1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA
9 Texas Insurance Company, No. CV-23-00038-TUC-RM
10 Plaintiff, ORDER
11 v.
12 Athena Logistic Solutions LLC, et al.,
13 Defendants. 14 15 The Court previously appointed Burr Udall of the Udall Law Firm, LLP to serve 16 as a special master to review the fairness and reasonableness of the proposed settlement 17 of the minors’ claims in the above-captioned matter. (Doc. 93.) Mr. Udall has provided 18 to the Court the attached report finding that the proposed settlement is fair and 19 reasonable. 20 “It has long been established that the court in which a minor’s claims are being 21 litigated has a duty to protect the minor’s interests.” Salmeron v. United States, 724 F.2d 22 1357, 1363 (9th Cir. 1983). This duty, which arises from Federal Rule of Civil Procedure 23 17(c), requires the court to “independently investigate and evaluate any compromise or 24 settlement of a minor’s claims to assure itself that the minor’s interests are protected,” 25 even when the settlement has been “recommended or negotiated by the minor’s parent or 26 guardian ad litem.” Id.; Robidoux v. Rosengren, 638 F.3d 1177, 1181 (9th Cir. 2011) 27 (duty derives from Rule 17(c)). In Robidoux, the Ninth Circuit held that district courts 28 should approve a proposed settlement of minors’ claims so long as “the net recovery to 1 each minor plaintiff is fair and reasonable in light of their claims and average recovery in 2 similar cases.” 638 F.3d at 1182. Robidoux addressed the settlement of a minor’s federal 3 claims, and the Ninth Circuit declined to “express a view on the proper approach for a 4 federal court to use when sitting in diversity and approving the settlement of a minor’s 5 state law claims.” Id. at 1179 n.2. Nevertheless, district courts have looked to the 6 Robidoux standard for guidance when evaluating a proposed settlement of state-law 7 claims. See, e.g., DeRuyver v. Omni La Costa Resort & Spa, LLC, No. 3:17-CV-0516-H- 8 AGS, 2020 WL 563551, at *2 (S.D. Cal. Feb. 4, 2020); Allison v. Gramercy YZE, LLC, 9 No. CV-14-00862-MWF (RZx), 2014 WL 12569372, at *2 (C.D. Cal. Dec. 9, 2014); R.J. 10 ex rel. Jain v. Mitsubishi Motors N. Am., Inc., No. C 13–2165 LB, 2013 WL 2303784, at 11 *1 n.4 (N.D. Cal. May 24, 2013); Guerrero v. Brentwood Union Sch. Dist., No. C 13– 12 03873 LB, 2014 WL 1351208, at *2 n.2 (N.D. Cal. Apr. 4, 2014); Mitchell v. Riverstone 13 Residential Grp., No. CIV. S-11-2202 LKK/CKD, 2013 WL 1680641, at *1 (E.D. Cal. 14 Apr. 17, 2013) (collecting cases). 15 Based on this Court’s review of the parties’ Petitions to Approve Settlement and 16 Mr. Udall’s report, the Court finds that the net recovery to each minor—$84,168.92 for 17 each of Erika Orozco’s (“Orozco”) children and $49,384.85 for Claudia Lilian Vega 18 Munoz’s (“Vega”) child—is fair and reasonable in light of the minors’ claims and the 19 average recoveries in similar actions. See, e.g., Benedict v. Total Transit Inc., 499 P.3d 20 339, 344 (Ariz. App. 2021) (jury award of $91,000 each to decedent’s children in 21 wrongful death lawsuit). To the extent it is appropriate to look beyond the Robidoux 22 criteria and consider how the interpleaded funds have been allocated in the proposed 23 settlement between the minors, their mothers, and the parties’ attorneys, the Court 24 continues to find the settlement fair and reasonable. The division of the interpleaded 25 funds between the Reyes Parties1 and the Carlon Solis Parties2 is fair and equitable given 26 the evidence indicating Mario Alberto Carlon Solis was the driver of the vehicle at the 27 time of the fatal collision at issue in this case. The Court approves as fair and reasonable
28 1 The Reyes Parties include Erika Orozco and minors R.Y.R.O, KN.R.O, and KL.R.O. 2 The Carlon Solis Parties include Vega and minor T.I.C.V. 1 the reduced attorneys’ fees of 33.33% deducted from the minors’ shares of the 2 interpleaded funds, given the attorneys’ skill and experience, the time expended on the 3 litigation, customary fees, and the risks inherent in contingency fee arrangements. The 4 Court also approves as fair and reasonable the allocation of 50% of case expenses to 5 T.I.C.V. and no case expenses allocated to Orozco’s children. Finally, the Court finds 6 that the overall allocation of funds between the minors and their mothers is fair and 7 reasonable, particularly given that Orozco and Vega are now the sole living parents of the 8 minor children, and it appears that they will likely use a significant portion of their 9 portions of the interpleaded funds to pay for the expenses associated with raising the 10 children. (See Doc. 73 at 6; Doc. 78 at 4; Udall Report.) The Court finds that it is in the 11 minor’s best interests to place the minors’ portions of the interpleaded funds into fixed 12 annuities, as doing so will ensure the preservation and growth of the proceeds, prevent 13 mismanagement, and allow the minors to receive funds at a time when they have 14 sufficient maturity. 15 Accordingly, 16 IT IS ORDERED that the Petitions to Approve Settlement (Docs. 73, 78, 81-1) 17 are granted. The parties’ proposed settlement is approved, as follows: 18 1. $757,520.24 of the remaining interpleaded funds deposited into the Court registry 19 shall be allocated to the Reyes Parties and $200,000.00 shall be allocated to the 20 Carlon Solis Parties. 21 2. 50% of the Reyes Parties’ share of the interpleaded funds shall be allocated to 22 Erika Orozco, with the remaining 50% split evenly between minors R.Y.R.O, 23 KL.R.O, and KN.R.O. 24 3. Attorney’s fees of 40% and case expenses of $17,142.21 shall be deducted from 25 Orozco’s share of the interpleaded funds, resulting in a net recovery to Orozco of 26 $210,113.86. 27 4. Attorney’s fees of 33.33% shall be deducted from the shares of minors R.Y.R.O. 28 KL.R.O. and KN.R.O., resulting in a net recovery of $84,168.92 to each of these 1 minor litigants. 2 5. 50% of the Carlon Solis Parties’ share of the interpleaded funds shall be allocated 3 to Claudia Lilian Vega Munoz, with the remaining 50% allocated to T.I.C.V. 4 6. Attorney’s fees of 40% and case expenses of $17,281.82 shall be deducted from 5 Vega’s share of the interpleaded funds, resulting in a net recovery to Vega of 6 $42,718.18. 7 7. Attorney’s fees of 33.33% and case expenses of $17,281.82 shall be deducted 8 from minor T.I.C.V.’s share of the interpleaded funds, resulting in a net recovery 9 to T.I.C.V. of $49,384.85. 10 8. The Reyes and Carlon Solis Parties shall place the shares of the interpleaded funds 11 allocated to the minors into annuities purchased from a AAA-rated life insurance 12 company, as discussed in the Petitions and Udall’s report. 13 9. Texas Insurance Company shall cooperate with the parties to allow for the 14 purchase of annuities for the minors including, as necessary, signing Qualified 15 Assignments. 16 10. Orozco as next friend of R.Y.R.O., KL.R.O., and KN.R.O. is authorized to execute 17 all documents to effectuate this settlement on behalf of R.Y.R.O., KL.R.O., and 18 KN.R.O., including signing Settlement Agreements and Releases. 19 11. Vega as next friend of T.I.C.V. is authorized to execute all documents to 20 effectuate this settlement on behalf of T.I.C.V., including signing Settlement 21 Agreements and Releases. 22 12. Upon payment of the interpleaded funds as outlined above and execution of 23 Settlement Agreements and Releases, the parties shall file a stipulation of 24 dismissal of the above-entitled action. 25 . . . . 26 . . . . 27 . . . . 28 . . . . 1 13.A stipulation of dismissal or a further status report is due within thirty (30) days 2 of the date this Order is filed. 3 Dated this 27th day of February, 2024.
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1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA
9 Texas Insurance Company, No. CV-23-00038-TUC-RM
10 Plaintiff, ORDER
11 v.
12 Athena Logistic Solutions LLC, et al.,
13 Defendants. 14 15 The Court previously appointed Burr Udall of the Udall Law Firm, LLP to serve 16 as a special master to review the fairness and reasonableness of the proposed settlement 17 of the minors’ claims in the above-captioned matter. (Doc. 93.) Mr. Udall has provided 18 to the Court the attached report finding that the proposed settlement is fair and 19 reasonable. 20 “It has long been established that the court in which a minor’s claims are being 21 litigated has a duty to protect the minor’s interests.” Salmeron v. United States, 724 F.2d 22 1357, 1363 (9th Cir. 1983). This duty, which arises from Federal Rule of Civil Procedure 23 17(c), requires the court to “independently investigate and evaluate any compromise or 24 settlement of a minor’s claims to assure itself that the minor’s interests are protected,” 25 even when the settlement has been “recommended or negotiated by the minor’s parent or 26 guardian ad litem.” Id.; Robidoux v. Rosengren, 638 F.3d 1177, 1181 (9th Cir. 2011) 27 (duty derives from Rule 17(c)). In Robidoux, the Ninth Circuit held that district courts 28 should approve a proposed settlement of minors’ claims so long as “the net recovery to 1 each minor plaintiff is fair and reasonable in light of their claims and average recovery in 2 similar cases.” 638 F.3d at 1182. Robidoux addressed the settlement of a minor’s federal 3 claims, and the Ninth Circuit declined to “express a view on the proper approach for a 4 federal court to use when sitting in diversity and approving the settlement of a minor’s 5 state law claims.” Id. at 1179 n.2. Nevertheless, district courts have looked to the 6 Robidoux standard for guidance when evaluating a proposed settlement of state-law 7 claims. See, e.g., DeRuyver v. Omni La Costa Resort & Spa, LLC, No. 3:17-CV-0516-H- 8 AGS, 2020 WL 563551, at *2 (S.D. Cal. Feb. 4, 2020); Allison v. Gramercy YZE, LLC, 9 No. CV-14-00862-MWF (RZx), 2014 WL 12569372, at *2 (C.D. Cal. Dec. 9, 2014); R.J. 10 ex rel. Jain v. Mitsubishi Motors N. Am., Inc., No. C 13–2165 LB, 2013 WL 2303784, at 11 *1 n.4 (N.D. Cal. May 24, 2013); Guerrero v. Brentwood Union Sch. Dist., No. C 13– 12 03873 LB, 2014 WL 1351208, at *2 n.2 (N.D. Cal. Apr. 4, 2014); Mitchell v. Riverstone 13 Residential Grp., No. CIV. S-11-2202 LKK/CKD, 2013 WL 1680641, at *1 (E.D. Cal. 14 Apr. 17, 2013) (collecting cases). 15 Based on this Court’s review of the parties’ Petitions to Approve Settlement and 16 Mr. Udall’s report, the Court finds that the net recovery to each minor—$84,168.92 for 17 each of Erika Orozco’s (“Orozco”) children and $49,384.85 for Claudia Lilian Vega 18 Munoz’s (“Vega”) child—is fair and reasonable in light of the minors’ claims and the 19 average recoveries in similar actions. See, e.g., Benedict v. Total Transit Inc., 499 P.3d 20 339, 344 (Ariz. App. 2021) (jury award of $91,000 each to decedent’s children in 21 wrongful death lawsuit). To the extent it is appropriate to look beyond the Robidoux 22 criteria and consider how the interpleaded funds have been allocated in the proposed 23 settlement between the minors, their mothers, and the parties’ attorneys, the Court 24 continues to find the settlement fair and reasonable. The division of the interpleaded 25 funds between the Reyes Parties1 and the Carlon Solis Parties2 is fair and equitable given 26 the evidence indicating Mario Alberto Carlon Solis was the driver of the vehicle at the 27 time of the fatal collision at issue in this case. The Court approves as fair and reasonable
28 1 The Reyes Parties include Erika Orozco and minors R.Y.R.O, KN.R.O, and KL.R.O. 2 The Carlon Solis Parties include Vega and minor T.I.C.V. 1 the reduced attorneys’ fees of 33.33% deducted from the minors’ shares of the 2 interpleaded funds, given the attorneys’ skill and experience, the time expended on the 3 litigation, customary fees, and the risks inherent in contingency fee arrangements. The 4 Court also approves as fair and reasonable the allocation of 50% of case expenses to 5 T.I.C.V. and no case expenses allocated to Orozco’s children. Finally, the Court finds 6 that the overall allocation of funds between the minors and their mothers is fair and 7 reasonable, particularly given that Orozco and Vega are now the sole living parents of the 8 minor children, and it appears that they will likely use a significant portion of their 9 portions of the interpleaded funds to pay for the expenses associated with raising the 10 children. (See Doc. 73 at 6; Doc. 78 at 4; Udall Report.) The Court finds that it is in the 11 minor’s best interests to place the minors’ portions of the interpleaded funds into fixed 12 annuities, as doing so will ensure the preservation and growth of the proceeds, prevent 13 mismanagement, and allow the minors to receive funds at a time when they have 14 sufficient maturity. 15 Accordingly, 16 IT IS ORDERED that the Petitions to Approve Settlement (Docs. 73, 78, 81-1) 17 are granted. The parties’ proposed settlement is approved, as follows: 18 1. $757,520.24 of the remaining interpleaded funds deposited into the Court registry 19 shall be allocated to the Reyes Parties and $200,000.00 shall be allocated to the 20 Carlon Solis Parties. 21 2. 50% of the Reyes Parties’ share of the interpleaded funds shall be allocated to 22 Erika Orozco, with the remaining 50% split evenly between minors R.Y.R.O, 23 KL.R.O, and KN.R.O. 24 3. Attorney’s fees of 40% and case expenses of $17,142.21 shall be deducted from 25 Orozco’s share of the interpleaded funds, resulting in a net recovery to Orozco of 26 $210,113.86. 27 4. Attorney’s fees of 33.33% shall be deducted from the shares of minors R.Y.R.O. 28 KL.R.O. and KN.R.O., resulting in a net recovery of $84,168.92 to each of these 1 minor litigants. 2 5. 50% of the Carlon Solis Parties’ share of the interpleaded funds shall be allocated 3 to Claudia Lilian Vega Munoz, with the remaining 50% allocated to T.I.C.V. 4 6. Attorney’s fees of 40% and case expenses of $17,281.82 shall be deducted from 5 Vega’s share of the interpleaded funds, resulting in a net recovery to Vega of 6 $42,718.18. 7 7. Attorney’s fees of 33.33% and case expenses of $17,281.82 shall be deducted 8 from minor T.I.C.V.’s share of the interpleaded funds, resulting in a net recovery 9 to T.I.C.V. of $49,384.85. 10 8. The Reyes and Carlon Solis Parties shall place the shares of the interpleaded funds 11 allocated to the minors into annuities purchased from a AAA-rated life insurance 12 company, as discussed in the Petitions and Udall’s report. 13 9. Texas Insurance Company shall cooperate with the parties to allow for the 14 purchase of annuities for the minors including, as necessary, signing Qualified 15 Assignments. 16 10. Orozco as next friend of R.Y.R.O., KL.R.O., and KN.R.O. is authorized to execute 17 all documents to effectuate this settlement on behalf of R.Y.R.O., KL.R.O., and 18 KN.R.O., including signing Settlement Agreements and Releases. 19 11. Vega as next friend of T.I.C.V. is authorized to execute all documents to 20 effectuate this settlement on behalf of T.I.C.V., including signing Settlement 21 Agreements and Releases. 22 12. Upon payment of the interpleaded funds as outlined above and execution of 23 Settlement Agreements and Releases, the parties shall file a stipulation of 24 dismissal of the above-entitled action. 25 . . . . 26 . . . . 27 . . . . 28 . . . . 1 13.A stipulation of dismissal or a further status report is due within thirty (30) days 2 of the date this Order is filed. 3 Dated this 27th day of February, 2024. 4 5 pl ajon,) 7 WNGUE Honorable Rostsiary □□□□□□□ 8 United States District □□□□□ 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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UDALL LAW FIRM, LLP 1 ATTORNEYS AT LAW 4801 E. BROADWAY BLVD., SUITE 400 2 TUCSON, ARIZONA 85711-3638 (520) 623-4353 3 dbudall@udalllaw.com
4 D.B. Udall SBN 739 5 Special Master
6 7 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA 8 9 Texas Insurance Company, Case No. 4:23-cv-00038-RM
10 Plaintiffs REPORT OF SPECIAL MASTER 11 VS.
Athena Logistics Solutions, LLC; Texas 13 Department of Transportation; Roller
14 Express, Inc.; The Estate of Mario Alberto Assigned to: Carlon Solis; Erika Ortiz, Ind. and as Rep. of 15 the Estate of Carlos Armando Reyes The Honorable Rosemary Márquez
Hurtado; and Cameron Grant. 16 17 Defendants. 18 The Court has appointed me to review the fairness and reasonableness of the proposed 19 settlement of the minors’ claims in this case. This will serve as that report. 20 I have been practicing law in Pima County for over 65 years. My primary focus and 21 practice has been as a civil defense attorney, including trying and evaluating cases; giving 22 coverage opinions; and doing civil appeals. I have tried over 300 civil cases and I feel safe in 23 saying I have evaluated over 3,000 personal injury and wrongful death cases. I have handled 24 over 100 appeals which resulted in published opinions. I feel qualified to give you my 25 recommendations. 1 Everyone understands that evaluating a personal injury or wrongful death case is not 2 an exact science. It is based on many, many factors. I have taken all of those factors into 3 consideration. 4 Everyone understands that the final decision is that of the Court, and not mine. 5 Texas Ins. Co. will pay my fee. 6 There are two wrongful death claims. In Arizona, the persons who can recover for 7 wrongful death are parents, spouse and children. No one else. 8 Texas Ins. Co. needs for the survivors in both cases to sign a release. The attorneys 9 for both plaintiffs agree that is a reasonable requests and once the Court rules, the 10 appropriate releases will be prepared by the attorney for Texas Ins. Co. 11 WRONGFUL DEATH OF CARLON SOLIS 12 Due to the wrongful death of Carlon Solis, the claimants are his surviving wife, Claudia 13 Vega, and three-year-old daughter. I have reviewed all of the written material filed by their 14 attorney with this Court. I have conferred with her and her attorney by Zoom. She is a Spanish 15 speaker only. She has a limited education and relied on her husband to provide for her and 16 her daughter. Since his death, she has made a small amount of money selling goods on the 17 street and at swap meets. She receives some support from the Mexican government. She 18 receives some assistance from friends and relatives, but basically, she is the sole support of 19 her daughter. She is 42 years old. She has two children from a prior relationship, ages 21 and 20 16, but they do not live with her. She owns her own home. Basically, she has no skills to make 21 her employable. 22 Mrs. Vega and her attorney agreed that of the $200,000.00, 50% would go to her and 23 50% would go to her daughter. 24 Her daughter, age 3, is T V . 25 The amount for the death of her husband, going to her and her daughter is $200,000.00. 26 once costs and attorneys fees are deducted, the amount going to the wife is $42,718.18. 27 After costs and attorneys fees, the daughter T will receive $49,384.83. That 1 total amount of $97,357.75. I believe that placing her money in an annuity is the best and 2 most appropriate way to handle her settlement. 3 It is clear that most of the money received by Mrs. Vega will be used to raise her child 4 and support herself. 5 Mrs. Vega and her daughter live in Nogales, Sonora. 6 Considering all of the circumstances, I feel that 50% going to Mrs. Vega, and 50% 7 going to her child is fair and reasonable, and I would recommend to the Court that the Court 8 approve that settlement. 9 WRONGFUL DEATH OF CARLOS ARMANDO REYES 10 Mr. Reyes left surviving his parents, who have agreed in writing that they do not want 11 to make a claim and all the money should go to his wife and his children. The persons entitled 12 to make a claim are his wife Erika Orozco and his three daughters, R (age 17), and twins 13 K and K (age 13). 14 Mrs. Orozco is 41 years old and only a Spanish speaker. She has a BA from a Mexican 15 university. Prior to her husband’s death, she was not employed, and took care of the home 16 and the children. Since his death, she has obtained a desk job for a company that imports food 17 to the USA. Clearly, a lot of her money will be used to support her children. 18 I talked by Zoom to Mrs. Orozco and R . I did not talk to the twins since I did not 19 believe they are old enough to give pertinent information to help me do my job. Both R 20 and Mrs. Orozco and their attorney agree that the funds should be distributed 50% to Mrs. 21 Orozco and the other 50% equally to the three daughters. Considering everything, I believe 22 that is a fair distribution of those funds and would recommend to the Court that the Court 23 approve that distribution. 24 R and the twins will receive annuities and again, I think that is the way to go to 25 make their recovery greater. 26 After deducting fees and costs, Erika Orozco will receive $210,713.80 and each of the 27 three daughters would receive $84,168.92. 1 The structure for Rg would pay $95,473.00. The structure for the twins would pay 2 || each $123,955. 3 Mrs. Orozco anticipates that her three daughters will attend college in Mexico and 4 || obtain a degree. By structuring the money, it makes college a very viable option for the three 5 || girls. 6 MY RECOMMENDATIONS 7 I feel that in both cases a 50-50 split between the surviving spouse and the children is 8 ||reasonable and fair. I would recommend to the Court that the Court approve the two 9 || settlements, giving each spouse 50% of each settlement, and giving her children 50% of each 10 |} settlement.
RESPECTFULLY SUBMITTED this 224 day of February, 2024. 12 g 3 UDALL LAW FIRM, LLP
14 i i By D.B- Udall 16 Special Master 17 18 19 20 21 CERTIFICATE OF SERVICE 22 I hereby certify that on February 22, 2024, I electronically transmitted the attached 23 || documents to the court clerk’s office using the CM/ECF system for filing and thereby transmitted a notice of electronic filing to the following CM/ECF registrants: 25 Clerk of Court %6 United States District Court District of Arizona — Tucson 405 W. Congress Street, Suite 500 Tucson, Arizona 85701 28
Kurt M. Zitzer 1 Logan Reasonover MEAGHER + GEER, P.L.L.P. 2 16767 North Perimeter Drive Scottsdale, Arizona 85260 A kzitzer@ meagher.com lreasonover @meagher.com 5 Attorneys for Plaintiff, Texas Insurance Company 6 David Trosman 7 J. ALEXANDER LAW FIRM, P.C. 8 12801 N. Central Expressway Suite 1100 9 eservice @jalexlawfirm.com 10 Attorneys for Reyes Defendants 11 Miguel J. Chapa 2 B49 Arturo Gonzalez CHAPA LAW GROUP, P.C. 13 3550 N. Central Ave., Suite 1860 14 Phoenix, AZ 85012 5 Mchapa @chapalawgroup.com 15 agonzalez @chapalawgroup.com 16 Attorneys for Estate of Mario Alberto Carlon Solis 17 DATED): February 22, 2024. 18 7 i hf 19 By D.B. Udall 20 21 22 23 24 25 26 27 28