Tolliver v. Illinois Tool Works Inc.

Filing 145

ORDER by Judge Kandis A. Westmore granting 144 Motion to Approve Minor's Settlement. (kawlc2S, COURT STAFF) (Filed on 1/21/2021)

Case 4:18-cv-01078-KAW Document 145 Filed 01/21/21 Page 1 of 3

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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MARY TOLLIVER, et al.,
Plaintiffs,

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Re: Dkt. No. 144

ILLINOIS TOOL WORKS INC.,
Defendant.

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United States District Court
Northern District of California

ORDER GRANTING MOTION TO
APPROVE MINOR'S SETTLEMENT

v.

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Case No. 18-cv-01078-KAW

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Plaintiffs filed the instant case against Defendant Illinois Tool Works Inc., asserting

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product liability and negligence claims with respect to the death of Johnny Tolliver, Sr. (See First

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Amended Compl. (“FAC”) ¶ 1, Dkt. No. 30.) Pending before the Court is Plaintiff I.T.’s motion

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to approve a minor’s settlement. (Pl.’s Mot. to Approve, Dkt. No. 144.) No oppositions were

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filed.

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The Court deemed this matter suitable for disposition without a hearing pursuant to Civil

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Local Rule 7-1(b). (Dkt. No. 136.) Having considered the parties’ filings and the relevant legal

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authority, the Court GRANTS the motion to approve.

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I.

BACKGROUND

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Decedent was a Solid Waste Truck Driver, employed by the City of Berkeley’s Public

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Works Zero Waste Division. (Order re Mot. for Summ. J. at 1, Dkt. No. 69.) On January 11,

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2016, the truck Decedent was operating began to roll downhill. (Id. at 2.) Decedent attempted to

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stop the truck, but suffered blunt force injuries, possibly when the truck crushed him against a

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utility pole or tree. (Id.)

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Plaintiffs then filed the instant case against Defendant, asserting that the truck had a
defective air brake system. (Order re Mot. for Summ. J. at 4.) On October 2, 2019, Defendant

Case 4:18-cv-01078-KAW Document 145 Filed 01/21/21 Page 2 of 3

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filed a motion for summary judgment. (Id. at 6.) On November 22, 2019, the Court granted

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Defendant’s motion for summary judgment as to the failure to warn claim but denied Defendant’s

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motion as to all other claims. (Id. at 19.)

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In January 2020, the parties reached a settlement. (Cartwright Decl. ¶ 3, Dkt. No. 144-1.)

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With respect to Plaintiff I.T., Defendant agreed to pay $437,500. (Cartwright Decl. ¶ 3.) The

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settlement includes $85,476.75 in attorney’s fees, $95,593.01 in attorney’s costs, and $50,000 in a

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lien payment to the City of Berkeley, leaving a net amount of $206,430.24 to Plaintiff I.T. (Pl.’s

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Mot. to Approve at 3; Cartwright Decl. ¶¶ 14, 16.) Guardian Ad Litem Arie Crockett intends to

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put the net amount in a structured annuity which will make payments to Plaintiff I.T. as follows:
$50,000 at age 18, $100,000 at age 21, and $74,273 at age 25, for a total of $224,273. (Cartwright

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United States District Court
Northern District of California

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Decl. ¶ 18.) The $437,500 settlement is in addition to approximately $482,367.28 in workman’s

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compensation being paid by the City of Berkeley. (Cartwright Decl. ¶ 16.)

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II.

LEGAL STANDARD

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“District courts have a special duty, derived from Federal Rule of Civil Procedure 17(c), to

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safeguard the interests of litigants who are minors.” Robidoux v. Rosengren, 638 F.3d 1177, 1181

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(9th Cir. 2011). “[T]his special duty requires a district court to conduct its own inquiry to

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determine whether the settlement serves the best interests of the minor.” Id. (internal quotation

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omitted). Thus, the district court considers whether the settlement, including any net recovery, “is

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fair and reasonable as to each minor plaintiff.” Id. at 1182.

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III.

DISCUSSION

The Court finds that the proposed settlement is fair and reasonable. Plaintiff’s counsel

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explains that liability was a significant question in this case, particularly in light of “[d]iscovery

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and investigation [that] showed that the City of Berkeley is primarily responsible for [Decedent]’s

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death.” (Cartwright Decl. ¶ 15; see also Cartwright Decl. ¶ 9.) For example, maintenance and

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service records of the truck showed it had reached the end of its useful life and had been served for

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related issues only six days before Decedent’s death. (Cartwright Decl. ¶ 15.) The City of

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Berkeley also failed to train its employees to properly apply the parking brake. (Cartwright Decl.

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¶ 15.) The City of Berkeley was ultimately assessed numerous OSHA citations and paid $31,810
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Case 4:18-cv-01078-KAW Document 145 Filed 01/21/21 Page 3 of 3

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in penalties. (Cartwright Decl. ¶ 15.)
Further, the settlement amount is reasonable. Plaintiff’s counsel estimates that Plaintiff

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I.T.’s future economic losses total $293,499.00, in addition to emotional harm from the loss of his

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father. (Cartwright Decl. ¶¶ 6, 7.) Here, Defendant will pay $437,500, or a net of $206,430.24

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after payment of attorney’s fees, costs, and a settlement of the City of Berkeley’s lien and credit

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rights. (Cartwright Decl. ¶¶ 3, 18.) Plaintiff’s counsel has agreed to reduce their fees to 25% of

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the net recovery after costs, although their retainer agreement allows for recovery of 40%.

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(Cartwright Decl. ¶¶ 4, 10.) Plaintiff’s counsel has also provided their records regarding costs,

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which the Court has reviewed and finds reasonable, particularly given the significant work
required by numerous expert witnesses. (See Cartwright Decl., Exhs. E-G.) Additionally, the City

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United States District Court
Northern District of California

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of Berkeley’s workman’s compensation carrier has paid Ms. Crockett, on behalf of Plaintiff I.T.,

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$312,804.08 through August 28, 2020, and will continue to make bi-weekly payments of

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$2,119.54 through Plaintiff I.T.’s 18th birthday. (Cartwright Decl. ¶ 16.) In total, the City of

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Berkeley will have paid approximately $482,367.28 to Plaintiff I.T. (Cartwright Decl. ¶ 16.)

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Thus, considering both the risks as to liability, the value of the case, and the amount of net

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recovery, the Court concludes that the settlement reflects a fair and reasonable compromise

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intended for Plaintiff I.T.’s benefit. Accordingly, the Court approves the settlement.

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IV.

CONCLUSION

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The Court GRANTS the motion to approve the settlement as follows:

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(1) The award of attorney’s fees is $85,476.75;

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(2) The award of attorney’s costs is $95,593.01;

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(3) The settlement of the City of Berkeley’s lien and credit rights is $50,000; and

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(4) The net sum of $206,430.24 shall be put in a structured annuity and distributed in the

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amount of $50,000 at age 18, $100,000 at age 21, and $74,273 at age 25.
IT IS SO ORDERED.
Dated: January 21, 2021
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KANDIS A. WESTMORE
United States Magistrate Judge

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