NUNO CASANOVA ,

P laintif f,
v. MARA THON CORPORA TION, et al., Defendan ts. UNITED STAT ES DIS TRICT COURT

F OR THE DIS TRICT OF COLUM BIA

Civil Action No. 05-496 (JM F )

F INDING S OF F ACT AND C ONCLUSIONS O F LAW This case was re fer

red to me, upon c onsent of the pa rties, for a ll purposes includingtrial. Currently pending and re ady

for r esolution is C hesape ake Electric al Sy stem’s Motion to Enforce 1 Settlement [ #233] (“Mot.”). F or the re asons discussed be low, the motion will be gr anted. F INDING S OF F ACT 1. This is an action in which the pla intiff, Nuno Casanvoa , is attempting to re cover damag es for

an injury that he suff

ere d while working

on a construc tion sit e. 2. Over

the complicate d history

of this liti g ation, there have be en seve ral c ross and counter claims amongthe def endants. For

prese nt purposes, the most signific ant 2 is the crosscla im by

Marathon Corporation (“Ma rathon” ) ag ainst Chesapea ke Electric al Sy stem. 3. On April 29, 2005, Mar athon filed its answe r to Casanova ’s complaint and its

Her eaf ter “ Chesapea

ke.” 1 See g ener ally

Casanova v. Ma

rathon Corp., 570 F . Supp. 2d 53 (D.D.C. 2008). 2crossc laim ag ainst Chesapea ke. Chesape ake, how ever , did not file its answer to that crossc laim until M ay 29, 2007, two y ear s later. 4. On August 15, 2007, this court gr anted Ma rathon’s motion to strike Chesape ake’ s
answe r to Marathon’s crossc laim “on the g rounds that Chesape ake violate d Rule 6(b) of the Fe dera l Rules of Civil Procedur e by failing to acc ompany

the late- filed
answe r with a motion for lea ve to file it that established e x cusable neg lect as require d by

that rule.” Casanova v. Ma rathon Corp., 499 F . Supp. 2d 32 (D.D.C. 2007). 5. Chesapea

ke then soug ht rec onsideration of that decision but Idenied its motion on Dec ember

10, 2007. Casanova v. Ma rathon Corp., 246 F .R.D. 376 (D.D.C. 2007). Thus, Chesapea

ke has be en pre cluded f

rom defe nding itself a g ainst Marathon’s
crossc laim that Chesapeake’s ne g lige nce e ntitles Marathon to rec over f rom Chesapea ke Mar athon’s costs in def endingitself ag ainst Casanova’ s claims. 6. As of De cembe r 10, 2007, there have, the ref ore, e x isted at least the following 3 claims: 1) Casanova ’s claims ag ainst Chesapea ke and Ma

rathon for his injuries, and 2) Ma

rathon’s c laims ag ainst Chesapea ke for its costs in defending itself ag ainst Casanova’ s claims. Whil e the f ormer w as, at that point, hea ded for trial, beca use of this court’ s Aug ust and Dec ember , 2007 decisions, the latter claim was deeme d conce ded.

There wer e other

defe ndants known as the “ dump truck” de fenda nts, but by

the time the 3 parties we re e ng ag ed in the neg otiations that are the subje ct of this opinion, only Marathon and Chesapea ke re mained as de fenda

nts. See Casanova

v. Marathon Corp., No. 05-CV-496, 2008 WL 4356950 (D.D.C. Sept. 24, 2008). 27. Charles Kr ikawa ( “Kr ikawa” ) is the attorne y for Casa nova. I n April, 2008 the parties e ng ag ed in mediation bef ore r etired Judge Fitzpatrick. Those e ffor ts failed. The offe r made to plaintiff, $435,000, was una cce ptable to plaintiff beca use he w as unable to work out the lien asse rted by his workmen’s compensation insurance c arr ier. 8. There wer e additional settlement ne g otiations in Decembe r, 2008 af ter a pre- trial confe renc e. The theme of the se discussions was the same as pre vious attempts at settlement: the only

two rema ining de fenda

nts, Marathon a

nd Chesapea

ke, wanted to se ttle what Krika wa c alled “the entire c ase,” meaningall claims Casanova ha d ag ainst Marathon and Chesape ake. 9. I n 2008, during these discussions, Krikaw a spoke to Warr en Stephens (“Stephe ns”), attorney

for Chesa

peake , and Joseph Cunni ng ham (“ Cunningham”), attorney for Ma rathon. 10. Krikaw a made it clear that his client would take $540,000 to settle the c ase a nd communicated that offer

in separate phone c alls to St ephens a nd Cunningham. Cunningham, repre senting Marathon, indicated that he did not think defe ndants could meet that de mand. 11. On September

14, 2009, a status conf

ere nce w as held. Immediately following the status confe renc e, as c ounsel wer e leaving the courtroom, the pa rties ag ain discussed the possibility

of settlement. Mot. at 3. 12. Duringthat discussion, St ephens r ecollec ts that Cunningham said that he (Stephens) c ould settle the ca se if he c ould ge t $150,000 from Marathon.
3Stephens rec ollects that Cunningha m said: “What about our claim for fee s and expenses? ” Stephens re collects that he told Cunni ng ham that “this is a g lobal settlement–we w on’t settle unless it includes Marathon’s claims ag ainst Chesapea ke.” Stephe ns then rec ollects Cunningham saying tha t his client, Marathon, would not go f or that. Stephens told Cunningham to give him $150,000 for the se ttlement and to talk to his client. 13. Cunningham’s rec ollection of wha t occur red is diffe rent. He specific ally rec alls (“it sticks in my

mind”) that as they

left the c ourtroom, Stephens wa s imploring him to come up with a spec ific amount, $150,000. Cunningha m rec alls Stephens being almost dictatorial, pre mised on the belief that the defe ndants had to g et rid of plaintiff’s c ase. Cunning ham insists t hat he sa id to St ephens that Marathon’ s
crossc laim was not g oing to g o awa y . 14. Cunningham then g ot approva l from the ca rrier for his client for

the $150,000, and Cunning ham told Stephens of that. 15. On September

15, 2009, Cunningham sent a letter to Stephens. Mot. at Exhibit 2. I n the letter, Cunning ham indicated that Marathon’ s car rier ha d approve d the
acc eptanc e of Stephe ns’ offe r to jointly settle the ca se with Casanova for a contribution of $150,000 by Marathon if Chesapea

ke made up the diffe renc e “to fully settle the ca se,” a

nd if Stephens provided c onfirmation that Chesape ake’ s
car rier w as in rec eiver ship in Tex as but was still able to pay the balanc e of the ag ree d upon settlement amount. I d. 16. Wit hin a day

or two, on either

September 15, or

September 16, 2009, Stephe ns 4called K rikawa and said that he had combined a uthority to settle the entire c ase for $440,000, with the unde rstanding that Krikaw a had to sa tisfy the worke rs’ compensation lien that was beingasser ted by the insuranc e ca

rrier that had paid Casanova w orkmen’s c ompensation. 17. Krikaw a then spoke to his client and his client’s wife , in order to g et a se nse of how they wanted him to neg otiate with counsel for the insuranc e ca

rrier
. 18. Krikaw a ca lled the attorne y for the insura

nce c arr ier, a

nd they neg otiated over

the next t wo wee ks, culminating in a n offe r beingmade by

the insuranc e ca

rrier to Casanova. 19. Krikaw a then spoke to Casanova a nd Casanova’ s wife a

nd they g ave him authority to acc ept the $440,000 that Stephens ha d previously offe red, subjec t to the ca rrier ’s lien. Krika

wa then c alled Stephens at about 4 p.m. on September 29, 2009 and lef

t a messag e on Stephens’ voic e mail ac ceptingthe offe r of $440,000. 20. Duringthe per iod from September 15 to September 29, 2009, Kr ikawa did not speak or otherwise c ommunicate with Cunningha m. 21. Krikaw a alwa

y s understood that the off er be ing ma de to him by

Stephens was a joint offer on be half of both r emaining defe ndants. 22. Duringthese discussions, no one spoke to Kr ikawa of any claims rema ining outstanding. 23. Meanw hile, on September 17, 2009, Stephe ns sent Cunningham a letter in

5response to his S eptember 15, 2009 letter. Mot. at Exhibi t 3. In the letter,

4 Stephens indicated that settlement could not be g uara nteed, but that Mar athon would not be re quired to pay more than $150,000.00. I d. Stephens also stated that Hig hland, Chesape ake’ s car rier, w as in rec eiver ship but had sufficient f unds to settle the ca se. I d. Finally , Stephens wrote “ that a settlement of the case exti nguishes all claims by all parties, spe cifica lly

including a

ny claims Marathon may have a g ainst Chesapea

ke.” I d. 24. On September

23, 2009, Cunningham and Stephens ag ain spoke by telephone. Mot. at Ex hibit 4. 25. On September

24, 2009, Cunningham sent Stephens a letter in response to his September 17, 2009 le tter. Mot. at Exhi bit 4. I n the letter, Cunning ham indicated that he did not ag ree with Stephens’ statement in his letter that settlement of the
case with Casanova would e x tinguish all other c laims, including, of c ourse, the claim that Marathon had ag ainst Chesapea ke base d on this Court’s order of Aug ust 7, 2007. That order prec luded Chesape ake f

rom defe nding itself a g ainst Marathon’s crossc laim that would have led to a n eventua l judgment on that
crossc laim ag ainst Chesapea ke, aw ardingMara

thon its costs for defe nding itself ag ainst Casanova’ s claim. Cunningham also stated that if Chesape ake r efuse d to pay Marathon’s defe nse costs, the off er to c ontribute $150,000.00 towards settlement with Casanova w ould be re scinded. I d.
I n the letter, Stephe ns ref ere nces a letter fr om Cunningham dated September 17 but as 4 there is no such letter, the c ourt presume s this was a ty pog raphic al er

ror a nd that Stephens intended to re fer ence Cunningham’s September 15 le tter. 626. On September 30, 2009, Stephens sent a letter to Cunningham in re sponse to his September 24, 2009 le tter. Mot. at Exhi bit 5. I n the letter, Stephe ns indicated that in the conver sation that took place on Septe mber 14, 2009 immediately following the status hear ing in c ourt, “it was made very clea r and w as fully

understood” tha

t the $150,000.00 amount contributed by Marathon would resolve a ll outst anding issues, including a

ny claim Marathon had ag ainst Chesapea ke. I d. Stephens also told Cunni ng ham that Casanova had alr eady

acc epted their

offe r. I d. Finally , Stephens indicated that Cunningham kne w that these w ere the terms of the offe r as evide nced by

the fa ct that Cunningha

m had pre viously

indicated that Marathon’s manag ement wa sn’t happy that the def

ense c osts had been w aived. I d. 27. On September

30, 2009, Cunningham sent Stephens a letter in response to his
ear lier letter on the same da y . Mot. at Ex hibit 6. I n the letter, Cunning ham denied the ac cura cy

of Stephens’ inter

pretation of their pre vious conversa tion. I d. Cunningham also denied that he had wa ived Marathon’s defe nse costs. I d. Acc ording to Cunningham, no off er ha d been ma de and no a cce ptance had bee n g iven. Instead, Cunning ham indicated that the parties we re still neg otiating. I d. Finally , Cunningham stated that Marathon would stil l contribute $150,000.00 towards se ttlement with Casanova but that Mara thon retaine d the rig ht to seek attorney s fee s and costs ag ainst Chesapea ke. I d. 28. On Octobe r 1, 2009, Stephens sent Cunning ham a letter in response to his September 30, 2009 le tter. Mot. at Exhi bit 7. I n the letter, Stephe ns indicated that Cunningham had told him that Marathon’s adjuster had bee n fired f

or ag ree ing to
7settle the ca se with Casanova for $150,000.00. I d. 29. Stephens had a

uthority to neg otiate a se ttlement with Casanova on beha lf of both Chesapea ke and Ma

rathon. Proof of

that authority

appea rs first in Cunningham’s September 15, 2009 le tter, in which he ref ere nced “ the balanc e of the settlement fig ure [Stephens] finally

neg otiate[d] with plaintiff’s attorne y” and se cond in Stephens’ Oc tober 1, 2009 letter to Cunningham, in which he stated that “[b]ased upon Marathon’s contribution, [he] was a uthorized to neg otiate a se ttlement with the plaintiff.” Mot. at Ex hibits 2, 7.

RULING S ON LE GA L ISS UES I
. Questions Presented Casanova, thr oug h his communications with St ephens, ne g otiated a se ttlement with Chesapea ke and Ma

rathon, in exchang e for

a ce rtain amount of money . Ba sed on that ag ree ment, Casanova the n neg otiated a lien with his workmen’ s compensation ca rrier , assuming
a new obligation as a re sult of the settlement that he thoug ht he had a chieve d with the defe ndants. Stephens, ac ting on be half of Che sapea ke, neg otiated a de al with Casanova where by Casanova w ould acc ept $440,000.00 in satisfaction of a ll his claims. S tephens be lieved, 5 howeve r, that Chesape ake’ s contribution of $290,000.00 to the settlement with Casanova absolved a

ny obligation Chesapeake had to satisfy any outstanding judg ment the cour t would ultimately

enter ag ainst Chesapea

ke as a result of its failure to timely file an a nswer to Although this figure is not re fer ence d in the documents submitted by the par ties in 5 relation to C hesape ake’ s pending motion to enforce settlement, both parties c oncede that Krikaw a wa s offe red this amount by Stephens, on beha lf of Chesape ake a nd Marathon. See Mot. at 4; Def endant Ma

rathon’s O pposition t o Co-Def endant Chesa

peake ’s Motion to Enforce Settlement at 6. Fur

thermore , Krikaw a also testified to that e ffe ct. 8Marathon’s cross c laim. Finally , Cunningham, acting on behalf of Mar athon, ag ree d to contribute $150,000.00 to the settlement of Casanova’ s claims. Cunningham believed, howe ver, that settling Casa

nova’s c laims would have no e ffe ct on any outstanding judg ment that Marathon would ultimately

secur e ag ainst Chesapea

ke. The que stions presented, ther efor e, ar e as f ollows: 1) Did Stephens, actingon behalf of Chesapea ke have actua l authority

to neg otiate a se ttlement with Casanova on beha lf of both Chesapea ke and Ma

rathon? 2) Was there a valid and e nforc eable ag ree ment betwee n (a) Casanova a

nd Chesapea

ke and Ma

rathon a nd (b) Chesa

peake and Mar athon? 3) I f there was no valid ag ree ment betwee n Marathon and Chesape ake, is Casa nova still entitl ed to enf

orce ment of his contrac t with them? 4) Doe s Marathon stil l have the r ight to enf orce the judg ement it
rec eived a g ainst Chesapea ke? I I
. Stephens Had A ctual Authority To Neg otiate a Settlement With C asanova On B ehalf

Of Both Chesa

peake and Mar athon Casanova de alt with Stephens, who ac ted with actua l authority on behalf of his own client, Chesape ake, a

nd who ac ted with actua l authority on behalf of Cunningha

m’s client, Marathon. Cunningham g ave him that author ity , the authority to bind Marathon upon the ter ms and conditions proposed by Stephens, i.e., the pa

y ment of $440,000.00, with the under standing that Casanova w ould then neg otiate a se ttlement betwee n himself and his workmen’ s compensation carr ier. As to Casanova , there was, ther efor e, an of fer by a lawyer w ho had ac tual authority to repre sent both his client, Chesapea ke, and its co- defe ndant, Marathon. The ag ree ment rea ched, the ref ore, w as made by

counsel for

a par ty , who unquestionably

had ac tual authority to bind both his client and Ma rathon. This ag ree ment contained c erta in and def inite

9terms that admitted of no ambiguity : in ex chang e for $440,000.00, Casanova w ould settle his claims ag ainst Mara

thon and Chesape ake but would take full responsibility for pa ying the workmen’ s compensation ca rrier lien. I t would be har d to imagine a better textbook example illust ratingthe principles of offe r and a cce ptance and showinghow an a g ent binds his principal by neg otiating with a third pa rty within the limi ts of the ac tual authority the ag ent has. Even whe re the ag ent’s author ity is only appar ent, “a

court may

consider whether

a third party ‘re asonably

relied upon c onduct of the pr incipal (includingacquie scenc e) or conduct of

the ag ent for which the princ ipal is responsible,’” althoug h the burde n rests at a ll tim es with the third party to “show that the re liance w as to his or her de triment.” Gonzalez v. I nterna cional De Elevador es, S.A., 901 A.2d 227, 238 (D.C. 2006) ( internal quotations and c itations omi tted). See also Wag shal v. Selig, 403 A .2d 338, 344-45 (D.C. 1979) ( “‘[a] third party seeking to hold a principal on the a

ppare nt authority

of the a g ent must show acts or state ments of the princ ipal known to the third party

and on which the third party rea sonably

relied to his detriment.’” ) (interna l quotation omit ted). He re, f rom the beg inning of

their neg otiations after the September 14, 2009 status confe renc e, Cunning ham and Stephens ne ver did a ny thing to dissuade K

rikawa from re asonably

believing that either one of them could bind the other by making a joint offer

on both their beha lfs to settle the ca se. Krika wa r elied upon their c onduct in prese nting to his client and then a cce pting on his client’s be half a n offe r that he most re asonably believed c ame jointly from Mar athon and Chesa peake
. I I I
. Although T here Was No Meeting Of the Minds B etwee n Chesapea ke and Ma

rathon a nd There fore No Contract B etwee n Them, They Are Neve rtheless Estopped F rom Deny ing the Exi stence Of a

Contract As To Casa

nova The c onclusion that there ne ver w as a c ontrac t betwee n Chesapea ke and Ma

rathon is
10compelling . As Stephens under stood it, by neg otiating a

settlement with Casanova on be half of both defe ndants, Chesape ake simultaneously esca ped pay ment of the judg ment previously
awa rded Ma rathon. Cunning ham, on the other hand, believe d that Marathon was only oblige d to contribute to the settlement with Casanova but retaine d its right to enf orce the judg ment ag ainst Chesapea ke for attorney s fee s. Be cause there was such a fundame ntal misunderstanding , there was ther efor e no mutual assent to the ter ms of the ag ree ment–the sine qua non of a c ontrac t under D istrict of Columbia law. See Malone v. Sax ony Coop. Apartments, 763 A.2d 725, 729 D.C. 2000) (“ For

there to be an e nforc eable contra ct, there must be mutual assent of the pa rties to all the essential ter

ms of the contra ct.”) . Henc e, at f irst gla nce, the parties do not appe ar to be bound. Such a conc lusion, however, doe s a g lorious injust ice to Casanova
. Casanova ne g otiated an a g ree ment in perfe ct g ood faith with a law y er w ho had ac tual authority to act for both defe ndants. Fur

thermore , Casanova c hang ed his position, abandoning his right to g o to trial and settling the lien. L etting both de fenda nts escape from that ag ree ment punishes Casanova a

nd robs him of the dea l he made be cause of conf usion that the defe ndants
cre ated, c onfusion that could have been a voided had they

only made their

intentions clear. T o visit upon C asanova

the conse quence s of Stephens’ a nd Cunningham’s misunderstanding punishes the one pe rson who is absolutely blameless. Such an unc onscionable r esult truly insults the most fundamental c oncepts of f airne ss. Moreove r, if ther e wa s any doubt as to that conclusion– and ther e isn’t– Casanova has a text book case for pr omissory estoppel, a doc trine cle arly rec og nized in the District of Columbi a. See B ender

v. The De sign Store Corp., 404 A .2d 194, 195-96 (D.C. 1979) ( “F irst, was there a promise? Second, should the promisor have expected the pr omisee to rely on the promise: And
11did the promisee so re ly to his detriment? Finally , would injusti ce r esult from a f ailure to e nforc e the promise? ”). The re w as an of fer made by a per son who had a

uthority to make it, and in relianc e upon it, Casanova c hang ed his position by (a) surre nderinghis right to pursue his claim ag ainst the defe ndants and (b) underta king to ne g otiate the lien and pa y all of it out of his share. Undoing that when Casa

nova ac ted in the utmost good fa ith upon reliance on those who unquestionably

had the powe r and a

uthority to make the de al they

did would be inequitable to the point of being unconsciona ble. How c ould one possibly justify neg ating a contr act that unquestionably

came into ex istence be tween Ca sanova a nd Chesapea

ke and Ma

rathon be cause , unbeknownst to Casanova , Chesapea ke and Ma

rathon ha d failed to e x press their intent to ea ch other? Chesapea

ke and Ma

rathon should not esca

pe the liability

they undertook to ac cept beca use their minds neve r met as to their a g ree ment inter se. I t is im possible to just ify neg ating the clea r terms of a

contra ct fre ely

enter ed into that is unquestionably enfor cea ble bec ause the parties on one side of that contr act f ailed to express the terms of the ir ag ree ment clea rly to eac h other. The Court must t here fore conclude that there was a valid contra ct betwe en Casanova and Chesapea ke and Ma

rathon a nd that judgme nt must be entere d in Casanova’ s favor pursuant to its terms. 6
An inacc urate written contra ct may be re formed w

here there has bee n no detrimental 6 reliance by

a third party , as long as the pa rties’ intent wa s identical: Where both par

ties have a

n identical intention as to the terms to be embodied in a pr oposed written . . . c ontrac t . . . and a wr iting executed by

them is materially

at var iance with that intention, either pa rty can g et a de cre e that the wr iting shall be r efor med so that it shall ex press the intention of the pa rties, if innocent third persons will not

be unfairly affected the reby. Restatement (F irst) of Contrac ts § 504 (1932) (e mphasis added) . Analog ously , this means that 12I V. Marathon No L ong er H as the Rig ht To Enforc e the Judgment Ag ainst Chesapea ke Since the dea l made betwe en the de fenda nts and Casanova

crie s out for enf

orce ment, the question become s who should bear the burde n of pay

ing Ca sanova. I f the de al is enfor ced a s Chesapea ke under stood it, t hen, as e x plained above , Chesapea ke would esc ape the order that, in eff ect, would r equire it to pay Marathon’s defe nse costs or at least esca pe the ne cessity

of appea ling f

rom that order

and trying to g et it reve rsed. I f, on the other hand, the de al is enfor ced as Mar athon under stood it, t hen Chesape ake w ould be compelled to pa y defe nse costs that it claimed it believe d it would not have had to pay if it paid Casanova its share of what Casanova wanted a nd ultimately

ag ree d to acc ept. Havinghear d the testimony , Icannot sa y that Ifind unrea sonable or unf air the supposition by

Stephens that he be lieved that his client wa s esca ping a ll liabili ty

if it paid its share of what was owe d to Casanova. While I appre ciate that Cunningham be lieved in equa l g ood faith that the de al he made with Chesapeake wa s independe nt of the liability that Chesapea ke had unde r the orde r, as be tween the two, acc eptanc e of Stephe ns’ under standing
rea ches a faire r re sult than acc eptanc e of Cunning ham’s. L awy ers g et paid to be c are ful and to take what may

appea r to be e x traordina

ry pains to protect their

clients from c ontinge ncies that may appea r to be fa r-f etche d and unlikely . I n this case, it appe ars to me that whe n two lawy ers
are discussing a

settlement that will relieve the ir clients of a share d obligation to a third party and one of those la

wy ers f ails to mention whether a n outstanding a

nd potential judgme nt betwee n

Casanova’ s rig hts cannot be sur rende red to the c onfusion that was c reated by Stephens’ and Cunningham’s failure to clear ly articula te what they

intended whe n they

communicated the offe r to Krikawa . Cf. Aetna Ca sualty & Sure ty Co. v. Kemp Smit h Co., 208 A.2d 737, 740 (D.C. 1965) (r eliance in District of Columbia on Restatements). 13them will or will not be affe cted by the pay ment of monies to the third party , the risk of subsequent conf

usion should fall on the benef iciary of that potential judg ment, rathe r than the opposing pa

rty . L awyers, pa

rticularly the experienc ed ones involved in this case , seek to a bsolve their clients fr om all potential liabilit y when they

settle; very

fewlawy ers lea

ve their c lients open to additional liabilit y

when they

ask their c lients for money . This notion is captur ed by the words “fina l settlement.” I t would appea r to me there fore that counsel for Marathon should have made it clear that Chesapea

ke’s liability

to Marathon survive d the pay ment to Casanova be fore he committed himself and his client (Mar athon) to makingthe offe r to Casanova that Casanova ultimately

acc epted. Ha d he only

done so we would not be wher e we now ar e. Moreove r, while that re sult seems harsh, the a lternative–de nying Ca sanova the settlement to which he is unquestionably entitled– is unconscionable. B etwee n Casanova a nd Marathon, the equities all favor

the forme r. I f burde n has to fall any wher e, it has to fall on Cunning ham, beca use he c ould have pr evente d the misunderstandingwith Stephens by specify ing the prec ise deal that Ma

rathon wa s acc epting from Chesape ake. Iwill therefor e orde r that judg ment be ente red in a ccor dance with this Opini on as follows: 1. J udg ment will be enter ed in favor of plaintiff in the a mount of $440,000 with the understanding s that (1) plaintiff sha ll be solely responsible for

satisfying a

ny workmen’ s compensation cla im that is or will be asserted a s a lien on any such judgme nt and (2) that Chesapeake shall pay $290,000 of that judg ment and Marathon the rema ining $150,000. 2. Eac h party

shall pay its own fees a

nd costs, meaningthat Chesapea ke is relieve d
14of any obligation to pay

Marathon’s defe nse costs as r equire d by this court’s orde r of August 7, 2007. SO ORDERED.

_____________________________ J OHN M. F ACCI OL A UNI TED STATES MAGI STRATE J UDGE

15