United States District Court, E.D. Louisiana
GWENDOLYN PIERRE, ET AL.
T&K EXPRESS, INC.
D. ENGELHARDT, JUDGE
REPORT AND RECOMMENDATION
van Meerveld, United States Magistrate Judge
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.
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.
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).
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.”
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.
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.
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.
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 ...