1 MESCH CLARK ROTHSCHILD BROWNSTEIN HYATT FARBER …

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MESCH CLARK ROTHSCHILD 259 North Meyer Avenue Tucson, Arizona 85701 Phone: (520) 624-8886 Fax: (520) 798-1037 Email: [email protected] [email protected] By: Michael McGrath, #6019 Isaac D. Rothschild, #25726

BROWNSTEIN HYATT FARBER SCHRECK, LLP 410 Seventeenth Street, Suite 2200 Denver, CO 80202-4432 Phone: (303) 223-1100 Fax: (303) 223-1111 Email:[email protected] By: Michael J. Pankow (Pro Hac Vice)

Attorneys for the Creditor Trustee

UNITED STATES BANKRUPTCY COURT

FOR THE DISTRICT OF ARIZONA

In re:

REGIONAL CARE SERVICES CORP., CASA GRANDE COMMUNITY HOSPITAL D/B/A CASA GRANDE REGIONAL MEDICAL CENTER, REGIONAL CARE PHYSICIAN’S GROUP, INC., and CASA GRANDE REGIONAL RETIREMENT COMMUNITY,

Debtors.

Chapter 11 Proceedings Case Nos. 4:14-bk-01383-BMW 4:14-bk-01384-BMW 4:14-bk-01385-BMW 4:14-bk-01386-BMW (Joint Administration) MOTION FOR ENTRY OF AN ORDER, PURSUANT TO §105(a) AND BANKRUPTCY RULE 9019, AUTHORIZING AND APPROVING THE SETTLEMENT AGREEMENT WITH STEWART CLAIMANTS

This Filing Applies to:

All Debtors Specified Debtor(s)

Scott B. Davis, in his capacity as the trustee (in such capacity, the “Creditor

Trustee”) of the Regional Care Services Corp. Creditor Trust (the “Creditor Trust,”

successor-in-interest to the Debtors), by and through undersigned counsel, hereby

requests the entry of an order, pursuant to Section 105(a) of title 11 of the United

Case 4:14-bk-01383-BMW Doc 689 Filed 11/03/17 Entered 11/03/17 09:50:49 Desc Main Document Page 1 of 6

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States Code (the “Bankruptcy Code”) and Rule 9019 of the Federal Rules of

Bankruptcy Procedure (the “Bankruptcy Rules”), authorizing and approving the

Settlement Agreement (as defined below) between Maria Stewart, individually and

on behalf of statutory beneficiaries Mary Stewart and Randy Stewart of decedent

Gerald Stewart (collectively, the “Claimants”) and the Creditor Trust (together with

the Claimants, the “Settling Parties”). In support of this motion, the Creditor Trustee

respectfully represents as follows:

I. JURISDICTION

The Court has subject matter jurisdiction to consider and determine this

Motion pursuant to 28 U.S.C. §§ 157 and 1334. This is a core proceeding pursuant to

28 U.S.C. § 157(b). Venue is proper pursuant to 28 U.S.C. §§ 1408 and 1409. The

predicates for the relief sought herein are §105(a) of the Bankruptcy Code and

Bankruptcy Rule 9019.

II. FACTS

General Case Background

On February 4, 2014 (the “Petition Date”), each of the Debtors commenced

voluntary cases under chapter 11 of the Bankruptcy Code. The Debtors’ cases were

jointly administered pursuant to Bankruptcy Rule 1015(b) under Case No. 14-bk-

01383-BMW.

The Court has entered an order (Dkt. No. 416) confirming the Second

Amended Joint Chapter 11 Plan of Reorganization Dated March 28, 2014 (Dkt. No.

294, as confirmed, the “Plan”). As contemplated by the Plan, the Court also

approved the Declaration of Trust of Scott B. Davis, in his capacity as creditor

trustee of the Regional Care Services Corp. Creditor Trust (the “Trust Agreement”).

Section 7.02 of the Plan provides that “[a]fter the Effective Date, the Creditor

Trustee may settle any Disputed Claim where the proposed Allowed Claim is to be

less than $25,000 without notice and a hearing and without an order of the


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Bankruptcy Court. All other settlements shall be subject to notice and a hearing

pursuant to §102(1) of the Bankruptcy Code and a Final Order of the Bankruptcy

Court approving the settlement.”

Similarly, Section 3.1(d) of the Trust Agreement grants the Creditor Trustee

full right, power and discretion to “…review, object to, prosecute, compromise,

settle, discontinue, abandon, dismiss, or otherwise resolve Claims or Objections to

Claims and litigation related thereto, and to do so without notice and a hearing and

without order of the Bankruptcy Court where the proposed settlement amount or

Allowed Claim is less than $25,000.” Any proposed settlement which is $25,000 or

greater requires this Court’s approval.

The Stewart Litigation

Prior to the Petition Date, the Claimants filed a Complaint (the “Action”)

against Casa Grande Community Hospital d/b/a Casa Grande Regional Medical

Center (“CGRMC”) in the Maricopa County Superior Court, Case No. CV2013-

007806. The Action arose out of certain alleged negligent acts or omissions by

CGRMC in connection with an alleged incident involving Claimants’ decedent on

June 29, 2011.

Following arms-length negotiation conducted under the auspices of mediation,

the Settling Parties entered into that certain Settlement Agreement and Release (the

“Settlement Agreement”), which, if approved by the Court, will resolve the disputes

between the Settling Parties. A copy of the Settlement Agreement is attached hereto

as Exhibit A.

III. SUMMARY OF THE PROPOSED SETTLEMENT

Subject to this Court’s approval, the Settling Parties have agreed to settle

Claimants’ claim against CGRMC based on the Claimants receiving an immediate

payment of $750,000 (the “Settlement Amount”). The Settlement Amount would be


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within the amount reserved1 for this claim.

In exchange for receipt of the Settlement Amount, the Claimants will provide,

inter alia: (a) a general release and discharge in favor of CGRMC; and (b) a

Stipulation for Dismissal with Prejudice of the Action.

IV. RELIEF REQUESTED

The Creditor Trustee requests that the Court approve the Settlement

Agreement and authorize and direct the Creditor Trustee to pay the Settlement

Amount to Claimants, subject to the terms of the Settlement Agreement, in full and

final satisfaction of all claims asserted by Claimants in Debtors’ bankruptcy cases.

V. BASIS FOR RELIEF

Compromises are favored by bankruptcy courts. See In re Sassalos, 160 B.R.

646, 653 (D. Or. 1993) (stating that “compromises are favored in bankruptcy, and the

decision of the bankruptcy judge to approve or disapprove a compromise . . . rests in

the sound discretion of the judge.”); Martin v. Kane (In re A&C Props.), 784 F.2d

1377, 1380-81 (9th Cir. 1986). Under Bankruptcy Rule 9019(a), the Court has the

authority to approve a settlement if it is fair and equitable and in the best interests of

the estate. See, e.g., Protective Comm. for Indep. Stockholders of TMT Trailer Ferry,

Inc. v. Anderson, 390 U.S. at 424. The central factor for evaluating proposed

settlements is “the need to compare the terms of the compromise with the likely

rewards of litigation.” Id. at 425.

Courts within this circuit have utilized the following factors to determine the

reasonableness of settlements: (i) the probability of success in the litigation; (ii) the

difficulties, if any, to be encountered in the matter of collection; (iii) the complexity

of the litigation involved, and the expense, inconvenience and delay necessarily

attending it; (d) the paramount interest of the creditors and a proper deference to their

1 In accordance with the terms of the Plan and the Trust Agreement, the Creditor Trustee has established a reserve for this claim equal to the deductible under the Debtors’ applicable insurance policy.


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reasonable views of the premises. In re Woodson, 839 F.2d 610, 620 (9th Cir. 1988);

In re Clark, 2012 WL 12261414, *4 (Bankr. D. Ariz. April 24, 2012) (“If the

settlement does not fall below the threshold of reasonableness, the court should

approve the settlement.”)(citations omitted).

As to the probability of success in the litigation, the Creditor Trustee believes

he has adequate defenses in the Action, but acknowledges the risk inherent in all

litigation. The Claimants assert damages claims in the millions of dollars, and there

is no guarantee that the Creditor Trustee would successfully defeat such claims if the

Action were litigated. As such, the Creditor Trustee concluded that there was merit

to a negotiated resolution of the Action. The proposed Settlement Amount is the

product of arms’-length negotiations and represents a reasonable resolution of the

dispute. A successful outcome is less certain (and less immediate) than the proposed

settlement.

The second factor, difficulties of collection, is inapplicable here because

CGRMC is the defendant in this litigation.

The third set of factors strongly favors settlement. Among other things, the

Settling Parties would be required to engage in substantial pretrial preparations,

including Motions in Limine, designation of deposition testimony, and the creation

of substantial numbers of trial exhibits. Even so, there is always a risk that the trial

setting would be continued due to congestion of court calendars, resulting in the a

requirement of repeated trial preparation costs. All of the above would be expensive

and cause both inconvenience and delay to the ultimate resolution of this matter.

The fourth factor, the paramount interest of the creditors, is key to the

proposed settlement. The Creditor Trustee believes the proposed settlement is fair

and equitable and falls within the range of reasonableness. The proposed settlement

would provide CGRMC’s bankruptcy estate the benefit of a prompt resolution

without the necessity, risk, or costs of protracted litigation and, possibly, appeal.


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Among other things, settlement resolves a legal issue that likely would have been the

subject of appeal after trial, resulting in additional expense and delay in

administration of the Creditor Trust.

Additionally, it should be noted the settlement involves a single lump-sum

payment. The certainty of a lump sum payment facilitated negotiations and avoids

the need for a follow-on distribution had an Allowed Claim amount been grossed up

to allow an initial payment consistent with the negotiated settlement.

Accordingly, pursuant to Bankruptcy Rule 9019, the proposed settlement

should be approved.

WHEREFORE, the Creditor Trustee respectfully requests that the Court enter

an Order substantially in the form attached hereto as Exhibit B, approving the

Settlement Agreement, authorizing and directing the Creditor Trustee to pay the

Settlement Amount to Claimants, subject to the terms of the Settlement Agreement,

in full and final satisfaction of all claims asserted by Claimants in Debtors’

bankruptcy cases, and granting the Creditor Trustee such other relief as may be just

or proper.

Dated: November 3, 2017.

BROWNSTEIN HYATT FARBER SCHRECK, LLP

Michael J. Pankow

-AND-

MESCH CLARK ROTHSCHILD

By: /s/Isaac D. Rothschild, #25726 Michael McGrath Isaac D. Rothschild



Exhibit A

Case 4:14-bk-01383-BMW Doc 689-1 Filed 11/03/17 Entered 11/03/17 09:50:49 Desc Exhibit A Page 1 of 13













Exhibit B

Case 4:14-bk-01383-BMW Doc 689-2 Filed 11/03/17 Entered 11/03/17 09:50:49 Desc Exhibit B Page 1 of 3

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In re:


Debtors.

Chapter 11 Proceedings Case Nos. 4:14-bk-01383-BMW 4:14-bk-01384-BMW 4:14-bk-01385-BMW 4:14-bk-01386-BMW (Joint Administration) ORDER GRANTING MOTION FOR ENTRY OF AN ORDER, PURSUANT TO §105(a) AND BANKRUPTCY RULE 9019, AUTHORIZING AND APPROVING THE SETTLEMENT AGREEMENT WITH STEWART CLAIMANTS



The Court having considered the Motion for Entry of an Order, Pursuant to

§ 105(a) and Bankruptcy Rule 9019, Authorizing and Approving the Settlement

Agreement with Stewart Claimants (the “Motion”) filed by Scott B. Davis, in his

capacity as the trustee (in such capacity, the “Creditor Trustee”) of the Regional Care

Services Corp. Creditor Trust (the “Creditor Trust,” successor-in-interest to the


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Debtors); proper notice with an opportunity to object having been given; there being

no objections to the Motion; and good cause appearing;

IT IS HEREBY ORDERED that:

1. The Motion is GRANTED;

2. The Settlement Agreement and Release between Maria Stewart,

individually and on behalf of statutory beneficiaries Mary Stewart and

Randy Stewart of decedent Gerald Stewart and the Creditor Trust is

approved in its entirety and the Creditor Trustee is authorized to take

such actions as are necessary to effectuate the terms thereof.

DATED AND SIGNED ABOVE.


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MESCH CLARK ROTHSCHILD 259 North Meyer Avenue Tucson, Arizona 85701 Phone: (520) 624-8886 Fax: (520) 798-1037 Email: [email protected] [email protected] By: Michael McGrath, #6019 Isaac D. Rothschild, #25726

BROWNSTEIN HYATT FARBER SCHRECK, LLP 410 Seventeenth Street, Suite 2200 Denver, CO 80202-4432 Phone: (303) 223-1100 Fax: (303) 223-1111 Email:[email protected] By: Michael J. Pankow (Pro Hac Vice)




In re:


Debtors.

Chapter 11 Proceedings Case Nos. 4:14-bk-01383-BMW 4:14-bk-01384-BMW 4:14-bk-01385-BMW 4:14-bk-01386-BMW (Joint Administration) MOTION FOR ENTRY OF AN ORDER, PURSUANT TO §105(a) AND BANKRUPTCY RULE 9019, AUTHORIZING AND APPROVING THE SETTLEMENT AGREEMENT WITH STEWART CLAIMANTS



Scott B. Davis, in his capacity as the trustee (in such capacity, the “Creditor

Trustee”) of the Regional Care Services Corp. Creditor Trust (the “Creditor Trust,”

successor-in-interest to the Debtors), by and through undersigned counsel, hereby

requests the entry of an order, pursuant to Section 105(a) of title 11 of the United


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States Code (the “Bankruptcy Code”) and Rule 9019 of the Federal Rules of

Bankruptcy Procedure (the “Bankruptcy Rules”), authorizing and approving the

Settlement Agreement (as defined below) between Maria Stewart, individually and

on behalf of statutory beneficiaries Mary Stewart and Randy Stewart of decedent

Gerald Stewart (collectively, the “Claimants”) and the Creditor Trust (together with

the Claimants, the “Settling Parties”). In support of this motion, the Creditor Trustee

respectfully represents as follows:

I. JURISDICTION

The Court has subject matter jurisdiction to consider and determine this

Motion pursuant to 28 U.S.C. §§ 157 and 1334. This is a core proceeding pursuant to

28 U.S.C. § 157(b). Venue is proper pursuant to 28 U.S.C. §§ 1408 and 1409. The

predicates for the relief sought herein are §105(a) of the Bankruptcy Code and

Bankruptcy Rule 9019.

II. FACTS

General Case Background

On February 4, 2014 (the “Petition Date”), each of the Debtors commenced

voluntary cases under chapter 11 of the Bankruptcy Code. The Debtors’ cases were

jointly administered pursuant to Bankruptcy Rule 1015(b) under Case No. 14-bk-

01383-BMW.

The Court has entered an order (Dkt. No. 416) confirming the Second

Amended Joint Chapter 11 Plan of Reorganization Dated March 28, 2014 (Dkt. No.

294, as confirmed, the “Plan”). As contemplated by the Plan, the Court also

approved the Declaration of Trust of Scott B. Davis, in his capacity as creditor

trustee of the Regional Care Services Corp. Creditor Trust (the “Trust Agreement”).

Section 7.02 of the Plan provides that “[a]fter the Effective Date, the Creditor

Trustee may settle any Disputed Claim where the proposed Allowed Claim is to be

less than $25,000 without notice and a hearing and without an order of the


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Bankruptcy Court. All other settlements shall be subject to notice and a hearing

pursuant to §102(1) of the Bankruptcy Code and a Final Order of the Bankruptcy

Court approving the settlement.”

Similarly, Section 3.1(d) of the Trust Agreement grants the Creditor Trustee

full right, power and discretion to “…review, object to, prosecute, compromise,

settle, discontinue, abandon, dismiss, or otherwise resolve Claims or Objections to

Claims and litigation related thereto, and to do so without notice and a hearing and

without order of the Bankruptcy Court where the proposed settlement amount or

Allowed Claim is less than $25,000.” Any proposed settlement which is $25,000 or

greater requires this Court’s approval.

The Stewart Litigation

Prior to the Petition Date, the Claimants filed a Complaint (the “Action”)

against Casa Grande Community Hospital d/b/a Casa Grande Regional Medical

Center (“CGRMC”) in the Maricopa County Superior Court, Case No. CV2013-

007806. The Action arose out of certain alleged negligent acts or omissions by

CGRMC in connection with an alleged incident involving Claimants’ decedent on

June 29, 2011.

Following arms-length negotiation conducted under the auspices of mediation,

the Settling Parties entered into that certain Settlement Agreement and Release (the

“Settlement Agreement”), which, if approved by the Court, will resolve the disputes

between the Settling Parties. A copy of the Settlement Agreement is attached hereto

as Exhibit A.

III. SUMMARY OF THE PROPOSED SETTLEMENT

Subject to this Court’s approval, the Settling Parties have agreed to settle

Claimants’ claim against CGRMC based on the Claimants receiving an immediate

payment of $750,000 (the “Settlement Amount”). The Settlement Amount would be


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within the amount reserved1 for this claim.

In exchange for receipt of the Settlement Amount, the Claimants will provide,

inter alia: (a) a general release and discharge in favor of CGRMC; and (b) a

Stipulation for Dismissal with Prejudice of the Action.

IV. RELIEF REQUESTED

The Creditor Trustee requests that the Court approve the Settlement

Agreement and authorize and direct the Creditor Trustee to pay the Settlement

Amount to Claimants, subject to the terms of the Settlement Agreement, in full and

final satisfaction of all claims asserted by Claimants in Debtors’ bankruptcy cases.

V. BASIS FOR RELIEF

Compromises are favored by bankruptcy courts. See In re Sassalos, 160 B.R.

646, 653 (D. Or. 1993) (stating that “compromises are favored in bankruptcy, and the

decision of the bankruptcy judge to approve or disapprove a compromise . . . rests in

the sound discretion of the judge.”); Martin v. Kane (In re A&C Props.), 784 F.2d

1377, 1380-81 (9th Cir. 1986). Under Bankruptcy Rule 9019(a), the Court has the

authority to approve a settlement if it is fair and equitable and in the best interests of

the estate. See, e.g., Protective Comm. for Indep. Stockholders of TMT Trailer Ferry,

Inc. v. Anderson, 390 U.S. at 424. The central factor for evaluating proposed

settlements is “the need to compare the terms of the compromise with the likely

rewards of litigation.” Id. at 425.

Courts within this circuit have utilized the following factors to determine the

reasonableness of settlements: (i) the probability of success in the litigation; (ii) the

difficulties, if any, to be encountered in the matter of collection; (iii) the complexity

of the litigation involved, and the expense, inconvenience and delay necessarily

attending it; (d) the paramount interest of the creditors and a proper deference to their

1 In accordance with the terms of the Plan and the Trust Agreement, the Creditor Trustee has established a reserve for this claim equal to the deductible under the Debtors’ applicable insurance policy.


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reasonable views of the premises. In re Woodson, 839 F.2d 610, 620 (9th Cir. 1988);

In re Clark, 2012 WL 12261414, *4 (Bankr. D. Ariz. April 24, 2012) (“If the

settlement does not fall below the threshold of reasonableness, the court should

approve the settlement.”)(citations omitted).

As to the probability of success in the litigation, the Creditor Trustee believes

he has adequate defenses in the Action, but acknowledges the risk inherent in all

litigation. The Claimants assert damages claims in the millions of dollars, and there

is no guarantee that the Creditor Trustee would successfully defeat such claims if the

Action were litigated. As such, the Creditor Trustee concluded that there was merit

to a negotiated resolution of the Action. The proposed Settlement Amount is the

product of arms’-length negotiations and represents a reasonable resolution of the

dispute. A successful outcome is less certain (and less immediate) than the proposed

settlement.

The second factor, difficulties of collection, is inapplicable here because

CGRMC is the defendant in this litigation.

The third set of factors strongly favors settlement. Among other things, the

Settling Parties would be required to engage in substantial pretrial preparations,

including Motions in Limine, designation of deposition testimony, and the creation

of substantial numbers of trial exhibits. Even so, there is always a risk that the trial

setting would be continued due to congestion of court calendars, resulting in the a

requirement of repeated trial preparation costs. All of the above would be expensive

and cause both inconvenience and delay to the ultimate resolution of this matter.

The fourth factor, the paramount interest of the creditors, is key to the

proposed settlement. The Creditor Trustee believes the proposed settlement is fair

and equitable and falls within the range of reasonableness. The proposed settlement

would provide CGRMC’s bankruptcy estate the benefit of a prompt resolution

without the necessity, risk, or costs of protracted litigation and, possibly, appeal.


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Among other things, settlement resolves a legal issue that likely would have been the

subject of appeal after trial, resulting in additional expense and delay in

administration of the Creditor Trust.

Additionally, it should be noted the settlement involves a single lump-sum

payment. The certainty of a lump sum payment facilitated negotiations and avoids

the need for a follow-on distribution had an Allowed Claim amount been grossed up

to allow an initial payment consistent with the negotiated settlement.

Accordingly, pursuant to Bankruptcy Rule 9019, the proposed settlement

should be approved.

WHEREFORE, the Creditor Trustee respectfully requests that the Court enter

an Order substantially in the form attached hereto as Exhibit B, approving the

Settlement Agreement, authorizing and directing the Creditor Trustee to pay the

Settlement Amount to Claimants, subject to the terms of the Settlement Agreement,

in full and final satisfaction of all claims asserted by Claimants in Debtors’

bankruptcy cases, and granting the Creditor Trustee such other relief as may be just

or proper.

Dated: November 3, 2017.

BROWNSTEIN HYATT FARBER SCHRECK, LLP

Michael J. Pankow

-AND-

MESCH CLARK ROTHSCHILD

By: /s/Isaac D. Rothschild, #25726 Michael McGrath Isaac D. Rothschild



Exhibit A














Exhibit B


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In re:


Debtors.

Chapter 11 Proceedings Case Nos. 4:14-bk-01383-BMW 4:14-bk-01384-BMW 4:14-bk-01385-BMW 4:14-bk-01386-BMW (Joint Administration) ORDER GRANTING MOTION FOR ENTRY OF AN ORDER, PURSUANT TO §105(a) AND BANKRUPTCY RULE 9019, AUTHORIZING AND APPROVING THE SETTLEMENT AGREEMENT WITH STEWART CLAIMANTS



The Court having considered the Motion for Entry of an Order, Pursuant to

§ 105(a) and Bankruptcy Rule 9019, Authorizing and Approving the Settlement

Agreement with Stewart Claimants (the “Motion”) filed by Scott B. Davis, in his

capacity as the trustee (in such capacity, the “Creditor Trustee”) of the Regional Care

Services Corp. Creditor Trust (the “Creditor Trust,” successor-in-interest to the


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Debtors); proper notice with an opportunity to object having been given; there being

no objections to the Motion; and good cause appearing;

IT IS HEREBY ORDERED that:

1. The Motion is GRANTED;

2. The Settlement Agreement and Release between Maria Stewart,

individually and on behalf of statutory beneficiaries Mary Stewart and

Randy Stewart of decedent Gerald Stewart and the Creditor Trust is

approved in its entirety and the Creditor Trustee is authorized to take

such actions as are necessary to effectuate the terms thereof.

DATED AND SIGNED ABOVE.


Documents

1 MESCH CLARK ROTHSCHILD BROWNSTEIN HYATT FARBER …