Case No. 02-B02474 (Jointly Administered)United States Bankruptcy Court, N.D. Illinois, Eastern Division
February 24, 2003
John Wm. Butler, Jr., J. Eric Ivester, Mark A. McDermott, SKADDEN, ARPS, SLATE, MEAGHER FLOM (ILLINOIS), Chicago, IL; Attorneys for Debtors and Debtors-in-Possession.
James R. Neal, WYATT, AUSTIN, KINGERY HALE, Adam OK; Attorney for Steven L. Miller.
AGREED ORDER BETWEEN DEBTORS AND STEVEN L. MILLER TO MODIFY AUTOMATIC STAY
SUSAN PIERSON SONDERBY, United States Bankruptcy Judge
This Agreed Order is entered into and submitted to the Court in accordance with the Agreement of Steven L. Miller (the “Claimant”) and Kmart Corporation (“Kmart”) and 37 of its affiliates (the “Affiliate Debtors”), debtors and debtors-in-possession in the above-captioned cases (Kmart and the Affiliate Debtors collectively, the “Debtors”) in resolution of the Claimant’s Motion, as signified by the signatures of counsel below, to a modification of the automatic stay, as set forth herein and upon the condition that the Claimant waives the enforcement of any and all pre-petition and post-petition claims against the Debtors in these cases and upon the condition that the Debtors’ estates will incur no costs and the stay will be modified only in a maimer that will not give rise to claims indirect or direct against Debtors’ estates; it appearing to the Court that the relief should be granted,
IT IS THEREFORE ORDERED, ADJUDGED AND DECREED:
1. The automatic stay of 11 U.S.C. § 362(a), with respect to certain litigation styled: STEVEN L. MILLER v. KMART CORPORATION, pending in the Workers Compensation Court for the State of Oklahoma, under Case No. 2001-07075-L (the “Litigation”), in which the Claimant seeks to establish and liquidate a personal injury claim against Kmart allegedly sustained during the course of the Claimant’s employment with Kmart (the “Claim”), is hereby modified in accordance with the terms set forth in this Agreed Order.
2. The automatic stay is partially lifted (1) to permit the Litigation to proceed and continue to a final judgment or settlement and (2) to permit the Claimant to attempt to recover any liquidated, final judgment or settlement (an “Established Claim”) from any insurance coverage or workers’ compensation fund (the “Insurance Coverage”), that is available to satisfy such an Established Claim under any valid insurance policy (an “Insurance Policy”) insuring the Debtors excluding any self-retention of liability by the Debtors or deductible under such Insurance Policy; provided that the Claimant and all persons acting on behalf of the Claimant shall use their best efforts in proceeding with the Litigation, including, without limitation, scheduling discovery or other proceedings, so as not to interfere with the Debtors’ business and/or the administration of these cases.
3. Notwithstanding the partial lifting of the stay as set forth herein, the automatic stay remains in effect with respect to any and all actions to collect or enforce any pre-petition and post-petition claims against the Debtors or the Debtors’ estates, the automatic stay is modified only in a manner that will not give rise to claims direct or indirect against the Debtors or the Debtors’ estates, and any Established Claim in the Litigation shall be enforceable and collectable, if at all, only from the Insurance Coverage.
4. Notwithstanding the partial lifting of the stay as set forth herein, the Claimant hereby agrees to take no action to cause, either directly or indirectly, any liability to the Debtors or the Debtors’ estates, and if such direct or indirect liability is incurred by the Debtors or the Debtors’ estates, the Claimant agrees to hold the Debtors or the Debtors’ estates harmless.
5. Notwithstanding any proof of claim filed by or on behalf of the Claimant in these cases, the Claimant on behalf of herself, her heirs, representatives and assigns, shall be and is hereby deemed to have waived, and the Debtors, their estates, successors, assigns, affiliates, officers, directors and employees are hereby released from, any and all other rights, claims, actions causes of action, suits, debts, obligations, liabilities, accounts, damages, defenses or demands whatsoever, known or unknown, of any nature that could be asserted by or on behalf of the Claimant, and any and all pre-petition and post-petition claims asserted by or on behalf of the Claimant and any direct or indirect claims against the Debtors’ estates in these cases are hereby disallowed.
6. Nothing in this Order shall be deemed an admission of fact on the part of the Debtors with respect to the Claim or any facts alleged in the Claimant’s Motion or in the Litigation.
7. Nothing in this Order shall be deemed an agreement, admission or acknowledgment by the Debtors of the existence or availability of any Insurance Coverage or the non-existence of any defenses by any insurance company to liability for any Insurance Coverage.
8. Nothing in this Order shall be deemed an agreement or acknowledgment by the Debtors to provide assistance or to cooperate with the Claimant, any insurance company or any other party in the efforts to prosecute or defend against the Claim asserted in the Litigation.
9. This Court shall retain jurisdiction to hear any matters or disputes arising from or relating to this Order.