Carroll v. Oakley Trucking, Inc., et al

Filing 89

ORDER regarding 84 Motion to Approve Settlement. Signed by Senior Judge W. Earl Britt on 12/13/2019. (Herrmann, L.)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NORTH CAROLINA
WESTERN DIVISION
No. 5:17-CV-00357-BR
WENDY G. CARROLL, ADMINISTRATOR
OF THE ESTATE OF THOMAS ANTHONY
CARROLL, DECEASED,
Plaintiff,
v.

ORDER

OAKLEY TRUCKING, INC., AND THAD
AUSTIN PITTMAN,
Defendants.

This matter is before the court on plaintiff’s motion to approve the settlement of this
wrongful death action brought as the result of the death of Thomas Anthony Carroll (“Carroll”).
(DE # 84.) The court held a hearing on 3 December 2019 to determine the fairness,
reasonableness, and adequacy of the settlement agreement and accompanying attorneys’ fees.
Defendants consent to the settlement agreement. (See DE # 87.) All parties consent to the entry
of this order. (See DE # 86.)
I. Background
1. This case arises out of a motor vehicle accident which occurred on 4 May 2016 at Case
Farms Feed Mill (“Case Farms”) in Mount Olive, North Carolina, where Carroll,
deceased, was an employee and where defendant Thad Pittman had delivered a load of
salt that day. As the two men were leaving Case Farms, defendant Pittman’s tractortrailer collided with Carroll’s motorcycle and resulted in Carroll’s death.
2. Carroll left four children as his heirs. At the time of his death, three of his children were
minors. Only one child, S.C., is now a minor.

3. Wendy G. Carroll, as Administrator of Carroll’s Estate, instituted this action to recover
damages for the wrongful death of Carroll.
4. All parties to this action are properly represented and before the court. No questions exist
as to the misjoinder or nonjoinder of parties. This court has jurisdiction over the subject
matter of the action as well as the parties.
5. Wendy G. Carroll, mother of the minor, was appointed by this court as Guardian Ad
Litem for the minor child. (DE # 83.)
6. After a three-day bench trial in November 2018, this court entered judgment awarding
plaintiff $1,551,767 plus prejudgment interest of 8%, for a total amount of
$1,774,293.25, including recoverable costs. (See DE # 61.)
7. Defendants appealed the verdict and judgment. (DE # 62.)
8. After both parties briefed the case on appeal, the parties reached a settlement agreement
in the amount of $1,425,000. The specific terms of this agreement are set forth in the
Settlement Agreement and Release, (DE # 87), and incorporated herein by reference.
9. This matter is now before the court for approval pursuant to Local Civil Rule 17.1 and
N.C. Gen. Stat. § 28A-13-3(a)(23).
10. Plaintiff retained Leonard Jernigan and Kristina Thompson of The Jernigan Law Firm
and Guy W. Crabtree of Crabtree Carpenter, PLLC (collectively “attorneys”) to represent
the Estate in this action.
11. Attorneys represented the Estate on a contingent fee basis, plus litigation-related costs. A
copy of that fee agreement is attached to plaintiff’s motion. (DE # 84-5.)
12. The fee agreement provides, in part, that the contingent attorney fee charged for
attorneys’ representation of the Estate would be as follows:

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A fee equal to 25% of the gross recovery (including costs and liens) received
if the case is settled within 120 days of the date of this agreement [which
was September 8, 2016]; or
A fee of 33.33% of the gross recovery (including costs and liens) if the case
is settled thereafter and no later than one week after the mediated settlement
conference; or
A fee of 40% of the gross recovery (including costs and liens) if the case is
resolved by settlement or verdict at any time thereafter; or
A fee equal to 45% of the gross recovery (including costs and liens) if an
appeal is taken from the lower court by any party, or if any legal action after
judgment has to be brought to collect the judgment or any portion thereof,
or a second trial is necessary.
13. Attorneys have advanced litigation-related costs of $105,154.28 in this matter.
14. To aid in the prosecution of the case, attorneys retained the accident reconstruction firm
Accident Research Specialist Cary, N.C., to assist in the investigation of the collision,
consult with attorneys, prepare computer simulations and exhibits, and offer expert
testimony concerning the accident at both deposition and trial.
15. A breakdown of the costs advanced in this matter by Crabtree Carpenter, PLLC and those
advanced by The Jernigan Law Firm are attached to plaintiff’s motion. (DE ## 84-3, 844.)
16. The litigation expenses were reasonable and necessary for the proper prosecution of this
matter.
17. Attorneys submitted affidavits addressing, among other things, their efforts on behalf of
plaintiff in this matter and the unique difficulties the case presented.
18. Carroll’s heirs, who are entitled under North Carolina law to share in the proceeds of the
wrongful death recovery, are:
Seth Carroll, age: 21; Rebekah Carroll, age: 20; Hannah Carroll, age: 18; and S.C., DOB:

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June **, 2003, age: 16.
19. Shortly before Carroll’s death, he and Wendy Carroll entered into a Separation
Agreement and Property Settlement wherein Wendy Carroll waived her right to share in
his estate. Consequently, Wendy Carroll is not an heir for purposes of distribution of the
wrongful death proceeds and is not seeking any recovery from those proceeds.
20. Each of the adult heirs as well as their mother, Wendy Carroll, both individually and as
Guardian Ad Litem of the minor heir, have signed a statement indicating they are
satisfied with the representation of their attorneys and “very pleased” with the results
obtained. (DE # 84-8, at 3-4.) The individuals request that this court approve the
disbursement of the settlement proceeds as requested in plaintiff’s motion. (Id. at 3.)
21. The “court must independently investigate and evaluate any compromise or settlement of
a minor’s claims to assure itself that the minor’s interests are protected.” Pellegrin v.
Nat’l Union Fire Ins., 605 F.3d 238, 243 (4th Cir. 2010). Thus, the court provides “an
opinion as to the fairness and reasonableness of the settlement” when minors are
involved. Local Civil Rule R. 17.1.
22. Integral to the court’s role in protecting minors is determining whether their attorney fee
agreements are reasonable. Pellegrin, 605 F.3d at 243. Accordingly, the court must
“approve or fix the amount of the fee to be paid to counsel for the minor or incompetent
parties” and provide “a summary of services rendered by counsel for the minor or
incompetent parties.” Local Civil Rule 17.1.
23. Contingency fee agreements are evaluated under a reasonableness standard. Pellegrin,
605 F.3d at 245. The court’s inquiry is guided by the following twelve factors:
(1) the time and labor required in the case, (2) the novelty and
difficulty of the questions presented, (3) the skill required to perform
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the necessary legal services, (4) the preclusion of other employment
by the lawyer due to acceptance of the case, (5) the customary fee
for similar work, (6) the contingency of a fee, (7) the time pressures
imposed in the case, (8) the award involved and the results obtained,
(9) the experience, reputation, and ability of the lawyer, (10) the
“undesirability” of the case, (11) the nature and length of the
professional relationship between the lawyer and the client, and (12)
the fee awards made in similar cases.
In Re: Abrams & Abrams, 605 F.3d 238, 244 (2010) (quoting Allen v. U.S., 606 F.2d
432, 436 (4th Cir. 1979)).
24. Plaintiff’s motion and the affidavits of attorneys address pertinent Allen factors as set out
in In Re:Abrams. (See DE ## 84-6, 84-7.)
25. The contingency fee charged in this case allowed plaintiff to retain experienced legal
counsel that she would not otherwise have had the means to retain. (DE # 84-8.)
26. The contingency fee agreement and the costs advanced transferred “a significant portion
of the risk of loss to the attorneys taking [the] case.” In Re: Abrams, 605 F.3d at 246.
27. As stated in the affidavits, attorneys were confronted with numerous issues that they had
to overcome in order to successfully represent plaintiff, not the least of which was the
investigating officers’ finding that Carroll was entirely responsible for the accident. (See
DE ## 84-6, 84-7, 84-9, 84-10.)
28. “The most critical factor in determining the reasonableness of a fee award is the degree of
success obtained.” In re; Abrams, 605 F.3d at 247 (citation omitted). Attorneys were
successful in the result obtained and the recovery is substantial.
29. The contingency fee agreement provides for a fee of 45% of the gross recovery because
the case settled after the parties had fully briefed the issue on appeal. However, attorneys
agreed to modify their fee agreement and reduce their requested fee by $50,000.00.
Therefore, attorneys now seek a fee of $591,250.00.
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30. In support of the settlement and fee agreement, attorneys submitted affidavits from Guy
Crabtree, (DE # 84-6), Leonard Jernigan, (DE # 84-7), David F. Kirby, (DE # 84-9), and
William Mills, (DE # 84-10), all of whom are experienced North Carolina attorneys, with
an emphasis on litigation. The affidavits all swear that the fee requested by attorneys in
this matter is customary in these types of cases and is fair and reasonable given the
totality of the circumstances.
31. Since the accident in which Carroll was killed was determined to have arisen out of the
course and scope of his employment with Case Farms, under the North Carolina
Workers’ Compensation Law, benefits have been, and will continue to be, paid by Case
Farms, his employer, to the Carroll children.
32. As a result of the payment of these benefits, there is a workers’ compensation lien against
the settlement proceeds. Case Farms has agreed to accept $80,000.00 in full and
complete satisfaction of its lien for payments of benefits, both past and future, to the
Carroll children. (DE # 84-11.) That stipulation is incorporated herein by reference.
33. Pursuant to the settlement agreement, defendants have agreed to use $608,595.72 of the
total agreed settlement amount to fund the purchase of structured settlements as follows:
For Seth Carroll, funded with $150,898.933;
For Rebekah Carroll, funded with $150,898.93;
For Hannah Carroll, funded with $150,898.93; and
For S.C., funded with $155,898.93.
34. From the structured settlements each of the Carroll children and their heirs over time will
receive the following guaranteed amounts:
Seth Carroll

$186,665.00

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Rebekah Carroll

$180,202.00

Hannah Carroll

$185,821.00

S.C.

$201,781.00

35. Pursuant to the terms of the annuity, the minor’s structured settlement, funded with
$155,898.93, will be payable as follows:
$500.00 payable monthly, guaranteed for 5 years, beginning on 06/27/2021, with
the last guaranteed payment on 05/27/2026.
$700.00 Payable monthly, guaranteed for 10 years, beginning on 06/27/2026, with
the last guaranteed payment on 05/27/2036.
$15,000.00 Guaranteed lump sum payable on 06/27/2025.
$18,000.00 Guaranteed lump sum payable on 06/27/2028.
$23,000.00 Guaranteed lump sum payable on 06/27/2033.
$31,781.14 Guaranteed lump sum payable on 06/27/2038.
All sums set forth herein constitute damages on account of personal physical injuries or
physical sickness, within the meaning of Section 104(a)(2) of the Internal Revenue Code
of 1986, as amended.
36. In addition to the funds that each of the Carroll Children will receive from the structured
settlements, the following lump sum payments will be made to each at the time of the
disbursement of the net settlement proceeds:
Seth Carroll

$10,000.00

Rebekah Carroll

$10,000.00

Hannah Carroll

$10,000.00

S.C.

$ 5,000.00 (to be held by the Clerk)

37. The minor’s share of the total recovery in this case is fair, reasonable, and in the best

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interest of the minor.
38. Documentation showing the details of the structured settlements, including the cost of
each and the payout to each of the Carroll children, as well as information on Pacific
Life, the insurance company from which the annuities are being purchased, are attached
to plaintiff’s motion and are incorporated herein by reference. (DE # 84-12.)
39. The purchase of the annuities for the Carroll children is appropriate and Pacific Life is a
highly rated insurance company and an appropriate company from which to purchase the
annuities.
40. Plaintiff retained Attorney Mark J. Hale, Jr. of Baddour, Parker, Hine & Hale, PC,
Goldsboro, N.C. to open the Estate of Anthony Carroll in Wayne County, N.C. (No. 16E-426) in order to prosecute this wrongful death action and to then close out the Estate
when this matter is resolved. Attorney Hale has not yet billed for his services but will do
so when he closes out the Estate and files a final accounting.
41. Plaintiff requests to reserve $5,000.00 from the settlement proceeds, which she believes
would be adequate to pay Attorney Hale and to pay any incidental costs presently
unknown that may arise between now and when this matter is finally resolved.
42. It is appropriate to reserve $5,000.00 for the purposes requested by plaintiff. Any money
that may remain from these retained funds, after those costs are paid, should be
distributed by plaintiff to the heirs in accordance with North Carolina law.
43. Plaintiff requests that any net funds remaining to be paid on behalf of the minor child,
S.C., be paid into the Clerk of Court’s Office and be held there at interest until S.C.
reaches her majority or the funds are otherwise released. This request is proper.
44. The settlement of this case for the terms described herein and more fully explained in the

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agreement is fair, reasonable and warranted given the totality of the circumstances.
45. The attorney fee requested in this case is fair and reasonable given the totality of the
circumstances.
46. The litigation costs incurred on behalf of plaintiff in this case were reasonable and
necessary to the successful prosecution of this matter.
47. The disbursement of the settlement funds as requested in plaintiff’s motion is fair and
reasonable.
48. The parties have agreed to the filing of a Rule 41(a)(1)(A)(ii) Stipulation of Dismissal
with Prejudice of the Complaint and Civil Action upon court approval of this settlement.
Such Stipulation shall have the effect of rendering the Judgment and Amended Judgment
null and void.
Based upon the foregoing findings of fact and conclusions of law, it is hereby ORDERED,
ADJUDGED AND DECREED that:
1. The settlement of this matter for the terms stated in the settlement agreement executed by
the parties and as set forth in this order is hereby APPROVED.
2. The settlement funds shall be distributed as follows:
Total Amount of Settlement

$1,425,000.00

Less Disbursements
Seth Carroll
Structured Settlement Funding
Cash to Seth Carroll
Subtotal
Rebekah Carroll
Structured Settlement Funding
Cash to Rebekah Carroll
Subtotal
Hannah Carroll
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150,898.93
10,000.00
(160,898.93)

150,898.93
10,000.00
(160,898.93)

Structured Settlement Funding
Cash to Hannah Carroll
Subtotal
S**** C*****
Structured Settlement Funding
To be held by Clerk at interest
until majority
Subtotal

150,898.93
10,000.00
(160,898.93)

$155,898.93
5,000.00

Workers’ Compensation Lien
Attorneys’ Fee – Jernigan and Crabtree
Litigation Costs –
Jernigan Law Firm
Crabtree Carpenter
Funds Held in Trust to pay attorney fees
for estate closure and additional incidental
costs unknown at this time (balance remaining to be paid
to Estate for equal disbursement to heirs)

(160,898.93)

(80,000.00)
(591,250.00)
(30,991.25)
(74,163.03)

(5,000.00)

Balance Remaining

-0-

3. The balance of any funds paid to or on behalf of the minor child, S.C., that are not used
to fund a structured settlement are to be placed in the Clerk’s Registry at interest and
held there until S.C. reaches the age of 18 years, at which time the funds will be paid
to her.
4. The parties shall file a Rule 41(a)(1)(A)(ii) Stipulation of Dismissal with Prejudice of
the Complaint and Civil Action. Such Stipulation renders the Judgment and
Amended Judgment null and void.
This 13 December 2019.

__________________________________
W. Earl Britt
Senior U.S. District Judge

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