Greenwald, et al.
Caballero-Goehringer, M.D., et al.
Submitted: March 21, 2017
Chandra J. Williams, Esq. Rhodunda & Williams.
Lorenza Wolhar, Esq. Marshall, Dennehey, Warner, Coleman
Meyeroff, Esq. Morris James, LLP.
JEFFREY J CLARK, JUDGE
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.
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.
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.
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.
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.
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. 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
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
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.
standard for granting reargument under Superior Court Civil
Rule 59(e) ...