## SUPERIOR COURT
OF THE 

## STATE OF DELAWARE Jeffrey J Clark Kent County Courthouse Judge 38 The Green Dover, DE 19901 302

- 735

- 2111 March 2 9 , 2017

Mr. Chandra J. Williams, Esq. Joshua Meyeroff, Esq. Rhodunda & Williams Morris James, LLP 1220 Market Street, Suite 700 500 Delaware Avenue, Suite 1500 Wilmington, DE 19899 Wilmington, DE 1989 9

Lorenza Wolhar, Esq. Marshall, Dennehey, Warner, Coleman & Goggin 1220 Market Street, 5 th Floor Wilmington, DE 19899

- 8888

RE: Greenwald, et al. v. Caballero

- Goehringer, M.D. , et al. C.A. No. K14C

- 04

- 027 JJC

Submitted: March 21, 2017 Decided: March 29, 2017

Counsel:

This matter involves the requested approval of a minor tort claim settlement

. The Court denied Plaintiffs’ Third Petition for Approval of Settlement, without
prejudice to refile with proof of an annuity ready for purchase that ad equately
protects the Minor’s interests

. Plaintiffs move for reargument or reconsideration of

the Court’s decision. This letter sets forth the Court’s reasoning for denial of
Plaintiffs’ motion for reargument.
From the Court’s perspective, it provided clear guidance re ga rding the
appropriate process

. N evertheless, the Plaintiffs continue to request reconsideration2

and exception from the Court’s direction. Accordingly, b efore setting forth the
Court’s reasoning, a discussion of the background of this matter is appropriate.

Petitioner Coll een Greenwald (hereinafter “Petitioner”) is the guardian ad litem

for the now five year old Kiley Ann Greenwald (hereinafter the “Mino r”). In 2014,
Petitioners sued the Minor’s pediatrician for health care negligence allegedl y causing

the then

- infant Minor to fall f rom an examination table in the doctor’s office and

fracture her skull. In addition to the Minor’s claims , Petitioner and the Minor’s
father, Gary Greenwald, joined the Minor’s lawsuit, making a claim for their mental
anguish and emotional distress, despite suffering no injury and their being no
allegation of intentional infliction of emotional distress. Litigation commenced and
after mediation, the parties agreed to settle the claims for a gross amount , to be
allocated pursuant to Court approval.
At that point, Petitioner’s approach deviated from t he best interest of the Minor

when Plaintiffs filed a petition seeking Court approval of the settlement pursuant to
Superior Court Civil Rule 133. In the initial petition, the Petitioner alleged that “in
the interest of fairness, the plaintiffs should receive an equal share of the n et

settlement amount.” In other words, although the Minor was the only Plaintiff
suffering injury or that had any cognizable claim in the matter, the Mino r’ s parent s requested to receive twice as much of the net settlement proceeds as the injured

Minor.
The Court held a hearing on February 19, 2016. After the hearing, the Court
held that it would not approve a settle ment where the Petitioner received any less than
the full net amount of the settlement. The Court determined that any less would not
be a fair and equitable settlement of the Minor’s cla ims.

Thereafter, the Petitioner filed an amended petition seeking amounts to be
placed in a Delaware Uniform Transfers to Minors Account ( hereinafter “ UTMA ” ) in

part , or in the alternative providing for the placement of funds in an annuity

. The3

revised p etition, however, did not provide for any terms for an annuity that the Court

could review and consider. At that time, it was evident that no work toward that end
was completed. The Court became further concerned that based on the parent’s i nitial
vigor ( 1) to divert funds to them that in fairness belonged solely to the Mi nor , and (2)
a continued effort to prov ide for parental access to the M inor’s funds (albeit through a

UTMA ), it was in the M inor’s best interest to require all net proceeds to be placed i n a structured settlement where the parents would not have access. 1 By Letter Order on

November 23, 2016, the Court denied the Second Petition

. In that Order, t he Court

held that the gross settlement amount and the net present value of the settlement wa s

fair and in the best interest of the Minor , provided all net amounts are applied for the

benefit of the Minor. The C ourt also directed the Prothonotary to provide the

s tructured settlement chec k list to the Petitioner, long used and available, setting forth
the requirements for approval of the settlement. In other words, the Petitioner was

instructed to file a revised petition proposing the purchase of a suitable annuity to protect the Minor’s interests.

Thereafter, the Petitioner submitted a T hird Petition not meeting the
requirements of the check list. It included the proposed purchase of a receivable
purchase agreement. The proposed “structured settlement” was described in the Third

Petition as a structure to be pur chased through a third part y to be f acilitated by a
Houston, Texas law firm. The “annuity” proposed by the Petitioner was in fact a
“receivable purchase agreement” which involved purchase of the rights of payment of
a structured pers onal injury settlement from a California injured party having nothing

to do with this case. In other words, the annuitant in the proposed plan facilitated by

1 The parents alternatively proposed a reduction in their net share to fifteen percent of the net proceeds, and that all remaining net proceeds be placed in a UTMA for the Minor. In continuing to argue that the parents were due funds directly, the Second Petition cited the Restatement (Second) of Torts provision regarding claims for intentional infliction of emotional distress. In Delaware, claim s for intentional infli ction of emotional distress do not require a ccompanying physical injury. In this case, however, the parent plaintiffs never alleged a claim of intentional infliction of emotional distress. The complaint is devoid of any such claim.4

the Texas law firm was the California claimant, not the Minor. Furthermore, despite
the Petitioner describing The Hartford as providing the annuit y, th e seller of the
receivable purchase agreement was GenexCapital. No rating was provided fo r that
entity in the p etition. The Court denied the Third Petition, without prejudice.
Thereafter, Petitioner moves for reargument pursuant to Superior Court C ivil
Rule 59(e). Petitioner alleges that the prop osed mechanism for payment qualifies as a structured settlement and the Court misapprehended that fact . The two settling
defendants opposed the Third Petition on the basis that the Petitioner did not propo se

a true structured settlement. Defendant Linda Cabellera

- Goehringer al s o filed a
separate response in opposition to the Petitioner’s motion for reargument. Both
defendants argued that the proposed payment mechanism was not in the best interest

of the Minor. The Court agrees and also finds that there is no basis for Petitioner’s
motion for reargument in this case.
The standard for granting reargument under Superior Court Civil Rule 59(e)
provides that such motions be denied
unless the Court has overlooked precedent or legal principles that would have controlling effect, or misapprehended the law or the facts such as would affect the outcome of the decision. Motions for reargument should not be used merely to rehas h the arguments already decided by the Court, or present new arguments not previously raised. Such tactics frustrate the efficient use of judicial resources, place the opposing party in a n unfair position, and stymie “ the orderly process of reaching closu re on the issues. ” 2

Here, Petitioner does not demonstrate that the Court overlooked controlling
legal precedent, or misapprehended the law or the facts.
The Court has the obligation to review proposed settlements of minors’ claims
to ensure they are in the best interest of the injured mi nors. In reviewing such a

p etition pursuant to Superior Court Civil Rule 1 33, the Court has two options: either

2 Medical Depot, Inc. v. RSUI Indemnity Co., 2017 WL 76999, at *1 (Del. Super. Ct. Jan. 6, 2017) (citations omitted).5

approve or reject the settlement petition. 3 Considerable deference from the Court is
appropriate for the ne gotiated resolution of claims by counsel. Namely, counsel are

the most familiar with the claims and defenses in such actions, not the Court.

However, under the very unusual circumstances of this case, the Petitioner still
does not present a proposed set tlement that is in the best interest of the Minor. For
that reason, and the Petitioner’s failure to provide a basis for reargument or
reconsideration of the Court’s prior decision, Petitioner’s mo tion for reargument is

DENIED.

IT IS SO ORDERED.

/s/Jeffrey J Clark

3 Barlow v. Finger , 76 A.3d 803, 807 (Del. 2013).