Free Request - District Court of Arizona - Arizona

A. James Clark, #002901 CLARK & MOORE 2 256 South Second Avenue, #E Yuma, AZ 85364 3 Telephone (928) 783-6233
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Attorneys for Plaintiff Rubecca Mikkelsen, etc.

John A. Micheaels -- 05917 BEALE, MICHEAELS & SLACK, P.C. 6 1440 E. Missouri Avenue, #150 Phoenix, Arizona 85014 7 (602) 285-1444
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Attorneys for Plaintiff Dennis Mikkelsen UNITED STATES DISTRICT COURT

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DISTRICT OF ARIZONA
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RUBECCA MIKKELSEN, surviving) spouse of Kelly Mikkelsen, deceased,) No. CIV 02-2252-PHX-JAT individually and on behalf of MILES) MIKKELSEN, JERRET MIKKELSEN) and ALLISON MIKKELSEN, the) minor children of Kelly Mikkelsen,) deceased, and on behalf of DENNIS) MIKKELSEN, natural father of Kelly) PLAINTIFFS' REQUEST FOR A Mikkelsen, deceased; and on behalf of) COURT-ORDERED TAYLOR R. FOX, a minor, by her) SETTLEMENT/MEDIATION next friend and natural mother,) TRACY FOX-TANGA, ) ) Plaintiffs, ) (Assigned to the Honorable James A. ) Teilborg) vs. ) ) C O R R E C T I O N A L H E A L T H) RESOURCES, INC., a foreign) corporation; KENNETH L. FAIVER) and JANE DOE FAIVER, husband and) wife; JOSEPH EDWARD RICH, M.D.) and JANE DOE RICH, husband and) wife; DOES I through V, inclusive, ) ) Defendants. ) ______________________________ ) ) ) Plaintiffs hereby request that pursuant to Rule 16 of the Federal Rules of Civil Procedure, this Court order a new settlement conference before previously agreed-upon mediator Christopher Skelly, who presided over a mediation conference in this case in 2004. At the time

Case 2:02-cv-02252-JAT

Document 224

Filed 09/12/2005

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of the last mediation, the insurers for Defendant CHR and its employees, Arch Specialty and Lexington/AIG, balked at funding a reasonable settlement because of an insurance coverage dispute between them. Lexington/AIG took the position that Arch's policy provided coverage to the CHR defendants and, as a result of an "other insurance" clause in Lexington/AIG's policy, the Lexington/AIG's policy did not apply. A federal district court in Michigan has recently entered a ruling on this insurance coverage dispute as it relates to Arch's coverage for Defendant CHR. That court found that Arch's policy did not provide coverage for CHR, i.e., effectively determining that the Lexington/AIG policy provides coverage for Defendant CHR in this case. This ruling regarding insurance coverage did not address insurance coverage for CHR employees/defendants Faiver and Rich. Plaintiffs also take the position that the ruling does not bind them, since Arch failed to join them as parties in that insurance coverage litigation. Nonetheless, the ruling presumably has, at least in the view of the two insurance companies involved -- Lexington/AIG and Arch -- resolved at least in part their coverage dispute. In other words, Lexington/AIG, which in 2004 balked at a reasonable settlement without contribution from Arch, presumably now will be more receptive to negotiating a reasonable settlement with plaintiffs. Further, by Order dated September 7, 2005, the Court has now ruled on all dispositive motions, and by Order dated September 9, 2005, the Court has set this matter for trial to commence on Tuesday, November 29, 2005. Plaintiffs believe that the Court's rulings on the dispositive motions will provide the parties with further incentive and basefor reaching a settlement. Based upon the foregoing, Plaintiffs respectively request that this Court order that a settlement conference to be attended in person by all the parties, their counsel and representatives of defendants' insurers -- Lexington/AIG and Arch -- having settlement authority, be conducted by mediator Christopher Skelly and take place within the next 30 days.

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RESPECTFULLY submitted this 12th day of September, 2005.

BEALE, MICHEAELS & SLACK, P.C.

By

/s/ John A. Micheaels John A. Micheaels 1440 East Missouri Avenue, #150 Phoenix, Arizona 85014 Attorneys for Plaintiff Dennis Mikkelsen

CLARK AND MORE
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By
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/s/ John A. Micheaels for A. James Clark, Esq. 256 South Second Avenue, Suite E Yuma, Arizona 85364 Attorneys for Plaintiffs Rebecca Mikkelsen, et al

Original/Copy of the foregoing mailed/ delivered this 12th day of September, 2005, to:

Clerk of the U.S. District Court 401 West Washington Street 17 Phoenix, Arizona 85003 Honorable James A. Teilborg U. S. District Court 19 401 West Washington Street Phoenix, Arizona 85003
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A. James Clark, Esq. CLARK & MOORE 256 South Second Avenue, Suite E Yuma, Arizona 85364 Attorneys for Plaintiffs Rebecca Mikkelsen, et al, . James W. Barnhouse, Esq. RENAUD, COOK, DRURY & MESAROS, P.A. One North Central Avenue, #900 Phoenix, Arizona 85004 Attorneys for Defendants Correctional Health Resources, Inc., Faiver and Rich

Michael J. Aboud Esq. ABOUD & ABOUD 2 100 North Stone Avenue, #303 Tucson, Arizona 85701 3 Co-Counsel for Plaintiff Fox
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Mary K. Boyte, Esq. BOYTE & MINORE, P.C. 5 150 W. Second Street Yuma, Arizona 85364 6 Co-Counsel for Plaintiff Fox
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By /s/ Sue Ketz