Walker v. The Kaplan Trucking Company, et al.

Filing 91

AGREED ORDER APPROVING AMENDED PETITION TO COMPROMISE AND SETTLE WRONGFUL DEATH CLAIM AND FOR APPROVAL OF DISTRIBUTION OF SETTLEMENT PROCEEDS: It is ADJUDGED and ORDERED that the One Hundred Thousand Dollar ($100,000.00) settlement of the wrongf ul death claim against defendant, The Kaplan Trucking Company, as proposed in the 80 Amended Petition, is hereby approved as more fully set forth in the Agreed Order. Counsel for the parties are directed to prepare for the Court's execution an appropriate Dismissal Order. Signed by Senior Judge David A. Faber on 3/22/2017. (certified cc: all counsel and parties of record) (arb)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
AT BLUEFIELD
TRACY L. WALKER, as
Personal Representative of the
Estate of LESTER J. WALKER, JR.,
Plaintiff,
v.

Civil Action No. 1:15-02319

THE KAPLAN TRUCKING CO.,
Defendant.
AGREED ORDER APPROVING AMENDED PETITION TO
COMPROMISE AND SETTLE WRONGFUL DEATH CLAIM AND
FOR APPROVAL OF DISTRIBUTION OF SETTLEMENT PROCEEDS
On March 20, 2017, came the Petitioner, Tracy L. Walker, individually, and in her
Capacity as the Administratrix of the Estate of Lester J. Walker, Jr., in person and by counsel, J.
Ryan Stewart of Bailey Javins & Carter, LC, pursuant to an Amended Petition to Compromise
and Settle Wrongful Death Claim and for Approval of Distribution of Settlement Proceeds [Doc.
80] (hereinafter “Amended Petition”). Also appearing at the hearing was attorney David A.
Bosak of Lewis Brisbois Bisgaard & Smith, LLP, counsel for the defendant, The Kaplan
Trucking Company.
Upon careful consideration of the testimony, the pleadings and the record appearing
before the Court, the Court finds the following:
1.

Tracy Walker was duly appointed as the personal representative of the Estate of

Lester J. Walker on April 1, 2013, by the Fayette County, Pennsylvania Register of Wills, and is
acting as such at this time.

2.

On March 1, 2013, Lester Walker, Petitioner’s husband and decedent, was killed

while operating a truck tractor on I-77, in Mercer County, West Virginia, owned by defendant
Kaplan Trucking Co.
3.

Lester Walker was survived by his wife, Tracy Walker, and their son, Brandon

Walker. Lester Walker was likewise survived by eight brothers and sisters, Teri Bartley, Bob
Walker, Shelli Walker, Leslie Iaeger, Robin Gallentine, Wendy Stimmel, Mike Seese and Rick
Walker. There are no other known potential statutory beneficiaries to the Estate of Lester
Walker.
4.

At the time of Lester Walker’s death on March 1, 2013, only petitioner Tracy L.

Walker was financially dependent upon Lester Walker.
5.

Petitioner has negotiated a proposed settlement of the Estate’s wrongful death

claims against the defendant, The Kaplan Trucking Company (“Kaplan”), in the amount of One
Hundred Thousand Dollars ($100,000.00).
6.

Tracy Walker, individually, and in her Capacity as the Administratrix of the

Estate of Lester J. Walker, believes the settlement proposed is just, fair and equitable under the
circumstances.
7.

Tracy Walker, individually, and in her Capacity as the Administratrix of the

Estate of Lester J. Walker, understands that approval of the settlement and execution of the
release herein will forever bar any further claims by the Estate and by any statutory beneficiary
against defendant Kaplan, or prior defendant, Nucor Corporation, from the injury too and death
of Lester J. Walker on March 1, 2013.

8.

No improper promises, guarantees, threats, coercion or undue influence has been

exerted upon Tracy Walker to accept the proposed settlement herein, and that the proposed
settlement is a good faith settlement negotiated at arms-length among the parties.
9.

Petitioner asserts there are no outstanding medical, funeral or burial expenses to

be paid from the proposed settlement.
10.

Petitioner entered into a contract with Bailey Javins & Carter, LC providing the

payment of 40% of the proceeds as a fee for legal representation.

Petitioner’s counsel has

agreed to reduce its fee to 33%, which totals $33,000.00. Petitioner also agreed to pay the
litigation expenses incurred in this matter, which total $26,065.19. Petitioner understands that
the attorney fees and litigation expenses must be deducted out of the total settlement proceeds,
leaving $40,934.81 as the total net settlement proceeds payable to the Estate.
11.

All of the potential statutory beneficiaries of the Estate have been notified of the

proposed settlement.
12.

Previously, on February 14, 2017, the Court held a hearing and conditionally

granted the Amended Petition, approving the attorney’s fees and litigation expenses as set forth
herein and in the Amended Petition, and conditionally awarded the total net settlement proceeds
of $40,934.81 to Petitioner Tracy Walker [Doc. 80].

At this hearing, the Court took the

testimony of Petitioner, Tracy Walker. The Court and the parties learned at this hearing that
three (3) of the decedent’s adult sisters (Robin Gallentine, Shelli Walker and Wendy Stimmel)
had mistakenly gone to the federal courthouse in Bluefield, West Virginia, instead of Charleston,
West Virginia, where the hearing took place.
13.

On February 15, 2017, the Court entered an Order conditionally granting the

Amended Petition [Doc. 83]. The Court held that should there be no objections from other

putative beneficiaries within 15 days from the date of the Order, the Court shall confirm the
granting of the Amended Petition [Doc. 80].

The Court provided notice to sisters Robin

Gallentine, Shelli Walker and Wendy Stimmel that they must object to the settlement within 15
days if they wish to do so at all, by filing their objections in writing with the Clerk of this Court
on or before March 2, 2017. [Doc. 80]. Failure to do so would result in confirmation of the
settlement by the Court.
14.

On February 28, 2017, decedent’s three adult sisters, Robin Gallentine, Shelli

Walker and Wendy Stimmel, filed their written objections to the settlement and proposed
distribution set forth in the Amended Petition [Doc. 85].
15.

On March 1, 2017, based upon the objections of the three (3) adult sisters, the

Court entered an Order setting a second hearing on the Amended Petition for March 20, 2017, at
11:00 a.m. [Doc. 86]. The Clerk provided notice of the hearing and sent copies of the Court’s
Order to the three adult sisters, Robin Gallentine, Shelli Walker and Wendy Stimmel [Doc. 86].
16.

Pursuant to its Order [Doc. 86], the Court conducted a second hearing on the

Amended Petition on March 20, 2017 at 11:00 a.m. Present at the hearing were Petitioner, Tracy
L. Walker, individually, and in her Capacity as the Administratrix of the Estate of Lester J.
Walker, Jr., in person and by counsel, J. Ryan Stewart of Bailey Javins & Carter, LC, and
attorney David A. Bosak of Lewis Brisbois Bisgaard & Smith, LLP, counsel for the defendant,
The Kaplan Trucking Company. Despite being properly noticed, decedent’s three adult sisters,
who filed written objections to the proposed settlement, did not appear at the hearing. As a
result, the Court confirmed the settlement as set forth in the Amended Petition [Doc. 80].
WHEREFORE, pursuant to West Virginia’s Wrongful Death Act, W. Va. Code §55-7-7,
it is, therefore, ADJUDGED and ORDERED:

A.

That the One Hundred Thousand Dollar ($100,000.00) settlement of the wrongful

death claim against defendant, The Kaplan Trucking Company, as proposed in the Amended
Petition, is hereby approved.
B.

Petitioner is hereby authorized and directed to accept the sum set forth in the

Amended Petition for settlement of all claims of the Estate of Lester J. Walker and the statutory
beneficiaries of Lester J. Walker; and is further authorized and empowered to execute and
deliver to the defendant all releases necessary to effectuate this settlement.
C.

Upon execution of the settlement documents including a release, any other claims

that Petitioner, the Estate of Lester J. Walker, or his testamentary and statutory beneficiaries,
may have against defendant, The Kaplan Trucking Company, or prior defendant Nucor
Corporation, related to the death of Lester J. Walker are forever barred and may no longer be
pursued by them.
D.

That all of the potential statutory beneficiaries of the Estate of Lester J. Walker

have been notified of the hearing(s) to approve wrongful death settlement in this matter, and that
other than Petitioner, Tracy Walker, none of the other potential statutory beneficiaries appeared
at either of the two hearings to approve settlement, foregoing his/her right to make a claim for
any of the net settlement proceeds.
E.

Only Petitioner Tracy Walker demonstrated a financial dependence on the

decedent, Lester J. Walker.
F.

That the proceeds from settlement herein be distributed pursuant to the proposal

set forth in the Amended Petition [Doc. 80], including payment for attorney’s fees in the amount
of $33,000.00; payment of litigation costs/expenses in the amount of $26,065.19; and payment of
the total net settlement proceeds to Petitioner Tracy Walker in the amount of $40,934.81.

G.

Upon payment of the settlement aforesaid, defendant, The Kaplan Trucking

Company, and prior defendant, Nucor Corporation, shall be forever discharged, released and
acquitted from any and all claims, actions, suits and judgment arising from or relating to the
injuries or death of Lester J. Walker.
H.

The Court HOLDS that the compromise and settlement was negotiated at arms-

length, was fair and reasonable, and is a good faith settlement within the meaning of West
Virginia law.

See Hager v. Marshall, 202 W.Va. 577, 505 S.E.2d 640 (1998), Smith v.

Monongahela Power Co., 189 W.Va. 237, 429 S.E.2d 643 (1993), Board of Educ. of McDowell
County v. Zando, Martin & Milstead, Inc., 182 W.Va. 597, 390 S.E.2d 796 (1990).
I.

At the conclusion of the hearing on March 20, 2017, the Court announced its

decision approving the settlement and distribution of proceeds in open court, and no objection to
the approved settlement and distribution was made by any of the parties or potential statutory
beneficiaries.
The Clerk of the Court is directed to provide certified copies of this Order, upon its entry,
to all counsel and parties of record.
Counsel for the parties are directed to prepare for the Court’s execution an appropriate
Dismissal Order.

22nd
Entered this _____day of

March

, 2017.

DAVID A. FABER
Senior United States District Judge

Approved By:
s/ J. Ryan Stewart
Timothy C. Bailey (WVSB #5839)
J. Ryan Stewart (WVSB #10796
BAILEY JAVINS & CARTER, LC
213 Hale Street
Charleston, West Virginia 25301
Telephone [phone]
Facsimile [phone]
[e-mail]
Counsel for Plaintiff
/s/ David A. Bosak
Tim J. Yianne (WVSB #8623)
David A. Bosak (WVSB #11947)
Lewis Brisbois Bisgaard & Smith, LLP
222 Capitol Street, Fifth Floor
Charleston, WV 25301
[e-mail]
[e-mail]
Counsel for Defendant Kaplan Trucking Co.