Case No. 03-27626, (Jointly Administered).United States Bankruptcy Court, N.D. Illinois, Eastern Division.
September 21, 2004.
James A. Stempel, Ryan B. Bennett, Scott R. Zemnick, KIRKLAND
ELLIS LLP, Chicago, II, Counsel for the Debtors.
Scott R. Clar, Jeffrey C. Dan, CRANE, HEYMAN, SIMON, WELCH
CLAR, Chicago, IL, Counsel for Stanley Bush, Jr.
STIPULATION AND AGREED ORDER BY AND AMONG THE DEBTORS AND STANLEY BUSH, JR. [Re Do. No. 2473]
PAMELA S. HOLLIS, Bankruptcy Judge
THIS STIPULATION AND AGREED ORDER is before the Court on the stipulation and agreement of the above-captioned debtors and debtors in possession (collectively, the “Debtors”) and Stanley Bush, Jr. (the “Movant”), as evidenced and indicated by the signatures hereto; and the Court being advised that this Stipulation and Agreed Order has been submitted in resolution o Stanley Bush Jr.’s Motion to Allow Claim and Modify the Automatic Stay [Docket No. 2473] (the “Motion”); and the Court being further advised of the following:
Recitals
A. On August 8, 2002, the Movant allegedly sustained a personal injury while operating a scissor lift that was allegedly owned or leased by the Debtors (the “Personal Injury”).
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B. On June 27, 2003, the Debtors filed their voluntary petitions for relief under chapter 11 of title 11 of the United States Code. The Debtors have consolidated their chapter 11 cases for administrative purposes only.
C. The Court set October 20, 2003 as the bar date (the “General Bar Date”) by which non-governmental entities wishing to assert pre-petition claims against any of the Debtors must file proofs of claim.
D. On October 20, 2003, the Movant filed proofs of claim #2855 and #2994, both in the amount of $2,000,000 (collectively, the “Claims”), on account of the Personal Injury.
E. On January 23, 2004, the Court entered an order confirming the Fourth Amended Joint Plan of Reorganization of National Equipment Services, Inc. and its Affiliated Debtors Under Chapter 11 of the United States Bankruptcy Code, dated January 23, 2004 (the “Plan”). The effective date of the Plan was February 11, 2004.
F. Pursuant to the Order Granting Relief Sought in Debtors’ First Omnibus Objection to Claims, entered by the Court on February 12, 2004, the Claims were expunged and disallowed for all purposes.
G. The Movant has been enjoined from proceeding with litigation regarding the Personal Injury against the Debtors (the “Action”) by the injunction provision of Article X of the Plan.
H. At all times relevant to the Personal Injury and the Action, the Debtors were covered by a commercial general liability insurance policy (the “Policy”) with American International Group, Inc. (the “Insurer”). Under the Policy, the Insurer has provided the Debtors
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with a self-insured retention endorsement, in the amount of $250,000 per occurrence, including defense costs (the “Self-Insured Retention Amount”).
NOW, THEREFORE, IT APPEARING THAT SUFFICIENT CAUSE EXISTS FOR GRANTING THE RELIEF REQUESTED HEREIN AND THAT THE RELIEF REQUESTED HEREIN IS IN THE BEST INTERESTS OF THE DEBTORS’ ESTATES AND CREDITORS, IT IS HEREBY ORDERED AS FOLLOWS:
1. The foregoing recitals are hereby fully incorporated into and made an express part of this Stipulation and Agreed Order.
2. The injunction provision of Article X of the Plan shall be modified for the sole and limited purpose of permitting the Movant to (a) proceed with the Action to and including the entry of judgment against the Debtors and/or (b) conduct negotiations directly with the Debtors’ applicable insurance carriers.
3. Notwithstanding the foregoing, no settlement or judgment associated with the Action, if any, may be enforced against the assets of any of the Debtors’ estates; provided, however, the Movant shall have authority to (i) attempt to collect all monetary or other forms of remuneration or relief above the Self-Insured Retention Amount, if any, to which the Movant may be determined to be entitled in connection with the Action from the Debtors’ applicable insurance carriers; and (ii) file an amended proof of claim (the “Amended Claim”) against the Debtors’ estates solely for any portion of any settlement or judgment obtained against the Debtors in the Action within the Self-Insured Retention Amount.
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4. Notwithstanding any prior order in the Debtors’ chapter 11 cases to the contrary, the Debtors’ rights to object to the Amended Claim shall be preserved; provided, however, the Debtors may not object to the Amended Claim on the basis that such claim was filed after the General Bar Date.
5. The modification of the injunction provision of Article X of the Plan, as set forth in this Stipulation and Agreed Order, is limited to the Movant, and nothing herein is intended or shall be construed to modify, terminate or in any way affect the injunction provision of Article X of the Plan as it pertains to any other party that is, or may later become, involved in the Action. The injunction provision of Article X of the Plan as it pertains to such other parties shall remain in full force and effect.
6. Nothing herein is intended or shall be construed to waive any defenses, setoffs, objections or counterclaims that the Debtors or the Debtors’ applicable insurance carriers may have with respect to the Action.
7. This Court shall retain jurisdiction to hear and determine all matters related to the entry of this Stipulation and Agreed Order. The Movant consents to the jurisdiction of this Court to resolve any disputes or controversies between the parties hereto arising from or related to this Stipulation and Agreed Order.
8. This Stipulation and Agreed Order is subject to the approval of this Court, and the terms and provisions of the agreement contained herein shall be void and of no further force and effect if such approval is not granted.
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9. Each of the undersigned counsel represents that he is authorized to execute this Stipulation and Agreed Order on behalf of his respective client.
10. This Stipulation and Agreed Order may be executed in multiple facsimile or original counterparts, each of which shall be deemed an original, but all of which shall constitute one and the same instrument.
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