Date: 07-02-2015

Case Style: Kaci Nicole Mays v. Thomas Alexander Fabri

Case Number: CJ-2011-1640

Judge: Lori Walkley

Court: District Court, Cleveland County, Oklahoma

Plaintiff's Attorney: James Self and Michael Blue

Defendant's Attorney: Stan Ward, Jon Cartledge, Chris Davis and Trevor Hughes for Thomas Alexander Fabri and Service Experts Heating and Air Conditioning, LLC

Bryan King for Amtrust North America

Gene Robinson for Peerless Indemnity Insurance Company

Description: Norman, OK - Kaci Nicole Mays, Personal Representative of the Estate of Terry Dale Mays, deceased, sued Thomas Alexander Fabri and Service Experts, Inc. d/b/a Gordons services Experts a/k/a Service Experts Heating and Airconditioning, LLC, Peerless Indemnity Insurance Company d/b/a America First Insurance on auto negligence theories claiming;

1. On or about the 13th day of August, 2010, the Plaintiff, Terry Dale Mays was driving eastbound on Lindsey Street in Norman, Cleveland County, Oklahoma. Terry Dale Mays had stopped for a red traffic light at the intersection of Lindsey and Beuy Road when a vehicle driven by the Defendant, Thomas Alexander Fabri, traveling eastbound on Lindsey rear-ended Plaintiffs vehicle. Said collision causing personal injuries to the Plaintiff
2. At the time and place of said collision Thomas Alexander Fabri. was the agent, servant or employee of Service Experts, Inc. dba Gordon’s Service Experts aka Service Experts Heating and Air Conditioning, LLC. This entity or entities is therefore legally responsible for the negligent acts of Thomas Alexander Fabri.
3. Plaintiffs injuries were the direct and proximate result of the negligence of Thomas Alexander Fabri, individually and as the agent, servant and/or employee of Service Experts, Inc. dba Gordons Service Experts aka Service Experts Heating and Air Conditioning, LLC, as follows:
a. The Defendant, Thomas Alexander Fabri, failed to maintain a proper lookout for other traffic;
b. The Defendant, Thomas Alexander Fabri, failed to devote his full time and attention to his driving;
c. The Defendant, Thomas Alexander Fabri, failed to use his brakes and other mechanical means available to avoid the accident; and,
d. The Defendant, Thomas Alexander Fabri, followed too close causing the collision.
4. As a result of the Defendants negligence the Plaintiff, Terry Dale Mays, suffered serious physical injuries, said injuries are permanent, painful and progressive. As a result of said injuries, Plaintiff has incurred and will incur future medical expenses; has lost wages and his earning capacity has been reduced; has endured and will endure both physical and mental pain and suffering; will be permanently disabled/impaired and disfigured and he has been damaged in an aggregate sum in an amount in excess of $75,000.00.

Outcome: PLAINTIFF’S APPLICATION FOR ORDER APPROVING SETTLEMENT ON
BEHALF OF MINOR CHILDREN AND APPORTIONING
WRONGFUL DEATH PROCEEDS

COMES NOW the Plaintiff, KAC1E NICOLE MAYS, Personal Representative of the Estate of TERRY DALE MAYS, Deceased; Melanie Danelle Seiber as parent, guardian and next friend of M. J. M., surviving minor daughter of Decedent (born in 1999); Jennifer Inman Mays as parent, guardian and next friend of K G. I. M., surviving minor daughter of Decedent (born in 2008); and CONNIE MAYS, surviving mother of Decedent, and show the Court that all claims have been settled against the Defendants.

Plaintiff and the surviving heirs and beneficiaries of the Decedentjointly request the Court to approve the settlement as discussed herein. It is the belief of the Plaintiff and the surviving heirs and beneficiaries of the Decedent that the settlement which is the subject of this application is fair, reasonable and in the best interest of the minor children. M. J. M., surviving minor daughter of Decedent (born in 1999) and] E. G. I. M., surviving minor daughter of Decedent (born in 2008), and should, therefore, be approved.
Overview of the Accident, the Litigation and Proposed Settlements
1. On August 13, 2010, TERRY DALE MAYS was driving eastbound on Lindsey Street in Norman, Cleveland County, Oklahoma. TERRY DALE MAYS had stopped for a red traffic light at the intersection of Lindsey and Berry Road when a vehicle driven by the Defendant, Thomas Alexander Fabri, traveling eastbound on Lindsey rear-ended Plaintiffs vehicle and TERRY DALE MAYS sustained personal injuries.
2. At the time and place of said collision Thomas Alexander Fabri, was the agent, servant or employee of Service Experts, Inc. dba Gordon’s Service Experts aka Service Experts Heating and Air Conditioning, LLC.
3. On October 17, 2011, TERRY DALE MAYS filed a personal injury action against Mr. Fabri and his employer.
4. On November 8, 2013, TERRY DALE MAYS died as a result of an accidental overdose or drug interaction of prescription medications prescribed for treatment of his injuries sustained in the August 13, 2010 automobile collision and which were taken by TERRY DALE MAYS to alleviate the pain and suffering associated with the injuries.
5. At the time of his death, TERRY DALE MAYS was not married; and was surviving by his three biological children: [1] KACIE NICOLE MAYS, surviving adult
daughter of Decedent; [21 M, J. M,, surviving minor daughter of Decedent (born in
1999); and [3] B. G. I. M., surviving minor daughter of Decedent (born in 2008).
TERRY DALE MAYS was also survived by his mother, CONNIE ELAINE MAYS.
TERRY DALE MAYS’ father predeceased him. TERRY DALE MAYS died without a
Will or any other direction as to how to distribute his estate.
6. On November 21, 2013, KACIE NICOLE MAYS, the surviving adult daughter of TERRY DALE MAYS, was appointed the personal representative of her father’s estate in Case No. PB-2013-338 filed in the District Court of Cleveland County, Oklahoma.
7. On November 21, 2013, KACIE NICOLE MAYS’ motion to substitute herself as Plaintiff in this action and to amend the Petition was granted. An amended Petition was filed on April 17, 2014, which added a claim for wrongful death and stated that the claims were being pursued by and on behalf of: [1] KACIE NICOLE MAYS, surviving adult daughter of Decedent and Personal Representative of her father’s Estate; [2] M. J. M., surviving minor daughter of Decedent (born in 1999); [31 E. G. I. M., surviving minor daughter of Decedent (born in 2008); and [4] CONNIE ELAINE MAYS, surviving mother of Decedent.
8. The case proceeded through a hotly contested discovery phase, where numerous depositions were conducted and voluminous pages of documents and exhibits were produced and exchanged. Expert witnesses were retained and deposed. Several medical providers and medical experts were deposed. The parties filed and briefed several discovery motions filed and multiple hearings were held. Defendants filed a substantive motion for partial summary judgment, resulting in significant briefing by the parties. The Court ultimately granted, in part, and denied, in part, the motion for partial summary judgment. The Court’s ruling was the subject of the Defendants’ application for original jurisdiction and for a writ of prohibition filed in the Oklahoma Supreme Court, where after another round of briefing and a hearing, was denied.
9. Plaintiff’s counsel previously discussed the complexities of the case and the rights and claims of the individual heirs and beneficiaries, with each of the heirs and beneficiaries of TERRY DALE MAYS. to wit: [1] KACIE NICOLE MAYS, as surviving adult daughter of Decedent and as Personal Representative of the Decedent’s; [2] Melanie Danelle Seiber as parent, guardian and next friend of M. J. M., surviving minor daughter of Decedent (born in 1999); [3] Jennifer Inman Mays as parent, guardian and next friend of E. G. I. M., surviving minor daughter of Decedt (born in 2008); and [4j CONNIE MAYS, surviving mother of Decedent. All of the heirs and beneficiaries, agreed, in writing, to divide any recovery or settlement proceeds in equal percentages of 25% each.
10. As discovery came to a close and just prior to the Court’s May 6, 2015 Status Conference, Defendants offered to settle this case for the full amount of its liability insurance limits of $2,000,000.00.
11. This settlement offer was disclosed to counsel for the Intervenor, AmTrust North America, the workers’ compensation insurance carrier, which had paid benefits to TERRY DALE MAYS, as a result of the injuries he sustained in the rear-end collision. It was requested that the insurer waive subrogation and settle the workers’ compensation claim with the heirs and beneficiaries of TERRY DALE MAYS.
12. This settlement offer was also disclosed to counsel for Peerless Indemnity Insurance Company, the insurance company which had issued uninsured/underinsured motorist coverage for the truck being driven by TERRY DALE MAYS at the time of the rear-end collision. It was requested that the insurer pay the full amount of the uninsured/underinsured motorist coverage, $1,000,000.00, and waive its subrogation rights.
13. On June 16, 2015, KACIE NICOLE MAYS as personal representative of the estate of TERRY DALE MAYS and as guardian ad litem of the two minor children of TERRY DALE MAYS, settled the workers’ compensation case recovering, inter alia, $30,000.00 of behalf of M. J. M., surviving minor daughter of Decedent (born in 1999), and $30,000.00 on behalf of E. G. I. M., surviving minor daughter of Decedent (born in 2008) and secured the workers’ compensation insurer’s agreement to waive subrogation for the benefits previously paid. (These settlement proceeds will be referred to as the “workers’ compensation funds”.) Plaintiff requests permission to pay these workers’ compensation hinds to the mothers, guardians and next friends of the minors for immediate deposit into federally insured, interest bearing accounts, with the mandate that such funds are not to be withdrawn until the minors reach the age of eighteen (18) or until further order of the Court.
14. Thereafier, KACIE NICOLE MAYS, as personal representative of the estate of TERRY DALE MAYS and on behalf of all heirs and benericiaries. settled the claims against the Defendants herein for $2,000,000.00 and settled the claims against Peerless Indemnity Insurance Company for $1,000,000.00, pending the Court’s approval of the settlement on behalf of the minors and the Court’s permission to have the minors’ proceeds placed into a structured annuity. (These settlement proceeds will be referred to as the “wrongful death funds”.)
15. The structured annuity will make the following future Periodic Payments to the minors through a qualified assignment to MetLife Tower Resources Group, Inc., (Assignee), within the meaning of Section 130(c) of the Internal Revenue Code of 1986, as amended, and the issuance of annuity policies from Metropolitan Life Insurance Company, (Annuity Issuer):
Payee: M. J. M., surviving minor daughter of Decedent (born in 1999):
> $3,168.37 per month, guaranteed 10 years, beginning on October 16, 2017 (18th Birthday).
> The final guaranteed payment will be due on September 16, 2027.
> $75,000.00 guaranteed lump sum, payable on October 16, 2017.
> $50,000.00 guaranteed lump sum, payable on October 16, 2027.
Payee: E. G. I. M., surviving minor daughter of Decedent (born in 2008):
> $4,980.00 per month, guaranteed 10 years, beginning on November 21, 2026 (18th Birthday).
> The final guaranteed payment will be due on October 21, 2036.
> $75,000.00 guaranteed lump sum, payable on November 21, 2026.
> $50,000.00 guaranteed lump sum, payable on November 21, 2036.
15. KACIE NICOLE MAYS, as personal representative of the estate of TERRY DALE MAYS, requests permission to pay the final bills and accounts of the Decedent totaling $14,786.84, as follows:
[al Decedent’s funeral bills and expenses in the amount of $1,257.84 paid to Barnes Friedrich Funeral Home;
[hi A personal loan in the amount of$12,77l.00 paid to U.S. Claims; and [ci Dr. Jason Leinen in the amount of $758.00.
16. Consistent with the prior distribution and division of finds agreement, Plaintiff and the heirs and beneficiaries of the Decedent, request the Court to approve the foregoing settlements and issue an Order, which finds:
[a] The amounts of the workers’ compensation settlement and the wrongfiul death settlement and the amounts being apportioned to the minor children are fair, reasonable, in the best interest of the minor children and should be approved;
[b] The attorneys’ fees in the amount of 40% of the wrongful death funds (to be received both in cash and a structured annuity) and litigation expenses in the amount of $56,858.64 for prosecuting the personal injury/wrongful death action are reasonable, necessary and fair and should be approved;
[c] The Personal Representative’s request for permission to pay the funeral bills and expenses and the final bills and accounts of the Decedent in the amount of $14,786.84 are approved and Plaintiffs counsel is authorized and directed to pay them out of the wrongful death funds;
[d] The amount of $30,000.00 from the workers’ compensation finds shall be paid to Melanie Danelle Seiber as parent and next friend of M. J. M., surviving minor daughter of Decedent (born in 1999) and shall be immediately impounded for the use and benefit of the minor at Bank of Oklahoma in a federally insured, interest bearing account, with the mandate that such funds are not to be withdrawn until the minor reaches the age of eighteen (1 8) or until further order of the Court;
[e] The amount of $30,000.00 from the workers’ compensation funds shall be paid to Jennifer Inman Mays as parent and next friend of E. G. I. M., surviving minor daughter of Decedent (born in 2008) and be immediately impounded for the use and benefit of the minor at Bank of Oklahoma in a federally insured, interest bearing account, with the mandate that such funds are not to be withdrawn until the minor reaches the age of eighteen (18) or until flirther order of the Court;
[f] The structured annuity for M. J. M., surviving minor daughter of Decedent (born in 1999) through MetLife Tower Resources Group, Inc. in the amounts set forth above is approved;
[g] The structured annuity for E. G. I. M., surviving minor daughter of Decedent (born in 2008) through MetLife Tower Resources Group, Inc. in the amounts set forth above is approved is approved; and
[hi The Personal Representative and the parents and next friends of the Decedent’s minor children are authorized and directed to execute any and all releases, checks, annuity agreements, or other settlement documents necessary to consummate and finalize the foregoing settlements and to do all acts incidental thereto.
WHEREFORE, Plaintiff and the heirs and beneficiaries of TERRY DALE MAYS ask the Court to issue an Order approving the settlements, attorneys’ fees, litigation expenses, final bills and accounts of Decedent, apportionments of settlement proceeds as fully discussed in this Application.

Plaintiff's Experts:

Defendant's Experts:

Comments: