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Date: 09-25-2013

Case Style: Jessica Foster v. John K. Foster, Jr.

Case Number: CJ-2013-2929

Judge: Daman H. Cantrell

Court: District Court, Tulsa County, Oklahoma

Plaintiff's Attorney: Douglas R. Elliott

Defendant's Attorney: Leon (Lonnie) Davis for Tulsa Diagnostic Imaging and Dr. Matthew Wofford

Susan E. Lentz for St. John Medical Center, St. John Physicians

Richard McGonigle for Medical Providers, Oklahoma Medical Service and Supply, Oklahoma Physical Therapy and Dr. David A. Taub

Wayne R. Patterson for OSU Medical Center

Description: Jessica Foster, personal representative of the Estate of Joe Foster, deceased, sued John K. Foster, Jr. on an auto negligence theory claiming:

1. That the Plaintiff and her deceased father, Joe Foster, were at all times relevant hereto, residents of the City of Tulsa, Tulsa County, State of Oklahoma. That Defendant John K. Foster, Jr. was is a resident of the City of Coweta, Wagoner County, State of Oklahoma. That the automobile accident giving rise to this action occurred in Tulsa County, Oklahoma, thus making jurisdiction of this Court just and proper.

2. That on November 4,2011, the deceased, Joe Foster, was a passenger in Defendant, John K. Foster, Jr.’s vehicle when he went left of center on East 36th Street North in Tulsa when he carelessly, recklessly and negligently struck three other vehicles. That Defendant John K. Foster, Jr.’s actions and omissions comprise common law negligence.

3. That as a direct and proximate result of Defendant John K. Foster, Jr.’s common law
negligence and negligence per se, the deceased, Joe Foster, suffered serious bodily injuries, endured both physical and mental pain and suffering, incurred medical expenses, and lost the enjoyment of life, and entitle the Estate of Joe Foster to collect a sum in excess of the amount required for diversity jurisdiction pursuant to Section 1332 of Title 28 of the United States Code from the Defendant, John K. Foster, Jr.

WHEREFORE, premises considered, Plaintiff prays that this Court award the Estate of Joe Foster damages in excess of the amount required for diversity jurisdiction pursuantto Section 1332 of Title 28 of the United States Code from the Defendant, John K. Foster, Jr., including attorney’s fees, costs, interest, and any such further relief that this Court deems just and proper.

Plaintiff settled the claim and moved for allocation of the settlement funds as follows:

COMES NOW the Plaintiff, Jessica Foster as Personal Representative of the Estate of Joe Foster, by and through her attorney of record, Doug Elliott Law Office, P.C. and respectfully moves this Court to set this matter for hearing and allocate the settlement funds amongst the Plaintiff and various medical providers with an interest in said sum. In support of this motion, Plaintiff states as follows:

1. That on November 4, 2011, the deceased, Joe Foster, was a passenger in
Defendant, John K. Foster, Jr.’s vehicle when he went left of center on East 36th Street Nwth in
Tulsa and carelessly, recklessly and negligently struck three other vehicles. That Defendái John
K. Foster, Jr.’s actions and omissions comprise common law negligence.

2. That on June 21, 2013, Plaintiff, Jessica Foster as Personal Representative of the Estate of Joe Foster, filed her Petition against the Defendant, for purposes of disbursing the settlement funds by Motion to Allocate.

3. That at the time of the accident, Defendant John K. Foster, Jr. was insured under an automobile liability insurance policy issued by Country Preferred Insurance Company. That Joe Foster did not have UM/UIM coverage.

4. That Jessica Foster, as Personal Representative of the Estate of Joe Foster, retained Doug Elliott Law Office, P.C. on a forty percent (40%) contingency fee contract plus all case costs, to make all claims and effectuate all recoveries resulting from Joe Foster’s injuries. That Joe Foster’s treatment for injuries ended in April 2012 and this accident was not the cause of his death, which occurred on December 13, 2012, from liver disease.

5. That Jessica Foster, as Personal Representative of the Estate of Joe Foster, through her attorney Doug Elliott Law Office, P.C. and Country Preferred Insurance Company reached a settlement agreement wherein Country Preferred agreed to tender $30,000.00 in liability funds on behalf of its insured, John K. Foster, Jr. The settlement was reached at mediation wherein the liability limits were allocated among three injured claimants.

6. That the $30,000.00 in liability funds recovered is insufficient to pay Doug Elliott Law Office, P.C. for its attorney’s lien for fees in the amount of $12,000.00 and costs in the amount of $572.61, and is insufficient to satisfy all medical providers with an interest in said sum and is insufficient to compensate the Estate.

7. That the 40% contractual attorney fee payable to Doug Elliott Law Office, P.C, is
$12,000.00 plus $572.61 for incurred costs. That the following medical providers are known by Plaintiff’s counsel to have claims against the net funds of $17,427.39 ($30,000.00 less $12,000 attorney fee and $572.61 for costs):

a) That EMSA has an outstanding balance in the amount of $1,145.00.

b) That St. John Medical Center has an outstanding balance in the amount of $2,409.15.

c) That OSU Medical Center has an outstanding balance in the amount of $8,043.01.

d) That Heritage Medical Clinic has an outstanding balance in the amount of $6,352.30.

e) That Oklahoma Physical Therapy has an outstanding balance in the amount of $1,980.00.

f) That Tulsa Diagnostic Imaging has an outstanding balance in the amount of $3,600.00.

g) That Dr. Matthew Wofford has an outstanding balance in the amount of $1,480.00.

h) That Oklahoma Medical Service & Supply, Inc. has an outstanding balance in the amount of $292.00.

i) That St. John ER Physicians has an outstanding balance in the amount of $377.00.

j) That CMBS Billing, LLC has an outstanding balance in the amount of $550.00.

k) That Diagnostic Imaging Associates, Inc. has an outstanding balance in the amount of
$593.00.

1) That Southwest Pathology Associates, LLC. has an outstanding balance in the amount of
$58.005.

m) That Tulsa Radiology Associates has an outstanding balance in the amount of $121.00.

n) That Diagnostic Laboratory of Oklahoma has an outstanding balance in the amount of
$131.00.

8. That the Plaintiff, Jessica Foster, as Personal Representative of the Estate of Joe Foster, requests that this Court equitably allocate the net funds of$ 17,427.39 following attorney fees and costs among Joe Foster’s medical providers with an interest, as set forth in this motion.

WHEREFORE, premises considered, Plaintiff, Jessica Foster as Personal Representative of the Estate of Joe Foster, prays that this Court allocate the $30,000.00 liability funds as set forth in this motion.

Outcome: That on November 4, 2011, the deceased, Joe Foster, was a passenger in Defendant, John K. Foster, Jr.’s vehicle when he went left of center on East 36th Street North in Tulsa and carelessly, recklessly and negligently struck three other vehicles. That on June 21, 2013, Plaintiff, Jessica Foster as Personal Representative of the Estate of Joe Foster, filed her Petition against the Defendant, for purposes of disbursing the settlement funds by Motion to Allocate. That at the time of the accident, Defendant John K. Foster, Jr. was insured under an automobile liability insurance phcy issued by Country Preferred Insurance Company. That Joe Foster did not have UM/UIM coverage.
That Jessica Foster, as Personal Representative of the Estate of Joe Foster, retained Doug Elliott Law Office, P.C. on a forty percent (40%) contingency fee contract plus all case costs, to make all claims and effectuate all recoveries resulting from Joe Foster’s injuries. That Joe Foster’s
treatment for injuries ended in April 2012 and this accident was not the cause of his death, which occurred on December 13, 2012, from liver disease.
That Jessica Foster, as Personal Representative of the Estate of Joe Foster, through her attorney Doug Elliott Law Office, P.C. and Country Preferred Insurance Company reached a settlement agreement wherein Country Preferred agreed to tender $30,000.00 in liability funds on behalf of its insured, John K. Foster, Jr. The settlement was reached at mediation wherein the liability limits were allocated among three injured claimants.
That the $30,000.00 in liability funds recovered is insufficient to pay Doug Elliott Law Office, P.C. for its attorney’s lien for fees in the amount of $12,000.00 and costs in the amount of $572.61, and is insufficient to satisfy all medical providers with an interest in said sum.
IT IS THEREFORE ORDERED, ADJUDGED, AND DECREED that the attorney fee and costs in the amount of $12,572.61 to Doug Elliott Law Office, P.C. shall be deducted from the liability recovery of $30,000.00.
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that Doug Elliott Law Office, P.C. shall have full authority to endorse all checks on behalf of all payees, and is directed to issues checks from its trust account as follows:

Doug Elliott: $12,572.61
EMSA: Did not appear
St. John Medical Center: $1,711.34
OSU Medical Centerl: $5,713.37
Heritage Medical Clinic: $4,512.37
Oklahoma Physical Therapy: $1,406.50
Tulsa Diagnostic Imaging: $2,557.27
Dr. Matthew Wofford: $1,051.32
Oklahoma Medical Service & Supply, Inc.: $208.42
St. John ER Physicians: $267.80
CMBS Billins, LLC: Did not appear
Diagnostic Imaging Associates, Inc.: Did not appear
Southwest Pathology Associates, LLC: Did not appear
Tulsa Radiology Associates: Did not appear
Dignostic Laboratory of Oklahoma: Did not appear

Plaintiff's Experts:

Defendant's Experts:

Comments:



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