C.D. v. Alabama CVS Pharmacy, L.L.C. et al
OPINION. Signed by Honorable Judge Myron H. Thompson on 6/15/15. (djy, )
IN THE DISTRICT COURT OF THE UNITED STATES FOR THE
MIDDLE DISTRICT OF ALABAMA, NORTHERN DIVISION
C.D., a Minor, by and
Through her Mother and
Next Friend, Cynthia
CIVIL ACTION NO.
that a CVS Pharmacy store shelf and plastic bottles of
detergent displayed on the shelf injured her while she
jurisdiction of the court has been invoked pursuant to
Because this case involves a minor, the parties have
asked the court to approve their proposed settlement.
At a pro ami hearing, the court heard from counsel for
both parties, C.D.’s mother, and C.D.’s court-appointed
guardian ad litem. The settlement will be approved.
Alabama law requires that a court hold a fairness
hearing before a minor plaintiff’s case may be settled.
Largo v. Hayes By and Through Nesbitt, 534 So. 2d 1101,
1105 (Ala. 1988).
This is a rule of substantive law,
Burke v. Smith, 252 F.3d 1260, 1266 (11th
In order for the settlement to be binding
on the minor, the hearing must involve “‘examination or
investigation into the facts.’”
Abernathy v. Colbert
Cnty. Hosp. Bd., 388 So. 2d 1207, 1209 (Ala. 1980)
(quoting 42 Am.Jur.2d Infants § 47 (1978)).
On the morning of April 9, 2012, C.D. was shopping
with her mother and grandmother in a CVS Pharmacy in
According to C.D.’s mother, while
they were in the store, the corner of a wood pallet,
which was being maneuvered into place by a Coca-Cola
employee, bumped a metal shelf and
tipped it over, and both the shelf and plastic bottles
of detergent displayed on the shelf injured C.D. while
she was sitting in a shopping cart.
C.D. was treated
at, and released from, a hospital emergency room. X-ray
treated by her primary-care doctor the day after the
incident and was released to her mother’s care.
neurologist for further treatment “as needed.”
Following an extensive examination that included an
determined that C.D.’s injury was minor “and that there
was no reason to think that there [were] any long-term
consequences from that injury.”
Sanchez Depo., (doc.
no. 46-3) at 37-38.
treating psychologist stated that he could not “attest
... with any degree of psychological certainty” that
Notes (doc. no. 47-4) at 2.
There is no indication
from any source uncovered during the lengthy discovery
phase of this case that C.D. will require any treatment
in the future for any issues relating to this incident.
C.D. sued Coca-Cola Refreshments USA asserting two
filed a motion for partial summary
judgment on the wantonness claim.
The court notes, for
the purposes of the issue now before the court, that
the motion is well supported by both fact and law and
likely would have been granted.
USA has asserted a number of additional affirmative
defenses to C.D.’s claims and has denied liability for
The parties propose to settle this case based on
payment by Coca-Cola Refreshments USA in the amount of
$ 19,000.00 in full satisfaction of all claims C.D. has
$ 7,600.00 out of the settlement as an attorney’s fee.
would be paid $ 2,430.74 in reimbursement for expenses
incurred in filing and prosecuting the action.
proposed settlement also bears a $ 667.54 Medicaid lien
for medical treatments for C.D.
incident and C.D.’s injuries, treatment, recovery and
counsel and the guardian further testified about their
understanding of the settlement and asked that it be
approved by the court.
They explained that a total of
$ 10,698.28 for the attorney’s fee and expenses and the
Medicaid lien would be subtracted from the $ 19,000.00
settlement, with the result that C.D. would receive
settlement is in the best interest of C.D. given the
nature of her claims and injuries and the defenses to
prosecuting the action.
As stated, her counsel seek a
fee of $ 7,600.00 and reimbursement for $ 2,430.74 in
The court finds that the fee and expenses
are reasonable under the factors set forth in Peebles
v. Miley, 439 So. 2d 137 (Ala. 1983), and that the fee
has been duly earned by counsel.
The representation of
C.D. required significant learning, skill and labor for
its proper discharge; her attorneys spent 40 hours on
her case; one attorney has three years of experience
practicing law and was assisted by another attorney who
favorable settlement in light of the injuries and the
significant dispute as to liability; the attorneys and
C.D.’s mother agreed to a contingency-fee arrangement,
which is customary for such cases in this jurisdiction;
and the attorneys’ time devoted to this case could have
been profitably spent on other matters.
Upon consideration of the testimony, other evidence
introduced at the pro ami hearing, and its knowledge of
the facts and circumstances of this case, the court
finds that the proposed settlement is fair, reasonable,
just, and in C.D.’s best interest and thus should be
The court is convinced that C.D.’s mother
will use the funds solely for C.D.’s benefit.
settlement, less the attorney fee and expenses, would
interest, there is still the question of how the clerk
of the court should disburse the $ 8,301.72 to C.D.
initial and immediate payment to C.D.’s mother, for
payments of $ 2,000.00 for each of the following three
Alabama law provides:
“(a) Any person under a duty to pay or
deliver money or personal property to
a minor may perform the duty, in
subsection, by paying or delivering
the money or personal property to:
(1) Any person having the care and
custody of the minor and with whom the
(2) A guardian of the minor; or
(3) The judge of probate of the county
in which the minor resides, if a
resident of this state, or, if a
nonresident, to the judge of probate
or like officer of the county in which
the debtor or creditor resides.
Payments under this subsection must
not exceed $ 5,000 if paid in a single
payment, or $ 3,000 a year if paid in
a series of payments, and payments, by
any person other than a conservator or
judge, must not exceed a maximum of
$ 25,000 during the minority of the
1975 Ala. Code § 26-2A-6.
Pursuant to this law, counsel for the parties and
the guardian ad litem initially proposed that C.D.’s
mother would receive an immediate payment of $ 5,000 to
six-year-old C.D. reached her majority, that is, 19.
proposal was that the interest the $ 3,301.72
earn would be de minimus and that, after such a lengthy
delay in release, there might even be court management
costs, further reducing the modest award.
recommended, the court remand this case to state court
so that that court could manage the funds perhaps more
to the benefit of C.D., but all agreed that a remand
state-court judge would reach a result different from
that of this court.
Counsel for the parties and the
conservatorship was not feasible, because the cost of
suggestion and over the guardian’s objection, finally
agreed that periodic payments of $ 3,000 or less per
year, which is allowed by the above statute, would be
best for C.D.
The court agrees.
The most convincing point is that, because the sum
involved is far from a bountiful future nest-egg but
rather is quite modest and of very limited financial
benefit, the sum would benefit six-year-old C.D. more
during her early and critical developmental years than
later in life.
The evidence reflects that C.D. has
learning problems and that her mother has very limited
Now, not later, is the time that these modest
funds can have their greatest impact on C.D., that is,
while she is very young and developing and in most need
of financial help, no matter how small.
The court will therefore require that the clerk of
the court pay out the $ 8,301.72 in structured payments
to C.D.’s mother, for C.D.’s benefit, as follows: an
yearly payments of $ 2,000.00 for each of the following
Finally, before closing, there is the guardian ad
agreed to bear. The guardian seeks a fee of $ 1,100.00.
court finds that the guardian’s fee is reasonable under
the factors set forth in Peebles and that it has been
duly earned by the guardian.
The position required
significant learning, skill, and labor for its proper
discharge; the guardian spent eight hours on the case;
result for C.D. is favorable in light of the injuries
and the significant dispute as to liability; the fee of
jurisdiction; and the
guardian devoted time on this
matter that could have been profitably spent on other
Indeed, the guardian ad litem's performance in this
accept her suggestion that part of the sum to be paid
out to CD's mother (for use on CD) should be kept until
CD reaches majority, her suggestion reflected detailed
and thoughtful consideration. Rarely, if ever, has a
guardian ad litem, to this court's knowledge, acted so
attend all guardians' appointments.
requiring the settlement of $ 19,000.00 to be paid into
the court and then disbursed as follows:
Gathings Law, for attorney
fees ($ 7,600.00) and
expenses ($ 2,430.74)
Gathings Law, to be paid to
Medicaid on C.D.’s behalf
Cynthia Davenport, on
C.D.’s behalf (“first
Cynthia Davenport, one year
from date of first payment
Cynthia Davenport, two
years from date of first
Cynthia Davenport, three
years from date of first
The court will also require that Coca-Cola Refreshments
USA pay the guardian ad litem’s fee of $ 1,100.00.
DONE, this the 15th day of June, 2015.
/s/ Myron H. Thompson____
UNITED STATES DISTRICT JUDGE
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?