Garlick et al v. County of Kern et al, No. 1:2013cv01051 - Document 254 (E.D. Cal. 2016)
Court Description: ORDER ADOPTING IN FULL 245 FINDINGS AND RECOMMENDATIONS GRANTING Approval of the Compromise on Behalf of Minor Plaintiffs MLS, CJS, CRS, and EZS signed by Chief Judge Lawrence J. O'Neill on 8/22/2016. (Jessen, A)
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 TARA GARLICK, et al., 12 Plaintiffs, 13 14 15 v. COUNTY OF KERN, et al., Defendants. ) ) ) ) ) ) ) ) ) ) Case No.: 1:13-cv-01051 - LJO - JLT ORDER ADOPTING IN FULL THE FINDINGS AND RECOMMENDATIONS GRANTING APPROVAL OF THE COMPROMISE ON BEHALF OF MINOR PLAINTIFFS MLS, CJS, CRS, AND EZS 16 17 This matter arises out of the death of David Silva which, it is claimed, was caused by the 18 application of excessive and unreasonable use of force by various law enforcement officers. Minor 19 Plaintiffs MLS, CJS, CRS and EZS, are surviving children of the decedent, and seek approval of the 20 settlement reached with Defendants, by and through their guardian ad litem Judy Garlick. (Doc. 238) 21 On July 22, 2016, the magistrate judge recommended the settlement be approved, and the funds 22 distributed as proposed by the parties. (Doc. 245) 23 The parties were given fourteen days to file any objections to the recommendation. (Doc. 245 24 at 7-8) In addition, the parties were “advised that failure to file objections within the specified time 25 may waive the right to appeal the District Court’s order.” (Id. at 8, citing Martinez v. Ylst, 951 F.2d 26 1153 (9th Cir. 1991)). To date, no objections have been filed. 27 28 In accordance with the provisions of 28 U.S.C. § 636 (b)(1)(C) and Britt v. Simi Valley United School Dist., 708 F.2d 452, 454 (9th Cir. 1983), this Court conducted a de novo review of the case. 1 1 Having carefully reviewed the file, the Court finds the Findings and Recommendations are supported 2 by the record and proper analysis. 3 Based upon the foregoing, IT IS HEREBY ORDERED: 4 1. The Findings and Recommendations dated July 22, 2016 (Doc. 245) are ADOPTED IN FULL; 5 6 2. The petition to approve settlement of the minors’ claims is GRANTED; 7 3. Defendants, County of Kern and its insurer, Starr Indemnity and Liability Company, 8 Starr Companies and Defendants State of California and their insurer are DIRECTED 9 to pay the combined sum of $3,400,000 in consideration of a full and final release and discharge of and from all claims arising from this action. 10 The allocation between the defendants of the total overall settlement of the 11 12 entire case is $2,992,000.00 to the County of Kern and its insurer, Starr Indemnity and 13 Liability Company, and $408,000.00 to the State of California. It is agreed that under 14 no circumstances shall the negotiated contribution and allocation of the overall total 15 settlement by the defendants exceed these sums; 16 4. demands of Plaintiffs MLS, CJS, CRS, EZS and Merri Silva and Chris Silva; 17 18 Of the full settlement, that $3,000,000 is directed to settle the claims, charges, and 5. From the above settlement money, the defendant County of Kern is DIRECTED to pay 19 $1,200,000.00—to be paid by Starr Indemnity and Liability Company; Starr 20 Companies— for the purchase of a annuities on behalf of CJS, CRS, EZS. The parties 21 SHALL purchase a tax free structured settlement annuity policy from Berkshire 22 Hathaway Life Insurance Company of Nebraska through broker Tom Stevenson of 23 Atlas Settlements. The defendants County of Kern, Sgt. Douglas Sword, Deputy Ryan 24 Greer, Deputy Tanner Miller, Deputy Jeffrey Kelly, Deputy Luis Almanza, Deputy 25 Brian Brock and Deputy David Stephens shall execute a Settlement Agreement and 26 Release and execute a “Qualified Assignment” of their obligation to make periodic 27 payments pursuant thereto in compliance with I.R.C. Section 104(a)(2) and Section 28 130(c) of the Internal Revenue Code of 1986, as amended. Said assignment shall be 2 1 made to BHG Structured Settlements, Inc. (“Assignee”). Upon doing so, the defendants 2 will no longer be obligated to make further periodic payments and the Assignee will be 3 the plaintiffs’ sole obligor with respect to the future periodic payments; 4 6. The Assignee is DIRECTED to purchase structured settlement annuities for 5 $300,000.00 each for MLS, CJS, CRS, and EZS through Berkshire Hathaway Life 6 Insurance Company of Nebraska. The payments shall be assigned to BHG Structured 7 Settlements, Inc. by way of a Qualified Assignment by the County's Insurer Starr 8 Indemnity and Liability Company, Starr Companies. The payments will be guaranteed 9 through the issuance of a Letter of Guarantee from Berkshire Hathaway Life Insurance 10 Company of Nebraska, assumed under the Qualified Assignment. In accordance with 11 the structured settlement agreement, the Assignee will fund the obligation to make 12 payments through the purchase of annuities from BHG Structured Settlements, Inc. 13 Said annuities shall provide guaranteed periodic payments (subject to annuity rates in 14 effect at the time of purchase); 15 7. sixty days of the date of service of this Order; 16 17 The Assignee is DIRECTED to file receipt of the purchase of the annuities within 8. The County Defendants is DIRECTED to pay the sum of $1,440,000.00 to Chain 18 Cohn Stiles, Chris Silva and Merri Silva for the payment of attorney fees and costs, 19 and the settlement amount owed to Chris Silva and Merri Silva; 20 9. The State of California, on behalf of CHP Officers Michael Phillips and Michael Bright 21 is DIRECTED to pay the sum of $360,000.00 to Chain Cohn Stiles, Chris Silva and 22 Merri Silva. 23 Although this required payment is being made at the request of the affected 24 plaintiffs and their counsel, this court recognizes and finds that the State’s required 25 payment provides adequate consideration for settlement of the claims of all requesting 26 plaintiffs, including Plaintiffs MLS, CJS, CRS, EZS, Merri Silva and Chris Silva; 27 28 10. Payment to Chain Cohn Stiles and the Law Office of Dale K. Galipo in the sum of $1,330,000.00 representing all claims for attorney fees and costs incurred on behalf of 3 1 the plaintiffs MLS, CJS, CRS, EZS, Merri Silva and Chris Silva (in the amount of 2 $1,200,000) and costs (in the amount of $130,000), is APPROVED; and 3 11. The parties SHALL file a stipulation for dismissal of the action with prejudice, and lodge a separate order, within ten days of the date of service of this Order. 4 5 6 7 8 IT IS SO ORDERED. Dated: /s/ Lawrence J. O’Neill _____ August 22, 2016 UNITED STATES CHIEF DISTRICT JUDGE 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4
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