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In the Matter of the Petition

February 10, 2012


The opinion of the court was delivered by: Jacob P. Hart United States Magistrate Judge


Presently before the Court is a Motion to Enforce Settlement (Docket # 73), filed by Michael Kilroy (Kilroy), Claimant/Plaintiff in the above captioned matter. For the reasons set forth below the Motion is GRANTED in part and DENIED in part.


The negotiation of this Settlement began with a Settlement Conference held by the Court on October 26, 2011. Kilroy claimed to have suffered injuries as a result of an accident that occurred on October 22, 2008, while he was working for Weeks Marine, Inc. (Weeks). He sought damages from Weeks, and also from Hays Tug & Launch Service, Inc. (Hayes).

After a lengthy conference, agreement between the parties was reached, and the terms of that agreement were placed on the record. The undersigned stated that the total settlement was for $290,000. Hays was to pay $162,500 and Weeks was to pay $127,500. Because there was also a pending Workers' Compensation Claim against Weeks before the United States Department of Labor under the Longshore & Harbor Workers' Compensation Act, (LHWCA), it was also part of the settlement that Weeks (self insured under the LHWCA) would waive its $65,000 compensation lien, and Kilroy would make no claims for future compensation.

As is my custom, after reciting the terms of the settlement, I asked all parties to indicate if they were satisfied with the agreement. John Dooley, counsel for Kilroy, stated that there was an additional term -- that Weeks would also pay for any outstanding, but unpaid medical bills that Kilroy incurred as a result of the accident. After hearing this modification, I asked Weeks' counsel, Ronald Betancourt, if he was satisfied with the terms, as clarified by Kilroy's counsel. Mr. Betancourt said "yes," but he too, added another provision - that $10,000 of Weeks' $127,500 share would be paid as settlement of the Workers' Compensation Claim. Mr. Dooley said that he understood the split. Finally, Robert White, counsel for Hays, said that his client was satisfied with the terms, as recited by everyone, subject only to the exchange of releases. I then thanked all parties for reaching a settlement, and closed the proceedings.

It wasn't long before trouble began. On November 22, 2011, I received a letter from Mr. Dooley, stating that Weeks' version of their release was not consistent with the settlement. He claimed that the Weeks release indicated that their payment to Kilroy was only $117,500, and that there was no mention of the $10,000 portion to settle the Workers' Compensation Claim. He also said that the release made no mention of Weeks paying the outstanding medical bills. By letter dated the same day from Mr. Betancourt, he stated that the Weeks release did include the following language pertaining to the unpaid medical bills:

.....Weeks Marine, Inc. agrees to pay all reasonable and outstanding invoices for past medical costs for reasonable and necessary medical treatment related to the October 22, 2008 incident.

Mr. Betancourt's letter said nothing about the missing $10,000 Workers' Compensation Claim.

Faced with dueling letters, on November 30, 2009, I held another settlement conference, this time by phone. At the end of this conference, again I assumed this case was finally resolved. During the conference, the parties agreed that Mr. Kilroy would sign two separate releases. One would be for the $117,500 paid to settle the federal case. The other would be for the $10,000 paid to settle the Workers' Compensation case. In addition, even though Weeks said nothing on October 26 about the need for the unpaid medical bills to be "reasonable and necessary," Kilroy agreed to Weeks' "reasonable and necessary" language, with this additional sentence: "All disputes related to medical costs in this regard will be submitted to Magistrate Judge Hart for resolution."

We come, at last, to the present Motion.

As I expected, the parties did not agree on the medical bills. Kilroy claims that all of the unpaid medical bills, totaling $10,579.22, are both reasonable and necessary. Weeks claims that none of the bills are reasonable and necessary.

However, what I did not expect was that Weeks still has not paid the $10,000 Workers' Compensation settlement. Weeks agrees that this money has not been paid, but now claims, for the first time, that they are not permitted to pay it unless and until the Workers' Compensation settlement is approved either by the District Director of the United States Department of Labor or an administrative law judge. As of today, there has been no such approval. This new requirement was never mentioned to the Court. It was never mentioned on the record on October 26, 2011, nor was it mentioned during our November 30, 2011 phone conference.

I shall deal with these two ...

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