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Plummer v. Hays Tug & Launch Service

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA


July 13, 2010

ELSIE PLUMMER
v.
HAYS TUG & LAUNCH SERVICE, INC., ET AL.

The opinion of the court was delivered by: Bartle, C.J.

MEMORANDUM

On January 9, 2009, plaintiff Elsie Plummer, as administratrix of the estate of Floyd Nelson and on behalf of all heirs and next of kin, filed this wrongful death and survival action against Hays Tug & Launch Service, Inc., Purple Hays Tugboat Company, and the Tugboat Purple Hays. On August 30, 2007, Nelson died when he fell from the Tugboat Purple Hays into the Delaware River and drowned. The tugboat regularly conducted its business in Chester, Pennsylvania. Nelson died intestate.

The Complaint alleged wrongful death and damages for pain and suffering under either the Jones Act, 46 U.S.C. § 688 et seq., or the Longshore and Harbor Workers' Act, 33 U.S.C. § 901 et seq. The defendants agreed to settle these claims for a sum total of $250,000. Of this sum, $1,000 was to be apportioned as liability under the Jones Act, which required approval by the Department of Labor. This approval has been recently granted. The remaining $249,000 was to be apportioned as liability under the Longshore and Harbor Workers' Act. At a hearing, plaintiff's counsel stated that he believes this settlement amount to be proper and reasonable. We agree.

Floyd Nelson was survived by his common law wife Elsie Plummer and his biological children Tamira Yvette Nelson, Floyd Nelson Jr., Jameer Nelson, and Maurice Jabree Nelson. He was also survived by Althea Janette Hanna, who has no biological tie to him but whom he had raised as his daughter.

At the time of the filing of the Complaint, Maurice Jabree Nelson was a minor, which would have necessitated court approval of this settlement. See Local Civil Rule 41.2. Since that time, Maurice Jabree Nelson has reached the age of majority. He turned 18 years old on December 4, 2009.

At the hearing, Jameer Nelson renounced his share of the settlement proceeds. The widow of Floyd Nelson and all his children agreed that the settlement proceeds of $249,000, afer deduction of counsel fees and costs, should be divided equally among Elsie Plummer, Tamira Yvette Nelson, Floyd Nelson Jr., Maurice Jabree Nelson, and Althea Janette Hanna. The $1,000 Jones Act settlement is statutorily required to be split between Elsie Plummer and Maurice Jabree Nelson, who will receive $250 and $750 respectively.

Furthermore, plaintiff's counsel has submitted to the court his fees and costs. He has submitted to the court his costs totaling $31,388.68. Also, per his retainer agreement with plaintiff Elsie Plummer, he is entitled to a one-third fee, which amounts to $83,333.32. Considering all of the circumstances, these costs and fees appear reasonable to the court.

We will approve this agreement among the parties and the costs and fees requested by counsel.

20100713

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