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Associated Aviation Underwriters v. Wood9/29/2004
At the time the Morris Agreement was being negotiated, the potential liability for the plaintiffs' claims was estimated by the lawyers representing the TAA and the City of Tucson to be several hundreds of millions of dollars. James Murphy, the reservation of rights counsel for the TAA, described the Valenzuela case as a "bet the farm" case. It is clear that the potential liability of both the TAA and the City of Tucson was far in excess of their ability to bond or pay a judgment........
At the time the [ Morris ] Agreement was being negotiated, the contribution of Airport sources to the groundwater contamination was hotly contested. Experts hired by the U.S. Environmental Protection Agency, the State of Arizona, Hughes [Aircraft Company], and the plaintiffs had reported that chemical contaminants originating from Airport sources had polluted the drinking water supply in south Tucson. These experts reported that the contaminants alleged to have polluted the drinking water had been released from areas under the direct control of the TAA as well as areas leased by the TAA's tenants. A report commissioned by the E.P.A. estimated that the contribution by Airport sources to the groundwater contamination was 40%. The TAA's and the City's own expert concluded that the Airport's contribution was between 0 and 11%.....
At the time the Morris Agreement was being negotiated, counsel for the TAA and the City reasonably believed that it was more likely than not that the plaintiffs would get their case to a jury....
Given the enormous liability potential faced by the TAA and the City, counsel for the TAA and the City believed that it would be inappropriate to enter into a settlement that did not resolve all of the individual claims that were being asserted in the Valenzuela and Gerardo actions. During the settlement negotiations, counsel for the TAA and the City never sought settlement of individual claims but instead pursued a global settlement of all claims asserted against their clients by the plaintiffs.
It is common practice in the settlement of a mass tort case to negotiate an overall resolution of the case rather than attempt a claim by claim resolution. Such practice is both reasonable and acceptable.....
The settlement negotiations between counsel for the plaintiffs and counsel for the TAA and the City that culminated in the Morris Agreement were lengthy, conducted at arms length and in good faith. There is no evidence of fraud or collusion on the part of the TAA, the City, or their counsel.
AAU's proposed findings adopted by the trial court established that " t the time of the Morris settlements": (1) "TAA/City lacked any information about the vast majority of the Intervenors"; (2) "Intervenors' medical experts had not issued their reports as to any Intervenor except Barbara Valenzuela"; (3) "no assessments were ever made of the values of any individual Intervenor's claim"; and (4) "TAA/City never adequately developed [its potential liability] defenses, but settled before such defenses could be fully explored." The trial court also found the following facts on its own accord:
1. At the time the Morris Agreement was entered into, discovery had not been completed and it is uncertain as to how many years it would take to complete the discovery as it related to the underlying cases. Although the exact cost for completion of discovery as to these cases and completion of the litigation is unknowable at this point, it is estimated to have cost many millions of dollars.
2. At the time the Morris agreement was entered into, the claims of each potential plaintiff could not be individually evaluated. It is unknown, and per
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