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Frank W. Michell; Mary Christine Michell v. the United States of America; Courntey Nunez; and Does 1 Through

September 6, 2011

FRANK W. MICHELL; MARY CHRISTINE MICHELL; CHRISTOPHER DAMITZ; LORI NUNEZ AND LUIS
NUNEZ, IV, AS INDIVIDUALS,
PLAINTIFF,
v.
THE UNITED STATES OF AMERICA; COURNTEY NUNEZ; AND DOES 1 THROUGH 50, DEFENDANT.



The opinion of the court was delivered by: Honorable Barry Ted Moskowitz United States District Judge

ORDER GRANTING MOTION FOR DETERMINATION OF GOOD FAITH SETTLEMENT AND RELATED CROSS-CLAIMS AND THIRD-PARTY CLAIMS

Cross-Defendant Christopher Damitz and Third-Party Defendants Brian Johnson, Frank Modica, and Phi Huu (David) Nguyen ("Settling Defendants") have filed a motion for determination of good faith settlement under Cal. Civ. Proc. Code § 877.6. For the reasons discussed below, the motion is GRANTED.

I. BACKGROUND

This litigation arises out of a series of accidents on August 27, 2006, on State Route 94, in San Diego County. Frank Modica, who was riding a motorcycle, was involved in a collision with a bicyclist. The United States Border Patrol arrived at the scene of the accident and, according to Plaintiffs, parked their vehicles in such a manner as to unreasonably block the road and traffic. A group of motorcycle riders, including Plaintiffs and the Third-Party Defendants, came upon the scene at different times and crashed due to the blockage. Luis S. Nunez, III, suffered fatal injuries, and Frank W. Michell and Christopher Damitz suffered nonfatal injuries.

On February 26, 2009, Frank W. Michell, Mary Christine Michell, and Christopher Damitz filed their complaint against the United States, alleging negligence and the creation of a dangerous condition on public property. On March 9, 2009, Lori Nunez and Luis Nunez, IV, filed their action against the United States, asserting claims for negligence and wrongful death. The cases were subsequently consolidated.

On January 20, 2010, the United States filed a cross-complaint against Christopher Damitz and Frank Michell and a third-party complaint against Frank Modica, the Executor or Administrator of the Estate of Luis Nunez III, Phi Huu Nguyen, Jorge A.C. Clements, John West, Robert Lou, Brian K. Johnson; and Mauricio Villareal. The United States alleges that the cross-defendants and third-party defendants engaged in behavior that caused the death, injury, and damages of Plaintiffs. Specifically, the United States alleges that they were engaged in dangerous street-racing on April 27, 2006, and were speeding east-bound on State Route 94, in related but sometimes briefly separated packs, toward the Modica-bicyclist collision site. The United States brought claims for negligence, indemnity and contribution, apportionment, and declaratory relief.

On February 18, 2010, third-party defendant John West filed his own counter-claim against the United States and cross-claims against the third-party defendants, seeking indemnity based on equitable principles of comparative fault.

On April 1, 2011, the Settling Defendants brought a motion for determination of good faith settlement. In an order filed on May 31, 2011, the Court denied the motion because the proposed settlement was contingent on the Court issuing an order barring any future claims, arising from or related to the accident, against the Settling Defendants by any party to this litigation or anyone else. The Court explained that it did not have the authority under Cal. Civ. Proc. Code § 877.6 to issue such a bar order.

The Settling Defendants have renewed their motion for a determination of good faith settlement but no longer seek a broad bar order.

The material terms of the revised settlement agreement (Ex. A to Molinari Decl.) provide:

* Each of the Settling Defendants will pay their policy limit amount of $30,000.00 to the United States Treasury.

* The United States agrees that Settling Defendants shall be released and discharged from further exposure to liability or potential liability for indemnity and contribution.

* Upon this Court's entry of an order determining that the settlement is in good faith, the United States shall dismiss with prejudice the Settling Defendants from their cross-complaints and third-party complaints.

* In exchange for the payments of the policy limits, the United States shall release and forever discharge the Settling Defendants (Christopher Damitz as a cross-defendant only) from any and all past, present, or future claims relating to this action. (The release does not restrict or waive any possible defenses, offsets, or other matters ...


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