Opinion
Civil Action No. 3:04-CV-50-K.
April 1, 2005
FINDINGS, CONCLUSIONS, AND RECOMMENDATION
Pursuant to the District Court's Order of Reference, filed March 24, 2005, this case has been referred to this Court for hearing and recommendation. The Court conducted a hearing on March 31, 2005, to determine whether the proposed settlement in this action is in the best interests of the minor Plaintiff, Yasslin Benmensour ("Yasslin"). Present for the hearing were counsel for Plaintiff, Defendant, and the guardian ad litem appointed by the District Court to represent the minor, Daryl Washington ("Washington"). Based on the hearing and after consideration of the pleadings, the Guardian Ad Litem Report ("GAL Report"), filed by Washington on March 30, 2005, and the applicable law, the Court finds that the proposed settlement is just and fair, and conservative of the interests of the minor Plaintiff.
This matter stems from an incident of severe turbulence that occurred on a flight from Frankfurt, Germany to Houston, Texas on August 6, 2003. (GAL Report at 1.) According to Washington's report, Yasslin was not physically injured, but her grandmother was struck in the head by a flying object and sustained a laceration. Id. at 2. Washington states that Yasslin, who is currently 7 years old, initially experienced nightmares and headaches as a result of witnessing this incident. Id. Based on interviews with Yasslin and her father, Washington found that she no longer has nightmares or headaches, and that she is currently doing well. Id. Washington also reports that Yasslin received no counseling or medical treatment as a result of the incident, and that her father does not anticipate the need for such treatment in the future. Id.
The settlement agreement provides that Yasslin shall receive $15,000. Id. at 3. An attorney's fee of one third, $4,995, plus litigation costs of $483.96, will be deducted from that sum; Washington's report states that he reviewed those costs and found them to be reasonable and necessary. Id. The Court agrees. The remaining funds, $9,521.04, will be placed in a structured annuity for Yasslin. Id. She will receive a guaranteed periodic payment of $14,500.61, payable when she reaches the age of 18 on September 18, 2015. Id. Defendant will purchase the annuity from Hartford Life Insurance Company. Id. Responsibility for the payment will be assigned to Hartford CEBSCO. Id.
In evaluating whether this agreement is fair and reasonable, the Court considers the facts of the case, the relative certainty of the outcome of any litigation, and costs associated with such litigation. See Allstate Life Ins. Co. v. Philips, 2000 WL 829357, at *2 (S.D. Ala. June 2, 2000). The outcome of litigation in this case appears to be uncertain. The parties agree that this matter is governed by the Warsaw Convention. See Joint Report Regarding Contents of Scheduling Order, at 1. The majority of federal courts hold that the Warsaw Convention does not permit recovery for mental injuries not caused by physical injuries. See Ehrlich v. American Airlines, 360 F.3d 366, 376 (2d Cir. 2004) (stating that the mainstream view is that recovery for mental injuries is available only to the extent that the emotional distress results from the physical injuries a passenger sustained) (cataloging cases). Because Yasslin does not assert that she suffered any physical injuries as a result of the incident, it is not clear that litigation on her claim would be successful. Based on Yasslin's recovery, the uncertain outcome of any litigation, and the delay and expense which would most certainly be incurred in connection with further preparation and trial on the matter, the Court finds that the proposed settlement is fair, reasonable and in the best interest of the minor Plaintiff.
Although the District Court's Order of Reference did not specifically ask the Court to address the issue of fees for the guardian ad litem, the Court notes that the sum payable to the guardian ad litem had been left blank on the Final Judgment of Dismissal. At the hearing, Washington stated that he had spent 10.3 hours on the matter and requested fees in the amount of $2,269.00. This sum, which the parties agreed would be paid by the Defendant, appears reasonable to the Court, and Counsel for Defendant stated at the hearing that he had no opposition to the requested amount.
For the foregoing reasons, the Court finds that the proposed settlement is fair, reasonable and in the best interest of the minor Plaintiff, and the Court RECOMMENDS that the District Court accept the proposed settlement on behalf of the minor, and that it award guardian ad litem fees in the amount of $2,269.00.