Western Reserve Life Assurance Co. of Ohio v. Daniel Duong et al
Filing
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JUDGMENT by Judge Jacqueline H. Nguyen. RE Interim Settlement Agreement executed by Xiaoling Shi and Daniel Duong on June 30, 2011. (See document for further details) (rrey)
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UNITED STATES DISTRICT COURT
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CENTRAL DISTRICT OF CALIFORNIA
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WESTERN RESERVE LIFE
Case No.: 2:10-cv-07764-JHN -JCGx
ASSURANCE CO. OF OHIO, an Ohio
corporation,
Judge: Hon. Jacqueline H. Nguyen
Plaintiff,
vs.
JUDGMENT
DANIEL DUONG, XIAOLING SHI,
AARON CHIH YUAN LEE and NA
SHEN,
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Defendants.
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AND RELATED COUNTERCLAIM
AND CROSS-CLAIMS
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WHEREAS the Court has issued its ORDER enforcing a written settlement
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agreement, IT IS ORDERED, ADJUDGED AND DECREED that the Judgment
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herein shall consist of the terms of the Interim Settlement Agreement executed by
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Xiaoling Shi and Daniel Duong on June 30, 2011, which states as follows:
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1. Daniel Duong, Defendant, Claimant, Counter-Claimant, Cross-Claimant
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and Cross-Defendant, and Xiaoling Shi, Defendant, Cross-Defendant and
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Cross-Claimant, on behalf of themselves and all related persons, agree to
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[PROPOSED] JUDGMENT -1
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settle the interpleader action, UCSD Case No. CV 10-007746 on the
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following terms and conditions:
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(A)
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Life Assurance Co. (“WRL”), either by way of stipulation of the
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parties or court order;
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(B)
The net funds will be distributed as follows:
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(i)
52% to Xiaoling Shi and her counsel of record, King Cheng &
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Miller, LLP and
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(ii)
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After payment of attorney fees and costs to Western Reserve
48% to Daniel Duong and his counsel of record, James T.
Hudson.
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2. The parties will advise the Court of the settlement and upon payment of
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the proceeds in interpleader in keeping with the provision of Paragraph 1
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above, the parties, including WRL, shall file a Stipulation to Dismiss the
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action, including any and all counter-claims, cross-complaints, with
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prejudice.
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3. Currently pending is a claim by Daniel Duong, as the primary
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beneficiary, against a life insurance policy issued by ING/Reliastar (“ING”
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herein). Xiaoling Shi is the contingent beneficiary of the ING policy. No
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litigation is currently pending regarding the claim against this policy;
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nevertheless, the parties wish to resolve any dispute or potential dispute as to
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the distribution of the proceeds from the ING policy. Accordingly, the
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parties agree as follows:
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(A)
James T. Hudson will prosecute the claim against ING for
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payment of the policy proceeds, with Daniel Duong as the claimant.
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Mr. Hudson shall be paid attorneys fees of one third of any recovery
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on the ING policy and costs of suit will be born by Daniel Duong.
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[PROPOSED] JUDGMENT -2
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(B)
Any net recovery (after deducting attorneys fees and costs)
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from ING by way of settlement or judgment will be divided as
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follows:
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(i)
Daniel Duong shall receive 90%; and
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(ii)
Xiaoling Shi shall receive 10%.
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(C)
Xiaoling Shi shall cooperate in the prosecution of the action
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against ING, including, but not limited to signing medical
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authorizations allowing ING to investigate the medical status of the
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decedent.
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(D)
James Hudson shall keep counsel for Xiaoling Shi apprised of
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the status of the claim periodically.
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(E)
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case management and strategy, including settlement discussions
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and/or trial strategy. Should resolution of the claim against ING be
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effectuated by way of settlement, Xiaoling Shi’s consent will not be
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required to consummate the settlement.
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(F)
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will assign them to Daniel Duong in return for her percentage of
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recovery from any settlement or judgment as set forth in Paragraph
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3(B)(i) and (ii) above.
Daniel Duong and his counsel will have sole control over all
Xiaoling Shi will release and waive her claims against ING and
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4. Daniel Duong and Xiaoling Shi, on behalf of themselves, their spouses,
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heirs, agents, representative and attorneys, shall mutually release each other
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and their respective spouses, heirs, agents, representative and attorneys, and
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shall waive any and all claims, known and unknown, including a waiver of
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the provisions of Civil Code § 1542, which states:
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“A general release does not extend to claims which the creditor does not
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know or suspect to exist in his or her favor at the time of executing the
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[PROPOSED] JUDGMENT -3
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release, which if known by him or her must have materially affected his or
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her settlement with the debtor.”
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The parties each deny all liability and this settlement agreement shall not be
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construed as an admission of liability which is unequivocally denied.
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Notwithstanding the scope of this agreement, Xiaoling Shi reserves her right
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to bring a wrongful death claim against Daniel Duong in the event Daniel
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Duong is convicted of the murder of Donglei Shi or of any crime related to
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her murder and the statute of limitations is tolled until a judgment of
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conviction is entered.
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5. Each party to bear their own costs and attorney fees except as set forth
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above.
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6. The parties herein agree that they have reached a full and final settlement
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of all claims. This Interim Settlement Agreement is binding and it contains
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the material terms of the agreement between the parties and is enforceable
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under Code of Civil Procedure §664.6. Pursuant to Evidence Code
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§1123(a), the parties agree that this Interim Settlement Agreement is exempt
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from the confidentiality provisions of Evidence Code §1152, et seq. and
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further, that said Agreement is admissible pursuant to Federal Rules of
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Evidence, Rule 408 in an action to enforce the settlement.
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IT IS SO ORDERED AND ADJUDGED.
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Dated:September 12, 2011
Hon. Jacqueline H. Nguyen
UNITED STATES DISTRICT JUDGE
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