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GREEN v. BENSON

March 28, 1967

Fred GREEN, Administrator of the Estate of David Scott McKeag, Deceased
v.
Robert Patrick BENSON and Mr. & Mrs. Robert L. Benson, Defendants, and Allstate Insurance Company, Garnishee



The opinion of the court was delivered by: VAN DUSEN

 VAN DUSEN, District Judge.

 The parties to this garnishment proceeding agree that the accident upon which the original suit was based occurred in the following manner:

 
"On Sunday, July 30, 1961, at or about 6:30 P.M., Robert Patrick Benson, the 17 year old son of Robert L. Benson, who resided with his father at 4634 Woodland Avenue, Drexel Hill, Upper Darby Township, Pennsylvania, was operating a 1961 Chevrolet automobile in an easterly direction on Woodland Avenue, Drexel Hill, Upper Darby Township, Pennsylvania, near its intersection with Belfield Avenue, when that automobile collided with a bicycle operated by David Scott McKeag, a 14 year old boy who died as a result of injuries sustained in that accident."
 
(Document 30, par. 8; Document 33, par. 8)

 As a result of this accident claims were filed against two insurance companies, Continental Casualty Company (hereinafter "Continental") and Allstate Insurance Company (hereinafter "Allstate"). Both insurance companies originally disclaimed coverage, but Continental subsequently caused counsel to enter an appearance in the action on its behalf (Document 43, p. 19). Counsel retained by Continental undertook the defense of the action as co-counsel with an attorney retained by defendants, Mr. and Mrs. Robert L. Benson, to represent themselves and their minor son, the operator of the vehicle, who was also a defendant. Allstate did not undertake the defense of the action. When the case was called for trial, counsel informed the trial judge that they had reached a settlement agreement. Court and counsel then retired to chambers to discuss the settlement agreement. Present at this discussion were Gordon W. Gerber, Esq., attorney for the plaintiff, Ronald H. Sherr, Esq., who had been retained by Continental, Howard Richard, Esq., who had been retained to represent Mr. and Mrs. Benson and their minor son (Document 27, p. 1). By the terms of the settlement agreement, judgment was to be entered in favor of the plaintiff and against the defendant, Robert Patrick Benson, in the amount of $5000. Mr. Gerber, counsel for the plaintiff, stated as follows:

 
"* * * plaintiff agrees for the plaintiff and the plaintiff's family, the parents of the deceased child, that he will not seek to impose any financial obligation upon the individual defendant for the payment of all or any part of the judgment or costs in this case.
 
"MR. RICHARD: Fine.
 
"MR. GERBER: And that the plaintiff and the deceased child's parents will limit themselves to any financial recovery to whatever it is they can collect from either the Continental Casualty Insurance Company or the Allstate Insurance Company.
 
"MR. RICHARD: Correct."
 
(Document 27, pp. 5-6)

 He further stated:

 
"* * * I would want to make sure that the record shows the agreement of all counsel that the agreed settlement figure of $5000 is a fair and reasonable settlement considering all of the circumstances involved in the case.
 
"Certainly one of those circumstances is that Your Honor pretried this case and placed a settlement range on the case of which $5000 was the minimum and $10,000 was the maximum, all of these being settlement figures as distinguished from potential jury verdicts, so that there will never be, at least among counsel or court here, anything other than agreement that the ...

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