Loading...
HomeMy WebLinkAbout02-3159IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA ALEXIS MILLER, by her Mother, TAMMY MILLER, Petitioners Vo JOSEPH FOTOS and LIBERTY MUTUAL: INSURANCE COMPANY, : Respondents No. o ;t. ~ ~ ffq Civil 20 CIVIL ACTION - LAW PETITION FOR APPROVAL OF SETTLEMENT PETITION REGARDING Al.EXIS MI1J ~ER. A MINOR. TO COMPROMISE ACTION AND FOR APPROVAL OF SETTLEMENT AND NOW, comes your Petitioner, Alexis Miller, a minor, by her mother, Tammy Miller, and files this Petition to Compromise Action and for Approval of Settlement, and avers the following in support thereof: 1. Alexis Miller, a minor, with a birth date of July 6, 1994, resides with her mother, Tammy Miller, at 421 Garden Drive, Meehanicsburg, Pennsylvania 17055. 2. Tammy Miller is the mother and custodial parent of Alexis Miller. 3. Respondent, Joseph Fotos, is an adult individual who resides at 349 East Meadow Drive, Mechanicsburg, Pennsylvania, 17055. 4. Liberty Mutual Insurance Company is an insurance company with a place of business at 18 Sentry Park West, Suite 200, Blue Bell, Pennsylvania 19422. 5. This Petition is filed as a result of a motor vehicle accident which occurred on April 11, 2001, at approximately 8:10 p.m., at the intersection of South Market Street and the Cumberland Parkway in Mechanicsburg, Cumberland County, Pennsylvania. 6. At that time, Alexis was a passenger in her mother's vehicle. The Miller vehicle was struck by a vehicle operated by Joseph Fotos. The Miller vehicle was proceeding with the right of way along Market Street when the Fotos vehicle proceeding in the opposite direction on Market Street cut in front of the Miller vehicle while making a left turn in an unsafe manner. 7. As a result of the accident, Alexis Miller sustained a ruptured intestine and appendix which was treated at the Hershey Medical Center. 8. Alexis has made a complete recovery firom her injuries. 9. Now and at the time of the accident, Alexis was under the care, custodianship and control of her mother, Co-petitioner Tammy Miller. 10. At the time of the accident, Joseph Fotos was insured by an automobile insurance policy issued by Liberty Mutual Insurance Company. Said policy had a policy number of AO2281679605-00. 11. Liberty Mutual, on behalf of Fotos, has offered to compromise the claim against him pursuant to the present and periodic payments of Seven Thousand Dollars ($7,000.00) forthwith, followed by ($12,000.00) to be paid on July 6, 2012, followed by a payment of Twenty Thousand Seven Hundred Ninety Dollars and Ninety-five Cents ($20,790.95) to be paid on July 6, 2019. 12. Petitioners believe this settlement to be fair and in the best interest of Alexis. 2 13. The legal fees and costs charged here total $3,000.00. 14. All of Petitioners and Respondents respectfully request that Petitioners be authorized to execute the Release attached hereto as Exhibit A. WHEREFORE, Petitioners pray this Honorable Court to enter an Order compromising this claim approving this settlement. J~-fl~>h~U. 0~tz~'~ squ~re I.IX No. 32958 Killion & Metz 214 Pine Street Harrisburg, PA 17101 (717) 232-0879 Counsel for Plaintiffs/Petitioners I, Tammy Miller, depose and say, subject to the penalties of 18 Pa.C.S.A., Section 4904, relating to unswom falsification to authorities, that the facts set forth in the foregoing Petition for Minor's Compromise are true and correct to the best of my knowledge, information and belief. Tammy Miller (Mother of Alexis Miller) "Claimant" "Insurer" RECITALS Settlement Agreement and Release This Settlement Agreement and Release (the "Settlement Agreement") is made and entered into this ~ day of ,20__, by and between: Alexis Miller, by and through Liberty Mutual Insurance Company A. On or about April 11, 2001, Claimant was injured in an accident occurring at (Location of Accident). Claimant alleges that the accident and resulting physical and personal injuries arose out of certain alleged negligent acts or omissions of Stephen Fotos ("Defendant"), and has made a claim seeking monetary damages on account of those injuries. B. Insurer is the liability insurer of the Defendant, and as such, would be obligated to pay any claim made or judgment obtained against Defendant which is covered by its policy with Defendant. C. The parties desire to enter into this Settlement Agreement in order to provide for certain 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 conditions set forth below. AGREEMENT The parties agree as follows: 1. Release and Discharge In consideration of the payments set forth in Section 2, Claimant hereby completely releases and forever discharges Defendant and Insurer from any and all past, present or future claims, demands, obligations, actions, causes of action, wrongful death claims, rights, damages, costs, losses of services, expenses and compensation of any nature whatsoever, whether based on a tort, contract or other theory of recovery, which thc Claimant now has, or which may hereafter accrue or otherwise be acquired, on account of, or may in any way grow out of the incident described in Recital A above, including, without limitation, any and all known or unknown claims for bodily and personal injuries to Claimant, or any future wrongful death claim of Claimant's representatives or heirs, which have resulted or may result from the alleged acts or omissions of the Defendant. This release and discharge shall also apply to Defendant's and Insurer's past, present and future officers, directors, stockholders, attorneys, agents, servants, representatives, employees, subsidiaries, affiliates, partners, predecessors and successors in interest, and assigns and all other persons, firms or corporations with whom any of the former have been, are now, or may hereafter be affiliated. This release, on the part of the Claimant, shall be a fully binding and complete settlement among the Claimant, the Defendant and the Insurer, and their heirs, assigns and successors. The Claimant agrees to defend, indemnify and hold the Defendant and Insurer harmless from and against all such claims, demands, obligations, actions, causes of action, damages, costs and expenses. The Claimant acknowledges and agrees that the release and discharge set forth above is a general release. Claimant expressly waives and assumes the risk of any and all claims for damages which exist as of this date, but of which the Claimant does not know or suspect to exist, whether through ignorance, oversight, error, negligence, or otherwise, and which, if known, would materially affect Claimant's decision to enter into this Settlement Agreement. The Claimant further agrees that Claimant has accepted payment of the sums specified herein as a complete compromise of matters involving disputed issues of law and fact. Claimant assumes the risk that the facts or law may be other than Claimant believes. It is understood and agreed to by the parties that this settlement is a compromise of a doubtful and disputed claim, and the payments are not to be construed as an admission of liability on the part of the Defendant, by whom liability is expressly denied. 2 2. Payments In consideration of the release set forth above, the Insurer on behalf of the Defendant agrees to pay to the individual named below ("Payee") the sums outlined below: A. Immediate cash: $7,000.00 B. Periodic Payments made according to the schedule as follows (the "Periodic Payments"): Payee: Alexis Miller 1. $12,000.00 Lump Sum, guaranteed, payable on 07-06-2012. 2. $20,790.95 Lump Sum, guaranteed, payable on 07-06-2019. All sums set forth herein constitute damages on account of personal injuries and sickness, within the meaning of Section 104(a)(2) of the Internal Revenue Code of 1986, as amended. 3. Claimant's Riohtq to Payments Claimant acknowledges that the Periodic Payments cannot be accelerated, deferred, increased or decreased by the Claimant; nor shall the Claimant have the power to sell, mortgage, encumber, or anticipate the Periodic Payments, or any part thereof, by assignment or otherwise. 4. Claimant's Beneficiary Any payments to be made after the death of any Payee pursuant to the terms of this Settlement Agreement shall be made to such person or entity as shall be designated in writing by the Payee to the Insurer or the Insurer's Assignee. If no person or entity is so designated by the Payee, or if the person designated is not living at the time of the Payee's death, such payments shall be made to the estate of the Payee. No such designation, nor any revocation thereof, shall be effective unless it is in writing and delivered to the Insurer or the Insurer's Assignee. The designation must be in a form acceptable to the Insurer or the Insurer's Assignee before such payments are made. Primary Beneficiary and Relationship: The Estate of Alexis Miller 5. Consent to Qualified Assignment Claimant acknowledges and agrees that the Defendant and/or the Insurer may make a "qualified assignment", within the meaning of Section 130(e) of the Internal Revenue Code of 1986, as amended, of the Defendant's and/or the Insurer's liability to make the Periodic Payments set forth in Section 2 to Liberty Assignment Corporation ("the Assignee"). The Assignee's obligation for payment of the Periodic Payments shall be no greater than that of the Defendant and/or the Insurer immediately preceding the assignment of the Periodic Payments obligation. Any such assignment, if made, shall be accepted by the Claimant without right of rejection and shall completely release and discharge the Defendant and the Insurer from the Periodic Payments obligation assigned to the Assignee. The Claimant recognizes that, in the event of such an assignment, the Assignee shall be the sole obligor with respect to the Periodic Payments obligation, and that all other releases with respect to the Periodic Payments obligation that pertain to the liability of the Defendant and the Insurer shall thereupon become final, irrevocable and absolute. It is further agreed that Liberty Mutual Insurance Company, rated A+ (Superior) by A.M. Best, will issue a Surety Bond to guarantee the performance of Liberty Assignment Corporation and Liberty Life Assurance Company of Boston. 6. Right to Purchase an Annuity The Defendant and/or the Insurer, itself or through its Assignee, reserve the right to fund the liability to make the Periodic Payments through the purchase of an annuity policy from Liberty Life Assurance Company of Boston ("Annuity Issuer"). The Defendant, the Insurer or the Assignee shall be the sole owner of the annuity policy and shall have all rights of ownership. The Defendant, the Insurer or the Assignee may have Liberty Life Assurance Company of Boston ("Annuity Issuer") mail payments directly to the Payee. The Claimant shall be responsible for maintaining a current mailing address for Payee with Liberty Life Assurance Company of Boston ("Annuity Issuer"). 4 7. Discha e of Obli ation The obligation of the Defendant, 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 Agreement. 8. _Attorney's Fee~ Each party hereto shall bear all attorney's fees and costs arising from the actions of its own counsel in connection with this Settlement Agreement, the matters and documents referred to herein, and all related matters. 9. Representation of Comprehension of Document In entering into this Settlement Agreement, the Claimant represents that Claimant has relied upon the advice ofhar attorney, who is the attorney of bar own choice, concerning the legal and income tax consequences of this Settlement Agreement; that the terms of this Settlement Agreement have been completely read and explained to Claimant by her attorney; and that the terms of this Settlement Agreement are fully understood and voluntarily accepted by Claimant. 10. WarranW of Capacity to Execute Agreement Claimant represents and warrants 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 the Claimant has the sole right and exclusive authority to execute this Settlement Agreement and receive the sums specified in it; and that the Claimant has not sold, assigned, transferred, conveyed or otherwise disposed of any of the claims, demands, obligations or causes of action referred to in this Settlement Agreement. The parties agree that neither they nor their attorneys or representatives shall reveal to anyone, other than as may be mutually agreed to in writing, any of the terms of this Settlement Agreement or any of the amounts, numbers or terms and conditions of any sums payable to Payee hereunder. 5 12. This Settlement Agreement shall be construed and interpreted in accordance with the laws of the State of Pennsylvania. 13. Additional Documents All parties agree to cooperate fully and execute any and all supplementary documents and 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. 14. _Entire Aereement and Successors in Interest This Settlement Agreement contains the entire agreement between the Claimant 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 representatives, heirs, successors and assigns of each. 15. Effectiveness This Settlement Agreement shall become effective immediately following execution by each of the parties. Claimant Alexis Miller, By and through By: Date: Claimantts Attorney Jospeh Metz By: Date: Insurer: Liberty Mutual Insurance Company By: Date: Title: 7 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA ALEXIS MILLER, by her Mother, TAMMY MILLER, Petitioners Vo JOSEPH FOTOS and LIBERTY MUTUAL INSURANCE COMPANY, Respondents No. 0a-- 3/~'~ Civil 20 CIVIL ACTION - LAW PETITION FOR APPROVAL OF SETTLEMENT AND NOW, this ~A~ day of ~/~ , 2002, it is hereby ORDERED and DECREED that a hearing on the~ Peri'on of Alexis Miller and Tammy Miller for Minor's Compromise is hereby sebeduled for ~,~O o'clock on /~.~~, 2002, in Courtroom Number ~ of the Cumberland County Courthouse, One Courthouse Square, Carlisle, Pennsylvania, at which time all interested parties shall appear and be heard. BYTHECOURT: IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA ALEXIS MILLER, by her Mother, TAMMY MILLER, Petitioner Vo JOSEPH FOTOS and LIBERTY MUTUAL: INSURANCE COMPANY, : Respondent : No. Cr~.~6~ Civil 20 CIVIL ACTION - LAW PETITION FOR APPROVAL OF SETTLEMENT AND NOW, this /t97'C~day of ~ ~-- , 2002, it is hereby ORDERED and DECREED that a hearing on etl~/e Petitic~of Alexis Miller and Tammy Miller for Minor's Compromise is hereby scheduled for //-~.~ o'clock on t~,~m~/~ , 2002,~ in CoUrtroom Number ._~ of the Cumberland County Courthouse, One Courthouse Square, Carlisle, Pennsylvania, at which time all interested parties shall appear and be heard. BY THE COURT: COMMONWEALTH OF PENNSYLVANIA IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY ALEXIS MILLER, by her Mother : TAMMY MILLER, : Petitioners : V. : No. 02-3159 Civil 2002 CIVIL ACTION - LAW PETITION FOR APPROVAL OF SETTLEMENT JOSEPH FOTOS and LIBERTY MUTUAL: INSURANCE COMPANY, : Respondents : AND NOW, this~~y of~~002,t~ upon consideration of the Petition to Compromise Action and for Approv~ of Settlement, it is hereby ORDERED and DECREED that the settlement between Respondents and Petitioners, in the mount Seven Thousand Dollars ($7,000.00), followed by payment of Twelve Thousand Dollars ($12,000.00) to be paid on July 6, 2012, and followed by a payment of Twenty Thousand Seven Hundred Ninety Dollars and Ninety-five Cents ($20,790.95) to be paid on July 6, 2019, is APPROVED and payment of the settlement proceeds shall be made to Petitioners as set forth. Petitioners are authorized to execute a Release in favor of Liberty Mulaja_l Insurance Company and Joseph Fotos. Said Release shall be in the form of the Release attached to the Petition as Exhibit A. Three Thousand Dollars ($3,000.00) of the first payment of Seven Thousand Dollars ($7,000.00) will be paid to Joseph U. Metz, attorney for Petitioners, as fees and costs, and the remainder shall be deposited in trust for the support of Alexis Miller with her mother, Tammy Miller, as trustee. BY THE COURT... ~ ,j. KILLION & METZ ATTORNEYS AT LAW HARRISBURG, PENNSYLVANIA 17101 August 29, 2002 The Honorable George E. Hoffer Cumberland County Courthouse One Courthouse Square Carlisle, PA 17013-3387 Re: Miller vs. Fotos No. 02-3159 Civil 2002 Petition for Approval of Minor's Settlement Dear Judge Hoffer: I am enclosing a revised proposed Order in this case along with a self-addressed stamped envelope. Would you please let me know if this proposed Order is inadequate in any way? Thank you for your consideration. Very truly yours, KII,LION & METZ Enclosures