Case No. 02-B02474 Jointly AdministeredUnited States Bankruptcy Court, N.D. Illinois, Eastern Division
February 4, 2003
AGREED ORDER OF RESOLUTION OF PERSONAL INJURY CLAIM OF DELORES BRAITHWAITE (CLAIM NO. 15623)
SUSAN PIERSON SONDERBY, United States Bankruptcy Judge
This Agreed Order is entered into and submitted to the Court in accordance with, and in implementation of, the procedures approved by the Court in the Order Approving Procedures for (A) Liquidating and Settling Pre-Petition Personal Injury Claims Through Direct Negotiation and/or Alternative Dispute Resolution and/or (B) Modifying the Automatic Stay to Permit Certain Pre-Petition Litigation With Respect to Such Claims to Proceed entered on July 17, 2002, as modified by an order entered on August 29, 2002; and Delores Braithwaite (the “Claimant”) and Kmart Corporation (“Kmart”) and certain of its subsidiaries and affiliates (collectively, the “Debtors”), debtors and debtors-in-possession in the above-captioned cases, having agreed, as signified by the signatures of counsel on the Settlement Agreement, attached hereto as Exhibit 1, to a resolution of the disputed Personal Injury Claims as set forth in this Agreed Order; and the Court being otherwise sufficiently advised,
IT IS HEREBY ORDERED, ADJUDGED AND DECREED THAT:
1. The Claimant shall have an allowed, general pre-petition unsecured non-priority claim in the amount of $290,000.00 against Kmart Corporation in Case No. 02-B02474 with respect to claim number 15623.
2. The automatic stay imposed by 11 U.S.C. § 362(a) remains in effect with respect to any and all actions to collect or enforce the claim allowed in this Order and/or any other claims against the Debtors or the Debtors’ estates or any affiliate of the Debtors.
Exhibit 1 SETTLEMENT AGREEMENT
This Settlement Agreement is entered into on November 20, 2002, by and between Kmart Corporation and its debtor affiliates (collectively, “Kmart”) and Delores Braithwaite (the “Claimant”) in accordance with, and in implementation of, the procedures approved by the United States Bankruptcy Court for the Northern District of Illinois, Eastern Division, in the Order Approving Procedures for (A) Liquidating and Settling Pre-Petition Personal Injury Claims through Direct Negotiation and/or Alternative Dispute Resolution and/or (B) Modifying the Automatic Stay to Permit Certain Pre-Petition Litigation With Respect to Such Claims to Proceed (the “Order”).
1. Agreed Claim: In settlement of Claimant’s claim against Kmart, evidenced by Proof of Claim number 15623 and 476, in the asserted amount of $583,342.46 (the “Proof of Claim”), Claimant shall have an allowed, general, pro-petition, unsecured, non-priority claim in the amount of$290,000,00 against Kmart in case number 02-OB-02-474 (the “Allowed Claim”).
2. Continuance of Stay: The automatic stay imposed by 11 U.S.C. § 362(a) remains in effect with respect to any and all actions to collect or enforce the Allowed Claim and/or any other claims against Kmart.
3. Limited Release of Kmart: Except with respect to the Allowed Claim, Claimant, for herself and her heirs, executors, administrators, successors, and assigns, does hereby and forever release, acquit, and discharge Kmart from any and all claims, actions, causes of actions, liens, demands, rights, damages, costs, loss of services, expenses and compensation whatsoever which Claimant now has or which may hereafter accrue on account of or in any way arising from the occurrences alleged in the Proof of Claim
4. General Release of Third Parties: Claimant, for herself and her heirs, executors, administrators, successors, and assigns, does hereby and forever release, acquit, and discharge all agents, affiliates, employees, independent contractors, and servants of Kmart from any and all claims, actions, causes of actions, liens, demands, rights, damages, costs, loss of services, expenses and compensation whatsoever which Claimant now has or which may hereafter accrue on account of, or in anyway arising from or relating to, the Proof of Claim, the Allowed Claim, or otherwise; whether known or unknown, foreseen or unforeseen.
5. Claimant’s Reliance: Claimant hereby declares and represents that the injuries alleged to have been sustained in the Proof of Claim are or may be permanent and progressive and this recovery therefrom may be uncertain and indefinite, and that in entering into this Settlement Agreement, it is understood and agreed that the Claimant relies wholly upon her own judgements, beliefs, and knowledge of the nature, extent, effect, and duration of said injuries and liability therefore without reliance upon any statement or representation of the parties released hereby-or their representatives, physician, or surgeon employed by them.
6. Claimant’s Indemnity Claimant agrees to save harmless and indemnify the parties hereby released, to the extent of such releases, from any and all expenses, including any/and all medical liens, arising because of any claim which may hereafter be presented by anyone for loss and damage or personal injury as a result of the occurrences alleged in the Proof of Claim.
7. No Admission: It is understood and agreed that this Settlement Agreement is a compromise of a doubtful and disputed claim, and that this agreement and payment, if any, on the Allowed Claim are not to be construed as an admission of liability by the parties hereto, and that such parties deny liability therefore and intend by this Settlement Agreement merely to avoid litigation,