Date: 01-14-2014

Case Style: Candice Giddens, Diamond Hines and Carla Giddens v. Mark George, Joe Cooper Ford of Shawnee, LLC d.b.a Joe Cooper Shawnee Ford

Case Number: CJ-2012-1201

Judge: Tracy Schumacher

Court: District Court, Cleveland County, Oklahoma

Plaintiff's Attorney: M. Blake Yaffe, E. Eliot Yaffe, S. Alex Yaffe, and David L. Teasdale

Defendant's Attorney: Eric James Begin for Mark George

Jon D. Starr for Joe Cooper Ford of Shawnee, LLC and George Mark

Description: Candice Giddens, Diamond Hines and Carla Giddens sued Mark George, Joe Cooper Ford of Shawnee, LLC d.b.a Joe Cooper Shawnee Ford claiming:

COMES NOW the Plaintiffs, Candice Giddens, Diamond Hines, and Karla Giddens, and for their causes of action against the Defendants, Mark George and Joe Cooper Ford of Shawnee, LLC, DBA Joe Cooper Shawnee Ford, alleges and states:

1. On November 23, 2011, at or near SW 19th and West Service Road, Moore, Cleveland County, State of Oklahoma, Defendant, Mark George, negligently drove a motor vehicle causing a collision with a vehicle operated by Plaintiff, Candice Giddens, and carrying Plaintiffs, Diamond Hines and Karla Giddens.

2. As a direct and proximate result of the negligence of the Defendant, Mark George, the Plaintiffs, Candice Giddens, Diamond Hines, and Karla Giddens, have sustained serious bodily injuries; have sustained aggravation of all pre-existing injuries; have incurred and will incur future medical expenses, have incurred and will occur future loss of wages; have suffered tremendous mental pain and suffering and have incurred property damages in an amount in excess of $75,000.00.

3. Pursuant to the provisions of 12O.S. §3226(B)(2), Plaintiffs submit this preliminary computation of damages sought in this lawsuit. As this is an action for injuries suffered by adults, Plaintiffs advise that all damages recoverable by law are sought, including those listed in OIJI 4.1. Plaintiffs are unable to guess or speculate as to what amount of damages a jury might award. The elements for the jury to consider in this case include the following:

a. Plaintiffs’ physical pain and suffering, past and future;

b. Plaintiffs’ mental pain and suffering, past and fhture;

c. Plaintiffs’ age;

d. Plaintiffs’ physical condition immediately before and after the accident;

e. The nature and extent of Plaintiffs’ injuries;

f. Whether the injuries are permanent;

g. The physical impairment;

h. The disfigurement;

i. Loss of earnings;

j. Impairment of earning capacity;

k. The reasonable expenses of the necessary medical care, treatment, and services, past and fhture.

SECOND CAUSE OF ACTION: NEGLIGENT ENTRUSTMENT

For their second claim, Plaintiffs reallege and incorporate by reference the foregoing paragraphs and state:

4. That at all material tines mentioned herein the Defendant, Mark George, was operating Defendant Joe Cooper Ford of Shawnee, LLC, DBA Joe Cooper Shawnee Ford’s vehicle with Defendant Joe Cooper Ford of Shawnee, LLC, DBA Joe Cooper Shawnee Ford’s full knowledge, consent and permission.

5. That Defendant, Joe Cooper Ford of Shawnee, LLC, DBA Joe Cooper Shawnee Ford, negligently entrusted the vehicle to Defendant, Mark George.

6. That Defendant, Joe Cooper Ford of Shawnee, LLC, DBA Joe Cooper Shawnee Ford, knew or should have known that the Defendant, Mark George, was a careless and negligent driver, and the Defendant, Joe Cooper Ford of Shawnee, LLC, DBA Joe Cooper Shawnee Ford, was negligent in entrusting a vehicle to Defendant, Mark George, and such negligence caused andlor contributed to the cause of the accident.

7. That as a direct and proximate result of the negligence of the Defendants, the Plaintiffs, Candice Giddens, Diamond Hines, and Karla Giddens, have sustained serious bodily injuries; have sustained aggravation of all pre-existing injuries; have incurred and will incur future medical expenses, have incurred and will occur future loss of wages; have suffered tremendous mental pain and suffering and have incurred property damages, all in an amount in excess of $75,000.00.

WHEREFORE, the Plaintiffs, Candice Giddens, Diamond Hines, and Karla Giddens, pray for judgment against the Defendants for damages in the sum in excess of $75,000.00 plus interest, attorney fees, costs and all such other and further relief for which the Plaintiff may be entitled.

COMES NOW the Defendant, Joe Cooper Ford of Shawnee, LLC, d/b/a Joe Cooper Shawnee Ford, by and through its attorney, Jon D. Starr, of the law firm of McGivern & Gilliard, Tulsa, Oklahoma, and for its Answer to Plaintiffs’ Petition on file herein, states and avers as follows:

I.

Defendant, Joe Cooper Ford, would deny generally and specifically each and every material allegation contained within the Petition of the Plaintiffs, except which maybe hereinafter specifically admitted.

II.

Defendant, Joe Cooper Ford, is without knowledge or information sufficient to form a belief as to the truth of the averments contained in Paragraphs No. 1, 2, and 3 of Plaintiffs’ Petition, and therefore, it will deny the same and demand strict proof thereof at the time of trial.

III.

Defendant, Joe Cooper Ford, would admit the allegations contained in Paragraph No. 4 of Plaintiffs’ Petition.

IV.

Defendant, Joe Cooper Ford, would deny the allegations contained in Paragraphs No. 5, 6, 7, and Plaintiffs’ prayer for damages.

V.

For further answer and defense, Defendant, Joe Cooper Ford, would deny the nature and extent of damages claimed by the Plaintiffs.

VI.

For further answer and defense, Defendant, Joe Cooper Ford, would state that some of Plaintiffs’ alleged injuries maybe the result of pre-existing mental or physical conditions, or subsequently developing mental or physical conditions, which are not causally related to the motor vehicle accident.

VII.

For further answer and defense, Defendant, Joe Cooper Ford, would state that some of Plaintiffs’ alleged medical treatment may not be reasonable and/or necessary as a result of the motor vehicle accident.

VIII.

For further answer and defense, Defendant, Joe Cooper Ford, would state that Plaintiffs’ may have failed to mitigate some of their damages.

IX.

For further answer and defense, Defendant, Joe Cooper Ford, would plead all affirmative defenses that may be available to it under Oklahoma law based upon factual evidence that exists at the time of trial.

x.

For further answer and defense, Defendant, Joe Cooper Ford, would reserve the right to plead additional affirmative defenses, delete or modify affirmative defenses pled, upon completion of discovery or as facts warrant.

WHEREFORE, Defendant, Joe Cooper Ford of Shawnee, LLC, d/b/a Joe Cooper Shawnee Ford, having fully answered the Petition of the Plaintiffs, prays forjudgment in its favor, and against the Plaintiffs, together with an award of its costs, and such other and further relief as the Court deems equitable and just.

COMES NOW the Defendant, Mark George, by and through its attorney, Eric J. Begin and Jon D. Starr, of the law firm of McGivern & Gilliard, Tulsa, Oklahoma and for his Answer to Plaintiffs’ Petition on file herein, states and avers as follows:

I.

Defendant, George, would deny generally and specifically each and every material allegation contained within the Petition of the Plaintiffs, except which maybe hereinafter specifically admitted.

II.

With regard to the allegations contained in Paragraph No. 1 of Plaintiffs’ Petition, Defendant, George, would admit that on November 23, 2011, at or near Southwest 1 9th and West Service Road, Moore, Cleveland County, State of Oklahoma, and that he was negligent in allowing the front of his vehicle to bump into the rear of a vehicle being operated by the Plaintiff, Candice Giddens.

III.

Defendant, George, would deny that this was an injury producing accident, and therefore, will deny the allegations made by the Plaintiff in Paragraph No. 2.

IV.

Defendant, George, would deny that this was an injury producing accident, and therefore, will deny the allegations contained in Paragraph No. 3 of Plaintiffs’ Petition.

V.

To the extent the Plaintiffs seek to re-allege and incorporate by reference previous paragraphs, Defendant, George, would incorporate and re-allege all previous admissions, denials, and subsequently pled affirmative defenses applicable to those allegations.

VI.

With regard to the allegations contained in Paragraph No.4 of Plaintiffs’ Petition, Defendant, George, would state that the vehicle he was operating was the vehicle owned by Joe Cooper Ford of Shawnee, LLC d/b/a Joe Cooper Shawnee Ford, and that he was operating the vehicle with their full knowledge, consent, and permission.

VII.

Defendant, George, would deny the allegations contained in Paragraphs No. 5 and 6 of Plaintiffs’ Petition, as well as Plaintiffs’ prayer for damages.

VIII.

For further answer and defense, Defendant, George, would state that although he admits that he was negligent, and therefore, at least responsible in part for this accident, that Plaintiff, Candice Giddens, may have been comparatively negligent to some extent so as to limit or bar her right of recovery under Oklahoma law.

IX.

For further answer and defense, Defendant, George, would state that this was a very minor impact, from which one would not reasonably expect anyone to have sustained any injuries or required any type of medical treatment.

X.

For further answer and defense, Defendant, George, would state that some of Plaintiffs’ alleged injuries maybe the result of pre-existing mental or physical conditions, or subsequently developing mental or physical conditions, which are not causally related to the motor vehicle accident.

XL

For further answer and defense, Defendant, George, would deny the nature and extent of injuries claimed by the Plaintiff.

XII.

For further answer and defense, Defendant, George, would plead all affirmative defenses that may be available to him under Oklahoma law based upon factual evidence that exists at the time of trial.

XIII.

For further answer and defense, Defendant, George, would reserve the right to plead additional affirmative defenses, delete or modify affirmative defenses pled, upon completion of discovery or as facts warrant.

WHEREFORE, Defendant, Mark George, having fuily answered the Petition of the Plaintiffs, prays for judgment in his favor, and against the Plaintiffs, together with an award of his costs, and such other and further relief as the Court deems equitable and just.

COURT ORDER APPROVING SETTLEMENT AGREEMENT WITH MINOR

NOW on this 14th day of January, 2014, this matter coming on before me the undersigned Judge of the District Court, and having heard testimony of witnesses sworn and statement of counsel and being fully advised in the premises herein finds as follows:

That on November 23, 2011, the parties hereto were involved in an automobile accident. That as a result of the automobile accident, the minor child, Diamond Hines, was allegedly injured, and a claim has arisen that is disputed both as to the liability and damages. The parties have reached a compromise agreement, and have requested that the Court approve the settlement.

The Court finds that Candice Giddens is the proper party to act on behalf of the minor child, Diamond Hines, and that she is competent and hereby appointed guardian ad litem.

The Court finds that a compromise agreement has been reached wherein Mark George and Joe Cooper Ford of Shawnee, LLC, d/b/a Joe Cooper Shawnee Ford and his liability insurance carrier, Sentry Insurance, have offered to pay to Candice Giddens, individually, and as parent and next friend of Diamond Hines, the sum of Five Thousand Dollars ($5,000.00), representing her claim for all necessary and incidental expenses, past and future, incurred or to be incurred because of the alleged injuries to the minor child, Diamond Hines, and for loss of love, services and affection of the minor child, due to said alleged injuries, for pain and suffering, both past and future, permanent disability, disfigurement and any other claim the minor child may have now, or which may arise in the future, known or unknown, resulting from the said accident.

The Court finds that the Petitioner has reached an informed decision to waive the right to trial by jury. That she is fully aware of the consequences of settlement of this matter and is aware that once the Court approves this settlement, and the settlement proceeds have been paid, that Diamond Hines, minor child, and Candice Giddens, individually, and as parent and next friend, shall be forever barred from making any additional claims as a result of the subject accident, even if the medical condition of the minor child does not progress as presently anticipated or shall unexpectedly change for the worse after this settlement.

The Court finds that the parties have agreed, and the Court so orders that Candice Giddens, individually, shall pay any and all outstanding medical bills, liens, attorney& fees, and all other claims made against the settlement proceeds, and shall indemnifi Mark George and Joe Cooper Ford of Shawnee, LLC, dlb/a Joe Cooper Shawnee Ford, and any other person or entity who might meet the definition of an “insured” under his policy of liability insurance with Sentry Insurance, from any further loss, as set out in the Petition herein.

The Court has heard testimony as to the medical condition and prognosis of the minor child, and as to the other elements of damage and liability in the case, and finds that the settlement agreement is fair, equitable, and in the best interest of the minor child. That it was entered into free from fraud, coercion, and duress by either of the parties, their agents, insurers, or attorneys. Said agreement is hereby approved by the Court.

The Court finds that David L. Teasdale, as attorney for the injured minor child and the parent and next friend, is entitled to receive an attorney’s fee in the sum of $2,000.00 for his representation of Diamond Hines, to be taken out of the settlement received by Candice Giddens. The Court finds that said fee is reasonable and is hereby approved.

The Court finds and hereby orders that the proposed settlement, as set forth above in the Petition, should be and is hereby approved, and upon payment of the settlement proceeds, Mark George and Joe Cooper Ford of Shawnee, LLC, d!b/a Joe Cooper Shawnee Ford, and any other person or entity who might meet the definition of an “insured” under his policy of liability insurance with Sentry Insurance shall be deemed to be released from any and all further liability to the other parties as a result of the automobile accident described herein.

Outcome: COME NOW the parties to this action, the Court having previously heard statement of counsel and testimony of witnesses sworn and having approved the settlement agreement, and pursuant to the terms of said settlement agreement, do herein stipulate that the settlement has been satisfied and that this matter should be dismissed with prejudice to its refiling.

WHEREFORE, the parties pray that this Honorable Court enter its Order dismissing this matter with prejudice as to refiling.

Plaintiff's Experts:

Defendant's Experts:

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