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Barker v. Roelke3/20/2003
ted to represent the interests of Ryan Jay. Such Guardian Ad Litem must fully approve the terms of the settlement and division of the policy limits of the excess (umbrella) insurance policy. Further, although it is our position that the statute of limitations has run as to any claims she may have against the Roelkes or State Farm with regard to the accident made the basis of this lawsuit, Jackie Jay must also sign a full release and approve the settlement as to her son, Ryan Jay.
I will need to know in the next seven days if you both can come to an agreement with regard to the division of the policy limits under the excess (umbrella) insurance policy of $1,000,000.00. Also, please give me a call immediately to discuss the appointment of the Guardian Ad Litem and other issues with regard to the settlement of this case. Also, I want to stress again that the $1,200,000.00 which the Roelkes, by and through State Farm, have agreed to tender in this case is contingent upon a full release by all Intervenors, Plaintiffs and potential claimants/Plaintiffs/Intervenors, including and not limited to Jackie Jay. Independent of her potential individual claim, Jackie Jay is also a necessary party to any settlement on behalf of Ryan Jay, as she is Ryan's natural mother and legal guardian, and is also a necessary party to any settlement for the estate of Kirsten Barker, as she is a statutory beneficiary of Kirsten Barker.
Appellant and Ronald Jay each accepted the respective offers of $100,000 in settlement under the automobile liability policy. They also agreed to accept the offer of $1,000,000 under the excess insurance policy to collectively resolve their claims. Appellant and Ronald Jay submitted the issue of apportioning the $1,000,000 settlement proceeds to the trial court for determination at a hearing which occurred on April 3, 1997. The trial court ultimately apportioned $400,000 of the $1,000,000 settlement proceeds to appellant in a letter dated June 19, 1997. Appellant therefore received a total of $500,000.00 in settlement for the survival and wrongful death claims that he asserted.
Jackie Jay testified at the apportionment hearing conducted on April 3, 1997. Several of the questions which were directed to her concerned her competency to forego pursuing her claims arising from the accident. She testified that she was aware of her potential claims and that she agreed to the settlement which had been reached by the Roelkes with appellant and Ronald Jay. The trial court later entered an order entitled "Order for Determination of Competency" on April 25, 1997, wherein the court declared that "Jackie Jay is competent in all respects to enter agreements with regard to the settlement and resolution of this lawsuit."
Appellant executed two written settlement agreements releasing the Roelkes from claims arising from the accident. Appellant executed the first release on March 28, 1997, upon receiving $100,000 paid under the automobile liability policy. He executed the second release on July 2, 1997, upon receiving the $400,000 apportioned to him by the trial court on June 19, 1997, from the $1,000,000 tendered under the excess policy. Both of the releases provided for appellant's release of any and all claims arising from the accident which he might have against the Roelkes and their insurer.
On July 9, 1997, a plea in intervention was filed on behalf of Jackie Jay by Karen Coleman. Jackie Jay's original pleading only sought a recovery against the Roelkes for her personal injuries as well as for her claims arising from Kirsten's death and Ryan's physical injuries. The filing of the intervention more than two years after the date of the accident was premised on the allega
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