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Mares-Moreno v. Singh

United States District Court, D. New Mexico

September 30, 2017

FEDERICO MARES-MORENO, INDIVIDUALLY AND AS PERSONAL REPRESENTATIVE OF THE ESTATE OF ELVIA ALVAREZ DECEASED, and AS NEXT FRIEND OF GENESIS ALVAREZ MINOR CHILD, SIMON ALVAREZ, SR., and IVAN ALVAREZ, Plaintiffs,
v.
JASMAIL SINGH, SUKHDEV SINGH and CHAHAL TRANSPORT, INC. Defendants.

          Kevin Glasheen Jason Medina Chad Inderman Glasheen, Valles, Inderman & DeHoyos LLP Lubbock, Texas Attorneys for the Plaintiffs.

          Meena H. Allen Allen Law Firm, LLC Albuquerque, New Mexico Attorneys for the Defendants.

          Kathleen M.V. Oakey Albuquerque, New Mexico Guardian Ad Litem.

          MEMORANDUM OPINION AND ORDER

         THIS MATTER comes before the Court on: (i) the parties' Stipulated Petition for Approval of the Settlement of Minors' Claims, filed January 11, 2017 (Doc. 25)(“Petition”); and (ii) the Plaintiffs' Motion to Approve Settlement, filed July 10, 2017 (Doc. 33)(“Motion”). The Court held a hearing on July 31, 2017. The primary issue is how the Court should distribute the settlement funds from a wrongful death action amongst Plaintiff Federico Mares-Moreno, Plaintiff Genesis Alvarez, Plaintiff Simon Alvarez, Sr., and the decedent's son, Jesus Alvarez. The Court concludes that it will deny the Petition and Motion, but that it will approve a settlement that distributes the funds in the following manner: $200, 000.00 for Mares-Moreno; $500, 000.00 for G. Alvarez; $75, 000.00 for S. Alvarez; and $225, 000.00 for J. Alvarez. The money allocated to G. Alvarez and J. Alvarez will be held in trust. J. Alvarez' trust will distribute $500.00 per month to his grandfather, S. Alvarez, until J. Alvarez' eighteenth birthday. After J. Alvarez' eighteenth birthday, the trust will distribute $1000.00 per month to J. Alvarez. G. Alvarez' trust will not have a monthly distribution.

         FACTUAL BACKGROUND

         This case arises from a car accident on Interstate 40. See Complaint for Wrongful Death and Personal Injury ¶ 9, at 3, filed May 17, 2016 (Doc. 1)(“Complaint”). On May 5, 2016, Federico Mares-Moreno was driving east on I-40 with three passengers in a 2007 GMC Yukon. See Complaint ¶ 9, at 3. His wife, Elvia Alvarez, sat in the vehicle's backseat with their then four-year-old daughter, G. Alvarez. See Draft Transcript of Motion Hearing at 2:17-19 taken July 31, 2017)(“Tr.”)(Glasheen).[1] G. Alvarez was not wearing a seatbelt. See Tr. at 34:2-3 (Oakey). E. Alvarez' father, S. Alvarez., rode in the passenger side seat. See Tr. at 2:16-17 (Glasheen). The four of them were driving to Louisiana so that Mares-Moreno could begin a new job. See Tr. at 5:7-9.

         Also driving east on I-40 was Jasmail Singh in a 2012 Freightliner -- a tractor trailer. See Complaint ¶ 9, at 3. At some point, while driving east, J. Singh “lost control of his vehicle, ” “jerked the tractor-trailer to the left, ” and, while attempting to regain control of the vehicle, collided with the GMC Yukon's passenger side, causing it to roll. Complaint ¶ 9, at 3. The collision ejected G. Alvarez from the vehicle, causing several injuries, including: a collapsed lung; a brain bleed; an upper-right-arm fracture; a left-thigh fracture; a liver laceration; pelvis fractures; a back-compression fracture; a hip fracture; and a broken skull bone. See Tr. at 33:25-35:10 (Mares-Moreno, Oakey). The collision killed E. Alvarez. See Complaint ¶ 11, at 3. Both Mares-Moreno and S. Alvarez also suffered injuries. See Tr. at 12:1-4 (Alvarez, Glasheen); Petition ¶ 9, at 2.

         For her injuries, G. Alvarez underwent two surgeries for her leg and her right shoulder. See Tr. at 35:11-13 (Mares-Moreno, Oakey). Afterward, she used a walker to aid in her mobility for a month, and sometimes still walks with a limp. See Tr. at 35:14-24 (Mares-Moreno; Oakey). G. Alvarez had physical therapy sessions, and, according to Mares-Moreno, she is “much better” now. Tr. at 35:25-36:15 (Mares-Moreno, Oakey). G. Alvarez' medical bills amount to $174, 462.19. See Guardian Ad Litem Report at 5, filed July 27, 2017 (dated July 26, 2017)(Doc. 35)(“Report”). Although he believes that G. Alvarez is better now, Mares-Moreno thinks that G. Alvarez “might need some counseling, some therapy” from losing her mother. Tr. at 37:1-5 (Mares-Moreno). Mares-Moreno's medical bills amount to $698.00 and S. Alvarez' equaled $31, 332.30. See Report at 5. Social Security provides Mares-Moreno $708.00 per month survivor benefits for G. Alvarez. See Tr. at 40:1-7 (Mares-Moreno, Oakey).

         E. Alvarez had another child who was not in the accident -- J. Alvarez -- from a previous relationship. See Tr. at 18:19-22 (Allen, Alvarez); Tr. at 21:17-22 (Allen, Alvarez); Petition ¶ 11, at 3. J. Alvarez lives with Mares-Moreno, G. Alvarez, and his grandfather, S. Alvarez, in the same home, and Mares-Moreno has helped raise J. Alvarez, even though he is not Mares-Moreno's biological son. See Tr. at 15:11-13, 20; 24:15-17 (Alvarez, Glasheen, Mares-Moreno). According to S. Alvarez, J. Alvarez' biological father has “never helped with anything” for J. Alvarez, and S. Alvarez has not heard from J. Alvarez' biological father since E. Alvarez died. Tr. at 19:1-5 (Allen, Alvarez). Following the accident, S. Alvarez was named kinship guardian to J. Alvarez. See Motion ¶ 2, at 2.

         PROCEDURAL HISTORY

         On May 17, 2016, Mares-Moreno, individually and as personal representative of E. Alvarez' Estate, and as next friend of G. Alvarez, S. Alvarez, and Ivan Alvarez (collectively “Plaintiffs”) filed suit for wrongful death and personal injury against J. Singh, Sukhdev Singh, and Chahal Transport, Inc. (collectively “Defendants”). See Complaint at 1. S. Singh owned the tractor-trailer that collided with the GMC Yukon, and Chahal Transport employed J. Singh. See Complaint ¶¶ 4-5, at 2. I. Alvarez owned the GMC Yukon. See Tr. at 63:6-7 (Allen). The Plaintiffs allege that J. Singh negligently operated the tractor-trailer, resulting in the collision and committed negligence per se by violating several federal and New Mexico state laws. See Complaint ¶¶ 13-23, at 4-7. The Plaintiffs further allege that S. Singh and Chahal Transport negligently hired and supervised J. Singh, which resulted in the collision. See Complaint ¶¶ 24-30, at 7.

         After the Plaintiffs filed suit, the Defendants' insurer -- Progressive Michigan Insurance Company (“Progressive”) -- tendered its one million dollar policy limit to all Plaintiffs and any claimants who might have a claim arising from the accident. See Petition ¶ 10, at 2-3. The parties subsequently negotiated a one million dollar settlement. See Petition ¶ 13, at 1, 3. This settlement, however, was “subject to the court's approval, ” because New Mexico requires a judge to approve settlements that bind minors. Petition ¶ 13, at 3. See Motion ¶ 7, at 3. The Court subsequently appointed Kathleen Oakey as Guardian Ad Litem to investigate the appropriate course for the children's best interest. See Stipulated Order Appointing Guardian Ad Litem, filed January 31, 2017 (dated January 21, 2017)(Doc. 27).

         The Plaintiffs proposed the following initial settlement agreement and apportionment amount to Ms. Oakey:

Plaintiffs' Initial Proposal

Claimant

G. Alvarez

J. Alvarez

Mares-Moreno

S. Alvarez

Amount

$400, 000.00

$200, 000.00

$200, 000.00

$200, 000.00

See Report at 8 n.11 (“Plaintiffs' Initial Proposal”). Ms. Oakey raised concerns regarding the amount given to S. Alvarez and countered with the following proposal:

Guardian Ad Litem Proposal

Claimant

G. Alvarez

J. Alvarez

Mares-Moreno

S. Alvarez

Amount

$525, 000.00

$200, 000.00

$200, 000.00

$75, 000.00

See Report at 8, n.11 (“Guardian Ad Litem Proposal”). According to Ms. Oakey, the Plaintiffs “agreed” to her proposal, “then subsequently changed their mind” and proposed the following:

Plaintiffs' Compromise Proposal

Claimant

G. Alvarez

J. Alvarez

Mares-Moreno

S. Alvarez

Amount

$400, 000.00

$300, 000.00

$200, 000.00

$100, 000.00

See Report at 2. (“Plaintiffs' Compromise Proposal”). The Plaintiffs also proposed to Ms. Oakey that they would set up a trust for both children that would distribute $750.00 per month to aid in raising and supporting them. See Report at 9.[2] The $750.00 allocation would continue for both children until they turned eighteen. See Report at 9. S. Alvarez, as J. Alvarez' guardian, would receive J. Alvarez' allocation; Mares-Moreno, as G. Alvarez' father, would receive G. Alvarez allocation. See Report at 9.

         1. Motion to Approve Settlement.

         On July 10, 2017, the Plaintiffs motioned for the Court to approve the settlement. See Motion at 1. By this time, however, the Plaintiffs had reverted to their original Plaintiffs' Initial Proposal:

Plaintiffs' Initial Proposal

Claimant

G. Alvarez

J. Alvarez

Mares-Moreno

S. Alvarez

Amount

$400, 000.00

$200, 000.00

$200, 000.00

$200, 000.00

See Motion ¶ 5, at 2-3. In their Motion, the Plaintiffs expand on these figures, adding that this allocation results in the following net recovery for each claimant -- after subtracting projected attorney's fees and medical costs from the allocated amount:

Plaintiffs' Initial Proposal Net Recovery Projection

Claimant

G. Alvarez

J. Alvarez

Mares-Moreno

S. Alvarez

Amount

$223, 177.00

$142, 347.00

$140, 953.00

$128, 246.00

See Motion ¶ 5, at 2-3. According to the Plaintiffs, this apportionment considers all parties' interests and covers G. Alvarez' severe injuries and the loss of her mother; J. Alvarez' loss of his mother; Mares-Moreno's injuries, the loss of his wife, and financial support for G. Alvarez; and S. Alvarez' injuries, the loss of his daughter, and financial support for J. Alvarez. See Motion ¶ 12, at 5.

         In support of the Plaintiffs' Initial Proposal, the Plaintiffs argue that, when approving a settlement involving minors, the Court “must determine if the settlement is fair and reasonable.” Motion ¶ 8, at 3 (citing Jones v. Nuclear Pharm., Inc., 741 F.2d 322, 324 (10th Cir. 1984)). They argue that the Court further must consider four factors in the fair-and-reasonable analysis:

(1) whether the proposed settlement was fairly and honestly negotiated; (2) whether serious questions of law and fact exist, placing the ultimate outcome of litigation in doubt; (3) whether the value of an immediate recovery outweighs the mere possibility of future relief after protracted and expensive litigation; and (4) the judgment of the parties that the settlement is fair and reasonable.

         Motion ¶ 8, at 3-4 (citing Jones v. Nuclear Pharm., Inc., 741 F.2d at 324). The Plaintiffs aver that, after considering those factors, “the settlement agreement . . . is fair and in the best interest of all parties involved, ” and “no additional insurance is available and . . . the Defendants do not have any recoverable assets if a judgment was obtained.” Motion ¶ 8, at 4.

         Regarding the Guardian Ad Litem and her proposal, the Plaintiffs argue that Ms. Oakey can negotiate a compromise or settlement, but such a compromise or settlement is not binding “absen[t] judicial approval.” Motion ¶ 9, at 4 (citing Decanay v. Mendoza, 573 F.2d 1075 (9th Cir. 1978); Ruddock v. Ohls, 91 Cal.App.3d 271 (1979); Wallace v. Boston Elevated Ry. Co., 194 Mass. 328 (1907)). The Plaintiffs add that Ms. Oakey does not have the authority “to reject the proposed settlement.” Motion ¶ 10, at 4. The Plaintiffs also aver that all parties that have the authority to reject the settlement agreement have agreed to the Plaintiffs' Initial Proposal. See Motion ¶ 11, at 5. The Plaintiffs argue that, although Oakey has recommended a larger apportionment for the children, the Court has an independent duty to determine “whether the settlement and apportionment agreements represent the best interest of J. and G. Alvarez.” Motion ¶¶ 10, 13, at 5-6 (citing Garcia v. Middle Rio Grande Conservancy Dist., 1983-NMCA-047, ¶ 28, 664 P.2d 1000, 1006 overruled on other grounds by Montoya v. AKAL Sec., 1992-NMSC-056, 838 P.2d 971). The Plaintiffs conclude that the Plaintiffs' Initial Proposal is “fair, reasonable, and in the best interests of Genesis and Jesus Alvarez.” Motion ¶ 13, at 6.

         2. The Guardian Ad Litem Report.

         On July 27, 2017, Ms. Oakey filed a Guardian Ad Litem Report. See Report at 1. Ms. Oakey wrote the Report based off of the Plaintiffs' Compromise Proposal, unaware that the Plaintiffs had reverted to the Plaintiffs' Initial Proposal. See Tr. at 69:22-25 (Oakey). Accordingly, her Report is based off of the following:

Plaintiffs' Compromise Proposal

Claimant

G. Alvarez

J. Alvarez

Mares-Moreno

S. Alvarez

Amount

$400, 000.00

$300, 000.00

$200, 000.00

$100, 000.00

See Report at 1-2. Ms. Oakey avers that the $300, 000.00 settlement for J. Alvarez is “fair and reasonable under the circumstances, ” but that G. Alvarez' amount is “unreasonable, ” and Ms. recommends that the Court should “not approve the settlement.” Report at 2. First, Ms. Oakey notes that the value “of each child's claim here exceeds the amount each will receive in settlement, ” but concludes that, “because Progressive is paying the liability policy limits available, ” the settlement amount reached for J. Alvarez is “fair and reasonable . . . under the circumstances.” Report at 7 (emphasis omitted). For G. Alvarez, however, Ms. Oakey argues that the settlement is unfair, unreasonable, and not in her best interest, because of G. Alvarez' severe injuries, her “arguable future medical needs, ” and losing her mother far outweigh the “injuries and claims of Mr. Mares Moreno and Mr. Alvarez.” Report at 7. Ms. Oakey, accordingly, officially proposes to the Court the Guardian Ad Litem Proposal:

Guardian Ad Litem Proposal

Claimant

G. Alvarez

J. Alvarez

Mares-Moreno

S. Alvarez

Amount

$525, 000

$200, 000.00

$200, 000.00

$75, 000.00


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