375 F.3d 1054 (10th Cir. 2004), 03-1295, Shoels v. Klebold

Docket Nº:03-1295.
Citation:375 F.3d 1054
Party Name:Michael SHOELS and Vonda Shoels, as parents of decedent Isaiah Shoels, Plaintiffs-Appellants, v. Thomas KLEBOLD, Susan Klebold, Wayne Harris, and Katherine Harris, Defendants-Appellees, and Jefferson County Sheriff John Stone, individually and in his official capacity, Former Jefferson County Sheriff Ronald Beckham, individually and in his official
Case Date:July 21, 2004
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit

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375 F.3d 1054 (10th Cir. 2004)

Michael SHOELS and Vonda Shoels, as parents of decedent Isaiah Shoels, Plaintiffs-Appellants,


Thomas KLEBOLD, Susan Klebold, Wayne Harris, and Katherine Harris, Defendants-Appellees,


Jefferson County Sheriff John Stone, individually and in his official capacity, Former Jefferson County Sheriff Ronald Beckham, individually and in his official capacity, Jefferson County Sheriff's Department, Neil Gardner, individually, John Hicks, individually, Mark M. Miller, individually, T. Williams, individually, Mike Guerra, individually, Philip Lebeda, individually, John or Jane Does 2 Through 10 (all deputies in the Jefferson County Sheriff's Department), individually, Jefferson County School District R-1, Frank DeAngelis, individually and in his official capacity, Howard Cornell, individually and in his official capacity, Peter Horvath, individually, William Butts, individually, Garrett Talocco, individually, Judy Kelly, individually, Tom Tonelli, individually, Tom Johnson, individually, John or Jane Does 11 Through 30, individually, James Royce Washington, Ronald F. Hartman, J.D. Tanner, doing business as Tanner Gun Show, Phillip Duran, Mark Manes, and Robyn Anderson, Defendants.

No. 03-1295.

United States Court of Appeals, Tenth Circuit

July 21, 2004

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[Copyrighted Material Omitted]

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Geoffrey Nels Fieger (Victor S. Valenti with him on the briefs), Fieger, Fieger, Kenney & Johnson, P.C., Southfield, MI, for Plaintiffs-Appellants.

C. Michael Montgomery (Steven G. Greenlee with him on the brief), Montgomery, Kolodny, Amatuzio & Dusbabek, L.L.P., Denver, CO, for Defendants-Appellees Wayne Harris and Katherine Harris.

Frank D. Patterson (Gregg E. Kay and Kerri J. Atencio with him on the brief), Patterson, Nuss & Seymour, P.C., Englewood, CO, for Defendants-Appellees Thomas Klebold and Susan Klebold.

Before EBEL, ANDERSON, and McCONNELL, Circuit Judges.

McCONNELL, Circuit Judge.

Five years after the tragedy at Columbine High School, we are called to determine whether the district court rightly put to rest a lawsuit between Michael and Vonda Shoels, whose son Isaiah was killed at Columbine, and the parents of the two shooters. Over strenuous objection, the district court found that the Shoels, through counsel, had entered a binding agreement to settle their claims in April of 2001. Because the Shoels have provided us with no reason to think that the district court's factual findings were clearly erroneous, we affirm the order of the district court.


In the year 2000, Michael and Vonda Shoels sued a number of defendants for failing to prevent or facilitating the killing of their son. Two groups of defendants are relevant to this appeal: first, the Harrises and Klebolds, parents of the shooters, and second, three associates of the shooters named Mark Manes, Phillip Duran, and Robyn Anderson, who were later added to the lawsuit (collectively referred to as the "Manes group"). The Shoels' primary legal counsel was Geoffrey Fieger, a Michigan attorney who retained the exclusive right to communicate with the Shoels and, for the most part, was the only one authorized to negotiate on their behalf. Mr. Fieger worked with Jack Beam & Associates as local counsel, and especially with Douglas Raymond, an associate at that firm. In the summer of 2000, Mr. Fieger specifically authorized local counsel to offer to settle with the Harrises and Klebolds if they would pay the policy limits of their homeowner's insurance to the Shoels and one other family.

Reluctant to settle with the families of two victims without simultaneously resolving the potential claims of all the other victims and their families, the Klebolds suggested that they might want to involve other potential plaintiffs in the process. Mr. Beam urged them not to do so, and warned in a letter that their offer was "the only attempt which will be made by these families ... to settle within your clients' policy limits," and that "settlement with Mr. Fieger's clients will substantially reduce the Klebolds' personal exposure by not facing a trial with a lawyer with Mr. Fieger's elan." App. 192-93.

In the following months, a growing number of potential claimants became involved

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in trying to work out a global settlement. One of the attorneys, Stephen Wahlberg, emerged as the primary spokesman for these plaintiffs. While he was not authorized to act on behalf of any other attorneys' clients, he was the intermediary who would relay communications back and forth between the various defendants and the various plaintiffs. In September of 2000, he demanded that the Klebolds, Harrises, and Mark Manes pay their policy limits in full (an aggregate amount of roughly $2.4 million) to a group of thirteen plaintiffs in return for releasing their claims. Although formally included in this group, the Shoels remained tentative about actually accepting a settlement until they knew more definitely the amount they could expect to receive.

In November of 2000, the Klebolds, the Harrises, and Mark Manes made a counteroffer. They pointed out that there were still twenty-four potential claimants outside of Mr. Wahlberg's group, whose claims would not be resolved by the proposed settlement. Six of those claimants, represented by Jim Rouse, had refused to join Mr. Wahlberg's coalition despite substantial efforts to include them. In their opinion, any settlement that allowed the Harrises and Klebolds to resolve the claims against them using only insurance proceeds--and thereby to escape "scot-free" with respect to their personal assets--was unacceptable. They wanted the Harrises and Klebolds to pay personally for the victims' losses, at least to some extent, and apparently also demanded a chance to confront the Harrises and Klebolds face to face. The other eighteen had not been represented by counsel up to that point, and it was not known whether they were interested in pursuing their potential legal claims. The defendants acknowledged that it was unlikely that Mr. Rouse's group would settle, but offered to settle with the remaining thirty-one claimants for $1.6 million, assuming that the Wahlberg group could get the other eighteen to agree.

To muster the required consensus, Mr. Wahlberg's group enlisted the help of an organization called the Judicial Arbiter Group, an association of retired judges who provide alternative dispute resolution services. The group agreed to help contact the remaining victims and/or their families; one of its members, Judge Jim Carrigan, agreed to help the various plaintiffs divide the settlement proceeds by serving as an arbiter who would determine the relative value of each claim, based on the claimant's damages and likelihood of success. Eventually, all but four of the eighteen families agreed to join in the Wahlberg settlement negotiations, and the remaining four seemed unlikely to sue at all. In March 2001, arbitration agreements were sent out to each of the twenty-seven participating families. Because Mr. Raymond, the Shoels' local counsel, had not received the Shoels' copy in early April, Mr. Wahlberg sent a second copy of the arbitration agreement on April 13, stating that everyone else had signed and requesting the Shoels' signature.

Meanwhile, the parties continued to negotiate which plaintiffs would settle with each group of defendants, how much of their insurance proceeds each group of defendants would pay to settle the plaintiffs' claims, and how much they would be allowed to set aside to defend against any other claims not covered by the settlement. On March 14, Mr. Wahlberg faxed to the Shoels' counsel a letter from Mr. Rouse confirming that his clients would not settle with the Klebolds and Harrises. Then, on April 9, Mr. Wahlberg advised the Shoels' counsel that Mr. Rouse thought his clients would participate in arbitration of their claims against Defendants Manes and Duran. Mr. Wahlberg also speculated

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that some of Mr. Rouse's clients might have second thoughts about the Klebolds and Harrises as well.

A settlement conference was held on April 10, 2001, the results of which were sent by fax to the parties (including Jack Beam, local counsel for the Shoels) in a letter dated April 16. That letter made it clear that the Rouse plaintiffs were not participating in the settlement with the Klebolds and Harrises, but suggested that they would participate in the other settlements. In the Klebold/Harris negotiations, the parties ultimately agreed that instead of negotiating the amount to be reserved for the Rouse group and other nonparticipating claimants, they would let the arbiter determine it. According to the final proposal set forth in the letter, the Harrises and Klebolds would put 98% of their insurance policy limits ($1,568,000) into escrow, leaving the other 2% to cover possible zone-of-danger claims. Then, the arbiter would determine what share of the escrowed funds each potential claimant (including the nonsettling claimants) should receive. The amounts attributable to nonsettling plaintiffs would be held in reserve to cover any successful claims, and any unused portion of those funds would be distributed to the settling plaintiffs after the statute of limitations expired.

The proposed settlements with Defendants Manes, Anderson, and Duran had a similar structure, with one exception: those defendants refused to pay their insurance proceeds unless everyone,1 including the Rouse group, agreed to release their claims. Furthermore, Defendants Manes and Duran were likely judgement-proof, and Anderson was threatening to file for bankruptcy if a unanimous settlement was not reached; this made proceeding to trial considerably less attractive. According to the April 16 letter, Mr. Manes had agreed to deposit $720,000 of insurance proceeds immediately and hold the remaining $80,000 in reserve until the...

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