United States District Court, E.D. Michigan, Northern Division
SHARYL MARDEN, Personal Representative of the Estate of JACK BRIAN MARDEN, deceased, Plaintiff,
COUNTY OF MIDLAND, a county governmental entity; JEFFERY DEROCHER in his individual capacity; BRIAN KEIDEL in his individual capacity; RICHARD SPEICH in his individual capacity; JOSHUA MICHAEL SAYLOR in his individual capacity; RICH HARNOIS in his individual capacity; and BRYAN KRYZANOWICZ in his individual capacity, Defendants, jointly and severally.
B. OLSMAN RANDY J. WALLACE Attorneys for Plaintiff.
PATRICK A. ASELTYNE ANDREW J. BREGE Attorneys for Defendants.
ORDER GRANTING MOTION FOR SETTLEMENT APPROVAL AND
DISPOSITION OF PROCEEDS
L. LUDINGTON UNITED STATES DISTRICT JUDGE.
case arises out of the tragic death of Jack Brian Marden
while in the custody of Defendant Midland County on February
13, 2015. On December 31, 2015, Jack Marden's wife,
Plaintiff Sharyl Marden, filed her complaint against Midland
County and Captain Richard Harnois, and numerous Midland
County jail officers. Compl., ECF No. 1. Plaintiff alleged
that Defendants subjected decedent to excessive force and
cruel and unusual punishment in violation of the Fourth,
Eighth, and Fourteenth Amendments to the U.S. Constitution,
sought punitive damages pursuant to 42 U.S.C. § 1983,
alleged a state law claim for assault and battery, and sought
damages under the Michigan Wrongful Death Act, M.C.L. §
600.2922. Compl. at 12-17. After the parties conducted
extensive discovery, on January 19, 2017, the Midland County
Defendants and the Officer Defendants filed motions for
summary judgment. ECF Nos. 49, 51. On March 24, 2017, the
Court granted summary judgment for Defendants on all counts.
ECF No. 73. Plaintiff appealed on April 10, 2017. ECF No. 75.
on appeal, after three months of negotiation, the parties
entered into a settlement agreement. Not. of Settl., ECF No.
77. The Court entered an Indicative Order Accepting Limited
Remand to Conduct Hearing on Proposed Settlement Agreement
and Distribution of Proceeds. ECF No. 78. On September 20,
2017, Plaintiff submitted a Motion to Approve Settlement of a
Claim for Wrongful Death and Allow Distribution of Proceeds.
ECF No. 79. On September 21, 2017, the U.S. Court of Appeals
for the Sixth Circuit remanded the case to this Court to
conduct a hearing on the proposed settlement and distribution
of proceeds. ECF No. 80. The Court held the hearing on
October 4, 2017.
motion to approve the distribution of the settlement proceeds
was filed pursuant to the Michigan Wrongful Death Act, M.C.L.
§ 600.2922. Compl. at 12. The Michigan Wrongful Death
Act requires that this Court hold a hearing and approve or
reject the settlement in this case. Id. This Court
has jurisdiction to conduct the hearing and approve or reject
the settlement and the proposed distribution of proceeds.
Owen v. Twp. of Redford, 2016 WL 3456922, at *2
(E.D. Mich. June 22, 2016) (citing Robinson v.
Fielder, 91 F.3d 144 (6th Cir. 1996) (Table
Case) (holding that district court had jurisdiction to
approve or reject a wrongful death settlement agreement and
distribute proceeds under M.C.L. § 600.2922(5)-(9))).
The Court shall approve the settlement where it finds it is
fair, equitable, and in the best interest of the estate.
See M.C.L. § 600.2922 (6); Owen¸
2016 WL 3456922, at *1.
waived, the original complaint, as well as notice of the
hearing on settlement and distribution of proceeds shall be
served upon all interested persons, as defined in the
statute. M.C.L § 600.2922(6)(b). Interested persons
include “children of the deceased's spouse.”
M.C.L. § 600.2922(3)(b). The statute outlines the
procedure an interested person must follow to make a claim
for damages, and notes that failure to do so constitutes a
waiver of their interest in the proceeds. M.C.L. §
was survived by his wife Sharyl Marden who has two adult
children from a previous marriage, Cherie Ann Kerns, and
Bradley Joseph Schank. Mot. at 3, ECF No. 79. Pursuant to
statute, Ms. Kerns and Mr. Schank are interested persons
eligible to make a claim for damages. M.C.L. §
600.2922(3)(b). As required by statute, Ms. Kerns and Mr.
Schank were provided notice of the filing of the complaint
for wrongful death on February 11, 2016, which advised them
of their right to make a claim, the procedure for doing so,
and that failure to do so will bar their right to recover.
Supp. Br. at 2, ECF No. 83; M.C.L. § 600.2922(4)(b)-(d).
Neither Ms. Kerns nor Mr. Schank made a claim. Pursuant to
statute, Ms. Kerns and Mr. Schank were also provided notice
of the hearing on settlement approval and distribution of
proceeds. Id. at 3. Neither party attended the
hearing. Thus, they waived their interests by failing to make
a claim or attend the hearing. M.C.L. § 600.2922
considering the record, the proposed settlement, and
testimony provided at the hearing on settlement approval, the
Court finds that the proposed settlement award of $500, 000
is fair, reasonable, and in the best interest of
decedent's estate. The Court has also considered the
contingent fee agreement between Plaintiff and her counsel.
Aff. of Jules Olsman, Ex. 2, (Contingent Fee Agreement), ECF
No. 83-2. The Court finds that the contingency fee award of
$138, 213.84, amounting to 1/3 of the net recovery after
deducting costs of $85, 358.47, is reasonable, supported by
the record, and compliant with MCR 8.121. Plaintiff's
counsel has provided the Court with an itemized report of the
costs incurred in this case. The Court has reviewed the cost
itemization in camera and finds that the costs
incurred in this case are reasonable.
and Blue Cross Blue Shield of Michigan have asserted claims
for $17, 737.65 and $454.40, respectively. Plaintiff's
counsel intends to negotiate these liens and expects to
settle the Medicare lien for an amount between $10, 000 and
$12, 000, and the Blue Cross lien for $300. Accordingly,
Plaintiff's counsel proposes to deposit the full amount
of these claims in an interest bearing account pending
resolution of these claims.
it is ORDERED that the Motion for Settlement
Approval, ECF No. 79, is GRANTED and the
settlement in the amount of Five Hundred ...