ann Rodgers, Guardian, hereinafter referred to as "Client." WIlNESSETH BERGER LAW FIRM RESPONSIBILITIES The law firm of BERGER LAW FIRM, P.C., will act as Client's attorney in negotiating for a settlement, and in bringing a claim against the manufacturer of a dumbbell weight which injured Terry Ott on July 6, 2005. The anufacturer is believed to be a Company known as Bollinger/Bell. CLIENT RESPONSIBILITIES In return, the Client will meet the following responsibiliti s. l. Client will promptly supply accurate inform tion, as requested by BERGER LAW FIRM, P.C. and cooperate fully, including maid g himself available for meetings with attorneys and for legal proceedings. Client p omises all information supplied will be truthful and accurate. 2. Fee ArraDl!ement and Fee-Related Obliszations . (a) In any claim brought on Client's behalf, to ay to BERGER LAW FIRM, P.C., for its services an amount equal to (40%) of all fund or property accruing to I " Contingent Fee Agreem~ page 2 of 4 Client as a result of BERGER LAW FIRM, P.C.'S services in securing a settlement of these claims or as a result of verdict or judgment. (b) Client agrees not to settle or negotiate e above claim or any proceedings based thereon. (c) If Client terminates this Agreement before overy, Client agrees that BERGER LAW FIRM, P.C., shall be entitled to a fee based u n work done and benefit conferred. (d) Client agrees to read and follow BERG R LAW FIRM, P.C.'s "Instructions to Our Clients." 3. Reimbursem of Costs Associated W' M' Claim In Event of Recoverv. Client agrees to reimburse BERGER LAW IRM, P.C., out of any recovery, in addition to attorneys' fees, all costs and expenses' curred on Client's behalf in order to make the claim. All such costs and expenses will advanced by BERGER LAW FIRM, P.C. as they are incurred. Such costs and expe s include, but are not limited to, filing fees, cost of medical records, copying costs fax costs, long distance telephone costs, expert witness fees and sheriff's service costs. In the event there is no recovery, the Client will not be responsible for any costs or inte st charges. Costs will be repaid to BERGER LAW FIRM, P.C. out of any funds or property collected either by settlement or judgment. Client understands that a subrogation claim may be made by workers' compensation and/or other insurance providers against any am unts recovered by Client in this proceeding. It is specifically understood by Client at the professional fees 2 .~ Contingent Fee Agreemen~ page 3 of 4 provided for in this agreement and the costs incurred by BERG R LAW FIRM, P.C. are not amounts recovered by Client for purposes of any subrog . on claim and that only Client's recovery, after payment of BERGER LAW FIRM'S pr fessional fees and costs, are subject to subrogation claims. The Client has read. and understands this Agreement. Signed on the day and year set forth in the first paragrap of this Agreement. a~~ CLffiNT: 112 Q~f?~ Approved: BERGER LAW FIRM, P.C. By Client's or The Fee I have received a copy of this Contingent Fee Agreemen L!Jtf Initials 3 ~ f'I 1't3 ('\ 1./\ "t~Y\ ~ ~ ~ ~ <.I\C--~ -.1>....1 ~ "'1\ . k -..: 00 I' ~ (\ '" f () r- -.;;;. ~':"" \ ! 2: --\ -<- J:\ ~ ,..., r::;:::> ,;".;,> (:,.,.~ C) -n -I :r.:..., rnp -cr.., :~C;; i~:}t;: ?;~~}~ t-':Y fl -, ~.-.. ~i:J '< ""....-. :V" .~",;. <..> -0 :x ;..,.- r..;; IN RE: TERRY OTT, JR., a minor By Parent and Natural Guardian, MARTY ANN RODGERS : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : 11/'( : 06-42f8 CIVIL TERM ORDER OF COURT AND NOW, this ~ day of June, 2006, a hearing on the within petition for leave to compromise minor's claim shall commence at 9:30 a.m., Wednesday, June 28, 2006, in Courtroom Number 2, Cumberland County Courthouse, Carlisle, Pennsylvania. -- By the Murt, /-;;::::? Edgar B. Bayley, J. Edmund J. Berger, Esquire For Petitioner 4ft ~ f,-1)1-0t.. :sal q.. ~ s t.n ;>-. >-" c-' N ::-:: u.i~2 .-::J (-)(-~.; - :) ri.:..:7': c:: '-1_ _:...:, C"Il- 1'0 r- OO: UJO- I -' :;::;: u:~ -'- ::::1 t- -, U_ '"" =s 0 c:~.) = ........ U IN RE: TERRY OTT, JR., a minor By Parent and Natural Guardian, MARTY ANN RODGERS IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA .3118 06~ CIVIL TERM AND NOW, this ORDER OF COURT ctd-::: day of June, 2006, a hearing on the within petition for leave to compromise minor's claim shall commence at 1 :30 p.m., Wednesday, June 28,2006, in Courtroom Number 2, Cumberland County Courthouse, Carlisle, Pennsylvania. Edgar B. Bayley, J. ~mund J. Berger, Esquire For Petitioner :sal b~ O\,;\'\.: r,....lr~ d !\) o 0 :Oll.j~ 6- i'inr 9Q02 ILI"l'"'' . " J -nil ^O II I....j;\~\.j;; ~J,-,,<..C :itn j':)I.JJ(}-031H =lei -... , IN RE: TERRY OTT, JR., a minor By Parent and Natural Guardian, MARTY ANN RODGERS : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : 06-3118 CIVIL TERM ORDER OF COURT AND NOW, this z.."L.. day of July, 2006, IT IS ORDERED: (1) Approval of the settlement of this minor's claim for $20,000 for Terry Ott, Jr., a minor, born December 29, 1989, IS GRANTED. (2) From the settlement, a counsel fee of $5,000, IS APPROVED. (3) From the settlement, a medical lien minus attorney fees and costs in the amount of $177.66, IS APPROVED. (4) Costs of $265.50, ARE APPROVED. (5) The net proceeds of $14,556.84 shall be placed in a federally insured interest bearing investment at Members 1st Federal Credit Union in Camp Hill, in the name of Terry Ott, Jr., born Decernber 29, 1989. (6) The account shall contain the following notation: "NO WITHDRAWAL CAN BE MADE PRIOR TO TERRY OTT, JR., BORN DECEMBER 29,1989, OBTAINING HIS MAJORITY EXCEPT BY AN ORDER OF A COURT OF COMPETENT JURISDICTION." (8) Marty Ann Rodgers is authorized to sign any release necessary to effectuate this settlement, and to then settle and satisfy the docket. (9) Counsel for petitioner, Edmund J. Berger, Esquire, shall file with the Prothonotary, and forward a copy to this chambers, proof of compliance with this order. . ~ ~nd J. Berger, Esquire For Petitioner :sal o\P 0;~' D ,-y.... C'~.i ;.;- r-, <'~ . .'.- r~.\_'.,12 \.i.,.-; ~. ~)