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Trustees of the Carpenters' Health and Welfare Trust Fund of St. Louis v. Darr

March 5, 2010

TRUSTEES OF THE CARPENTERS' HEALTH AND WELFARE TRUST FUND OF ST. LOUIS, PLAINTIFFS,
v.
LANNY H. DARR II, AMES COREY MILLER, AND KIMBERLY MILLER, DEFENDANTS.



The opinion of the court was delivered by: Herndon, Chief Judge

PERMANENT INJUNCTION ORDER

I. Introduction

On February 25, 2010, the Court held oral argument on Defendants' motion to dismiss and dissolve Temporary Restraining Order entered February 18, 2010 and Plaintiffs' motion for Preliminary Injunction Order (Doc. 29). Based on the record, the oral argument and the applicable law, the Court orally denied Defendants' motion to dismiss and granted the motion for preliminary injunction which the Court consolidated to a trial on the merits. Based on the reasons thoroughly stated on the record during the February 25, 2010 hearing and pursuant to FEDERAL RULE OF CIVIL PROCEDURE 52(a), the Court enters the following Findings of Fact and Conclusions of Law as to the Permanent Injunction.

II. Findings of Fact*fn1

1. Plaintiffs are the Trustees of the Carpenters' Health and Welfare Trust of St. Louis ("the Plan"), an employee benefit plan subject to the provisions of the Employee Retirement Income Security Act of 1974 ("ERISA"), 29 U.S.C. § 1001 et seq.

2. Defendant James Corey Miller is a Member and a covered person under the Plan, eligible for Plan benefits.

3. Defendant Kimberly Miller is the wife of James Miller, and as Miller's dependent, is a covered person under the Plan, eligible for Plan benefits.

4. Defendant Lanny H. Darr II is an attorney and represents the Millers.

5. James Miller was injured on or about May 4, 2006, due to a fall from a ladder, for which a third party may have been legally responsible.

6. The Plan states that "[i]n the event that a covered person shall recover any amount from a third party, by judgment, settlement or otherwise, for an act or omission causing an injury or sickness for which the Plan paid benefits, the covered person shall be obligated to immediately reimburse the Plan for all such benefits paid,..."

7. The Plan also contains provisions stating that it is not obligated to pay or contribute to or be charged for any part of any attorney's fees or other expenses incurred by a covered person to obtain a third-party recovery, and all such fees and expenses are the obligations of the covered person alone.

8. On February 26, 2008, the Plan received from Defendants Miller and Darr a Subrogation Agreement containing an assignment of "any and all proceeds" Miller might receive from any third party on account of his injuries, "without any deduction whatsoever" up to the amount of benefits paid by the Plan. This Agreement was signed by both Miller and Darr on February 22, 2008.

9. Based on the Subrogation Agreement and the representations of Miller and Darr that they would abide by the provisions of the Plan, the Plan advanced $86,709.73 in benefits on account of Miller's injuries.

10. Thereafter, the Millers, by and through Darr, filed a personal injury case, James Miller and Kimberly Miller v. Roger Cone, No. 08-L-168, in the Circuit Court of Madison County, Illinois. After ...


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