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Brown v. Aramark Services, Inc.

United States District Court, N.D. Illinois, Eastern Division

October 28, 2019

GEORGE BROWN, Plaintiff,
v.
ARAMARK SERVICES, INC., a Delaware Corporation, ARAMARK FACILITY SERVICES, LLC, a Delaware Limited Liability Company, ARAMARK MANAGEMENT, LLC, a Delaware Limited Liability Company, and/or ARAMARK UNIFORM & CAREER APPAREL, LLC, a Delaware Limited Liability Company, Defendants.

         File No. 170721-A

          MAGISTRATE HONORABLE JEFFREY T. GILBERT JUDGE

          MOTION FOR JUDGMENT, COSTS AND INTEREST

          HONORABLE JOHN ROBERT BLAKELY JUDGE

         NOW COMES the Plaintiff GEORGE BROWN by his attorneys Law Offices of Heller, Trakhtman and Associates under and pursuant to 735 ILCS §5/2-2301 (Westlaw 2019) and respectfully requests that this Court enter Judgment against the Defendants, ARAMARK SERVICES, INC., a Delaware Corporation, ARAMARK FACILITY SERVICES, LLC, a Delaware Limited Liability Company, ARAMARK MANAGEMENT, LLC, a Delaware Limited Liability Company, and/or ARAMARK UNIFORM & CAREER APPAREL, LLC, a Delaware Limited Liability Company for the amount set forth in the executed release, plus costs incurred in obtaining the judgment and interest at the rate specified under 735 ILCS § 5/2-1303 (Westlaw, 2019) and in support of such states as follows:

         1. This matter was settled by agreement of the parties on April 3, 2019 after a Pretrial with the Honorable Judge, Jeffrey T Gilbert.

         2. That the Settlement Checklist and Term Sheet executed and entered into by all of the parties in this matter expressly states that all parties to this litigation consent to the Magistrate Judge's Jurisdiction over this settlement. A copy of such Settlement Checklist and Term Sheet is attached hereto and made a part hereof as Exhibit A.

         3. That on September 26, 2019 after Plaintiff's counsel, Steven Trakhtman, spoke to Adam Metcalf, a representative from Sedgwick, the Defendants' Insurance Company regarding Plaintiff, George Brown's wishes to not set up a Medicare Set Aside in this matter. Plaintiff's counsel emailed Mr. Metcalf and Defense Counsel, Craig M. Derrig and Keith K. Ybanez the executed Release and Settlement Agreement, Plaintiff law firm's W-9, the final demand letter from Medicare dated September 24, 2019 and a letter that Plaintiff's counsel forwarded to Medicare on September 16, 2019 requesting a final demand from Medicare and correspondence regarding a Medicare Set-Aside along with a narrative report from Dr. Levy, Plaintiff's orthopaedic surgeon dated July 24, 2019 and a letter signed by George Brown in regards to a Medicare set aside dated September 7, 2019. A copy of the Plaintiff's September 26, 2019 email is attached hereto and made a part hereof as Exhibit B. A copy of the Plaintiff's executed Release and Settlement Agreement which was forwarded to Defense counsel on September 26, 2019 is attached hereto and made a part hereof as Exhibit C.

         4. That the letter Plaintiff's counsel forwarded to Medicare on September 16, 2019 requesting final payoff information from Medicare and correspondence regarding a Medicare Set-Aside specifically stated and informed Medicare that the Plaintiff's orthopaedic surgeon, Dr. Levi stated in his July 24, 2019 narrative report that the Plaintiff, George Brown may require reverse right total shoulder surgery in the future as a consequence of the right shoulder injury sustained by him in the December 13, 2015 accident which was at issue in this case. Dr. Levy's July 24, 2019 narrative report was forwarded to Medicare by Plaintiff's counsel along with the September 16, 2019 letter requesting final payoff information from Medicare and correspondence regarding a Medicare Set-Aside. The September 16, 2019 letter which Plaintiff's counsel forwarded to Medicare requesting final payoff information and correspondence regarding a Medicare Set-Aside along with a narrative report from Dr. Levy dated July 24, 2019 a letter signed by Plaintiff, George Brown in regards to a Medicare Set-Aside dated September 7, 2019 are attached hereto and made a part hereof as Group Exhibit D.

         5. That the letter Plaintiff's counsel forwarded to Medicare on September 16, 2019 requesting final payoff information from Medicare and correspondence regarding a Medicare Set-Aside specifically stated and informed Medicare that the Plaintiff, George Brown has reviewed Dr. Levi's narrative report and does not intend to have any future surgeries performed on his right shoulder and as he does not plan on having any future surgeries performed on his right shoulder he does not wish to allocate any of his settlement funds in this case to a Medicare Set-Aside for such purpose. See Group Exhibit D. The September 16, 2019 letter to Medicare goes on to state that Plaintiff, George Brown understands that should he change his mind in the future and decide to have such surgery performed on his right shoulder as discussed in Dr. Levi's narrative report that Medicare may not pay for such surgery and that in such case he would be responsible for the surgery costs. A letter signed by George Brown, dated September 7, 2019 regarding his wishes to not set up a Medicare Set-Aside was forwarded to Medicare by Plaintiff's counsel along with the September 16, 2019 letter requesting final payoff information from Medicare and correspondence regarding a Medicare Set-Aside. See Group Exhibit D.

         6. On September 24, 2019 CMS forwarded to Plaintiff's counsel a final demand letter which on the second page stated the following in regards to Plaintiff's future medical treatment and Medicare Set Aside “Although the file is closed please understand that Medicare has no responsibility to pay for any claims related to the above referenced case that were incurred from the date of incident until the day after the case was finalized (settled). Medicare has no responsibility for these claims as they should be paid out of any settlement, judgment, or award proceeds.” A copy of the CMS's September 24, 2019 final demand letter is attached hereto and made a part hereof as Exhibit E.

         7. Defense counsel and the Defendant's insurance company were in receipt of CMS's final demand letter from Plaintiff's counsel on September 26, 2019 and were aware of the above correspondence from Medicare. See Exhibit B. Also per Plaintiff's counsel, Steven Trakhtman's previous correspondence with defense counsel, defense counsel was aware that Plaintiff, George Brown did not want a Medicare Set-Aside to be set up. A copy of the Plaintiff counsel's August 7, 2019 email to defense counsel is attached hereto and made a part hereof as Exhibit F.

         8. On October 14, 2019 Plaintiff's counsel emailed defense counsel inquiring as to the status of the settlement check in this matter. A copy of the Plaintiff counsel's October 14, 2019 email to defense counsel is attached hereto and made a part hereof as Exhibit G.

         9. On October 18, 2019 Plaintiff's counsel received an email from defense counsel that his client cannot issue the check because its vendor needs to work on the Medicare Set-Aside so that they can present it to the Plaintiff and put this amount in a new release for the Plaintiff to sign. See 10. After receiving the above email Plaintiff's counsel, Steven Trakhtman called Defendants' counsel, Craig Derrig. Mr. Trakhtman was informed by Mr. Derrig during this telephone conversation that even though the Defendant's insurance company is aware that Plaintiff will refuse to have a Medicare Set-Aside (MSA) set up, from Plaintiff's previous correspondence to them, they still want to put a proposal for an MSA in the Settlement Release Agreement for Plaintiff to reject it prior to issuing a settlement check.

         11. The Defendants' reasoning above makes no logical sense and has no purpose other than to delay the issuing of ...


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