Court Approves Settlement in Lawsuit over School Bus Wreck

October 30, 2012
by: 
Dwayne Page
Court Approves Settlement in Lawsuit over School Bus Wreck
Ashley Spivey

A final settlement has been reached in a lawsuit against the DeKalb County Board of Education over a school bus accident in April, 2010 on Highway 56 in front of Northside Elementary School at the close of school.

Judge Amy Hollars approved the minor settlement for $20,000 on Thursday, October 25 in DeKalb County Circuit Court in the case of Ashley Spivey and her daughter, who was two years old at the time of the accident. Claims on behalf of Spivey's one year old son were dismissed from the final settlement. Although the boy was involved in the crash he was not seriously injured and his medical bills were only approximately $200.

A total of $13,333 of the settlement will be retained by the clerk of the court in an interest bearing account on behalf of Spivey's daughter until the child reaches eighteen years of age on March 4, 2026. The remaining $6,666 will be paid to Spivey's attorneys plus discretionary costs in the amount of $677, which will be paid directly to Spivey's lawyers by a separate draft.

Spivey, as the mother of the child, had asked that she be paid $2,000 for the use and benefit of her daughter, but the court denied Spivey's request given her history of involvement with the Department of Children Services and the existence of an open case against her in the Juvenile Court.

The $20,000 judgement is in addition to a $25,000 settlement, approved in August, 2010 stemming from a lawsuit against Sammy Spivey, the owner of the car in which Ashley Spivey and her children were passengers at the time of the crash. In that settlement, a total of $18,864 was distributed to the health providers of Spivey's child, and to the insurance company, and to Spivey's attorneys for fees and expenses. The remaining balance of $6,135 was to be directed to Spivey as parent and guardian for her daughter's use and benefit.

In her case against the DeKalb County Board of Education, Spivey also had originally named DeKalb County and the bus driver, Walter Phillips, as defendants but the county and Phillips were later dropped from the case. The dismissal order stated that the alleged negligent operation of the school bus by the school bus driver was within the scope of his employment with the DeKalb County Board of Education, and that DeKalb County, a separate governmental entity, is not a proper party to this action, nor is Walter Phillips, individually, a proper party to this action under the Governmental Tort Liability Act insofar as the DeKalb County Board of Education has admitted that he was acting within the scope and course of his employment.

Spivey was represented by Nashville attorneys Blair Durham and Ben Winters of Durham and Dread, PLC. The counsel for the school board was John D. Schwalb of Williams & Schwalb, PLLC in Franklin.

The court's order approving the minor settlement states as follows:

"On April 26, 2010, at approximately 2:53 p.m., a collision occurred on North Congress Boulevard and Smith Road, in Smithville between a 1992 Chevy Blazer operated by Kenny Waymon Dyal and owned by Sammy Spivey and a 2003 public school bus, operated by Walter Cecil Phillips, owned by the DeKalb County Board of Education. Ashley Spivey was a front seat passenger and her daughter and son, both minors, were rear seat passengers in the Dyal driven vehicle. Ashley Spivey is the natural mother and the legal custodian of the two minor children.

Mr. Dyal was traveling north on Highway 56. The bus, driven by Mr. Phillips was turning left from Smith Road onto Highway 56. As Mr. Phillips made his left turn, he was struck by the vehicle driven by Mr. Dyal.

The plaintiff (Ashley Spivey) in this case alleges that Phillips was negligent in the operation of the school bus thereby causing personal injuries to the occupants of the Dyal driven vehicle. The DeKalb County Board of Education, as an affirmative defense, allege that the accident and injuries were caused by Kenneth Dyal.

As a result of this crash, the two year old female minor child was injured (two broken legs). Immediately following the accident, the child was admitted to the emergency room at DeKalb Community Hospital and transferred to Vanderbilt University Medical Center. The medical expenses incurred on behalf of the child totaled $45,745 all of which were substantially reduced to recognize payment by TennCare. In addition, the one year old male child was evaluated at DeKalb Community Hospital where medical bills in the amount of approximately $200 were incurred, but also substantially reduced as a result of TennCare. As a result of a prior settlement involving the plaintiff (Spivey) and others alleged to be responsible for the injuries, the medical bills have all been paid by or on behalf of the plaintiff (Spivey). No future medical expenses are anticipated. No permanent injuries resulted from this motor vehicle accident.

On August 10, 2010, a decree approving a minor settlement was accepted and signed for a settlement in the amount of $25,000 on behalf of the two year old child from defendant, Sammy Spivey, and Progressive Insurance Company. The parties agreed in this matter that $18,864 be distributed to the child's health providers, insurance company, and attorney for fees and expenses. The remaining balance of $6,135 to be directed to Ashley Spivey as parent and guardian of the child for the minor's use and benefit.

The parties to this settlement have agreed, subject to the court's approval, to compromise and settle the two year old child's claims for the amount of $20,000. The one year old child's claims, related solely to medical expenses previously satisfied by a prior settlement will be dismissed as there exists no injuries to him. For this amount, $6,666 is to be paid to the law office of Blair Durham for fees and expenses rendered on behalf of the minor petitioner. There are certain discretionary costs that the defendant has agreed to pay that will be paid directly to counsel in the amount of $677 for depositions and medical deposition fees. This leaves for the minor petitioner an amount of $13,333. Said settlement amount constitutes payment for the child's compensatory damages on account of her physical personal injuries and it does not include payment for any punitive or exemplary damages, none of which are recoverable under the Tennessee Governmental Tort Liability Act, nor does it involve any type of interest.

Pursuant to the terms of the settlement agreement between the parties, the plaintiff parent, Ashley Spivey, individually, and as parent of the two year old minor child, has asked that the court authorize one settlement check in the amount of $2,000 to be paid directly to Ashley Spivey as parent and legal guardian for the use and benefit of the minor child. To the extent that the provisions of the relief sought do not comply with Title 34, Chapters 1, 2, and 3, the parties have requested that the court waive those requirements pursuant to Tennessee Code Annotated 34-1-121, if the court finds it is in the best interest of the minor to waive such requirements based on the facts and circumstances of this case. The parties request that the balance be payable to the DeKalb County Circuit Court to be deposited and held in an interest bearing fund with the DeKalb County Circuit Court Clerk's office until the minor child attains the age of 18 years old, and thereupon, to pay over to the minor child the balance with accumulated interest.

The parties to this litigation have further agreed that the petitioners Ashley Spivey and her minor child, agree to defend, indemnify and hold harmless respondents, the DeKalb County Board of Education and its insurer, Tennessee Risk Management Trust, for any subrogation claims which may be made for any and all medical expenses relating to both minor children arising out of the accident and injuries referenced herein, including, but not limited to, those expenses for which a third party (or parties) retain a subrogation lien (or liens) or hospital lien (or liens) against the DeKalb County Board of Education and the Tennessee Risk Management Trust Company.

As a result of the prior settlement there are no TennCare liens or recovery asserted or available to the State of Tennessee pursuant to the provisions of Tennessee Code Annotated 71-5-117 nor is there any entity acting or participating in this matter pursuant to the provisions of Tennessee Code Annotated 71-5-116. Neither the plaintiff, Ashley Spivey, nor the defendant, named or unnamed have been placed upon notice of nor are there any hospital liens of record pursuant to Tennessee Code Annotated 29-22-101 which remain unsatisfied.

There are no liens asserted or available under the terms of any Employee Welfare Benefit or similar plan which assert a lien against the proceeds of any settlement under the terms of a plan governed by the Employee Retirement Income Security Act of 1974, as amended.

In accordance with the above-findings and the Petition to Approve Minor Settlement, it is therefore Ordered, Adjudged and Decreed as follows:

The minor plaintiffs settlements are hereby and in all respects approved by this court as being in the best interests of the minor children.

The court finds that the sum of $20,000 when considered in connection with the previous payments made and approved in the related minor settlement is fair and reasonable under the facts and circumstances of this case and the defenses and assignment of legal fault that was asserted or potentially implicated and the potential for recovery from the defendant.

Upon the payment of $20,000 to or for the benefit of Spivey's two year old minor child and her attorney the defendant DeKalb County Board of Education and its insurer, Tennessee Risk Management Trust their employees, agents, representatives and officers shall be forever released and discharged from any and all further liability and indemnity for any and all claims known or unknown, either presently or hereafter as a result of or in any way connected with the aforesaid incident occurring on April 26, 2010, as it may relate to the two minor children, including any claims related to health insurance benefits paid under by TennCare the claims of the minors against all defendants is dismissed.

The court further orders that counsel for the plaintiff be entitled to a fee of one third of recovery in the amount of $6,666 plus discretionary costs in the amount of $677, the later of which will be paid directly to counsel for the plaintiff by a separate draft.

The court declines at this time to approve payment to Ashley Spivey as the natural mother for the use and benefit of the two year old minor child the sum of $2,000 given the past history of involvement of the Department of Children Services and the existence of an open case in the Juvenile Court of DeKalb County.

Accordingly, after deducting the fee and payment to Ashley Spivey the remaining balance of $13,333 shall pay to the Clerk of the Circuit Court within five days.

The Clerk of the Court shall retain the said fund in an interest bearing account or accounts pursuant to Rule 67.03 of the Tennessee Rules of Civil Procedure and the minor will be subject to distribution pursuant to Tennessee Code Annotated 34-1-104 until the minor attains the age of majority on March 4, 2026.

Upon the minor child attaining the age of majority, the Circuit Court Clerk shall distribute to her the remaining sum of $13,333 (less any distributions pursuant to Tennessee Code Annotated 34-1-104 plus any interest earned thereon directly to the child.

This court shall retain jurisdiction over this matter in the event that any distribution of said funds prior to the attainment of majority becomes necessary either at the properly documented request of Ms. Spivey, the State Tennessee Department of Children's services or the Juvenile Court of DeKalb County or any guardian or custodian, if any appointed by the Juvenile Court.

The costs of this cause are assessed to the defendant DeKalb County Board of Education. The Circuit Court Clerk is directed to prepare a bill of costs and forward the same to John D. Schwalb".

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