Glover v. United States of America et al

Filing 87

ORDER OF DISMISSAL WITH PREJUDICE: IT IS THEREFORE ORDERED, ADJUDGED, AND DECREED that the Settling Parties bear their own costs, expenses, and fees. IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that, following its entry of this Dismissal Order, th e Court will not retain jurisdiction over the action against the United States or the Stipulation. IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that the above-captionedaction is dismissed against the United States in its entirety with prejudice.SO ORDERED. (Signed by Judge Philip M. Halpern on 1/10/2022) (jca)

Case 7:18-cv-10504-PMH Document 87 Filed 01/10/22 Page 1 of 19

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
WHITNEY GLOVER, as mother and natural
guardian of N
S
,
[PROPOSED] ORDER OF DISMISSAL
WITH PREJUDICE

Plaintiff,
v.

18 Civ. 10504 (PMH)

UNITED STATES OF AMERICA and ST.
LUKE’S CORNWALL HOSPITAL,
Defendants.

WHEREAS, on or about December 17, 2021, plaintiff Whitney Glover, as mother and
natural guardian of N

S

, a minor (“Plaintiff”), and defendant United States of America

(the “United States”) entered into an agreement to settle and compromise each and every claim
of any kind, whether known or unknown, arising directly or indirectly from the acts or omissions
by the United States that gave rise to the above-captioned action;
WHEREAS, the complete and precise terms and conditions of the settlement are set
forth in the Stipulation for Compromise Settlement and Release of Claims (the “Stipulation”),
attached hereto as Exhibit A;
WHEREAS, Plaintiff and the United States (together, the “Settling Parties”) entered into
the Stipulation for the purpose of compromising disputed claims under the Federal Tort Claims
Act and avoiding the expenses and risks of further litigation;
WHEREAS, the Stipulation is not, is in no way intended to be, and should not be
construed as, an admission of liability or fault on the part of the United States, its agents,
servants, or employees, and the United States specifically denies that it is liable to Plaintiff;
WHEREAS, the Stipulation requires Plaintiff to obtain an Infant’s Compromise Order
approving the settlement from a court of competent jurisdiction;
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WHEREAS, Plaintiff has submitted a proposed Infant’s Compromise Order for review
and approval by this Court;
WHEREAS, this Court has entered the Infant’s Compromise Order thereby approving
the settlement herein;
IT IS THEREFORE ORDERED, ADJUDGED, AND DECREED that the Settling
Parties bear their own costs, expenses, and fees.
IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that, following its
entry of this Dismissal Order, the Court will not retain jurisdiction over the action against the
United States or the Stipulation.
IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that the abovecaptioned action is dismissed against the United States in its entirety with prejudice.
SO ORDERED.
Dated: White Plains, New York
___________________
___________________
_
__________________________________
Hon. Philip M. Halpern
United States District Judge

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
WHITNEY GLOVER, as mother and natural
guardian of N
S
,
Plaintiff,

18 Civ. 10504 (PMH)

v.
THE UNITED STATES OF AMERICA and
ST. LUKE’S CORNWALL HOSPITAL,
Defendants.

STIPULATION FOR COMPROMISE SETTLEMENT AND RELEASE OF
CLAIMS
It is hereby stipulated by and between plaintiff Whitney Glover, as mother and natural
guardian of N

S

, a minor (“Plaintiff”) and defendant United States of America (the

“United States,” and together with Plaintiff, the “Settling Parties”), by and through their
respective attorneys, and Creative Capital Inc. as follows:
1.

The Settling Parties to this Stipulation for Compromise Settlement and Release of

Claims (hereinafter “Stipulation”) do hereby agree to settle and compromise each and every
claim of any kind, whether known or unknown, arising directly or indirectly from the acts or
omissions by the United States that gave rise to the above-captioned action (the “Action”) under
the terms and conditions set forth in this Stipulation.
2.

This Stipulation is not, is in no way intended to be, and should not be construed

as, an admission of liability or fault on the part of the United States, its agents, servants, or
employees, and it is specifically denied that they are liable to the Plaintiff. This settlement is
entered into by all Settling Parties for the purpose of compromising disputed claims under the

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Federal Tort Claims Act and avoiding the expenses and risks of further litigation.
3.

The Action is hereby settled for a total cost in the amount of One Million Dollars

($1,000,000.00) (the “Settlement Amount”), which shall be paid by the United States and is
comprised of (i) a cash sum as set forth below in Paragraph 4.a and (ii) the amount described
below in Paragraphs 4.b & 5 to fund the purchase of an annuity contract to provide future
periodic payments. Attorneys’ fees payable to Candice A. Pluchino, Esq. shall be governed by
Paragraph 11 of this Stipulation.
4.

Within five business days after the attorneys of record for the United States

receive (i) this Stipulation signed by all parties to said document; (ii) the Social Security
numbers or tax identification numbers of N

S

and Plaintiff’s attorneys; (iii) a copy of the

birth certificate and social security card (or alternative form of identification acceptable to the
United States) of N

S

(DOB

approving the settlement on behalf of N

, 2015); (iv) an Infant Compromise Order
S

, a minor; (v) a completed Payment

Information Form from the Department of Health and Human Services (identifying name of
bank, address of bank, city, state, and zip code of bank, routing number, account name, account
number, and type of account); and (vi) a Dismissal Order, as specified in Paragraph 10.c & 10.d,
dismissing this Action as to the United States with prejudice; counsel for the United States will
send a request to the appropriate agency official or component requesting that the Settlement
Amount be paid as follows:
a. An electronic funds transfer (“EFT”) in the amount of Three Hundred Thousand
Dollars ($300,000) (hereinafter “Upfront Cash”) made payable to Candice A.
Pluchino, Esq.’s Trust/IOLA account using bank routing information to be
supplied by counsel for Plaintiff.
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With respect to the payment of the Upfront Cash, Plaintiff stipulates and agrees that the
United States will not sign an annuity application form, a uniform qualified assignment form, or
any equivalent such forms, and that the United States will not pay the Upfront Cash into a
qualified settlement fund or an equivalent fund or account, settlement preservation trust, or
special or supplemental needs trust. Plaintiff further stipulates and agrees that the Plaintiff, the
Plaintiff’s attorneys, any Guardian Ad Litem, and the Plaintiff’s representatives (including any
structured settlement annuity broker, regardless of whether said broker was retained by them or
by someone else, either before, during, or after the settlement) will not attempt to structure the
Upfront Cash in any way, form, or manner, including by placing any of the Upfront Cash into
any qualified settlement fund or its equivalent. However, nothing in this Paragraph 4.a precludes
Plaintiff from purchasing non-qualified annuities after Plaintiff has deposited the Upfront Cash,
but Plaintiff agrees not to represent to any person, entity, or agency that Plaintiff is purchasing
qualified structured settlement annuities and Plaintiff agrees not to attempt to purchase such
structured settlement annuities.
Plaintiff’s attorneys agree to facilitate the disbursement of the Upfront Cash in
accordance with the Infant Compromise Order. Plaintiff stipulates and agrees that the attorney
shall escrow the aggregate face value of any and all currently known liens and currently known
claims for payment or reimbursements, including any such liens or claims by Medicaid or
Medicare, arising out of the subject matter that gave rise to the above-referenced civil action,
whether disputed as legally valid or not, and shall not distribute to Plaintiff any portion of the
escrowed amount unless and until said liens and claims have been paid or resolved.
b. For the purchase of the annuity contract described below in Paragraph 5, an EFT
in the amount of Seven Hundred Thousand Dollars ($700,000.00) (hereinafter
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“Annuity Premium Amount”) to Creative Capital Inc.’s Trust Account.
Counsel for the United States agrees to follow up as to the status of payment if payment has not
been issued within 30 days following request for same.
5.

Based on the following terms and conditions, the United States will purchase the

following annuity contract(s):
a. The United States will purchase an annuity contract from Metropolitan Tower
Life Insurance Company rated A+ by A.M. Best rating service (or if said annuity
company cannot issue said annuity at the time the annuity needs to be purchased,
an alternative company rated A+ or better by A.M. Best) to pay to N
to an account in the name of, or for the benefit of, N

S

S

, or

, the sum of

$1,735.34 payable monthly for life, guaranteed for 40 years, beginning at age 18
(on

2033), with the last guaranteed payment at age 57 (on
2073); a guaranteed lump sum payment of $25,000 paid on
2033; a guaranteed lump sum payment of $25,000 paid on
2036; a guaranteed lump sum payment of $25,000 paid on
, 2041; a guaranteed lump sum payment of $100,000 paid on
, 2047; and a guaranteed lump sum payment of $200,000 paid on
2055.

In the event the cost of the annuity contract has either increased or decreased by the date
of purchase, the annuity payments described above shall be adjusted upward or downward to
ensure that the total cost of the annuity contract is equal to the Annuity Premium Amount and
not more or less than that amount. The monthly annuity payments are based upon the date of
birth for N

S

of

2015, that was provided by Plaintiff. If the date of birth is
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otherwise, the annuity payments described above will be adjusted accordingly. In the event of the
death of N
S

S

, any remaining guaranteed payments shall be payable to the Estate of N

, or to any death beneficiary designated by N

S

after reaching age of majority,

provided that any such designation shall be in writing to the United States (Attention: U.S.
Attorney’s Office, Chief of the Civil Division, 86 Chambers Street, New York, NY 10007) and
the annuity company.
b. The annuity contract being purchased pursuant to this Paragraph 5 will be owned
solely and exclusively by the United States and will be purchased through
Creative Capital Inc. as specified above in Paragraphs 4.b and 5.a. The Settling
Parties stipulate and agree that the United States’ only obligation with respect to
any annuity contract purchased pursuant to this Stipulation, and any annuity
payments therefrom, is to purchase said contract, and they further agree that the
United States does not guarantee or insure any of the annuity payments. The
Settling Parties further stipulate and agree that the United States is released from
any and all obligations with respect to an annuity contract and annuity payments
upon the purchase of said contract.
c. The Settling Parties stipulate and agree that any annuity company that issues an
annuity contract shall, at all times, have the sole obligation for making all annuity
payments. The obligation of an annuity company to make each annuity payment
shall be discharged upon the mailing of a valid check or EFT in the amount of
such payment to the address or account designated by the party to whom the
payment is required to be made under this Stipulation. Payments lost or delayed
through no fault of the annuity company shall be promptly replaced by the
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annuity company, but the annuity company is not liable for interest during the
interim.
d. The Settling Parties stipulate and agree that the annuity payments cannot be
assigned, accelerated, deferred, increased, or decreased by the parties and that no
part of any annuity payments called for herein, nor any assets of the United States
or the annuity company, are subject to execution or any legal process for any
obligation in any manner. Plaintiff and Plaintiff’s guardians, guardian ad litem (if
any), heirs, executors, administrators, and assigns do hereby agree that they have
no power or right to sell, assign, mortgage, encumber, or anticipate said annuity
payments, or any part thereof, by assignment or otherwise, and that any attempt to
sell, assign, mortgage, encumber, or anticipate said annuity payments, or any part
thereof, by assignment or otherwise, shall constitute a breach of contract.
e. Plaintiff and Plaintiff’s guardians, guardian ad litem (if any), heirs, executors,
administrators, and assigns do hereby agree to maintain with the annuity company
and the United States a current mailing address for N
annuity company and the United States of the death of N

S

and to notify the
S

in a timely

manner (Attention: U.S. Attorney’s Office, Chief of the Civil Division, 86
Chambers Street, New York, NY 10007). Plaintiff and Plaintiff’s guardians,
guardian ad litem (if any), heirs, executors, administrators, and assigns do hereby
further agree to provide to the annuity company and the United States (Attention:
U.S. Attorney’s Office, Chief of the Civil Division, 86 Chambers Street, New
York, NY 10007) a certified death certificate within sixty days of the death of
N

S

.
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f. Plaintiff and Plaintiff’s guardians, guardian ad litem (if any), heirs, executors,
administrators, and assigns do hereby agree that the annuity company has the
right to recoup erroneously paid annuity payments.
6.

Plaintiff and Plaintiff’s guardians, guardian ad litem (if any), heirs, executors,

administrators, and assigns, and Whitney Glover, individually, hereby accept the terms and
conditions of this Stipulation, including the sums set forth above in Paragraph 4 and the purchase
of the annuity contract set forth above in Paragraph 5, in full settlement, satisfaction, and release
of any and all claims, demands, rights, and causes of action of any kind, whether known or
unknown, including any future claims for survival or wrongful death, and any claims for fees,
interest, costs, and expenses, arising from, and by reason of, any and all known and unknown,
foreseen and unforeseen, bodily and personal injuries, including the death of N

S

or

damage to property, and the consequences thereof, which Plaintiff or his heirs, executors,
administrators, or assigns, or Whitney Glover, individually, may have or hereafter acquire
against the United States on account of the subject matter that gave rise to the above-captioned
action.
7.

Plaintiff stipulates and agrees that he is legally responsible for any and all past,

present, and future liens or claims for payment or reimbursement, including any past, present,
and future liens or claims for payment or reimbursement by private insurance companies,
Medicaid, or Medicare, arising from the injuries that are the subject matter of this Action.
Plaintiff stipulates and agrees that he will satisfy or resolve any and all past, present, and future
liens or claims for payment or reimbursement asserted by any individual or entity, including
private insurance companies, Medicaid, or Medicare. Plaintiff and his heirs, executors,
administrators, or assigns further stipulate and agree that, subject to the provisions of Paragraph
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8 of this Stipulation, they shall satisfy or resolve any and all liens or claims for payment or
reimbursement arising from the injuries that are the subject matter of this Action before their
attorneys distribute to Plaintiff any portion of the Settlement Amount to be paid pursuant to
Paragraphs 4 and 5 herein.
8.

Plaintiff and his attorneys represent that, as of the date they sign this Stipulation,

they have made a diligent search and effort to determine the identity of any individual or entity
that has or may have a lien or claim for payment or reimbursement arising from the injuries that
are the subject matter of this action, and have identified no such liens or claims. Plaintiff further
agrees that, no later than ninety days from the date the United States has paid the Settlement
Amount, his attorneys shall provide to the United States evidence that each claim or lien, if any,
has been satisfied or resolved and that all lienholders and claimholders, if any, have waived and
released all such liens and claims. Plaintiff and his attorneys further agree that, no later than
ninety days from the date any past, present, or future lien or claim for payment or reimbursement
is paid or resolved by Plaintiff, if any, they will provide to the United States evidence that said
claim or lien has been satisfied or resolved and that all lienholders and claimholders have waived
and released such lien or claim. The evidence required by the terms of this paragraph may be
satisfied by a letter from Plaintiff’s attorney representing to counsel of record for the United
States that no such liens or claims exist, or each such lien or claim, if any, has been satisfied or
resolved and that all lienholders and claimholders have waived and released such lien and claim.
9.

In consideration of the United States agreeing to settle this action on the terms and

conditions set forth herein, the Plaintiff and Plaintiff’s guardians, heirs, executors,
administrators, and assigns hereby agree to reimburse, indemnify, and hold harmless the United
States from and against any and all claims, causes of action, liens, rights, or subrogated or
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contribution interests (whether such claims, causes of action, liens, rights, subrogated interests,
or contribution interests sound in tort, contract, or statute) incident to, or resulting or arising
from, the acts or omissions that gave rise to the above-captioned action, including claims or
causes of action for wrongful death.
10.

This Stipulation is specifically subject to each of the following conditions:
a.

N

S

must be alive at the time the annuity contract described in

Paragraph 5 is purchased. In the event of the death of N

S

prior to the annuity contract

purchase, this entire Stipulation is null and void.
b.

Plaintiff must obtain, at his expense, an infant’s compromise order

(“Infant Compromise Order”) by a court of competent jurisdiction approving the settlement on
behalf of N

S

, a minor. The terms of any such Infant Compromise Order must be

approved by the United States prior to the Infant Compromise Order being submitted to any
reviewing Court and the Infant Compromise Order signed by such Court cannot be changed by
the Court or Plaintiff without the prior written consent of the United States. Plaintiff agrees to
obtain such Infant Compromise Order in a timely manner. Plaintiff further agrees that the United
States may void this Stipulation at its option in the event such approval is not obtained in a
timely manner. In the event Plaintiff fails to obtain such an Infant Compromise Order or any
such order he obtains fails to comply with the terms and conditions of this paragraph, the entire
Stipulation is null and void.
c.

Plaintiff must obtain from the United States District Court for the

Southern District of New York (the “Court”) an order (the “Dismissal Order”) dismissing the
above-captioned action against the United States with prejudice, with Plaintiff and the United
States each bearing its own costs, expenses, and fees, and with the Court not retaining
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jurisdiction over the settlement with the United States following issuance of the Infant
Compromise Order and Dismissal Order. The proposed Dismissal Order shall be in the form
annexed hereto as Exhibit A.
d.

Payment of the Settlement Amount by the United States is subject to there

being sufficient funds in the account established by Congress pursuant to 42 U.S.C. § 233(k) for
payment of settlements and judgments of claims subject to the Federally Supported Health
Centers Assistance Act of 1993 and 1995 to pay the Settlement Amount in its entirety.
11.

The Settling Parties agree that any attorneys’ fees owed by the Plaintiff in their

Federal Tort Claims Act suit against the United States shall not exceed 25% of the Settlement
Amount, as required by 28 U.S.C. § 2678. The Settling Parties further agree that any such
attorneys’ fees, along with any costs and expenses of said action against the United States and
any costs, expenses, or fees associated with obtaining any court approval of this settlement, will
be paid out of the amount paid pursuant to Paragraphs 3 and 4.a, above, and not in addition
thereto. The Settling Parties also agree that any fees for legal services incurred in the district
court, or in any court reviewing the settlement for approval purposes, shall be considered
attorneys’ fees and not costs, shall be subject to the provisions of 28 U.S.C. § 2678, and shall be
paid out of the amount paid pursuant to Paragraphs 3 and 4.a, above, and not in addition thereto.
12.

Notwithstanding anything to the contrary found elsewhere in this Stipulation, it is

understood and agreed by the Settling Parties that Plaintiff specifically reserves his right to
pursue an action for damages resultant from the occurrence sued upon herein against St. Luke’s
Cornwall Hospital. Nothing contained in this Stipulation shall be construed as a release of
Plaintiff’s claims against St. Luke’s Cornwall Hospital. In connection therewith, it is agreed that
the Plaintiff, except to the extent required by law or court order, will not provide any assistance
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to St. Luke’s Cornwall Hospital in any way which could or would tend to assist St. Luke’s
Cornwall Hospital in any claim, to the extent any claims exist, against the United States.
Likewise, the United States, except to the extent required by law or court order, will not provide
any assistance to St. Luke’s Cornwall Hospital in any way which could or would tend to assist
St. Luke’s Cornwall Hospital in its defenses against Plaintiff’s claims against St. Luke’s
Cornwall Hospital.
13.

The Settling Parties agree that this Stipulation, and any additional agreements

relating thereto, may be made public in their entirety, and the Plaintiff expressly consents to such
release and disclosure pursuant to 5 U.S.C. § 552a(b).
14.

It is contemplated that this Stipulation may be executed in several counterparts,

with a separate signature page for each party. All such counterparts and signature pages,
together, shall be deemed to be one document.
15.

The Stipulation is subject to the satisfaction of all conditions set forth in the

Stipulation, including but not limited to those stated in Paragraph 10. If those conditions are not
satisfied, this Stipulation shall be null and void, and without force or effect.
16.

The Settling Parties understand and agree that this Stipulation contains the entire

agreement between them, and that no statements, representations, promises, agreements, or
negotiations, oral or otherwise, between the Settling Parties or their counsel that are not included
herein shall be of any force or effect.
WHEREAS, the Settling Parties accept the terms of this Stipulation for Compromise
Settlement and Release as of the dates written below:

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Executed this

day of December, 2021.

STRUCTURED SETTLEMENT BROKERAGE COMPANY
CREATIVE CAPITAL INC. (HEREINAFTER “COMPANY”)
I, the undersigned, am one of the owners of the Company and am duly authorized to sign
this Stipulation on behalf of the Company. I am also an attorney duly admitted to practice before
this Court and affirm pursuant to the penalty of perjury that the Company and its employees,
agents, and structured settlement annuity brokers are covered by an Errors and Omission
insurance policy or equivalent insurance coverage, and will furnish to the United States a
certificate or proof of insurance for such policies upon request. By signing this Stipulation, I
agree that the Company will accept the Annuity Premium Amount. I further agree that, within
five business days of receipt of the Annuity Premium Amount, the Company will (1) disburse the
Annuity Premium Amount to an annuity company(ies), rated at least A+ by A.M. Best rating
service, for the purchase of the annuity contract(s) described above in Paragraphs 4.b and 5 of
this Stipulation, and (2) provide to the parties written proof that the Annuity Premium Amount
has been accepted by said annuity company(ies).
I declare under penalty of perjury that the foregoing is true and correct. 28 U.S.C. §
1746.
By:

________
Martin Jacobson, Principal and General Counsel
On behalf of the Company

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