Abate v. Wal-Mart Stores E., L.P.

• Decision Date: 30 November 2020
• Docket Number: Case No. 1:17-cv-288-SPB
• Citation: 503 F.Supp.3d 257
• Parties: Monica Lee ABATE, Plaintiff, v. WAL-MART STORES EAST, L.P. d/b/a Wal-Mart Store #2561, Defendant.
• Court: U.S. District Court — Western District of Pennsylvania

503 F.Supp.3d 257

Monica Lee ABATE, Plaintiff,

v.WAL-MART STORES EAST, L.P. d/b/a Wal-Mart Store #2561, Defendant.

Case No. 1:17-cv-288-SPB

United States District Court, W.D. Pennsylvania.

Filed November 30, 2020

Jeffrey T. Kubiak, Nicholas, Perot, Smith, Koehler & Wall, P.C., John John Knox, Sebald, Hackwelder & Knox, Erie, PA, for Plaintiff.

Rebecca Sember Izsak, Thomas, Thomas & Hafer, LLP, Pittsburgh, PA, for Defendant.

MEMORANDUM OPINION

SUSAN PARADISE BAXTER, United States District Judge

This civil action arises from an incident in which Plaintiff, Monica Lee Abate, was injured while on the premises of Defendant, Wal-Mart Stores East, L.P., d/b/a Wal-Mart Store #2561 ("Walmart" or "Defendant"). During the course of the litigation, Wal-Mart made a settlement offer and memorialized that offer in a Release Agreement that Plaintiff ostensibly signed. Plaintiff now contends that she was never permitted to review the agreement, never expressly authorized its terms, and does not intent to abide by the agreement.

Pending before the Court is the Defendant's motion to enforce the Release Agreement. For the reasons that follow, Defendant's motion will be granted.

I. Background

On October 15, 2015, Plaintiff was on the Defendant's premises when she was struck by a falling ladder and sustained injuries. This litigation ensued. During the course of the litigation, Plaintiff was represented by Attorney Michael Koehler and Defendant was represented by Attorney Rebecca Izsak.

On October 30, 2019 the parties participated in a settlement conference with the Court. At some point during these proceedings, Ms. Izsak was advised that the case could be settled for $250,000. At the time, Ms. Izsak did not possess authority to offer $250,000 on behalf of Walmart.

Proceedings were adjourned and the Court scheduled a subsequent settlement conference for November 12, 2019. During this conference, Ms. Izsak tendered Walmart's last and final settlement offer in the amount of $250,000.

On November 15, 2019, Mr. Koehler communicated to Ms. Izsak that Plaintiff was willing to resolve the underlying litigation for $250,000. See ECF No. 47-3. In an email to Ms. Izsak, Mr. Koehler wrote:

This email follows a voice mail I left for you on your cell phone today.

Ms. Abbate is willing to sign a Release and resolve this matter for the sum of $250,000.00 as we discussed. Please forward a Release to my attention.

Please cancel the DME with Dr. Petrick scheduled for next week.

If you need to speak with me please call. The sooner this is resolved, the better.

Id.

In reliance upon this communication, Ms. Izsak cancelled an independent medical examination of the Plaintiff that she had previously scheduled in anticipation of trial proceedings. ECF No. 47-5. This resulted in Walmart's loss of a nonrefundable $3,000 fee. Id.

Ms. Izsak also transmitted to Mr. Koehler a "Full and Final Confidential Settlement, Release of All Claims and Indemnity Agreement" (the "Release Agreement"), confirming the parties’ agreement to settle the case for $250,000. ECF No. 47-4; ECF No. 51-1. Plaintiff signed the last page of the agreement on November 23, 2019, and Mr. Koehler then returned the executed Release to Ms. Izsak via correspondence that she received on November 26, 2019. ECF No. 47-6, 47-7, 51-1.

Thereafter, Medicare/CMS acknowledged its notice of the settlement and issued a final payment letter to Attorney Koehler dated December 2, 2019. ECF No. 47-9. Mr. Koehler forwarded this correspondence to defense counsel on December 5, 2019 so that Walmart could issue a check to Medicare/CMS in satisfaction of its lien interest in the settlement proceeds. Id.

Meanwhile, on November 29, 2019, the Court received an ex parte letter from Plaintiff, acting on her own behalf, in which she expressed dissatisfaction with her counsel and alleged, in essence, that Mr. Koehler had "bullied" her into signing the Release. ECF No. 37. "Most unsettling," Plaintiff wrote, "[was] the day that [Mr. Koehler] forced my signature without providing a settlement agreement[.]" Id. Plaintiff alleged that, "[W]hen I asked him for a copy [of the agreement] during a meeting with him [on] Saturday, November 23, 2019[,] he said that he had to fax [the Court] and the attorney for Walmart my signature before I could read it." Id.

On December 11, 2019, the Court held a conference to address Plaintiff's ex parte correspondence. ECF No. 38. Those physically present included Plaintiff, Mr. Koehler, Carmela Witkowski (Plaintiff's roommate), and Brenda Abbate (Plaintiff's sister). Ms. Izsak appeared telephonically. The Court had a stenographer present and accepted testimony from those present.

Testimony of Attorney Koehler

Mr. Koehler testified that, following the October 30, 2019 settlement conference, he indicated to Ms. Izsak that Walmart "needed to come up with more money than the $150,000 that was offered ...." Tr. Hrg. (12/11/19), ECF No. 46, at 3:6-7. Accordingly,

[Ms. Izsak] went back to her people, and there was a discussion of 200,000, and then there was a discussion of 250,000 as being the final offer that they would make to settle this case without going to trial.

And I communicated that offer to my client. We discussed that on a couple occasions, that offer, and what that would entail in terms of what she would put in her pocket after payment of fees, costs, and the CMS Medicare lien.

Ms. Abbate agreed to the settlement offer that was communicated to defense counsel. Defense counsel forwarded me their standard Walmart-type release, with the release language in it. I sat down with Miss Abbate in my office. We discussed the release.

I went through, as I typically do, provisions of the release, because it's typical contractual language, you know, in terms of the Medicare issues that need to be resolved, payment of the lien --

***

... and we sat down with the release documents in my office. I went and explained to her, with Carmela [Witkowski] present, what the terms and conditions of the release were; that it was confidential, that they weren't accepting liability, that there was a disputed claim, that you can't sue them again. If you sue them again, you'll have to pay attorney's fees and costs. That it's governed by Pennsylvania laws. There's all the typical provisions that are in there.

Id. at 3:9-25; 4:20-5:3. According to Mr. Koehler, "Miss Abbate [said] I just want it -- I'm done, I'm settled [sic], I want to sign it, I want to settle it, so she signed the paperwork." Id. at 5:4-6.

Mr. Koehler claims he explained to Plaintiff that he was going to cut his fees, and the Medicare lien was going to be reduced, which would allow her to collect a net sum in excess of $150,000. ECF No. 46 at 5:13-20. He "discussed ... the paperwork" with Plaintiff. Id. at 5:22. Then:

the paperwork was submitted to defense counsel. And I have submitted the Medicare reduction lien letter that we received on the final demand to defense counsel.

And we had written a letter to her primary care physician, which was an addendum to the release, to see if she would sign the letter basically saying that with a reasonable degree of medical certainty, I don't believe any of the future medical treatment is related to this original incident, so that there would not have to be a Medicare set-aside; that Medicare's interests would be taken into account and that the case would be resolved with that addendum. And that's typical for them to do that type of thing. We've encountered that in the past.

On Monday, ... Monica called, emailed me, made some phone calls; wasn't happy with the settlement, ... told me things like ... she didn't read the release, she wants to read the release, she wants to come back in with her sister and come in. And so ... I said, look, come back in, let's sit down; let's -- you want to go back over everything again, here's the release.

ECF No. 46 at 5:23-6:19. According to Mr. Koehler, Plaintiff indicated she "[didn't] want the release, [didn't] want copies of anything, [didn't] want nothing [sic]." Id. at 6:19-21. Mr. Koehler claims he "went through it again with her after that." Id. at 6:21-22. He acknowledged that "[i]t's a difficult situation" and Plaintiff has "gone back and forth" about the settlement. Id. at 6:22, 6:25-7:1.

So I said, look, you know, this is -- we've discussed this again and again and again, and we've gone through the terms and conditions of the settlement, the amount of the settlement, the issues in the case with regard to -- you know, all the issues in the case that are being present at the time of trial.

And, you know, it was my belief that at this point the case was settled; that ... she would accept the settlement; you know, come back to, okay, I'm fine with the settlement ... and get the thing done.

ECF No. 46 at 7:2-12.

Testimony of Carmela Witkowski

Carmela Witkowski is Plaintiff's roommate and has lived with her for approximately 30 years. ECF No. 46 at 16:4-5. She acknowledged being present during Plaintiff's meeting with Mr. Koehler on Saturday, November 23, 2019 and witnessed Mr. Koehler explain the settlement offer of $250,000 and how that would be divvied up if Plaintiff agreed to settle. Id. at 16:6-10. She testified, however, that Plaintiff signed only "a blank piece of paper. There was no settlement with it." Id. at 16:10-11. Ms. Witkowski stated that, during this meeting, Mr. Koehler talked fast and she (Ms. Witkowski) "didn't know exactly what he was trying to say; whether these medical bills were all included into the settlement or if this is what she was going to get clear." Id. at 16:13-16. Mr. Koehler did explain to Plaintiff that, if she did not accept the $250,000 offer, then she'd be going to trial. Id. at 16:17-18. Plaintiff indicated "she would think about it," but "she didn't really want to sign anything unless she read the settlement first, which she didn't do." Id. at 16:19-21. Mr. Koehler then questioned Ms. Witkowski, and the following exchange ensued:

BY MR. KOEHLER:

Q. Do you

...