IN RE UAL CORPORATION (Bankr.N.D.Ill. 2003)

In re: UAL CORPORATION, et al., Debtors. Chapter 11. (Jointly Administered)

Case No. 02-B-48191United States Bankruptcy Court, N.D. Illinois, Eastern Division.
March 24, 2003

KIRKLAND ELLIS, Attorneys for the Debtors, James H.M. Sprayregen, P.C. (ARDC No. 6190206), Marc Kieselstein (ARDC No. 6199255), David R. Seligman (ARDC No. 0238064), Chicago Illinois.

PETRUCELLY NADLER P.C., Attorneys for Barbara Hird, Jeffery Petrucelly (BBO # 397200), Jennifer Norris (BBO # 644510), Boston, MA.

STIPULATION AND AGREED ORDER BETWEEN BARBARA HIRD AND THE DEBTORS TO MODIFY THE AUTOMATIC STAY
EUGENE WEDOFF, United States Bankruptcy Judge

WHEREAS, Barbara Hird (“Claimant”) has filed a civil action against, inter cilia, the debtors in these Chapter 11 cases (the “Debtors”) captioned Barbara Hird v. United Airlines, Inc. (the “Action”) which is currently pending in the Superior Court of Massachusetts, Suffolk County Division, Docket No. 01-4135 B (the “State Court”) in which the Claimant seeks to recover damages for personal injuries;, and

WHEREAS, Claimant filed a Motion For Relief from the Automatic Stay, Docket # 1206 (the “Motion”) with the Bankruptcy Court on February 7, 2003 seeking a modification of the automatic stay with regard to the Action; and

WHEREAS, the Claimant alleges that there is sufficient insurance coverage with United Airlines’ insurance carrier, United States Aviation Underwriters, to satisfy her claim; and

WHEREAS, the Claimant asserts as cause for relief from the Automatic Stay that since the property of the Debtors will not be affected by allowing her to proceed with her lawsuit because her claim is less than the insurance policy limits and any recovery would come from the Debtors’ insurance company and not from the Debtors; and

WHEREAS, the Debtors have filed their Limited Objection to Barbara Hird’s Motion for Relief from the Automatic Stay, stating that the Debtors do not object to the Motion to the extent that the Claimant agrees to: (a) proceed solely against any applicable insurance to satisfy any recovery to which she may be entitled by virtue of the Action and (b) forever waive her right to collect on any and all claims against the Debtor and/or their estates based on such Action; and

WHEREAS, the Debtors have complied with the De Mimmis Settlement Order; to wit, the Debtors have (a) provided ten (10) days written notice of their intent to enter into this Stipulation to any and all insurance carriers who are the provider of any insurance coverage that may be applicable to the Claim: and (b) provided the Claimant with an affidavit of the insurer(s) attesting to their policies material terms; and

WHEREAS, the Debtors do not admit any liability or the validly of any damages with respect to the Action; and

WHEREAS, the Debtors have consented, pursuant to and in accordance with the conditions and agreements set forth herein, to the Claimant being granted limited relief from the automatic stay imposed by 11 U.S.C. § 362 (the “Automatic Stay”) so as to permit the Claimant to prosecute the Action in the Statc Court; and

NOW, THEREFORE, IT IS HEREBY STIPULATED AN) AGREED by and between the Debtors and the Claimant that:

1. Upon the entry of this Stipulatioa and Agreed Order, the Automatic Stay shall be modified to permit the Claimant to prosecute the Action in the State Court to and including the entry of judgment; provided,however, that no judgment based on the Action may be enforced against the Debtors, their assets or their estates.

2. The Claimant agrees in collect all money or other forms of remuneration or relief to which the Claimant may be entitled to in connection with the Action solely from the Debtors’ insurance camera.

3. Nothing herein is intended or shall be construed to waive any claims, defenses, setoffs, objections, or counterclaims, that the Debtors, the Carrier, or the Claimant may have with respect to the Action.

4. Nothing herein shall be construed to waive the Claimant’s ability to collect from the Debtors’ applicable insurance policies.

5. The Claimant hereby fully, finally and forever releases and discharges its right to coiled from the Debtors and/or their bankruptcy estates, or their respective officers, directors, employees, agents and attorneys, but nor their insurers, from any and all actions, claims (whether prepetition unsecured claims, priority, administrative or other post petition/administrative claims), causes of action, setoffs and liabilities for any obligations relating in any way to the Action.

6. The modification of the Automatic Stay as set forth herein, shall have no affect as to parties that are not a party to this Agreed Order and the Automatic Stay shall remain in full force and effect with respect to such parties and their claim or cause of action, if any, against the Debtors or their estates.

7. The Court shall retain jurisdiction (and the Claimant shall consent to such retention of jurisdiction) to resolve any disputes or controversies arising from or related to this Stipulation and Agreed Order. Any motion or application brought before this Court to resolve a dispute arising from or related to this Stipulation and Agreed Order shall be brought on proper notice and in accordance with relevant Federal Rules of Bankruptcy Procedure and local rules of this Court.

8. Each of the undersigned counsel represents that he/to is authorized to execute this Stipulation and Agreed Order on behalf of his/her respective client.

9. This Stipulation and Agreed Order maybe executed in multiple counterparts, any of which may be transmitted by facsimile, and each of which shall be deemed an original, but all of which together shell constitute one and the same instrument.

10. This Stipulation and Agreed Order shall not be modified, altered, amended or vacated without written consent of all parties hereto. Any such modification, alteration. amendment or vacation, in whole or in part, shall be subject to the approval of this Court.

IT IS SO ORDERED;