cummings non disclosure statement0001

8/13/2019 Cummings Non Disclosure Statement0001

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BERMAN & SIMM ONSA PROFESSI O N L ASSOCI TlON

ATT ORJl.fEYS129 LISBON S T REET . P.O . BOX961

LEWISTON. ME 0 - 1243-0961

(2 07) 784-3576 FA X (207) 784-7699

800-244-3576

STEvEN D. SILINssilin@berm ansimmons.com

November 16, 2006

James W_ Cum mings95 Foxcro ft Dri veScarbo rough, ME 04074

RE: James Cummings and Deborah Cummings v . Micha el J. Waxman, Esq.OUf File No . 19539 -01

Dear Jim:

As you know , we have success fully recovered a settlement in the amount of lSO,OOO.OOonyour beha lf and m accountin g to you a s follows:

TOTAL AM OUNT RE CEIVED .................... ... 150,000.00

Less Attorney 's Fee for Se rvices Render ed 50 ,000.00

Less the following Di sbursements:Orthopaedic Associates of Portland, PA . - 28 .75Maine Medica l Center , 59.80Falmou th Orthopaedic Center ;-. 11.0 5Neuros urgery As sociates, PA _ - 75.00Cumberland Superi or Court (filin g fee v. Waxman) 1 20.00Cumberl and Superior C ourt (fili ng fee v. We stport) , 1 20.00County of Cumberland ( Service Fee) - .. - 28.90CVS Pharmacy 25.00Clerk o f the Law Court , - .. 60.00State of Maine, Law and Le gislative Refe rence Library - .. 5.45Westl aw (Legal Research) 51.00Conflict Solutions (Medi ation fe e) - . . . . . .. 1, 760.00Misc. Expenses (photocopies, postage, travel, etc.) 191.98

Other Deduc tions as Author ized b y Client:Willi am Howison , as Tru stee for the Bankruptcy E stateof James and De borah Cummi ngs - . .. . . . .. 24,500.00

TOTAL DEDUCTIONS _ 77,036.9 3

BAL


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l le s W. Cummings-.November 16, 2006

Page 2

To confirm your recent teleph one conversation with my offi ce, your health care insurer at th etime o f the incident at issue, Blue Cr oss and Blue Shi eld ( BCBS It), may claim a ri ght toreimbursement for monies it paid toward your medical bil ls for treatment of your injuries that y ousustained in the incident on October 4, 1998. We have no opinion on whether BCBS would bebarred from making a claim as a result of your bankruptcy fili ng. There is also an issue, ev en if itweren't barr ed, as to whether it would be entitled t o monies from this case involving a recovery fr omthe legal malpractice claim. In any event , you have inst ructed us not to make any contact with BCBSand y ou under stand that should BCBS make a claim for reimbursement ba sed on this settlement , itwould be your re sponsibility to re solve that with them.

As you kn ow, we have remitted 24~500 .00 to William Howison as T rustee of the bankrupt cyesta te. We have b een assured that these monies will be sufficient to p ay all creditor s involved in t hebankruptcy case. In fact th ere may be monies left over. Should there be any monies r emainin g afterpayment of your debt, admini strative cos ts and fees, the balan ce will be remitted to you by Mr.Howison .

Needless to say, am very pl eased with the res ult that we were able to obtain for you . youknow, we put an enormous effort into this imp ortant and novel claim.

/Again , it was a pleasure to have b een of se rvice to you . wish you and Deborah all the be st.

Very truly your s,

SDS/dr rEnclosurecc: Barry E. Schklair, Esq.

2 7 666 wp d

as EX C H A NG E S T REE T . PORTL A ND . MB04101 (201) 1145211 F AX(207 ) 17 4-016 6 2 3 WAT ER S T R EE T. B AN GOR . M E 0 44 01 (20 7 ) 9 90 20 3 4 fAX ( 2 01 )9 9 0- 2 1 )35


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WITNESS our hands this

C UTION RE D BEFORE SIGNING

12l day of Octob er, 2006.

Chapt er 7 Estate of James W. and Deborah M . Cummings,

.By: 1~Jl/I (I f- -Chapter 7 Tr ustee Williams H. Howis on, Esquire

Jm ro k un M~Deborah M. Cummings

Westport Insurance Corp.

BY _


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STEVEN D. Sll.lN ssiIin @ bermansimmons .com

> :BERMAN & SIMMONS

A PROFE S SI O NAL AS S OCIATI O N

ATTORNEYS12 9 LI S BON STIUiET, P .O . B O X 961

LEWISTON, ME 04243 -0961

(2 07 ) 7 8 4-35 76 FAX (20 7) 7 84-76 9 98 0 0-244-3 57 6

October 18, 2006

James W. and Deborah M. Cummings95 Foxcroft Driv eScarborough , ME 04074

RE: .James Cummings and Deborah Cummings v. Michael.J. Waxman, Esq.Our File No. 19539 -01

Dear James and Deborah:

Enclosed please find a Settl ement Agr eement whi ch need s to be si gned by b oth of you onthe lines indicated As you can see, it ha s already been signed by Attorney William H. Howison .

Once you have execut ed this Release would y ou plea se forward the docum ent back to my office inthe en closed self-addre ssed envelope that I am providing for your a ssistance .

If you have any questions, plea se do not he sitate to call me. Thank you for your attention tothis matter.

SDS/ sh/l02506Enclosure2 861 wpd


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SETTLEMENT AGREEMENT

THIS AGREEMENT dated October -' 2006 is entered into this dat e between

Westport Insurance Corpora tion (Westport ) and James W. Cummings and De borah M.

Cumming s ( Cummings ) and Williams H. Howison , Chapter 7 Trustee ( Trust ee ) with

respec t to Reach-and-Apply litigation in the United States District Court, th e District of

Main e, Docket No. CV-05-206 -P-C and on appeal in the Maine Supreme Judicial C ourt (Law

Court Docket No. FED -05-290) arising out of the alleged negligence of Attorney Mic hael

Waxm an ( Waxman ) during his representati on of James Cummings in a lawsuit br ought on

behalf o f James Cummings against the City of Portland and one or more of its police officers

due to injuries allegedly suffered by James Cummings at the hands of a Portland poli ce officer

in 1998 ( Rea ch-and -Apply litigati on ), and the sub sequent bankruptcy filing mad e by the

Cummin gs and still pending as In re James W. and Deborah M. Cummings, D ebtors, United

States Bankr uptcy Court , District of Maine, Chapter 7 Case No . 03-20449 ( Bank mptcy

Litigation ) .

FOR AND IN CONSIDERATION OF the execution of this document, and the payment

to the Trustee and C ummings of 150,000, the receipt of which is hereby acknowledged , theparties he reto agree as foll ows:

1. James and Deb orah Cummings and the Trustee do for themselves, for any and all

credi tors in the Cummings Bankruptcy Litigation, and for any and all heir s, beneficiaries,

successo rs or assigns and its officers, agents, (collectively, the Cummings Parties ), hereby

release, acquit and forever discharge Westport and its insured Michael Waxman, E squire,

their past, current and future officers, agents, empl oyees, attorneys managers, affilia tes,

owners, insurers or re-insurers, and the resp ective successors, assigns and affiliates of su ch

persons (collectively, the Westport Parties ), of and from any and all manner of claims, actions

and causes of action, suits, debts, demands, damages, or liabilities of any kind or nature


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_ limita tion third-party c laims for indem nity, con tribution, and any other ac tion or cause of acti on,

that any of the Cummings Parties now has or eve r may have against any of the Westport Parties ,

on any lega l theory, related to or arising ou t of the Reach-and-Apply Litigati on or any of the

underlying litigation in which Waxm an represented Jam es Cummi ngs.

2. Dismissal . Subjec t to the ent ry of a non-appealab le Compromise Order entered

pursuant to Fed . R. Bankr . P. 9019 by the Bankr uptcy Co urt appro ving all terms and c onditions

of this Agreement,Cummings sha ll dismiss with prejudice and with out costs the appeal now

pending in the Main e Supreme Judicial Court (Law Docke t No.FED-06-290), as well as the

underlying ac tion in Federal District Cour t that are e ntitled. James umm ings v. Westport

Insurance orp Docke t No. CV-05-206-P-C , including without limitation the executi on and

filing of a -Stipu lation of Dismissal in bo th actions. Upon the execution of this A greement,

Cummings shal l imme diately file Stipulations of Dismissal with Clerks of the Supreme Judi cial

Court and the United Sta tes Distr ict Court.

3. In return for the paymen t made to the Cummings Parties, the Cum mings pa rties also

agree to Defend, Indemnify and Hold Harmless the We stport Parties from any and all claims that

might be a sserted aga inst any o f the Westport Parties, including but not limited to reasona ble

attorneys fees and expenses i ncurred by t he Westport Party or Parties in connection therewith , by

any person, corporatio n or enti ty either arising out of the Reac h-and-Apply Litigation or in

responseto any lawsuit or .claim brought by any of the Cummin gs Par ties against su ch person ,

corporation o r entity.

4. Confidentia lity. The part ies hereto agree to maintain the confidentiali ty of the terms of

this Agreement . The par ties hereto ag ree that neither they nor their employee s, agent s,

repre sentatives o r attorneys wi ll. at any time, directly or indir ectly, divulge, publicize or discloseto any person or entity fo r any re ason the terms of this A greem ent except: (i) to the extent '

necessa ry to enforce this Agreement; or (ii) to the extent nece ssary to d isclose the te rms of this

Agreeme nt to the parties' legal advisors in conn ection with seeking or ob tainin g legal advice, and

excent for the condition s set forth in (i) a nd (ii) above, will only state that ti le litigation or


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- matters in disput e amongst the parties have been re solved . If the Trust ee mu st disclose the

terms o f this Agreement to any Chapt er 7 Creditors of Cummin gs or to any other perso n or enti ty

besides the Creditors and U .S. Trustee, the Trustee shall first provide 5 business day s notice to

Westport's counsel, Jeffrey A. Thaler, Esq. of Bernstein ShUTSawyer and Nels on, P.A ., of the

proposed notification.

5. It is expressly warranted by each party to this Settlement Agreement that no promi se

or induce ment for this Agreement has been offered, except as set forth above . It is further

warranted by each party to this Settlement Agreement that the Agreement is executed w ithout

reliance upon any statement or representation of the persons or parties released, or their

represen tatives, concerning the nature and extent of their rights and the legal lia bility that mayor

may no t be impose d. It is ackn owledged by al l parties to this Release that ac ceptance of the

consideration set forth herein i s in full accord and satisfaction of disputed claims f or which

liability is expressl y denied, it being the intention of the Westport Parties merely to buy their

peace a nd end the litigati on.

6. All Parties to this Agreement agree to cooperate fully and execute any an d- an

supplementary do cuments and to take all additional actions that may be necessary or app ropriate

to give full for ce and effect the basic terms and intent of this Settlement Agreement .

7. Miscell aneous. Thi s Agreement shall be construed pursuant to the laws of t he

State of Maine. In th e event that any litigation arises between the parties relating t o any term of

this Agree ment, the prevailing party in such litigation shall be entitled to recover its reasonable

attorneys' fees.

Each party to this Agreement represents that it has been represented by c ounsel in the

negotia tion and execution of this Agreement and ha s performed all d esired and n ecessa ry due


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diligen ce prior to the execution of this Agr eement . The individuals executing this Agreement

represent that they have full power and auth ority to execute this document on b ehalf of their

respective principals. This Release and Settlement Agreement contains the entire agre ement

between the parties hereto and shall be binding upon and inure to the benefit of the ir respect ive

successors and assi gns. This document should n ot be construed or interpreted as an a dmission of

guilt or liability by either party, and the term s of this document are contractual and not a mere

recital.

8. Counterpart s. This A greement may be execut ed contemporane ously in one or

more counterparts, each of which shall be deemed an original, but all of which sh all consti tute

the one and the same in strument .

Each of the undersigned r epresents and warr ants that he or she has read th is Settlemen t

Agreement, that the act ions necessary to ex ecute thi s Agreement have been taken, and t hat be or

she is exec uting this Agreement freely and voluntarily, upon his or her best judgment, so lely for

conside ration and expr ess purp oses desc ribed herein.

cummings non disclosure statement0001

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