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Pierre v. T&K Express, Inc.

United States District Court, E.D. Louisiana

January 8, 2018

GWENDOLYN PIERRE, ET AL.
v.
T&K EXPRESS, INC.

         SECTION: “N” (1)

          KURT D. ENGELHARDT, JUDGE

          REPORT AND RECOMMENDATION

          Janis van Meerveld, United States Magistrate Judge

         Before the Court is the Motion to Enforce Settlement filed by defendants T&K Express, Inc., and Melvin Ruch (“Defendants”). (Rec. Doc. 51). The Motion was referred to the undersigned magistrate judge for issuance of a Report and Recommendation. (Rec. Doc. 54). For the following reasons, IT IS RECOMMENDED that the Motion to Enforce Settlement be GRANTED.

         Background

         This lawsuit arises out of a motor vehicle accident involving a commercial truck driven by defendant Melvin Ruch while allegedly in the course and scope of his employment with defendant T&K Express, Inc. (“T&K”). Plaintiffs Gwendolyn Pierre, Anietria Pierre, Felicia Pierre, and Percy Ross (collectively, the “Plaintiffs”) allege that they were injured when the commercial truck collided with the 2010 Dodge Journey in which they were traveling. Gwendolyn Pierre (“Driver Plaintiff”) was driving the Dodge Journey at the time of the accident, and the remaining plaintiffs were passengers in the vehicle. The Plaintiffs filed suit against Ruch, T&K, and Inspro Insurance Company (“Inspro”) on December 12, 2016, in state court. The action was removed to this Court by Ruch and T&K (“Defendants”) on February 3, 2017. On June 1, 2017, the Plaintiffs filed their First Amended Complaint substituting insurer Employers Mutual Casualty Company (“EMC”) as a defendant in place of Inspro. EMC has not been served.

         Plaintiffs were originally represented by attorney Bradley Egenberg. In May 2017, he sought to withdraw as counsel, stating that the Plaintiffs had retained the Irpino Law Firm to represent them. The withdrawal was not allowed without the new counsel enrolling. In August 2017, Robert B. Evans, III, was enrolled on behalf of Anietria Pierre, Felicia Pierre, and Percy Ross (the “Passenger Plaintiffs”). The Passenger Plaintiffs moved for leave to amend their complaint and add the Driver Plaintiff as a defendant. Then Joshua Allison was enrolled as counsel on behalf of the Driver Plaintiff. The undersigned denied the Motion for Leave to Amend, finding that the primary purpose was to defeat diversity jurisdiction and that a protective claim against the driver could be filed as a cross claim. A cross claim has never been filed. At the time the issues that gave rise to this motion occurred, Evans represented the Passenger Plaintiffs and Allison represented the Driver Plaintiff. Evans and Allison often affiliate together, and Allison is “of counsel” to the Evans Law Corporation. (Rec. Doc. 36-1, p. 3).

         In late September 2017, the parties began settlement negotiations. According to the defendants, these discussions began with a phone call by Evans who advised that he had authority from all four plaintiffs to settle the case for $125, 000 per plaintiff. In an email dated September 28, 2017, at 4:33:49 PM, Evans wrote to defense counsel stating, “[f]urther, to our conversation, all the plaintiff's [sic] have undergone extensive treatment since the accident. They are all scheduled now to see Dr. Bradley Bartholomew for surgeries. To that end, I have authority to settle all four plaintiffs for $150, 000.” (Rec. Doc. 51-6, at 2). Defense counsel responded that Evans had represented the settlement amount as $125, 000 per plaintiff during the telephone conversation. Id. Evans wrote back “Yes. $125, 000 is the en globo number.” Id.

         Settlement negotiations continued. According to Evans, on October 5, 2017, the defendants had offered to settle for $75, 000 per plaintiff and the plaintiffs had counter-offered $95, 000 per plaintiff. On October 10, 2017, defendants' counsel emailed Evans, repeated defendant's offer of $75, 000, and stated that his client would not agree to $95, 000. (Rec. Doc. 66-2, at 1). Evans responded to defendants' counsel stating “What if we split the difference? I have to get approval for that.” Id. Defendants' counsel responded “Do you mean $85, 000 per plaintiff for all four? I want to make sure I understand your proposal in order to discuss it with the client.” Id. Evans responded, “That's my proposal. $85, 000 each and we shut it down.” Id.

         On October 11, 2017, defendants' counsel sent a typed letter agreement (“Letter Agreement”) to Evans as to the Passenger Plaintiffs for Evans to sign. A nearly identical letter was sent to Mr. Allison as to the Driver Plaintiff and is dated October 26, 2017. Each Letter Agreement begins, “This will confirm, pursuant to our telephone conversation, that your client [specific names inserted here] . . . is willing to settle any and all claims, known or unknown, past, present or future arising out of or any way related to the accident which is the subject to this litigation . . . .” The Letter Agreement further provided that “the above-described settlement is explicitly conditioned upon your and your client's agreement to and execution of a subsequent Receipt, Release, Indemnity, and Hold Harmless Agreement, the terms of which will more fully document the agreement of the parties, and which, at a minimum, will include the following terms.” The referenced “following terms” included the requirement that all four plaintiffs execute a release.

         Counsel for defendants followed up by email to both Evans and Allison, on October 16, 2017, referring to the Letter Agreements he had sent over as “preliminary agreements” and stating that the Plaintiffs and the attorneys would “need to both agree and execute [the release] before there is any settlement.” On Tuesday, October 24, 2017, Evans' paralegal emailed a copy of the letter Agreement signed by Evans. Additionally, the Passenger Plaintiffs' document included what appear to be the initials of all four plaintiffs. On November 11, 2017, Allison's signed Letter Agreement was returned on behalf of Gwendolyn Pierre.

         On Thursday, October 26, 2017, Evans wrote to the defendants' counsel and stated “My clients have second thoughts about the settlement. In fact, Felicia didn't initial it. But she has been recommended for a fusion which she wants to have. So if we have to settle all or none, I think it's none. If we can settle 2-3, I think we can do that.” (Rec. Doc. 51-11, at 2). In an email later on October 26, 2017, Evans wrote to defendants' counsel as follows:

I met with everyone Tuesday at 11, except Felicia because she was at kidney dialysis. I spent an hour explaining all the possibilities and options they had. I had them initial both pages to show they? agreed and to cover my ass. And, Percy wrote Felicia's initials because Felicia was not there. Felicia did not initial the paper Tuesday or yesterday.
. . . . I told them to have Felicia come Wednesday at 11 am so I could discuss it with her. She was in tears telling me that she still hurts and was recommended for surgery. Anthony Pierre was there with the other plaintiffs absent was Felicia. So, I was looking at 4 people I saw 4 initials and then I ...

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