Opinion
CASE NO. 02-43582-H4-11, Jointly Administered
January 4, 2004
Marcy E. Kurtz, BRACEWELL PATTERSON, L.L.P., Houston, Texas, for Counsel to the Debtors' Disbursing Agent
David L. Augustus, SPENCER ASSOCIATES, P.C., Houston, TX, for Counsel to Walter C. Behnke Lynn Behnke
STIPULATION AND AGREED ORDER REGARDING MOTION OF WALTER C. BEHNKE LYNN BEHNKE TO FILE LATE PROOF OF CLAIM
Encompass Services Corporation and its subsidiaries (the "Debtors") and Walter C. Behnke Lynn Behnke (the "Behnkes") (collectively with the Debtors, the "Parties") stipulate as follows:
1. WHEREAS, on November 19, 2002, the Debtors filed their voluntary petitions for relief under Chapter 11 of the United States Bankruptcy Code.
2. WHEREAS, on May 21, 2003, this Court entered an order confirming the Immaterially Modified Second Amended Join Plan of Reorganization of Encompass Services Corporation and its Affiliated Debtors Under Chapter 11 of the Bankruptcy Code and supplemented by the Plan Supplement, the First Amended Plan Supplement, and the Second Amended Plan Supplement (collectively, the "Plan"). On June 9, 2003, the Plan became effective.
3. WHEREAS, as of the Effective Date, and pursuant to Article 5.3 of the Plan, each of Debtor's assets and liabilities were merged with and pooled with the assets and liabilities of each of the other Debtors, and each and every claim filed or to be filed in the Chapter 11 case of any of the Debtors is deemed filed against the consolidated Debtors and is deemed one claim against, and obligations of, the consolidated Debtors.
4. WHEREAS, by its February 26, 2003 Order (I) Fixing the Place and Last Date for Filing Proofs of Claim (II) Approving the Proposed Proof of Claim Form (III) Fixing the Date, Time, and Place for a Hearing to Consider Confirmation of the Disclosure Statement (IV) Fixing the Last Date for Filing Objections to the Disclosure Statement (V) Fixing the Date, Time, and Place for a Hearing to Consider Confirmation of the Plan (VI) Fixing the Last Date for Filing Objections to the Plan and (VII) Prescribing the Form and Manner of Notice, the Court ordered that the deadline to file a proof of claim for non-governmental entities was April 15, 2003.
5. WHEREAS, on November 26, 2003, the Behnkes filed their Motion to File Late Proof of Claim (the "Motion") against the Debtors for damages associated with a lawsuit pending in the Superior Court of New Jersey, Law Division — Camden County, entitled Walter C. Behnke and Lynn Behnke v. Costa and Rihl Mechanical Contractors Inc. and John Doe (1-10) (Docket No. CAM-L-3193-01).
6. WHEREAS, the Disbursing Agent objects to the Behnkes1 right to file a late claim against the Debtors' estate.
7. WHEREAS, for the reasons stated in the Motion, the Behnkes contend that their right to file a late proof of claim is meritorious.
8. WHEREAS, the Debtors assert that the Behnkes1 motion is not meritorious because, among other things, the March 5, 2003 service list used by Bankruptcy Services LLC to notice and serve the Proof of Claim form and its accompanying documents includes Walter C. Behnke's name and address.
9. WHEREAS, the Disbursing Agent believes that the Behnkes' claim, if determined to be valid, is fully funded by the Debtors' insurance policies.
10. WHEREAS, the Behnkes and the Debtors wish to enter into this Stipulation and Agreed Order to amicably resolve all disputes relating to the Motion.
NOW THEREFORE, THE PARTIES HERETO STIPULATE AS FOLLOWS:
1. the Behnkes' claim is allowed for the exclusive purpose of enabling them to liquidate their claims against the Debtors and pursue compensation for their claims from any of the Debtors' applicable insurance policies. The Behnkes expressly waive any right or entitlement to receive a distribution from the Debtors' estate for their claims. The Behnkes' proof of claim is disallowed for any other purpose;
2. this Stipulation is not an admission of liability on the underlying obligation of the Behnkes' claim;
3. the Behnkes may not reassert their claim for distribution from the Debtors' estate even if the Behnkes1 claim is denied coverage under the Debtors' applicable insurance policies;
4. the Behnkes may not reassert against the Debtors' estate any amount of their claim that is in excess of the Debtors' applicable insurance policies;
5. the Behnkes do not have any other claims in the Debtors' bankruptcy cases; and
6. the Debtors expressly reserve the right to object to any claim not subject to this Stipulation.
IT IS HEREBY ORDERED that the Stipulation is approved
IT IS HEREBY ORDERED that the Stipulation is approved.