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Carroll v. Oakley Trucking, Inc.

United States District Court, E.D. North Carolina, Western Division

December 13, 2019

WENDY G. CARROLL, ADMINISTRATOR OF THE ESTATE OF THOMAS ANTHONY CARROLL, DECEASED, Plaintiff,
v.
OAKLEY TRUCKING, INC., AND THAD AUSTIN PITTMAN, Defendants.

          ORDER

          W. EARL BRITT SENIOR U.S. DISTRICT JUDGE

         This matter is before the court on plaintiff's motion to approve the settlement of this wrongful death action brought as the result of the death of Thomas Anthony Carroll (“Carroll”). (DE # 84.) The court held a hearing on 3 December 2019 to determine the fairness, reasonableness, and adequacy of the settlement agreement and accompanying attorneys' fees. Defendants consent to the settlement agreement. (See DE # 87.) All parties consent to the entry of this order. (See DE # 86.)

         I. Background

         1. This case arises out of a motor vehicle accident which occurred on 4 May 2016 at Case Farms Feed Mill (“Case Farms”) in Mount Olive, North Carolina, where Carroll, deceased, was an employee and where defendant Thad Pittman had delivered a load of salt that day. As the two men were leaving Case Farms, defendant Pittman's tractor-trailer collided with Carroll's motorcycle and resulted in Carroll's death.

         2. Carroll left four children as his heirs. At the time of his death, three of his children were minors. Only one child, S.C., is now a minor.

         3. Wendy G. Carroll, as Administrator of Carroll's Estate, instituted this action to recover damages for the wrongful death of Carroll.

         4. All parties to this action are properly represented and before the court. No. questions exist as to the misjoinder or nonjoinder of parties. This court has jurisdiction over the subject matter of the action as well as the parties.

         5. Wendy G. Carroll, mother of the minor, was appointed by this court as Guardian Ad Litem for the minor child. (DE # 83.)

         6. After a three-day bench trial in November 2018, this court entered judgment awarding plaintiff $1, 551, 767 plus prejudgment interest of 8%, for a total amount of $1, 774, 293.25, including recoverable costs. (See DE # 61.)

         7. Defendants appealed the verdict and judgment. (DE # 62.)

         8. After both parties briefed the case on appeal, the parties reached a settlement agreement in the amount of $1, 425, 000. The specific terms of this agreement are set forth in the Settlement Agreement and Release, (DE # 87), and incorporated herein by reference.

         9. This matter is now before the court for approval pursuant to Local Civil Rule 17.1 and N.C. Gen. Stat. § 28A-13-3(a)(23).

         10. Plaintiff retained Leonard Jernigan and Kristina Thompson of The Jernigan Law Firm and Guy W. Crabtree of Crabtree Carpenter, PLLC (collectively “attorneys”) to represent the Estate in this action.

         11. Attorneys represented the Estate on a contingent fee basis, plus litigation-related costs. A copy of that fee agreement is attached to plaintiff's motion. (DE # 84-5.)

         12. The fee agreement provides, in part, that the contingent attorney fee charged for attorneys' representation of the Estate would be as follows:

A fee equal to 25% of the gross recovery (including costs and liens) received if the case is settled within 120 days of the date of this agreement [which was September 8, 2016]; or
A fee of 33.33% of the gross recovery (including costs and liens) if the case is settled thereafter and no later than one week after the mediated settlement conference; or
A fee of 40% of the gross recovery (including costs and liens) if the case is resolved by settlement or verdict at any time thereafter; or
A fee equal to 45% of the gross recovery (including costs and liens) if an appeal is taken from the lower court by any party, or if any legal action after judgment has to be brought to collect the judgment or any portion thereof, or a second trial is necessary.

         13. Attorneys have advanced litigation-related costs of $105, 154.28 in this matter.

         14. To aid in the prosecution of the case, attorneys retained the accident reconstruction firm Accident Research Specialist Cary, N.C., to assist in the investigation of the collision, consult with attorneys, prepare computer simulations and exhibits, and offer expert testimony concerning the accident at both deposition and trial.

         15. A breakdown of the costs advanced in this matter by Crabtree Carpenter, PLLC and those advanced by The Jernigan Law Firm are attached to plaintiff's motion. (DE ## 84-3, 84-4.)

         16. The litigation expenses were reasonable and necessary for the proper prosecution of this matter.

         17. Attorneys submitted affidavits addressing, among other things, their efforts on behalf of plaintiff in this matter ...


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