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DaimlerChrysler last week settled a crashworthiness case for almost $10 million with the family of three accident victims, who died after their 1978 Dodge van caught fire when rear-ended by a Wal-Mart tractor-trailer. The plaintiffs’ lawyer, Alan M. Feldman of Feldman Shepherd Wohlgelernter & Tanner, said he will be filing a petition for approval of the $9.975 million with the Philadelphia Orphans’ Court next week. Feldman represented the plaintiffs with Daniel Mann. Counsel of record for DaimlerChrysler, Keith D. Heinold of Marshall Dennehey Warner Coleman & Goggin, would neither confirm nor deny the settlement with the plaintiffs’ estates or the settlement amount. The amount collected by the plaintiffs in Kraybill v. DaimlerChrysler Corp. may be affected by a “Mary Carter” agreement between the plaintiffs and other defendants in the case. The co-defendants, including Wal-Mart and the driver and owner of the tractor-trailer, could receive up to $2 million if the court finds the agreement valid, said Feldman. A Mary Carter agreement, named for the 1967 Florida case Booth v. Mary Carter Paint Co., is a contract in which a co-defendant settles with the plaintiff to obtain a release — in addition to a promise that the plaintiff will turn over to the settling co-defendant a portion of any money the plaintiff may recover from other defendants. Feldman has challenged the Kraybill Mary Carter agreement in Orphans’ Court. Because two of the plaintiffs’ surviving children are minors with an interest in the case’s outcome, Feldman argues that the agreement required court approval. The court never approved the agreement at the time the defendants and plaintiffs entered into it, he said. The plaintiffs’ original lawyer, Michael J. Garnick, negotiated the Mary Carter agreement prior to referring the crashworthiness case to Feldman’s firm, Feldman said. Kraybill arose out of a 1999 accident in Lancaster County. Ronald and Pauline Simmons, the parents of 13 children, filled their van up with gas on the way home from the bus station, where they had picked up their 19-year-old son, Michael; his girlfriend, Nukeysha Vega; and her two children, aged 2 and 2 months, according to court documents. Vega, on behalf of herself and her children’s estates, filed a separate suit against the defendants. She was represented by Bruce Neff. That case was settled for a confidential amount, according to Neff. During the drive home, the van had some mechanical trouble, which Ronald Simmons stopped to check before proceeding on Highway 283 — traveling below the speed limit, according to documents filed by the plaintiffs. According to court documents, Steven Herman, the driver of a tractor-trailer hauling Wal-Mart merchandise, came upon the van after passing under an overpass. Herman reached for a soda and when he looked up, he saw the Simmons’ Dodge van driving immediately in front of him and swerved to try to avoid the vehicle. The trailer struck the back-right portion of the van, spinning it, according to court documents. The van caught fire, and all but one of the six passengers died of smoke inhalation and burns, according to court documents. Vega suffered minor injuries, according to the documents. Simmons’ survivors — their youngest child was 8 at the time of the accident — filed suit against DaimlerChrysler, Herman, Wal-Mart, Arthur Smith Trucking Inc., and North Arkansas Wholesale Co., according to court documents. The estate claimed that DaimlerChrysler’s defective design of the fuel system — specifically locating the fuel tank close to the rear bumper — contributed to the van’s explosion upon rear impact, according to court documents. The parties in Kraybill picked the jury on Feb. 6. Before the parties reached a settlement on Feb. 10, Common Pleas Judge Mary D. Colins heard many motions in limine, opening arguments from both sides, as well as the testimony of the plaintiffs’ first expert witness, Byron Bloch, a vehicle-safety expert, Feldman said. One of the motions involved the admissibility of the Mary Carter agreement. Colins declined to rule the agreement inadmissible, saying that she would reconsider the issue if one of the parties sought to enter testimony from a potentially biased witness; that is, a co-defendant’s witness who would have an interest in how the case turned out for DaimlerChrysler, Feldman and Mann explained. The parties reached their settlement in open court, although the parties agreed to keep the identity of the van manufacturer confidential, Feldman said. The Legal Intelligencer then learned that the car manufacturer was DaimlerChrysler. Feldman said he expected it would be several weeks before the settlement is examined by the court for final approval. Feldman said that after approval, he will file a petition seeking a ruling that the Mary Carter agreement is invalid because the Orphans’ Court never approved it in the first place. For support, Feldman cited Power v. Tomarchio, a 1997 Superior Court case in which the panel refused to apply a high-low agreement entered into on behalf of minors during binding arbitration. The court instead entered the arbitration award, which fell above the high end of the high-low agreement. Feldman said in a petition filed in Orphans’ Court earlier this year that the Power court’s rationale is applicable to his case. “This is a challenge to the integrity of the Orphans’ Court itself,” Feldman said. “I think it will be difficult for the Pennsylvania Supreme Court to hold that Orphans’ Court is charged with protecting the welfare of minors — except where Mary Carter agreements are involved. I find that hard to believe.” Counsel for Wal-Mart, Patrick McDonnell of McDonnell & Associates in King of Prussia, Pa., declined to comment on the Mary Carter agreement Wednesday, saying it was confidential. The attorney at Post & Schell who represented Herman and his trucking company, Gregory S. Hirtzel, could not be reached for comment.

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