Johnson v. United States of America

Filing 54

OPINION AND ORDER ordering, adjudging and decreeing as follows: (1) the 44 original and 52 amended petitions for approval of the proposed settlement for plf Ka.I.P., along with attorneys' fees and litigation costs, and to authorize execution of settlement on behalf of plf Ka.I.P. are GRANTED; (2) the parties' proposed settlement of all of plf Ka.I.P.'s claims against def United States of America is approved, subject to the Justice Department's final approval of the settle ment pursuant to 28 C.F.R 0.172; (3) counsel for def United States shall report to the court whether the settlement is approved as final within 7 days of receiving such decision; (4) the guardian ad litem, Hon. Karen Laneaux, is entitled to a fee of $4,000.00; The guardian ad litem fee is to be paid by plf Ka.I.Ps counsel directly to the guardian ad litem; (5) these consolidated cases are closed administratively. Signed by Honorable Judge Myron H. Thompson on 2/8/16. (djy, )

IN THE DISTRICT COURT OF THE UNITED STATES FOR THE
MIDDLE DISTRICT OF ALABAMA, SOUTHERN DIVISION

COREY JARREL JOHNSON,
Plaintiff,
v.
UNITED STATES OF AMERICA,
Defendant.

AMANDA JO PEACOCK,
Plaintiff,
v.
UNITED STATES OF AMERICA,
Defendant.

KA.I.P., a minor, by and
through her maternal
grandmother, custodian and
next friend, Stephanie
Jones,
Plaintiff,
v.
UNITED STATES OF AMERICA,
Defendant.

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CIVIL ACTION NO.
1:14cv220-MHT
(WO)

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CIVIL ACTION NO.
1:14cv221-MHT
(WO)

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CIVIL ACTION NO.
1:14cv222-MHT
(WO)

OPINION AND ORDER
Pursuant to the Federal Tort Claims Act (FTCA), 28
U.S.C. §§ 1346(b) and 2671-2680, plaintiff Ka.I.P (a
seven-year old) and two other plaintiffs (both adults)
sued

defendant

damages

for

Ka.I.P.

is

United

injuries
pursuing

States

sustained
her

claims

grandmother,

who

court

jurisdiction

has

is

of

also

her

America
in

a

car

through

legal

to

recover

accident.

her

maternal

custodian.

pursuant

to

28

The
U.S.C.

§ 1346(b)(1).
The parties have reached a ‘conditional’ settlement
of all their claims.

Because of the amount of the

settlement, counsel for the United States must obtain
final

approval

from

a

higher

level

in

Department pursuant to 28 C.F.R. § 0.172.

the

Justice

In addition,

because Ka.I.P. is a minor, the parties have asked the
court

to

government

approve
counsel

the
may

settlement;
obtain

the

and,

needed

because

additional

administrative final approval only after the court has
2

given

its

approval,

the

parties

have

requested

the

court’s approval in advance of the Justice Department’s
final

approval

approval.

and

on

the

condition

of

that

final

Based on the representations and evidence of

the parties made during a pro ami hearing on January
25,

2016,

court

and

will

for

approve

the

reasons

the

explained

proposed

below,

settlement,

the

albeit

conditionally as requested, as to Ka.I.P.

I.
“Under the FTCA, the applicable law is the whole
[substantive]

law

omission occurred.”

of

the

State

where

the

act

or

Schippers v. United States, 715

F.3d 879, 887 n.8 (11th Cir. 2013) (internal citations
omitted).

Because

the

“act

or

omission”

at

issue

occurred in Alabama, Alabama substantive law applies.
See id.

“Alabama law requires that a court hold a

fairness hearing before a minor plaintiff’s case may be
settled.”

Adams v. Criswell, 2014 WL 813142, at *1

3

(M.D. Ala. 2014) (Thompson, J.) (citing Large v. Hayes
By and Through Nesbitt, 534 So. 2d 1101, 1105 (Ala.
1988)).

And, because this is a rule of substantive

law, it must be applied here.

Burke v. Smith, 252 F.3d

1260, 1266 (11th Cir. 2001).

To have binding effect,

the hearing must involve “an extensive examination of
the facts, to determine whether the settlement is in
the best interest of the minor.”

Large, 534 So. 2d at

1105; see also Adams, 2014 WL 813142, at *1; William E.
Shreve, Jr., Settling the Claims of a Minor, 72 Ala.
Law. 308 (2011).

II.
Ka.I.P.’s claims arise out of a car accident that
occurred on March 27, 2012, on Highway 134 in rural
Coffee

County,

following:

Alabama.

simple

Her

negligence;

claims

include

wantonness;

the

negligent

entrustment; negligent and wanton hiring and retention;
and failure to supervise and train.

4

She contends that

an employee of the United States Navy negligently drove
his

car

into

one

Ka.I.P.’s

injuries

fracture,

spleen

in

which

included
and

she

a

liver

was

femur

a

passenger.

fracture,

lacerations,

elbow

pulmonary

contusions, and a shattered left kidney that may no
longer have any function.

The two adult plaintiffs who

were in the car with her were also injured.

The United

States denies liability as well as the alleged extent
of the damages from the accident.
The parties propose to settle Ka.I.P.’s claims for
$ 1 million, as part of a $ 4 million proposed total
settlement of all three plaintiffs’ claims.

Ka.I.P.’s

attorneys seek 25 % of her $ 1 million settlement, or
$ 250,000.00,

for

attorneys’

fees,

as

well

as

$ 1,252.16 in reimbursement for expenses incurred in
filing and prosecuting this action.
Based on the representations of the parties made
prior

to

the

pro

ami

hearing,

the

court,

for

two

reasons, appointed a guardian ad litem, Honorable Karen

5

Laneaux, to evaluate and advocate for Ka.I.P.’s best
interest.

First,

the

plaintiffs’

attorneys--who

represent all three plaintiffs and have determined the
division
amongst

of

the

their

proposed

lump-sum

clients--arguably

total

face

a

settlement
conflict

in

dividing the settlement proceeds, because their clients
potentially have ‘zero sum’ competing interests--that
is, one plaintiff’s gain could be another plaintiff’s
loss.

Second, because Ka.I.P.’s grandmother, her legal

custodian, is also the mother of Ka.I.P.’s mother, one
of the other plaintiffs who will share in the lump-sum
settlement, her grandmother has an arguable conflict as
well, for her grandchild’s loss could be her daughter’s
gain.
In addition, the parties were not in agreement as
to who should bear the guardian ad litem’s fees and
expenses.
plaintiffs’

The

court

counsel

will

concluded
earn

$ 1

that,
million

because
from

the

settlement of all claims in this litigation, and given

6

the

injuries

Ka.I.P’s

suffered

counsel

by

bear

Ka.I.P.,

the

fees

it

and

is

fair

expenses

that

of

the

guardian ad litem.
At the later pro ami hearing, the court heard form
Ka.I.P.’s grandmother, the court-appointed guardian ad
litem, and the attorneys for all parties.

The court

received testimony and evidence related to liability,
the injuries sustained by Ka.I.P., and the costs of
Ka.I.P.’s medical care.

The parties provided the court

with their views of the facts surrounding the accident.
According
accident,

the

to

an

Naval

eyewitness
employee

uninvolved

attempted

to

in

the

pass

an

18-wheeler truck in an area with poor visibility and
hit

head-on

the

car

occupied

by

Ka.I.P.,

and,

immediately prior to the time of the wreck, the Naval
employee had been driving his vehicle in an erratic
manner and in excess of the speed limit.

The Naval

employee denies operating his vehicle in an unlawful
manner.

7

Ka.I.P’s

grandmother,

with

whom

Ka.I.P.

resides,

testified to the extent of Ka.I.P.’s injuries and her
current condition.
the

settlement

She also gave her understanding of

and

expressed

her

belief

that

the

settlement is in Ka.I.P.’s best interest.
The

court-appointed

explaining

her

settlement,

guardian

understanding

provided

information

injuries and medical treatment.
that

the

court

approve

the

ad
of

litem,
the

concerning

after

proposed
Ka.I.P.’s

She also recommended

settlement

as

fair

and

reasonable and in Ka.I.P.’s best interest, based on:
the

seriousness

of

Ka.I.P.’s

injuries;

the

costs

of

Ka.I.P.’s medical expenses; and other expenses Ka.I.P.
is likely to incur as a result of her injuries.
guardian
trust’

ad

will

litem
be

explained

used

to

that

protect

a

The

‘special-needs

settlement

proceeds

awarded to Ka.I.P. and that it is set up in such a way
as not to impact the approximately $ 700 that Ka.I.P,

8

who

is

autistic,

already

receives

in

Supplemental

Security Income (SSI) each month.
Various fees and expenses will be deducted from
Ka.I.P.’s

part

of

the

proposed

settlement.

Alabama

Medicaid has a lien that has been reduced to the amount
of $ 40,531.31; and Viking Insurance has a subrogation
lien in the amount of $ 666.00.

Outstanding medical

bills from Medical Center Enterprise–Physicians in the
amount of $ 992.27 and Enterprise Rescue in the amount
of $ 577.45 will also be deducted.

III.
Based on the evidence and argument presented at the
pro ami hearing, the court is convinced that the amount
of the settlement is fair, reasonable, and just and
that

the

settlement

is

in

Ka.I.P.’s

best

interest.

The court is also satisfied that the trust will be
accessible to Ka.I.P. and used solely for her benefit;
that it is a proper means of protecting her settlement

9

proceeds; and that it is set up in a manner that will
not affect her receipt of SSI.
As stated earlier, the court had concerns that the
plaintiffs’

attorneys

had

an

arguable

conflict

in

deciding how to divide the settlement proceeds among
the

three

plaintiffs

and,

further,

that

Ka.I.P.’s

grandmother--because her daughter (Ka.I.P’s mother) is
also

a

plaintiff--had

an

arguable

conflict

in

advocating for a greater share of the settlement for
Ka.I.P.,
loss.

as

Ka.I.P.’s

gain

could

be

her

daughter’s

Based on the guardian ad litem's independent and

thoughtful assessment of this litigation as well as all
the evidence and other representations presented to the
court, these concerns are allayed.
The

fees

requested

by

Ka.I.P.’s

attorneys

are

reasonable under the factors set forth in Peebles v.
Miley, 439 So. 2d 137 (Ala. 1983), and they have been
duly earned by counsel.

The representation of Ka.I.P.

required significant learning, skill, and labor for its

10

proper

discharge;

counsel

spent

the

necessary

time

needed on this litigation for proper representation of
their client; the result for Ka.I.P. is favorable in
light of the injuries and the significant dispute as to
liability;

Ka.I.P.’s

counsel

devoted

time

on

this

matter that could have been profitably spent on other
matters; and the requested attorneys’ fees are within
the 25 % limit applied to FTCA cases pursuant to 28
U.S.C. § 2678.
Finally, the guardian ad seeks a fee of $ 4,000.00.
The parties do not object to her fee request.

In any

event, her fee has been duly earned and is reasonable
under the factors set forth in Peebles.

The position

required significant learning, skill, and labor for its
proper

discharge;

the

guardian

ad

litem

spent

approximately 15 hours on this case; and her inquiry
into this litigation on behalf of Ka.I.P. was necessary
for its fair resolution.

Ka.I.P.’s attorneys will be

11

required

to

pay

the

guardian

ad

litem

the

full

requested amount.
In

sum,

the

court

holds

that

the

proposed

settlement is fair, reasonable and just, is in the best
interest

of

minor

plaintiff

Ka.I.P.,

and

should

be

conditionally approved by the court.

* * *

It is, accordingly, ORDERED, ADJUDGED and DECREED
as follows:
(1)

The

original

approval

of

Ka.I.P.,

along

costs,

and

the

to

and

proposed

with

amended
settlement

attorneys’

authorize

petitions

fees

execution

of

for
and

for

plaintiff
litigation

settlement

on

behalf of plaintiff Ka.I.P. (doc. nos. 44 and 52) are
granted.
(2) The
plaintiff

parties’

Ka.I.P.’s

proposed
claims

12

settlement

against

of

defendant

all

of

United

States of America is approved, subject to the Justice
Department’s final approval of the settlement pursuant
to 28 C.F.R. § 0.172.
(3) Counsel

for

defendant

United

States

shall

report to the court whether the settlement is approved
as final within seven days of receiving such decision.
(4) The guardian ad litem, Honorable Karen Laneaux,
is entitled to a fee of $ 4,000.00.

The guardian ad

litem fee is to be paid by plaintiff Ka.I.P’s counsel
directly to the guardian ad litem.
(5)

These

consolidated

cases

are

closed

administratively.
DONE, this the 8th day of February, 2016.
/s/ Myron H. Thompson
UNITED STATES DISTRICT JUDGE