Verdicts & Settlements November 28, 2011: Judge OKs settlement despite mother’s protest [Missouri Lawyers Media]

The parents of a St. Charles man killed in a motorcycle accident are splitting a $275,000 wrongful death settlement, despite the mother's request to intervene and reject the agreement.

About 75 percent of the settlement amount, outside of legal fees and expenses, will go to the father, Michael T. Barry, while the remaining share will go to the mother, Diana Childers, Barry's ex- wife, according to a judge's order issued Nov. 10.

Michael T. Barry II, 19, had been riding on a motorcycle with an uninsured driver, who also was killed in the St. Louis County accident in July 2009. Both were heavily intoxicated at the time, said Barry's attorney, Ryan Cox, in an interview.

At age 13, the son started living with his father, Barry said during a court hearing this month. He and his son were insured under six policies, according to the complaint.

In 2010, the son's estate and Barry sued their insurance company, State Farm Mutual Automobile Insurance Co., claiming it was obligated to pay under the polices' uninsured motor vehicle terms. Policy limits were $600,000.

In September, Barry's attorney filed a request to approve a $275,000 settlement with State Farm. More than a month later, Childers requested to intervene and reject the agreement. In court papers, her attorney said Childers had insurance policies of her own, in the value of $1.2 million, that aren't addressed by the settlement and that Childers is entitled to any proceeds.

State Farm and the father's attorney protested Childers' intervention, saying the $275,000 was a hard-fought settlement amount, considering evidence that showed the son had been intoxicated at the time of the accident.

"We discussed that that certainly had a chilling effect, a negative effect, on any potential recovery in this case, correct?" Cox, Barry's attorney, said to his client when he was testifying during the hearing.

State Farm's attorney, Scott Harper, wrote in November court documents that Childers was aware of the case for at least 10 months and only then chose to participate and attempt to set aside the settlement.

"Now that there's money in the pot, they're trying to get a little more of it," Harper said during the hearing.

In her defense, Childers was told by plaintiffs' counsel to pursue recovery outside the case, which she couldn't do, said her attorney, Melissa Featherston, during the hearing. Childers testified that, until she received the settlement papers, she wasn't aware that she would preclude herself from receiving any money.

Still, Judge Audrey Fleissig said that she didn't find Childers was misled by anyone and that the $275,000 settlement was fair and reasonable.

She recognized Childers' right to intervene in the lawsuit, in accordance with a Missouri wrongful death statute. After expenses and attorneys' fees, Fleissig awarded about $50,000 to Childers while Barry will receive about $150,000.

Cox, Barry's attorney, will be paid about $58,300 in attorney's fees and $12,480 in legal costs and expenses. Another $5,000 of the gross settlement amount will be paid to another firm for its estate work.

Cox said it was a tough case because both people in the accident had been drinking. Still, he said, he and Barry are pleased with the settlement's terms because Childers had a claim but Barry received three-quarters of the share.

"I think we came out pretty well," he said.

Meanwhile, Childers said in an interview that the settlement wasn't fair.

"But it's much better than pursuing this and continuing to suffer through it," she said.

$275,000 settlement

Wrongful death

Venue: U.S. District Court for the Eastern District of Missouri

Case Number/Date: 4:10-CV-00265 AGF/Nov. 10, 2011

Judge: Audrey Fleissig

Plaintiffs' Expert: Stan Smith, Chicago (economics)

Insurer: State Farm Mutual Automobile Insurance Co.

Caption: Estate of Michael T. Barry II and Michael T. Barry v. State Farm Mutual Automobile Insurance Co.

Plaintiffs' Attorney: Ryan Cox, Ryan R. Cox and Associates, St. Charles

Defendant's Attorneys: Scott Harper and John Mazzei, Brinker & Doyen,St. Louis

Intervener's Attorney: Melissa Featherston, Featherston Law Firm, St. Louis