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Flynn v. Ross

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA


September 28, 2009

TARA FLYNN, BY AND THROUGH HER GUARDIAN AD LITEM, MICHAEL THOMAS FLYNN PLAINTIFF,
v.
MONTE ROBERT ROSS, AN INDIVIDUAL; NORCO, A BUSINESS ENTITY FORM UNKNOWN; NORCO GOODYEAR SERVICE STATION, A BUSINESS ENTITY FORM UNKNOWN; NORCO SERVICE STATION, A BUSINESS ENTITY FORM UNKNOWN; NORCO SERVICE CENTER, A BUSINESS ENTITY FORM UNKNOWN; RUSS M. NORTON, AN INDIVIDUAL; CONESTOGA CONDOMINIUM ASSOCIATION; DOES 1-25, DEFENDANTS.

ORDER RE: PETITION FOR COMPROMISE OF CLAIM OF INCOMPETENT PERSON

Plaintiff Tara Flynn, by and through her Guardian Ad Litem,*fn1 Michael Thomas Flynn ("petitioner"), brought this action alleging negligence, negligence per se, and negligent hiring and retention against defendants Monte Roberts, Norco, Norco Goodyear Service Station, Norco Service Station, Norco Service Center, Russ M. Norton, Conestoga Condominium Association, Norco Loader Services, and Does 1-50. Plaintiff's claims were dismissed against all parties except Monte Robert Ross, Norco Loader Services, Russ M. Norton, and Conestoga Condominium Association. Defendants Norco Loader Services, through its insurance carrier, and the Conestoga Condominium Association agreed to a settlement with petitioner and plaintiff's attorneys over plaintiff's action. On August 28, 2009, petitioner filed a petition to approve the terms of the settlement agreement. Defendants have not filed an opposition to the petition. Before the court is the petition for approval of the settlement agreement reached by the parties.

The action was settled through mediation before Hon. Robert T. Altman (ret.) of ADR Services in Los Angeles, California. (Petition for Compromise of Claim of Incompetent Person ¶ 1.) Defendant Norco Loader Services, through its insurance carrier, has agreed to pay plaintiff the policy limit of $1,000,000. (Id. ¶ 16.) An independent investigation ascertained that there are no assets over and above the insurance policy that would contribute additional funds to the settlement. (Id.) Defendant Conestoga Condominium has agreed to pay $10,000 despite questionable liability in the action.*fn2 (Id.)

Plaintiff's travel insurance company, Global Excel, asserted a medical lien of $435,749.59 at the outset of the case, pursuant to an Irish Travel Policy. (Supplemental Decl. Of Charles G. Warner ¶ 2.) Plaintiff initially believed that Global Excel was willing to accept $8,001.86 of plaintiff's settlement funds in satisfaction of the lien. However, after the filing of this petition Global Excel's attorneys clarified that Global Excel's acceptance of the reimbursement amount*fn3 was conditioned upon petitioner giving up a right to pursue reimbursement for payments he made out of pocket to the Kessler Coma Institute and Barcelona Coma Facility which Global Excel claims are not covered under its policy. (Id.) Since petitioner is unwilling to waive this right, he and Global Excel have agreed that the right of petitioner to recover funds from Global Excel and Global Excel's right to recover any funds from plaintiff's net settlement shall be deferred for decision to the Irish courts.

Under the proposed settlement plaintiff will receive $1,010,000-- $666,545.05 (two-thirds) personally and $343,454.95 (one-third) for attorneys fees and costs. The court has considered all of the papers on file, and has questioned the guardian ad litem and counsel at the hearing on this motion on September 28, 2009, and as a result finds that the proposed settlement is reasonable and in the best interests of all parties.

IT IS THEREFORE ORDERED that plaintiff's motion for approval of compromise of pending claim of an incompetent person be, and the same hereby is, GRANTED.

IT IS FURTHER ORDERED that:

(1) The proposed compromise of the action and disposition of the proceeds of the compromise settlement is hereby approved;

(2) Attorney fees and costs advanced in the total amount of $343,453.95 are hereby authorized to be paid out of the proceeds of the settlement, and the payer shall pay by one or more checks or drafts, drawn payable to the order of the petitioner and petitioner's attorneys. The attorney fees and costs advanced shall be payable as follows:

(a) $139,021.21 to Schaffer, Lax, McNaughton, & Chen

(b) $204,433.74 to Charles W. Warner;

(3) The settlement funds in dispute between Global Excel and petitioner shall be maintained in plaintiff's Trust Account until further order of the Irish Courts;

(4) The balance of $666,545.05 is ordered to be payable to "J.P. Morgan Chase on behalf of Tara Flynn" and deposited in an account. Within 48 hours of receipt of the check or draft described herein above the petitioner must deposit the check or draft in the claimant's name in one or more accounts at: J.P. Morgan Chase, 1999 Avenue of the Stars, Los Angeles, California 90007. Plaintiff's guardian ad litem, petitioner Michael Thomas Flynn, may withdraw funds from the account or accounts in such amounts and at such times as shall in petitioner's sound discretion be in the best interests of plaintiff;

(5) Petitioner is authorized and directed to execute any and all documents reasonably necessary to carry out the terms of the settlement; and

(6) As soon as the High Court of Ireland establishes a "Wardship of an Adult Person With a Disability" for plaintiff, Solicitor John Power and petitioner's current counsel shall take the necessary steps for the transfer of plaintiff's funds to the court administered Wardship in Ireland.


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