Moore, et al. v. County of Kern, et al., No. 1:2005cv01115 - Document 228 (E.D. Cal. 2009)
Court Description: ORDER adopting 227 FINDINGS AND RECOMMENDATIONS signed by Chief Judge Anthony W. Ishii on 11/17/2009. (Lundstrom, T)
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Moore, et al. v. County of Kern, et al. Doc. 228 1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 JAMES W. MOORE, JR., et al., 10 11 12 13 14 15 ) ) Plaintiff, ) v. ) ) COUNTY OF KERN, et al., ) ) Defendants. ) ) ) AND RELATED CONSOLIDATED CASE ) AND CROSS-CLAIMS ___) 1:05-cv-01115-AWI-SMS Consolidated with: 1:06-cv-0120-OWW-SMS ORDER ADOPTING FINDINGS AND RECOMMENDATIONS RE: AMENDED PETITION FOR COMPROMISE OF CLAIM OF MINOR PLAINTIFF JAMES W. MOORE, JR. (DocS. 216, 227) 16 Plaintiffs are proceeding with a civil action in this Court. 17 The matter has been referred to the Magistrate Judge pursuant to 18 28 U.S.C. § 636(b) and Local Rules 72-302 and 72-303. 19 Pending before the Court is the petition of Alicia Moore 20 Whitaker, the mother of and guardian ad litem for the minor 21 Plaintiff James W. Moore, Jr. (JWM), for approval of the 22 compromise of the minor’s claim. On October 30, 2009, the 23 Magistrate Judge filed findings and recommendations concerning 24 the petition, which were served on all parties on the same date. 25 The findings and recommendations provided that objections could 26 be filed within ten court days. No party has filed objections. 27 In accordance with the provisions of 28 U.S.C. § 636 28 1 Dockets.Justia.com 1 (b)(1)(C) and Britt v. Simi Valley United School Dist., 708 F.2d 2 452, 454 (9th Cir. 1983), this Court has conducted a de novo 3 review of the case. Having carefully reviewed the entire file, 4 the Court finds that the report and recommendation are supported 5 by the record and proper analysis. 6 Accordingly, IT IS HEREBY ORDERED that: 7 1. The findings and recommendation filed October 30, 2009, 8 are ADOPTED IN FULL; and 9 2. The terms of the settlement stated in the findings and 10 recommendations, including costs and attorney’s fees, ARE 11 APPROVED; and 12 3. It IS ORDERED that Defendant, COUNTY OF KERN, and its 13 insurer, shall pay the sum of $3,025,000.00 (hereinafter 14 "settlement money") on behalf of all Defendants COUNTY OF KERN, 15 KERN COUNTY SHERIFF'S DEPARTMENT, former SHERIFF MACK WIMBISH, 16 KERN COUNTY DETENTION OFFICERS GREG COSSEL, MOSES ADAME, MARK 17 JIMENEZ, CLINTON MINOR, GREGORY MORGAN, SHANNON HAUINGS, LARRY 18 JOHNSON, JULIAN TREVINO, LISA ROMERO, ANGEL BRAVO, ROXANNE 19 FOWLER, RALPH CONTRERAS and DANIEL LINDINI, SENIOR DETENTION 20 OFFICER JAIME TELLEZ, DETENTION SERGEANT RANDAL HOLTZ, and KERN 21 COUNTY SHERIFF DEPUTIES JEFF COLBERT and MARCUS HUDGINS, in 22 consideration of a full and final release and discharge of and 23 from all claims, charges, and demands of plaintiff, JWM, arising 24 from this action. Petitioner is hereby authorized and directed to 25 execute and deliver to Defendants a full, complete, and final 26 release and discharge of and from any and all claims and demands 27 of herself and Plaintiff, JWM, by reason of the incident 28 described herein and resulting injuries, upon receipt of the 2 1 settlement money; and 2 4. It is ORDERED that from the above stated settlement 3 money, the Defendants shall pay $2,000,000.00 for the purchase of 4 a tax-free structured settlement annuity policy on behalf of 5 Plaintiff, JWM, with a guaranteed benefit of $3,505,547.75 and an 6 expected benefit of $9,317,496.40, from New York Life Insurance 7 Company and Pacific Life and Annuity Company through Bryan Milner 8 of Millennium Settlements. The Defendants shall execute a 9 Settlement Agreement and Release and execute a "Qualified 10 Assignment" of their obligation to make periodic payments 11 pursuant thereto in compliance with I.R.C. Section 104(a)(2) and 12 Section 130(c) of the Internal Revenue Code of 1986, as amended. 13 Said assignment shall be made to New York Life Insurance Company 14 and Pacific Life and Annuity Company (“Assignees”). Upon doing 15 so, the Defendants shall no longer be obligated to make further 16 periodic payments and the Assignees will be the Plaintiff's sole 17 obligors with respect to the future periodic payments. Assignees 18 shall purchase a structured settlement annuity for $2,000,000.00 19 through New York Life Insurance Company, an “A++, XV” rated life 20 carrier by A. M. Best Insurance Ratings Service and Pacific Life 21 and Annuity Company, an “A+, XV” rated life carrier by A. M. Best 22 Insurance Ratings Service. Said annuities shall provide 23 guaranteed periodic payments (subject to annuity rates in effect 24 at the time of purchase) made according to the schedule found in 25 the Chosen Settlement Proposal attached to the findings and 26 recommendations as Exhibit “A.” 27 No part of the said $2,000,000.00 may be paid to the 28 petitioner, Alicia Moore Whitaker. This Court has determined that 3 1 a tax-free structured settlement is in the best interest of the 2 minor. WJM, by and through his guardian ad litem, Alicia Moore 3 Whitaker, is authorized to settle this claim on behalf of WJM and 4 receive and negotiate funds on behalf of the minor. No bond shall 5 be required of WJM, by and through his guardian ad litem, Alicia 6 Moore Whitaker. Receipt of purchase of annuity is to be filed 7 with the Court within sixty (60) days; and 8 5. It IS ORDERED that from the settlement money, the sum of 9 $911,543.34 shall immediately be paid to CHAIN | COHN | STILES 10 for the payment of attorney fees, costs, and reasonable expenses 11 incurred in connection with the prosecution of this action; and 12 6. It IS ORDERED that from the settlement money, the sum of 13 $550.00 BE PAID immediately to David Atkins, MS, JFT, 2012 E. 14 Street, Bakersfield, California, for medical treatment and 15 services rendered to the minor, JWM; and 16 7. It IS ORDERED that from the remaining balance of the 17 settlement money not previously allocated to purchase of an 18 annuity, or to fees, costs, and expenses, the amount of 19 $40,000.00 shall be placed in an unsecured account in the name of 20 Alicia Moore Whitaker, mother, and James W. Moore, Jr., minor 21 son, at Wells Fargo Bank, Downtown Branch, located at 1300 22nd 22 Street, Bakersfield, California, subject to withdrawal by 23 Petitioner Alicia Moore Whitaker, solely for the use and benefit 24 of the minor, James W. Moore, Jr., and for the purpose of 25 purchasing, insuring, and maintaining a motor vehicle in the 26 minor’s name until his eighteenth birthday, which shall occur on 27 October 15, 2010, at which time any remaining balance in the 28 account shall become the property of James W. Moore, Jr.; and 4 1 8. It IS ORDERED that the remaining balance of the 2 settlement money not allocated to purchase of an annuity, payment 3 of fees and costs, or to segregation in an account for vehicular 4 expenses, amounting to approximately $82,906.66, BE PLACED in an 5 insured, blocked account in the name of Alicia Moore Whitaker, 6 mother, and James W. Moore, minor son, at Wells Fargo Bank, 7 Downtown Branch, located at 1300 22nd Street, Bakersfield, 8 California, until the minor’s eighteenth birthday, which shall 9 occur on October 15, 2010, at which time the remaining balance in 10 the account shall become the property of James W. Moore, Jr. 11 12 IT IS SO ORDERED. 13 Dated: 0m8i78 14 November 17, 2009 /s/ Anthony W. Ishii CHIEF UNITED STATES DISTRICT JUDGE 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5
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