Opinion
Bankruptcy No. 00-19258-LBR.
September 28, 2004
ZACHARIAH LARSON, ESQ., LARSON LAW FIRM, Las Vegas, Nevada, Attorney for Creditors.
STIPULATION AND ORDER TO LIFT STAY TO PROCEED AGAINST UNITED STATES AIRCRAFT INSURANCE GROUP AND/OR UNITED STATES AVIATION UNDERWRITERS
Hanneh Khoury and George Khoury, ("Creditors"), by and through its attorneys, the Larson Law Firm, and Zachariah Larson, Esq., and the Bankruptcy Estate of National Airlines, Inc., a Delaware Corporation, by and through Chapter 7 Trustee, Tom Grimmett ("Trustee"), hereby stipulate and agree as follows:
1. Debtor commenced a Chapter 11 bankruptcy on or about December 06, 2000. The Debtor converted to a Chapter 7 bankruptcy on May 07, 2004.
2. Claimants, Hanneh Khoury and George Khoury, currently have a personal injury civil action pending against Debtor, National Airlines, Inc., in the Circuit Court Seventeenth Judicial Circuit, in and for Broward County, Florida entitled Hanneh Khoury and George Khoury v. National Airlines, Inc., Case No.: 02-23931 CACE (25).
3. A true copy of the Complaint is attached hereto and made a part hereof as Claimants Exhibit "A".
4. The Debtor has indicated that it has liability insurance with United States Aviation Underwriters, substantially in excess of one million dollars. See the attached letter from Francis A. Anania of March 9, 2004 regarding liability insurance coverage, attached as exhibit "B".
5. Claimants are only seeking to recover for their damages, not to exceed the amount of NATIONAL AIRLINES' liability insurance limits with United States Aircraft Insurance Group.
6. Claimants respectfully requests that this Court provide relief from the Automatic Stay regarding the Bankruptcy.
7. As such, the Trustee has determined that the claimants should be allowed relief from the automatic stay so they shall pursue relief available under the Debtor's liability insurance coverage referred to herein.
ORDER
IT IS HEREBY ORDERED as follows:
1. The Claimants, Hanneh Khoury and George Khoury, have been granted Relief from the Automatic Stay and are allowed to pursue relief available under the Debtor's liability insurance coverage referred to herein.
2. For such other relief as this Honorable Court deems necessary.
EXHIBIT "A"
IN THE CIRCUIT COURT OF THE SEVENTEENTH JUDICIAL CIRCUIT, IN AND FOR BROWARD COUNTY, FLORIDA.
HANNEH KHOURY CASE NO.: 25 and GEORGE KHOURY, Plaintiffs, 0223931
v.
NATIONAL AIRLINES, INC., a foreign corporation, and JOHN DOE Defendants.
COMPLAINT
COME NOW the Plaintiffs, HANNEH KHOURY and GEORGE KHOURY, by and through their undersigned attorneys, and sue the Defendants, NATIONAL AIRLINES, INC., a foreign corporation, and JOHN DOE and as grounds therefore states:
1. This is an action for damages in excess of Fifteen Thousand ($15,000.00) Dollars.
2. At all times material hereto, the Plaintiffs, HANNEH KHOURY and GEORGE KHOURY were and still are residents of Miami-Dade County, Florida.
3. At all times material hereto, the Defendant, NATIONAL AIRLINES, INC., (hereinafter referred to as "NATIONAL"), was a foreign corporation, authorized and, in fact, doing business in Miami-Dade County, Florida.
4. At all times material hereto the Defendant, NATIONAL, was a common carrier of passengers for hire by aircraft and maintains offices in Miami-Dade County, Florida.
5. At all times material hereto, NATIONAL'S Miami-Dade County offices were staffed by business agents and residents of the State of Florida, and said offices are involved in their customary transaction of NATIONAL'S business in the State of Florida.
6. At all times material hereto, NATIONAL, is responsible for the negligent acts of its agents, employees, or representatives that cause harm to the public, and in particular, Plaintiff, HANNEH KHOURY.
7. At all times material hereto, the Defendant, NATIONAL, operated and maintained the subject Flight #80, a regularly scheduled commercial flight originating from Miami International Airport, Miami-Dade County, Florida.
8. On or prior to July 19, 2002, Plaintiffs, HANNEH KHOURY and GEORGE KHOURY, purchased tickets from Defendant, NATIONAL, thereby entering into a contract with NATIONAL for the safe transportation and carriage on NATIONAL Flight #80.
9. At all times material hereto, Plaintiffs, HANNEH KHOURY and GEORGE KHOURY, were lawful passengers on NATIONAL Flight #80 and the relationship of passenger and carrier existed between Plaintiffs, HANNEH KHOURY and GEORGE KHOURY, and NATIONAL.
80. At all times material hereto, Defendant, JOHN DOE, was a lawful passenger on the subject NATIONAL Flight #80.
11. At all times material hereto, upon information and belief, Defendant, JOHN DOE, was and is a Florida resident.
12. At all times material hereto, NATIONAL employed flight attendants on NATIONAL Flight #80 that were responsible for the supervision, safety and maintenance of the passengers on said flight.
13. On or about July 19, 2002, while on NATIONAL Flight #80, Plaintiff, HANNEH KHOURY, was struck in the head from fallen luggage from the overhead compartment.
14. As a direct, proximate, and foreseeable result of the negligence of the Defendants, HANNEH KHOURY, sustained serious injury from the above incident.
COUNT I NEGLIGENCE OF NATIONAL
Plaintiff, HANNEH KHOURY, realleges and reavers paragraphs 1 — 14 as if fully set forth herein, and would further state:
15. At all times material hereto, the Defendant, NATIONAL, by and through its agents, employees or representatives, owed a duty to Plaintiff, HANNEH KHOURY, its passenger, to exercise the highest degree of care for her supervision and safety while on NATIONAL Flight #80.
16. At all times material hereto, the Defendant, NATIONAL, by and through its agents, employees or representatives, was negligent and breached the above duty as follows:
a. by failing to properly assist the passengers boarding the aircraft with storage of luggage and personal items in their overhead compartments;
b. by failing to properly supervise the passengers boarding the subject aircraft;
c. by failing to properly supervise the placement of luggage and personal items in the overhead compartments;
d. by failing to prevent passengers from placing luggage in overhead compartments that were already filled to capacity;
e. by failing to prevent passengers from boarding the aircraft with bulky luggage and personal items that, were placed in overhead compartments, would fall out of or cause other luggage to fall out of the overhead compartments;
f. by failing to prevent improper and oversized luggage from being placed into the overhead compartments;
g. by failing to properly assist the passengers disembarking the aircraft with their luggage from the overhead compartment; or
h. by failing to properly supervise the passengers disembarking the aircraft with their luggage from the overhead compartment.
17. As a direct, proximate and foreseeable result of the negligence of the Defendant, NATIONAL, by and through its agents, employees or representatives, the Plaintiff, HANNEH KHOURY, was injured in and about her body and/or aggravated a preexisting condition or injury, suffered pain therefrom, incurred medical and related expenses in the treatment of her injuries, suffered physical handicap, suffered loss of wages and her working ability was impaired, sustained permanent injuries within a reasonable degree of medical probability and/or permanent loss of bodily function and has lost the capacity for the enjoyment of life.
18. In that the injuries suffered by the Plaintiff, HANNEH KHOURY, are continuing in nature, she will continue to suffer pain, aggravation of pre-existing injuries, loss of wages, physical handicap and permanent injury in the future and will be further compelled to expend great sums for medical care and related treatment for those injuries.
WHEREFORE, Plaintiff, HANNEH KHOURY, demands judgment for damages against the Defendant, NATIONAL, together with costs and interests and demands trial by jury on all issues triable as of right by jury.
COUNT II NEGLIGENCE OF JOHN DOE
Plaintiff, HANNEH KHOURY, reallege and reaver paragraphs 1 — 14 as if fully set forth herein and would further state:
19. At all times material hereto, the Defendant, JOHN DOE, as a fellow passenger on Flight #80, owed a duty to HANNEH KHOURY to exercise reasonable care in his actions as a passenger on said flight regarding the safety towards other passengers.
20. At all times material hereto, the Defendant, JOHN DOE, was negligent and breached the above duty as follows:
a. by failing to safely place his luggage in the overhead compartment;
b. by failing to place proper size luggage in the overhead compartment; or
c. by improperly retrieving his luggage from the overhead compartment when the aircraft was still moving and had not pulled into the gate.
21. As a direct, proximate and foreseeable result of the negligence of the Defendant, JOHN DOE, the Plaintiff, HANNEH KHOURY, was injured in and about her body and/or aggravated a pre-existing condition or injury, suffered pain therefrom, incurred medical and related expenses in the treatment of her injuries, suffered physical handicap, suffered loss of wages and her working ability was impaired, sustained permanent injuries within a reasonable degree of medical probability and/or permanent loss of bodily function and has lost the capacity for the enjoyment of life.
22. In that the injuries suffered by the Plaintiff, HANNEH KHOURY, are continuing in nature, she will continue to suffer pain, aggravation of pre-existing injuries, loss of wages, physical handicap and permanent injury in the future and will be further compelled to expend great sums for medical care and related treatment for those injuries.
WHEREFORE, Plaintiff, HANNEH KHOURY, demands judgment for damages against the Defendant, JOHN DOE, together with costs and interests and demands trial by jury of all issues triable as of right by jury.
COUNT III DERIVATIVE CLAIM OF PLAINTIFF, GEORGE KHOURY
Plaintiff, GEORGE KHOURY, realleges and reavers paragraphs 1 — 14 as if fully set forth herein and would further state:
23. At all times material hereto, the Plaintiff, GEORGE KHOURY, was and is the lawful husband of the Plaintiff, HANNEH KHOURY.
24. As a direct and proximate result of the carelessness and negligence of the defendants, the Plaintiff, GEORGE KHOURY, has suffered and will continue to suffer the loss of HANNEH KHOURY's services, support, consortium and the care and comfort of his society.
WHEREFORE, Plaintiff, GEORGE KHOURY, demand judgment for damages against the Defendants, NATIONAL and JOHN DOE, together with costs and interests and demands trial by jury of all issues triable as of right by jury.
KRUPNICK, CAMPBELL, MALONE, BUSER, SLAMA, HANCOCK, McNELIS LIBERMAN McKEE, P.A. Attorney for Plaintiff 700 Southeast Third Avenue Courthouse Law Plaza, Suite 100 Fort Lauderdale, Florida 33316 (954) 763-8181
BY: WALTER G. CAMPBELL, JR., ESQUIRE Florida Bar No.: 161009
EXHIBIT "B" ANANIA, BANDKLAYDER, BLACKWELL, BAUMGARTEN, TORRICELLA STEIN ATTORNEYS AT LAW BANK OF AMERICA TOWER, SUITE 4300
FRANCIS A. ANANIA 100 SOUTHEAST SECOND STREET DANIEL K. BANDKLAYDER MIAMI, FLORIDA 33131-2144 TELEPHONE (305) 373-4900 DONALD A. BLACKWELL FACSIMILE (305) 373-6914 MAURICE J. BAUMGARTEN ROBERTO A. TORRICELLA, JR. DOUGLAS H. STEIN ANA M. ALEXANDER HUGH J. BEHAN ALLISON B. DUFFIE HEATHER M. MacKENDREE J. KEITH RAMSEY MICHAEL T. TOMLIN March 9, 2004 SONIA A. ZELEDON
Eric M. Ellsley, Esq. Krupnick, Campbell, Malone, et al. Courthouse Law Plaza, Suite 100 700 S.E. Third Avenue Ft. Lauderdale, Florida 33316
Re: Khoury vs. National Airlines, Inc. Case No: 02-23931 (25)
Dear Rick:
You have requested insurance information for National Airlines. Coverage was issued by and through United States Aviation Underwriters, Inc., as aviation managers for and on behalf of the member companies of United States Aircraft Insurance Group. National's liability limits are substantially in excess of $1 million. No reservation of rights or denial of coverage has been issued with respect to Plaintiff's claim.
I was in trial at the time of mediation, but I understand that the parties made some progress toward settlement. We should speak to determine if we can't resolve this matter in the near future.
Very truly yours,
Francis A. Anania
FAA:jam