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Greenwald v. Caballero-Goehringer

Superior Court of Delaware

March 29, 2017

Greenwald, et al.
Caballero-Goehringer, M.D., et al.

          Submitted: March 21, 2017

          Mr. Chandra J. Williams, Esq. Rhodunda & Williams.

          Lorenza Wolhar, Esq. Marshall, Dennehey, Warner, Coleman & Goggin.

          Joshua Meyeroff, Esq. Morris James, LLP.


         This matter involves the requested approval of a minor tort claim settlement. The Court denied Plaintiffs' Third Petition for Approval of Settlement, without prejudice to refile with proof of an annuity ready for purchase that adequately protects the Minor's interests. Plaintiffs move for reargument or reconsideration of the Court's decision. This letter sets forth the Court's reasoning for denial of Plaintiffs' motion for reargument.

         From the Court's perspective, it provided clear guidance regarding the appropriate process. Nevertheless, the Plaintiffs continue to request reconsideration and exception from the Court's direction. Accordingly, before setting forth the Court's reasoning, a discussion of the background of this matter is appropriate.

         Petitioner Colleen Greenwald (hereinafter "Petitioner") is the guardian ad litem for the now five year old Kiley Ann Greenwald (hereinafter the "Minor"). In 2014, Petitioners sued the Minor's pediatrician for health care negligence allegedly causing the then-infant Minor to fall from an examination table in the doctor's office and fracture her skull. In addition to the Minor's claims, Petitioner and the Minor's father, Gary Greenwald, joined the Minor's lawsuit, making a claim for their mental anguish and emotional distress, despite suffering no injury and their being no allegation of intentional infliction of emotional distress. Litigation commenced and after mediation, the parties agreed to settle the claims for a gross amount, to be allocated pursuant to Court approval.

         At that point, Petitioner's approach deviated from the best interest of the Minor when Plaintiffs filed a petition seeking Court approval of the settlement pursuant to Superior Court Civil Rule 133. In the initial petition, the Petitioner alleged that "in the interest of fairness, the plaintiffs should receive an equal share of the net settlement amount." In other words, although the Minor was the only Plaintiff suffering injury or that had any cognizable claim in the matter, the Minor's parents requested to receive twice as much of the net settlement proceeds as the injured Minor.

         The Court held a hearing on February 19, 2016. After the hearing, the Court held that it would not approve a settlement where the Petitioner received any less than the full net amount of the settlement. The Court determined that any less would not be a fair and equitable settlement of the Minor's claims.

         Thereafter, the Petitioner filed an amended petition seeking amounts to be placed in a Delaware Uniform Transfers to Minors Account (hereinafter "UTMA") in part, or in the alternative providing for the placement of funds in an annuity. The revised petition, however, did not provide for any terms for an annuity that the Court could review and consider. At that time, it was evident that no work toward that end was completed. The Court became further concerned that based on the parent's initial vigor (1) to divert funds to them that in fairness belonged solely to the Minor, and (2) a continued effort to provide for parental access to the Minor's funds (albeit through a UTMA), it was in the Minor's best interest to require all net proceeds to be placed in a structured settlement where the parents would not have access.[1] By Letter Order on November 23, 2016, the Court denied the Second Petition. In that Order, the Court held that the gross settlement amount and the net present value of the settlement was fair and in the best interest of the Minor, provided all net amounts are applied for the benefit of the Minor. The Court also directed the Prothonotary to provide the structured settlement check list to the Petitioner, long used and available, setting forth the requirements for approval of the settlement. In other words, the Petitioner was instructed to file a revised petition proposing the purchase of a suitable annuity to protect the Minor's interests.

         Thereafter, the Petitioner submitted a Third Petition not meeting the requirements of the checklist. It included the proposed purchase of a receivable purchase agreement. The proposed "structured settlement" was described in the Third Petition as a structure to be purchased through a third party to be facilitated by a Houston, Texas law firm. The "annuity" proposed by the Petitioner was in fact a "receivable purchase agreement" which involved purchase of the rights of payment of a structured personal injury settlement from a California injured party having nothing to do with this case. In other words, the annuitant in the proposed plan facilitated by the Texas law firm was the California claimant, not the Minor. Furthermore, despite the Petitioner describing The Hartford as providing the annuity, the seller of the receivable purchase agreement was GenexCapital. No rating was provided for that entity in the petition. The Court denied the Third Petition, without prejudice.

         Thereafter, Petitioner moves for reargument pursuant to Superior Court Civil Rule 59(e). Petitioner alleges that the proposed mechanism for payment qualifies as a structured settlement and the Court misapprehended that fact. The two settling defendants opposed the Third Petition on the basis that the Petitioner did not propose a true structured settlement. Defendant Linda Cabellera-Goehringer also filed a separate response in opposition to the Petitioner's motion for reargument. Both defendants argued that the proposed payment mechanism was not in the best interest of the Minor. The Court agrees and also finds that there is no basis for Petitioner's motion for reargument in this case.

         The standard for granting reargument under Superior Court Civil Rule 59(e) ...

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