Document ZnLgBYZm1vaoZ1Lrgzx2p52GJ

# (P*-**^.) * ' UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA FLETCHER MCDANIEL, et ux., PLAINTIFF'S ;^;e(HiSiX,,/ ';:^t^377:-v^v; Plaintiffs, Civil Action No. 83-3520 v. Judge Thomas Flannery ARMSTRONG WORLD INDUSTRIES, INC., et al., Defendants. * * * fc" i l*. L NOV S . 1985 PLAINTIFFS' MOTION FOR VOLUNTARY DISMISSAL WITH PREJUDICE OF DEFENDANTS TURNER & NEWALL PLC, (FORMERLY TURNER & NEWALL, LTD.), J.W. ROBERTS, LTD., ARMSTRONG WORLD INDUSTRIES, INC., AND AC&S COMPANY, INC. Come now the Plaintiffs by and through their counsel, Ashcraft & Gerel, and pursuant to Rule 41(a)(2) of the Federal Rules of Civil Procedure move this Court for the entry of an Order voluntarily dismissing, with prejudice. Plaintiffs' claim against Defendants Turner & Newall, PLC (formerly Turner & LAW OFFICES ASHCRAFT & GEREL turn 700 2000 L STREET. M. W. vashinoton. d. c. 20020 20i>7!34400 suite mao 4660 KENMORE AVENUE ALEXANDRIA. VA. 22004 702-701.7400 SUITE 100ft ONE CENTRAL PLAZA 11200 ROCKVILLE PtlCE ROCKVILLE. MD. 20682 201.770*727 SUITE 101 METRO 400 BUILDING LAMDOVER. MD. 20708 201*80*400 SUITE SOS EAST BALTIMORE STREET BALTIMORE. MD. 21202 201.520.1122 Newall, Ltd.), J. W. Roberts, Ltd., Armstrong World Industries, Inc., and AC&S Company, Inc. The grounds supporting this Motion are set forth in the accompanying Memorandum of Points and Authorities Respectfully submitted. 2000 L Street, N.W. Suite 700 Washington, D.C. 20036 (202) 783-6400 Attorneys for Plaintiffs UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA FLETCHER MCDANIEL, et UX., Plaintiffs, v. ARMSTRONG WORLD INDUSTRIES, INC., et al^, Defendants. * Civil Action No. 83-3520 * Judge Thomas Flannery * r i im i~- . NOV 5'. 1985 * CLESK, U.S. DISTRICT COURT -------------------------------- ---- -- <-`"V * I* *?* ^ MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFFS' MOTION FOR VOLUNTARY DISMISSAL WITH PREJUDICE OF TURNER & NEWALL, PLC (FORMERLY TURNER & NEWALL, LTD.), J.W. ROBERTS, LTD., ARMSTRONG WORLD INDUSTRIES, INC. AND AC&S COMPANY, INC. Recently, Plaintiffs entered into a settlement agreement with Defendants Turner & Newall, PLC (formerly Turner & Newall, Ltd.), J. W. Roberts, Ltd., Armstrong World Industries, Inc. and AC&S Company, Inc. resolving their claims against these LAW OFFICES ASHCRAFT A OEREL SUITS 700 lOOO L STREET. N. W. WASHINGTON. D. C. SOOSS ooa*7i 0400 suite iao 4M0 KENMORE AVENUE ALEXANDRIA* VA. SES04 700*701*7400 SUITE lOOt ONE CENTRAL PLAZA IISOO ROCKVILLE PIKE ROCKVILLE. MD. SOSOS 001*7704707 SUITS IOI METRO 400 BUILDING LANDOVER. MD. S07SS SUITE SOS * EAST BALTIMORE STREET BALTIMORE. MD. 21202 301*500.| Itt Defendants. Accordingly, Plaintiffs move the Court for an Order dismissing their action against these Defendants with prejudice as is provided by Rule 41(a)(2). Such a dismissal will not prejudice the rights of any of the remaining Defendants to this action. Respectfully submitted. T. Enslein ^ James F. Green Robert B. Adams 2000 L Street, N.W. Suite 700 Washington, D.C. 20036 Attorneys for Plaintiffs CERTIFICATE OF SERVICE I HEREBY CERTIFY that a copy of the foregoing was mailed, except as indicated below, postate prepaid, this of tidCKSkLo" , 1985 to: day LAW OFFICES ASHCRAFT A OEREL sum 700 sooo l men, m. w. WASHINGTON, O. C. 20028 202-709-6400 SUITE 220 4660 KENMORK AVENUE ALEXANDRIA, VA. 22204 702-791-7400 sum loos ONE CENTRAL PLAZA 11200 ROCKVILLE POLE ROCKVILLE. MD. 20662 201.770-2727 sum 101 METRO 400 BUILDINO LANDOVER. MD. 207SB sum SOS O EAST BALTIMORE STREET BALTIMORE. MD. 21202 201-822-1122 Michael P. Chervenak, Esq. FORD & O'NEIL 17 West Jefferson Street Rockville, Maryland 20850 Attorney for Armstrong World Industries, Inc. Kevin J. McCarthy, Esq. Charles E. Gallagher, Jr., Esq. O'MALLEY, MILES, FARRINGTON & MCCARTHY 99 Commerce Place Upper Marlboro, Maryland 20772 Attorneys for A. C. & S. H. Patrick Donohue, Esq. DONAHUE, EHRMANTRAT & MONTEDONICO, CHARTERED 51 Monroe Street Suite 700 Rockville, Maryland 20850 Attorney for Atlas Turner, Inc. and Bell Asbestos Mines, Ltd. Charles E. Dorkey, III, Esq. RICHARDS, O'NEIL & ALLEGAERT 15th Floor 660 Madison Avenue New York, New York 10021 Attorney for Turner 6 Newall, PLC Hopewell H. Darneille, III, Esq. BOWMAN, CONNER, TOUHEY & PETRILLO, P.C. 2828 Pennsylvania Avenue, N.W. Washington, D.C. 20007 _ Attorney for Turner & Newall, PLC, Turner & Newall, Ltd, & J. W. Roberts Company Patrick J. Attridge - HAND DELIVERED BROMLEY, BROWN AND WALSH 51 Monroe Street Suite 806 Rockville, Maryland 20850 Attorney for United States Mineral Products Company 5424A LAW omcu ASHCRAFT ft GEREL SUITS 700 sooo l street. n. w. WASHINGTON. O. C. 20094 a02.783.4400 SUITE 220 4440 KENMORE AVENUE ALEXANDRIA. VA. 22904 704-741*7400 SUITE IOOS ONE CENTRAL PLAZA 11900 ROCKVILLE PUCE ROCKVILLE. MD. 20SSS S0I.770-4797 SUITE 101 METRO 400 BUILDING LANDOVER. MD. 207SS S0I-4SS-S400 SUITE SOS 0 EAST BALTIMORE STREET BALTIMORE. MD. 21202 901.399.1122 Edward J. Lopata, Esq.^ HAND DELIVERED JORDAN, COYNE, SAVITS & LOPATA 1030 15th Street, N.W. Suite 500 Washington, D.C. 20005 Attorney for W. R. Grace Company Louis G. Close, Jr., Esq. Edward M. Buxbaum, Esq. WHITEFORD, TAYLOR, PRESTON, TRIMBLE & JOHNSTON 500 Brawner Building 888 17th Street, N.W. Washington, D.C. 20006 Attorneys for National Gypsum, U.S. Gypsum, and The Celotex Corporation ASHCRAFT & GEREL Suite 700 2000 L Street, N.W. Washington, D.C. 20036 (202) 783-6400 FILED RELEASE AND SETTLEMENT OF CLAIM NOV 8 1985 CLERK, U.S. DISTRICT COURT. DISTRICT OF COLUMBIA ' WHEREAS, the Plaintiffs, Fletcher McDaniel and Millie McDaniel (hereinafter sometimes referred to as "Plaintiffs"), have instituted a lawsuit captioned, Fletcher McDaniel, et al. v. Armstrong World Industries, Inc., et al.. Civil Action No. 33-3520 in the United States District Court for the District of Columbia, against, inter alia, Turner & Newall PLC (formerly Turner & Newall Limited), J.W. Roberts, Ltd., Armstrong World Industries, Inc. and ACandS, Inc., hereinafter jointly referred to as the "Defendants", for personal injuries and damages; and WHEREAS, Defendants deny any liability; and WHEREAS, Defendants and the Plaintiffs desire to avoid the inconvenience and expense of litigation, including Defendants having to defend cross-claims and/or claims for contribution or indemnity; and WHEREAS, a compromise settlement (the "Release") of all of Plaintiffs* claims and demands against the Defendants has been agreed upon; NOW, THEREFORE, the Plaintiffs, in consideration of Ten Dollars ($10.00) and other good and valuable consideration paid to Plaintiffs and to their attorneys, Ashcraft & Gerel, receipt of which is hereby acknowledged, do hereby remise, release, acquit, and forever discharge the Defendants and all their pre sent and former attorneys, officers, directors, agents, employees, servants, successors in interest, and predecessors in interest; ELxk t b i -h jl all thalr present and former parent and subsidiary corporations (whether or not wholly-owned and whether or not directly owned); and all their assigns# and insurers and the agents# servants and employees of all such corporations (jointly and collectively referred to herein as "Releasees") from any and all claims# demands# damages (including all consequential# punitive and exemplary damages)# actions# causes of action of whatsoever kind or nature# known# unknown# suspected or unsuspected arising out of or in any way growing out of personal injuries having already resulted or that may result at any time in the future# whether or not they are in the contemplation of the parties at the present time and whether or not they arise following the execution of this Release and Settlement of Claim# for any and all known and unknown injuries# diseases and/or disorders from the beginning of the world to the present. Notwithstanding the foregoing# Millie McDaniel reserves any existing or future right of action which she may have in the event that she contracts an actual physical disease as a result of her own exposure to asbestos or asbestos products manufactured# sold# marketed or distributed by the Releasees. The Plaintiffs reserve the right to make a claim against any and every other person and organization and to claim that they# and not the Releasees# are solely liable to the under signed for the injuries# losses and damages. It is understood and agreed that this settlement is in compromise of a disputed claim# and that the payment made is not 3 to be construed as an admission of liability on the part of the Releasees/ and that they deny liability and intend merely to avoid litigation and to buy their peace. It is understood and agreed that the Plaintiffs rely wholly upon their own judgment/ belief and knowledge of the na ture/ extent/ effect and duration of said injuries or possible injuries and liability therefore/ and that this Release is made without reliance upon any statement or representation by the Re leasees or their representatives/ the making of any such state ments or representations being specifically denied. In order to avoid inconvenience and expense to Re leasees of defending any claims for contribution or indemnifica tion/ including/ but not limited tof those in Civil Action No. 83-3520/ pending in the United States District Court for the Dis trict of Columbia/ it is further agreed that the execution of this Release shall operate as a satisfaction of Plaintiffs' claims against any person or entity not a party to this Release to the extent of the pro rata share of common liabilities of the Releasees whether or not the Releasees or any one of them are determined to be joint tortfeasors. This provision is intended to obviate the necessity and expense of having the Releasees be obliged to participate at their expense in a trial merely for the purpose of determining whether the Releasees or any one of them are joint tortfeasors. It is further understood and agreed that the Plaintiffs will hold harmless the parties released herein from any and all -4 liability arising from subrogation claims under any compensation or medical payments due or claimed to be due under the law* state or federal* regulation or contract and from any and all other liability arising out of the claims by the Plaintiffs with the exception of the consideration recited herein. It is the inten tion of the parties to limit the Releasees* liability to the con sideration recited herein. The Plaintiffs agree that they shall take whatever steps are necessary to obtain an order of dismissal with preju dice of their pending claims as to the Releasees in Civil Action No. 83-3520 in the United States District Court for the District of Columbia. Plaintiffs agree that obtaining such dismissal is a precondition to final settlement and disbursement of the con sideration recited herein. Plaintiffs shall bear their own costs of compliance with these provisions. The Plaintiffs further agree to do all acts and to execute whatever documents are appropriate or necessary to give effect to the intent and language of this Release. The Plaintiffs have carefully read the foregoing* and know arid understand the content and meaning thereof* and sign the same as their own free act. Pletcher McDaniel and Millie McDaniel state that they have carefully read the foregoing RELEASE AND SETTLEMENT OP CLAIM and have signed it after consultation with their attorneys and intend to be legally bound hereby. This Release and Settlement of Claim contains the en tire Agreement between the parties hereto* and the terms of this Release are contractual* and not a mere recital. IN WITNESS WHEREOP* and intending to be legally bound* I have hereunto set my hand and seal this _____ day of October* 1985* to this document consisting of a total of five (5) pages each bearing my initials. WITNESSED BY: WITNESSED BY: FLETCHER McDANIEL MILLIE McDANIEL