Case No. 03-27626, (Jointly Administered).United States Bankruptcy Court, N.D. Illinois, Eastern Division.
March 17, 2005.
KIRKLAND ELLIS LLP, James A. Stempel, Ryan B. Bennett, Scott R. Zemnick, Chicago, Illinois, Counsel for the Debtors.
CLAUSEN MILER P.C., Susan N.K. Gummow, Chicago, Illinois, and Carey Calvert, PIERCE COUCH HENDRICKSON, BAYSINGER AND GREEN LLP., Tulsa, OK, Counsel for Plains Bridge Contracting of Oklahoma LLC.
PAMELA S. HOLLIS, Bankruptcy Judge
STIPULATION AND AGREED ORDER BY AND AMONG THE DEBTORS AND PLAINS BRIDGE [EOD 2583]
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 Plains Bridge Contracting of Oklahoma LLC (“Plains Bridge”), as evidenced and indicated by the signatures hereto; and the Court being advised that this Stipulation and Agreed Order has been submitted in resolution of the Motion to Modify Injunction and Request for Restriction of Notice [EOD 2583] (the “Motion”); and the Court being further advised of the following:
A. On or about December 20, 2001, Shawn Farrar, individually and as next of kin to Sharon K. Farrar, Deceased, and Shane Farrar, individually and as next of kin to Sharon K. Farrar, Deceased, filed a complaint in the District Court in and for Creek County, Sapulpa Division, State of Oklahoma (the “District Court”), Case No. CJ 2001-1204 (the “Action”) against, among others, NES Equipment Services Corporation d/b/a Advanced Warnings (“NES”) (one of the Debtors) and Plains Bridge, alleging negligence (inter alia) in setting up and
Page 2
maintaining traffic control at a highway construction zone at the intersection of US Highway 64 and State Highway 48 in the State of Oklahoma. In particular, the Action alleges claims against NES and Plains Bridge regarding an accident that took place on or about March 27, 2001,
B. Plains Bridge was the general contractor for the construction job at issue in the Action. Plains Bridge asserts that it may have a claim for contribution and/or indemnity against the Debtors as co-defendants in the Action.
C. At all times relevant to the Action, the Debtors were covered by a commercial general liability insurance policy (the “Policy”) with American International Group, Inc. (the “Insurer”). The Policy contains a deductible in the amount of $250,000 per occurrence, including defense costs (the “Deductible”). Pursuant to the Policy, the Debtors are liable for any amounts covered by the Policy within the Deductible.
D. On June 27, 2003, the Debtors filed their voluntary petitions for relief under Chapter 11 of the Bankruptcy Code in the United States Bankruptcy Court for the Northern District of Illinois, Eastern Division (the “Bankruptcy Court”) and consolidated their Chapter 11 cases for administrative purposes only. Such Chapter 11 cases are currently pending in the Bankruptcy Court as In re National Equipment Services, Inc., etal., Case No. 03-27626.
E. On January 23, 2004, the Bankruptcy 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. The Debtors contend that Plains Bridge has been and is enjoined, inter alia, from asserting and/or pursuing any claims against the Debtors in the Action by the injunction set forth in Article X of the Plan. Plains Bridge seeks to modify that injunction.
Page 3
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 provisions set forth in 11 U.S.C. § 524(a) and Article X of the Plan shall be modified for the sole and limited purpose of permitting Plains Bridge to (a) assert claims for contribution and/or indemnity, if any, it may have against NES in the Action (the “Plains Bridge Claims”) and (b) conduct negotiations with respect to the Action and the Plains Bridge Claims directly with the Debtors’ applicable insurance carriers;provided, however, no settlement or judgment associated with the Action and/or the Plains Bridge Claims, if any, may be enforced against the assets of any of the Debtors or the Debtors’ estates.
3. Plains Bridge shall have authority to collect all monetary or other forms of remuneration or relief, if any, to which it may be determined to be entitled in connection with the Action and/or the Plains Bridge Claims only from the Debtors’ applicable insurance carrier; provided, however, Plains Bridge shall not have authority to pursue or collect any claims for any amounts that may be within the Deductible referred to in Paragraph C infra, from the Debtors or the Debtors’ estates.
4. Plains Bridge hereby waives its rights, if any, to collect any monetary or other forms of remuneration or relief with respect to the Action and/or the Plains Bridge Claims from the Debtors’ or the Debtors’ estates.
Page 4
5. The Debtors shall have no obligation whatsoever to make any distribution of any property to Plains Bridge with respect to the Action and/or the Plains Bridge Claims, including, without limitation, on account of any proof of claim Plains Bridge has filed, could have filed or could potentially file against the Debtors or the Debtors’ estates.
6. The modification of the injunction, as set forth in this Stipulation and Agreed Order, is limited to Plains Bridge, and nothing herein is intended or shall be construed to modify, terminate or in any way affect the injunction set forth in Article X of the Plan as it pertains to any other party involved in the Action or any other action arising from or in connection with the Plains Bridge Claims. The injunction set forth in Article X of the Plan as it pertains to such other parties shall remain in full force and effect.
7. 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 or the Plains Bridge Claims.
8. Plains Bridge consents to the jurisdiction of the Bankruptcy Court to resolve any disputes or controversies between the parties hereto arising from or related to this Stipulation and Agreed Order.
9. Proper and adequate notice of the Motion and the hearing has been given and no further or additional notice is necessary.
10. Each of the undersigned counsel represents that he/she is authorized to execute this Stipulation and Agreed Order on behalf of his/her respective client.
11. 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.