SUSAN SONDERBY, Chief Judge, Bankruptcy
Upon the motion (the "Motion"), wherein Kmart Corporation and certain of its domestic subsidiaries and affiliates, former debtors and debtors-in-possession in the above-captioned cases (collectively, "Kmart"), moved this Court for entry of an order (the "Procedures Order") approving procedures (the "Claims Resolution Procedure") for (a) liquidating and settling postpetition personal injury claims alleged to have been incurred between January 22, 2002 and May 6, 2003 (the "Personal Injury Claims") through direct negotiation and alternative dispute resolution and (b) modifying the injunction (the "Plan Injunction") set forth in Article XII of the First Amended Joint Plan of Reorganization of Kmart Corporation and its Affiliated Debtors and Debtors-in-Possession, as modified (the "Plan") to permit personal injury claimants (the "Claimants") to proceed with litigation with respect to Personal Injury Claims upon exhaustion of the Claims Resolution Procedures; it appearing to the Court mat (i) it has jurisdiction over the matters raised in the Motion pursuant to 28 US.C, §§ 157 and 1334; (ii) this is a core proceeding pursuant to 28 U.S.C, § 157(b)(2); (iii) the relief requested in the Motion to the extent addressed in tin's Procedures Order is in the best interests of Kmart, Kmart's bankruptcy estates and their creditors; (iv) proper and adequate notice of the Motion and the hearing thereon has been given and that no other or further notice is necessary; and (v) upon the record herein after due deliberation thereon good; the Court should grant the relief as set forth herein,
IT IS HEREBY ORDERED, ADJUDGED AND DECREED THAT:
1. The Motion is deemed an objection to each Personal Injury Claim, whether an Administrative Expense Request Form for such Personal Injury Claim has been filed as of the date of this Order or is subsequently filed in accordance with this Order, pursuant to and in accordance with Section 502 of the Bankruptcy Code, Rule 3007 of the Federal Rules of Bankruptcy Procedure, and Article 10.4 of the Plan.
2. The Claims Resolution Procedure attached hereto as Exhibit 1 is approved in all respects, including, without limitation, the deadlines set forth in the Claims Resolution Procedure. Kmart is hereby authorized to utilize the Claims Resolution Procedure to liquidate and settle Personal Injury Claims through direct negotiation and/or alternative dispute resolution. Due to a previously scheduled mediation with Claimant J.C Kendrick ("Kendrick") regarding his claim number 00051390, Kendrick shall not be required to participate in the Offer-Exchange Process set forth in the Claims Resolution Procedure and the previously scheduled mediation with Kendrick shall be allowed to proceed as agreed by the parties. All other relevant provisions of the Claims Resolution Procedure shall apply to Kendrick, including the provisions for seeking Plan Injunction relief if the mediation is unsuccessful.
3. Except as otherwise stated herein, pursuant to Section 524 of the Bankruptcy Code, Article 12.2 of the Plan, and paragraph 11 of this Court's April 23, 2003 order confirming the Plan, the Plan Injunction remains in effect with respect to the Personal Injury Claims, and each holder of such a Claim is hereby enjoined from commencing or continuing any action, employment of any process, or act to collect, offset, or recover on account of such Claim unless and until the Plan Injunction is modified by this Court in accordance with this Order, Upon service of the Claims Resolution Procedure upon a Claimant along with a copy of the questionnaire (the "Questionnaire"), if applicable, and this Procedures Order, it shall be binding on such Claimant as if set Forth in full herein. The form of the Questionnaire to be Served upon the Claimants attached to the Claims Resolution Procedure as Exhibit A is approved.
4. All applicable statutes of limitation with respect to each Personal Injury Claim shall be deemed tolled from the date of entry of this Order until the date of entry of an order by this Court modifying the Plan injunction with respect to such Claim,
5. Kmart, at its discretion, is authorized to settle Personal Injury Claims in the manner described and contemplated by the Claims Resolution Procedure. Kmart is authorized, without further order of the Court, to settle Personal Injury Claims to the extent necessary to settle such claims at a settled amount equal to or less than $50,000 such that a Claimant will hold an allowed administrative claim against Kmart in the settled amount to be paid in accordance with the Plan. Subject to the following, Kmart is authorized to settle Personal Injury Claims through direct negotiation and/or alternative dispute resolution at settled amounts in excess of $50,000:
(a) in each such case Kmart and the Claimant shall execute a settlement agreement resolving the Personal Injury Claim (the "Settlement Agreement"), evidencing the settled amount and any other material terms of the settlement; and
(b) such Settlement Agreement, along with a notice substantially in the form of the Notice attached hereto as Exhibit 2, shall be served upon the Post-Effective Date Committee appointed in Kmart's bankruptcy cases, and any other party that requests notice in accordance with the Claims Resolution Procedure (the "Notice Parties");
(c) such Settlement Agreement shall be deemed to settle the amount of such administrative claim, as set forth therein, if no objection to the Settlement. Agreement is filed with this Court within ten (10) days of the date of service of the Settlement Agreement on the Notice Parties;
(d) if an objection to the Settlement Agreement is timely filed, the Settlement Agreement shall not be deemed approved until after this Court hears the objection or it is otherwise resolved.
6. Upon the failure of a Claimant to comply with the Claims Resolution Procedure, Kmart reserves the right to seek authority from this Court to have such claims forever barred and disallowed. Further, upon such failure, Kmart reserves the right to request that such Claimant shall not be entitled to relief from the Plan Injunction to establish, liquidate or otherwise engage in any collection of the Personal Injury Claim from Kmart and/or any Third Party Indemnitor.
7. If Claimant has otherwise exhausted the Claims Resolution Procedures, it will be granted relief from the Plan Injunction to pursue litigation of its Personal Injury Claim in an appropriate forum, on the conditions and upon the timing set forth below:
(a) If the parties are unable to settle the Personal Injury Claim after good faith exhaustion of the Claims Resolution Procedures, the parties may tender an agreed stipulation to this Court's Chambers lifting the Plan Injunction so that litigation may proceed on the Personal Injury Claim in the appropriate non-bankruptcy forum, without the need for the filing of a formal motion lifting the Plan injunction.
(b) If a Claimant chooses to file a motion for relief from the Plan Injunction, Claimant shall serve Kmart's counsel with any such motion, along with counsel to the Post Effective Date Committee. The Claimant shall be excused from the other service requirements of the Case Management Order, except those requirements related to the deadlines for filing with respect to omnibus hearings.
(c) Unless a Claimant has exhausted the Claims Resolution Procedure in good faith, Kmart reserves the right to request that the Court shall deny without prejudice any motion for relief from the Plan Injunction,
(d) Upon the representation by a Claimant in such motion that the foregoing conditions have been met and if Kmart does not timely object on the appropriate grounds, Kmart shall submit a Plan Injunction relief order to the Bankruptcy Court lifting the Plan Injunction.
(e) Kmart may object to any such lift Plan Injunction motion only on the grounds that the Claimant has failed to comply with the foregoing conditions of the Claims Resolution Procedure,
8. Nothing in this Procedures Order is intended to, nor will this Procedures Order be deemed to, alter any requirements under any insurance policies (the "Insurance Policy") or to limit or otherwise prejudice any Third Party Indemnitor's rights or defenses, all of which are expressly reserved, and Kmart shall continue to comply with the Insurance Policies, Moreover, the implementation of the Claims Resolution Procedure by Kmart shall not be deemed a breach of any Insurance Policy or agreement with any Third Party Indemnitor, In accordance with the terms of the applicable Insurance Policy or the agreement with a Third Party Indemnitor, and if required with respect to any aspect of the Claims Resolution Procedure, Kmart shall not liquidate or settle any claim that involves a Third Panty Indemnitor, without notice to the Third Party Indemnitor, without providing an opportunity for such Third Party Indemnitor to he involved in the settlement discussions and/or alternative dispute resolution procedure and providing the Third Party Indemnitor an opportunity to approve such settlement and/or to consent to such settlement. The Mediation/Arbitration Organization assigned to resolve a Personal Injury Claim pursuant to the Claims Resolution Procedure, in the exercise of its discretion, shall have the authority, without further order of this Court, to direct the applicable Third Party Indemnitor and/or Insurer, if any, to appear at and attend any mediation or arbitration under the Claims Resolution Procedure through a claims representative of the applicable Third Party Indemnitor or Insurer,
9. Kmart does not, by this Procedures Order or in connection with the Claims Resolution Procedure established, hereby, acknowledge the validity of any Personal Injury Claim or the existence of coverage under any insurance Policy of any Personal Injury Claim, or make any admission of liability.
10. Nothing in this Procedures Order is intended to, nor will this Procedures Order be deemed to, obviate the need for any Claimant to file a timely Administrative Expense Request Form.
11, Except as otherwise provided herein, on or before October 1, 2003, Kmart shall serve all Claimants whom Kmart is reasonably able to identify and locate a copy of the Claims Resolution Procedure, the Order and the Questionnaire, With respect to Personal Injury Claims of $5,000 or less that remain unsettled as of November 30, 2003, Kmart shall serve Claimants a copy of each of the Claims Resolution Procedure, the Order and the Questionnaire on or before January 1, 2004.
12, As Kmart learns of additional postpetition personal injury claims, it is authorized, without further order of Court, to send the holders of such claims a revised Effective Date Notice, in substantially the form attached hereto asExhibit 3, that affords such claimants 45 days from the date of the mailing of the Notice to file a request for payment of administrative expense as set forth in Article 10.4 of the Plan. Once such claimants file timely requests for payment of administrative expense, they will be subject to this Order and the Claims Resolution Procedure, With respect to Claimants that fail to file a timely and completed Questionnaire, Kmart reserves the right to seek authority from this Court to have such claims be deemed forever barred and disallowed.
EXHIBIT 1 ALTERNATIVE DISPUTE RESOLUTION PROCEDURE FOR POSTPETITION PERSONAL INJURY CLAIMS
Only Eligible Claimants (as hereinafter defined) are entitled to participate in the Claims Resolution Procedure. If you have a Personal Injury Claim against Kmart Corporation or any of its domestic subsidiaries and affiliates, former debtors and debtors-in-possession in the above-captioned cases, or any Related Non-Kmart Party, it is very important that you read and comply with the procedures set forth below; your failure to do so may result in disallowance of your Personal Injury Claim. If you have a lawyer, you should consult with your lawyer.
1. Definitions .
"Administrative Expense Request Form" means the written document filed in compliance with the Bankruptcy Court order dated April 23, 2003 confirming Kmart's Plan, and in the form required by such Court order.
"Arbitration" means an arbitration conducted pursuant to the procedures described in Section 6 of these Claims Resolution Procedures.
"Bankruptcy Code" means the United States Bankruptcy Code, 11 LLS-C. §§ 101-1330, as amended from time to time.
"Bankruptcy Court" means the United States Bankruptcy Court for the Northern District of Illinois, The address of the Bankruptcy Court is 219 South Dearborn Street, Chicago, IL 60604.
"Bar Date" means June 20, 2003, the last date by which an Administrative Expense Request Form evidencing Personal Injury Claims may be timely filed under the Plan and, except that the Bar Date for certain Claimants is August 22, 2003 pursuant to an order of the Bankruptcy Court dated July 9, 2003, and further except that the Bar Date for certain Claimants shall be forty-five (45) days from the mailing of a notice of effective date of the Plan, as set forth in the Bankruptcy Court's order approving these Claims Resolution Procedures.
"Claimant" means the individual asserting a Personal injury Claim.
"Claims Resolution Procedure" means these Alternative Dispute Resolution Procedures for Personal Injury Claims set forth herein as approved by the Bankruptcy Court.
"Committee" means the post-effective date creditors' committee appointed in Km art's bankruptcy cases.
"Cost of Mediation" includes the administrative charges imposed by the Mediation/Arbitration Organization assigned to resolve a Personal Injury Claim and the fee for the mediator's services and shall not include any other fee or expense, such as travel costs or attorneys' fees.
"Cost of Arbitration" includes the administrative charges imposed by the Mediation/Arbitration Organization assigned to resolve a Personal Injury Claim and the fee for the arbitrator's services and shall not include any other fee or expense, such as travel costs or attorneys' fees,
"Counsel for Kmart" means Skadden, Arps, Slate, Meagher Flom (Illinois) and its affiliates, including, but not limited to, Skadden, Arps, Slate, Meagher Flom, LLP.
"Kmart" means each of the entities listed on Exhibit 3 attached hereto, as former debtors and debtors-in-possession, whose Chapter 11 bankruptcies were jointly administered by the Bankruptcy Court as Case No. 02 B 02474 (SPS).
"Defenses" means all legal or equitable defenses to a Personal Injury Claim that Kmart or a Related Non-Kmart Party are entitled to raise under applicable law and all defenses to coverage that a Third Party Indemnitor is entitled to raise under an Insurance Policy, an agreement and/or applicable law.
"Eligible Claimant" means a Claimant who has timely filed an Administrative Expense Request Form evidencing a Personal injury Claim.
"Federal Rules of Bankruptcy Procedure" means the Rules of Bankruptcy Procedure and official forms, and the Local Rules of Bankruptcy Procedure for the Northern District of Illinois, including amendments in effect from time to time.
"Final Order" means an order of the Bankruptcy Court or other court as to which the time to appeal has expired and as to which no appeal, is pending or, if an appeal has been timely taken, the order has been affirmed and is no longer subject to appeal.
"Insurance Policy" means an insurance policy between an Insurer and Kmart which provides coverage for Personal Injury Claims.
"Insurer" means the potentially liable party under an Insurance Policy.
"Mediation" means the mediation conducted pursuant to the procedures described in Section 5 of these Claims Resolution Procedures.
"Notice Parties" means the Committee and any other party that requests notice in accordance with the Claims Resolution Procedure.
"Personal Injury Claim" means any personal injury tort, claim or wrongful death claim within the meaning of 28 U.S.C. § 157(b)(5), asserted against any Kmart entity and/or a Related Non-Kmart Party that arose after January 22, 2002, but before May 6, 2003, but. not including claims for benefits under any applicable workers' compensation laws.
"Plan" means the First Amended Joint Plan of Reorganization of Kmart Corporation and its Affiliated Debtors and Debtors-in-Possession, as modified, approved on April 23, 2003,
"Plan Injunction" means that injunction set forth in Article XII of the Plan.
"Questionnaire" means the document, in the form attached hereto asExhibit A, to be served by a Claimant upon Kmart that is used, inter alia, to collect certain information about the Claimant's Personal Injury Claim.
"Referral Notice" means the form of notice which is to be filed and served by Kmart in order to refer a particular Personal Injury Claim to Mediation.
"Related Non-Kmart Party" means any current or former agent, representative or employee of Kmart or any party required to be indemnified by Kmart.
"Reply" means the document to be served by the Claimant in reply to the Response Statement. The Reply may accept the settlement proposal, if any, made by Kmart.
"Response Statement" means the statement to be served by Kmart, in response to a Claimant's Questionnaire, which Response Statement may include a settlement proposal to the Claimant,
"Small Claims Claimant" means any Claimant with, a Personal Injury Claim with respect to which Kmart has reserved an amount equal to S5,000 or less.
"Settlement Agreement" means the agreement that must be executed by the Claimant with respect to any settlement of his or her Personal Injury Claim.
"Third Party Indemnitor" means a person or entity that is potentially liable under applicable non-bankruptcy law to indemnify Kmart for a Personal Injury Claim, including an Insurer under an Insurance Policy.
2. Summary of Claims Resolution Procedure .
The Claims Resolution Procedure is intended to speed the settlement and/or liquidation of Personal Injury Claims against Kmart, In general, Kmart is self-insured for an initial $2 million per occurrence. If you have a Personal Injury Claim, you must follow these Procedures, Kmart, the Third Party Indemnitors (if applicable), and the Claimants each shall communicate with the other parties and negotiate in good faith in an attempt to reach an agreement for the release, payment or compromise of Personal Injury Claims.
3. Small Claims Claimants .
On or after September 1, 2003, Kmart will begin to contact each Small Claims Claimant by telephone in an effort to settle such Claims informally, in each case after appropriate consultation and consent by the Third Party Indemnitor, if applicable. If Kmart and the Small Claims Claimant are unable to reach a settlement by November 30, 2003, they will undertake the Offer-Exchange Process described in Section 4 of these Claims Resolution Procedures. In such case, Kmart will serve the non-settling Small Claims Claimant with a copy of the Questionnaire on or before January 1, 2004, thereby initiating the Offer-Exchange Process. If a settlement is not reached after exhaustion of the Offer-Exchange Process, then the Small Claims Claimant shall be entitled to modification of the Plan Injunction as provided for in Section 7 of these Claims Resolution Procedures, Notwithstanding anything in these Claims Resolution Procedures to the contrary, no Small Claims Claimant shall have any right to compel Kmart to undertake Mediation or Arbitration of such Small Claims Claimant's Personal Injury Claim, although Kmart reserves the right to agree to do so in its sole and absolute discretion.
4. Offer-Exchange Process .
A. The Questionnaire
Except as otherwise provided for herein with respect to Small Claim Claimants, each Claimant shall serve on or before February 15, 2004 upon Kmart a completed Questionnaire. In the event that a Claimant is not served with a Questionnaire by January 1, 2004, such Claimants shall have forty-five days from the date a Questionnaire was mailed to such Claimant to serve a completed Questionnaire upon Kmart. Claimants may participate in the Claims Resolution Procedure only after the Questionnaire is timely submitted. With respect to the Personal Injury Claims of Claimants filing untimely Questionnaires or with respect to Personal Injury Claims for which no Questionnaire is filed, Kmart reserves the right to seek authority from the Bankruptcy Court to have such claims be deemed forever barred and disallowed.
B. The Response Statement
As soon as practicable after Kmart receives the Questionnaire, but not later than ninety (90) days after receiving a Questionnaire, Kmart, after appropriate consultation and consent by the Third Party Indemnitor, if applicable, shall determine what response to the Personal Injury Claim is appropriate. Kmart shall serve the Claimant and its counsel, if one has been identified, with a Response Statement, but only if a Questionnaire has been timely submitted by the Claimant, as set forth herein, that shall state whether Kmart has reserved more or less than S505000 with respect to the Personal Injury Claim of such Claimant. Additionally, the Response Statement shall state that:
(1) the amount demanded in the Questionnaire is accepted; or
(2) the Personal Injury Claim amount is disputed but stating the terms and conditions of a settlement that would be acceptable to Kmart and any Third Party Indemnitor, if applicable, including a description of key defenses and any third-party claims.
In the event that Kmart accepts the amount demanded in the Questionnaire or makes a counter-offer in the Response Statement, then Kmart shall provide the Claimant with a form of Settlement Agreement.
C. The Reply
The Claimant shall serve a written Reply on Kmart, and any Third Party Indemnitor identified in the Response Statement within ninety (90) days of the date of the Response Statement, provided, however, that a Claimant with respect to whose Personal Injury Claim Kmart has reserved in excess of $50,000 may elect not to serve a Reply, and may elect instead to request non-binding Mediation or binding Arbitration as provided for in Sections 5 and 6 of these Claims Resolution Procedures. The Claimant's Reply, if any, shall either accept or reject any settlement proposal in the Response Statement, If no Reply is filed within the time stated, the Claimant shall be deemed to have rejected Kmart's Response Statement. In such case, Kmart and the Claimant may agree to Arbitration in accordance with Section 6 of these Claims Resolution Procedures, or the Claimant may elect to obtain modification of the Plan Injunction in accordance with Section 7 of these Claims Resolution Procedures.
If an Eligible Claimant accepts the terms of a settlement proposal contained in a Response Statement, the Eligible Claimant shall indicate his or her acceptance of the settlement proposal in writing by executing and returning the Settlement Agreement served by Kmart with the Response Statement. The Eligible Claimant shall be deemed to hold an allowed, administrative claim against Kmart, to be paid in accordance with the terms of the Plan, in the amount of the agreed settlement amount (the "Settlement Amount"). If any applicable Third Party Indemnitor has consented to the settlement proposal, the Third Party Indemnitor shall pay to the Eligible Claimant a sum equal to the lesser of the Settlement Amount and the available coverage, and the Administrative Expense Request Form shall be deemed to be reduced in the amount of such payment.
5. Mediation Procedure .
A. Referral to Mediation
A Personal Injury Claim may be referred to Mediation as provided for in Section 4 of these Claims Resolution Procedures. Any such Claim shall be referred by Kmart to the Mediation/Arbitration Organization (as defined below), by submission of a Referral Notice within fifteen (15) days after receipt of an appropriate request by an Eligible Claimant in accordance with Section 4 of these Claims Resolution Procedures. Kmart shall serve a copy of the Referral Notice on the Mediation/Arbitration Organization, the Claimant, and any Third Party Indemnitor to the extent notice of such an action is required under any applicable Insurance Policy. Kmart shall mate arrangements with the mediator for the payment of Cost of Mediation and shall pay the Cost of Mediation as a post-petition administrative expense as allowed by order of the Bankruptcy Court.
B. Appointment of Mediator
Upon referral of a Personal Injury Claim to mediation, the Mediation/Arbitration Organization shall, within thirty (30) days after the receipt of the Notice of Referral, (i) appoint a mediator who is familiar with the laws which govern the Claim, and (ii) provide written notice to Kmart and the Eligible Claimant of such appointment. Individual mediators shall provide written acknowledgment of their agreement to serve with the disclosure set forth in this paragraph. In particular, regardless of any rules or procedures of the Mediation/Arbitration Organization to the contrary, a person may serve as a mediator only if (i) the person has judicial experience or has been trained in mediation in a recognized program, such as that of the American Arbitration Association or is otherwise mutually agreeable to Kmart and the Eligible Claimant; (ii) the person is an impartial and neutral person; (iii) the person has no financial or personal interest in the proceedings, or except where otherwise agreed by the parties, in any related matter; and (iv) the person, upon appointment, discloses any circumstances likely to create a reasonable inference of bias or prevent a prompt hearing or conference with the parties. If a party, within fifteen (15) days after the disclosures required in this paragraph are sent, in good faith, does not believe the mediator meets the requirements of this paragraph, the rules of the Mediation/Arbitration Organization shall govern the appointment of a new mediator. The term "Mediation/Arbitration Organization," in its singular or plural form, shall include all mediation/arbitration organizations meeting the requirements of this paragraph and employed by Kmart.
C. Conduct of Mediation
The mediator shall handle all Personal Injury Claims in the order received by him or her or as directed by mutual agreement of the parties. In all cases, the procedures used by the mediators shall be reasonable and practical under the existing circumstances. Any party may be represented by legal counsel, although the participation of legal counsel shall not be required for the conduct of the mediation. The mediator shall meet with the parties or their representatives, individually and jointly, for a conference or series of conferences as determined by the mediator. The Claimant and Kmart or their respective representatives must be present at the Mediations for all Personal Injury Claims with reserve amounts in excess of $100,000. The Mediations will be conducted in Troy, Michigan or such other place mutually agreeable to the parties or designated by the mediator. Kmart may, in its discretion, make reasonable accommodations for videoconferencing of Mediations. For Claimants residing in the U.S. Virgin islands, Mediation will be conducted in the U.S. Virgin Islands. All Mediations shall be limited to no more than one day unless otherwise agreed by the participants.
The mediator may review the Personal Injury Claim and the positions of the parties, the prior negotiations between the parties, all correspondence between the parties during the Offer Exchange Process, if any, and such additional information as the parties may, in their discretion, wish to submit. Consistent with the Mediation Procedures, the Claimant and Kmart shall each submit to the mediator a concise confidential statement outlining each party's position on settlement value. This confidential statement shall be deemed to be privileged as a compromise and settlement negotiation and shall not be disclosed to the other party.
The mediator shall work with both sides to reach a settlement of the Personal Injury Claim mutually acceptable to Kmart and the Personal Injury Claimant. The mediator shall not have the authority to impose a settlement upon the parties. A settlement reached pursuant to mediation shall be treated as an allowed claim, subject however to the allowance procedures provided for herein,
6. Arbitration Procedure.
A. Referral to Arbitration
A Personal Injury Claim may be referred to Arbitration as provided for in Section 4 of these Claims Resolution Procedures, Either party may request dispute resolution procedures for commercial or insurance claims of the American Arbitration Association, as currently in effect and appropriate.
B. Cost of Arbitration
The Cost of Arbitration will be shared equally by Kmart and the Claimant, provided however, that the arbitrator may in his or her sole discretion assess all or any portion of the Cost of Arbitration against any party delaying or abusing the arbitration proceedings. Kmart and the Claimant shall each make arrangements with the arbitrator for (i) the payment of one-half of their portion of the Cost of Arbitration; and (ii) the payment of the balance within thirty (30) days of the date of determination of the binding arbitration proceedings.
C. Arbitration Award
The amount of the award set by the arbitrator shall be binding and shall be within the discretion of the arbitrator, but in no event shall the amount of the award (i) exceed the lower of (x) the claimed amount of itemized damages of the Personal Injury Claim as shown in Section 14(b) of the Claimant's initial Questionnaire or (y) as shown on the Claimant's initial Administrative Expense Request Form, or (ii) be less than the undisputed portion of the Claim, Neither party shall have the right to appeal the award except on the grounds set forth in the Federal Arbitration Act. There will be no right to a trial de novo.
7. Plan injunction Relief.
If an Eligible Claimant has otherwise exhausted the Procedures provided for herein, it will be granted relief from the Plan Injunction to pursue litigation of its Personal Injury Claim in an appropriate forum, on the conditions and upon the timing set forth below.
A. Tender of Agreed Order. If the parties are unable to settle the Personal Injury Claim after good faith exhaustion of the Claims Resolution Procedures, the parties may tender an agreed stipulation to this Court's Chambers lifting the Plan Injunction so that litigation may proceed on the Claim in the appropriate non-bankruptcy forum, without the need for the Filing of a formal motion lifting the Plan Injunction.
B. Service of Motion. If a Claimant, chooses to file a motion for relief from the Plan Injunction, Claimant shall serve Kmart's counsel with any such motion, along with counsel to the Post Effective Date Committee, The Claimant shall be excused from the other service requirements of the Case Management Order, except those requirements related to the deadlines for filing with respect to omnibus hearings.
C, Exhaustion of Procedure. Unless a Claimant has exhausted the Claims Resolution Procedure in good faith, the Court shall deny without prejudice any motion for relief from the Plan Injunction.
D. Order Modifying Plan Injunction. Upon the representation by a Claimant in such motion that the foregoing conditions have been met and if Kmart does not timely object on the appropriate grounds, Kmart shall submit a Plan Injunction relief order to the Bankruptcy Court lifting the Plan Injunction.
E. Objection by Kmart. Kmart may object to any such lift Plan Injunction motion only on the grounds that the Claimant has failed to comply with the foregoing conditions of the Claims Resolution Procedure,
F. Statute of Limitations. The respective statutes of limitation for the Personal Injury Claims will be tolled until such time as the Plan Injunction is lifted as to a particular Personal Injury Claim.
8. Civil Litigation .
Any Eligible Claimant may pursue his or her Personal Injury Claim against Kmart in accordance with normal litigation rules and procedures after the Plan Injunction is lifted if the Eligible Claimant has complied in good faith with this Claim Resolution Procedure, In any proceeding before any Court, Kmart shall have and may assert any or all of its legal and equitable rights to object to or otherwise contest the Personal Injury Claim. Nothing contained herein shall be construed to relieve a Claimant of any obligation imposed by applicable bankruptcy and non-bankruptcy law to exhaust administrative, alternative dispute resolution or other procedures applicable to Personal Injury Claims.
9. Settlement .
At any time during the administration of this Claims Resolution Procedure, even during litigation, Kmart (and the Third Party Indemnitor, if applicable) shall have the authority to agree to a settlement, with the Eligible Claimant, No approval will be required for the settlement of any Personal Injury Claim in an amount equal to or less than $50,000, and Kmart (and the Third Party Indemnitor, if applicable) may settle and allow any Persona) Injury Claim equal to or less than such amount without notice or hearing.
Committee approval of a settlement of Personal Injury Claims for settlement amounts in excess of $50,000 may be requested by serving notice of a Settlement Agreement upon (10) days' notice to all Notice Parties, which Settlement Agreement may be consummated if a written objection thereto is not interposed during that period.
10. Application of Plan Injunction .
The Insurance Policies issued by the Insurers are for the purposes of this Claims Resolution Procedure deemed to be property of Kmart's bankruptcy estate. No person or entity shall be allowed to assert any Personal Injury Claim against such Insurance Policies or against Kmart or any of their assets unless they have first complied with this Claims Resolution Procedure,
11. Waiver of Claims Resolution Procedure .
Kmart, in its sole discretion, may agree to waive and/or extend the deadlines set forth herein for the filing of the Questionnaire and/or Reply. In addition, nothing herein shall preclude Kmart from submitting a stipulation agreeing to lift, modify or annul the Plan Injunction, upon such notice as required under the Bankruptcy Code and Bankruptcy Rules.
12. Notice .
Whenever notice is required to he given under these Claims Resolution Procedures, it shall be given in the manner provided in the relevant section, by first class mail, postage prepaid, as follows:
If to Kmart: Kmart Corporation 3100 West Big Beaver Road Troy, MI 48084 Attn: Michael Cavanagh
if to Counsel for Kmart: Wilmer, Cutler Pickering 399 Park Avenue New York, N.Y. 10022 Attn: Andrew N. Goldman
13. Insurers .
Nothing in this Claims Resolution Procedure shall be construed to alter the rights or obligations of any Insurer of Kmart, in all instances where an Insurer has a right to receive notice, participate in the resolution of a Personal Injury Claim, or decide upon or approve the resolution of a Personal Injury Claim, that right is preserved. Nothing in this Claims Resolution Procedure shall be construed to authorize Kmart to act on behalf of or as an agent for any Insurer of Kmart. However, the Mediation/Arbitration Organization, in the exercise of its discretion, shall have the authority, without further order of the Bankruptcy Court, to direct the applicable Third Party Indemnitor and/or insurer, if any, to appear at and attend any Mediation or Arbitration through a claims representative of the applicable Third Party Indemnitor or Insurer, Further, the claims representative shall be familiar with the claim and have the authority of the Third Party Indemnitor and/or Insurer to enter into negotiations and settlements.
14. Notice Parties .
Any person may make a written request of Kmart at the address above to become a Notice Party. Kmart shall use reasonable discretion in granting such a request.
EXHIBIT A UNITED STATES BANKRUPTCY COURT FOR THE NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION QUESTIONNAIRE FOR PERSONAL INJURY CLAIMANTS
Name and Address of Claimant:
___________________________________ Name ___________________________________ Address ___________________________________ City ___________________________________ State/Zip Country ___________________________________ Phone Number
PART A NOTICE
Purpose of this Notice
According to court records, you previously filed an administrative claim in the above-referenced cases. In order provide information on your claim, you must complete this Questionnaire and mail it, postage prepaid, to Kmart Corporation, 3100 West Big leaver Road, Troy, Michigan 48084.
Action Required by You
I. If you do not wish to pursue any claim you may have, disregard this notice and do not return it.
2. If you wish to pursue any claim you may have against Kmart arising from or relating to any medical services rendered to you or someone by or through whom you claim damages, you must:
(a) fully complete this Questionnaire, and
(b) return the completed Questionnaire in the enclosed reply envelope. (Note: You must affix proper postage.) The reply must be delivered no later than February 15, 2004 unless this Questionnaire was not mailed to you until after January 1, 2004. In such circumstance, the reply must be delivered no later than forty-five days of the date this Questionnaire was mailed to you. Otherwise, the reply will not be processed and your claim will be disallowed.
WARMING;
IF YOU DO NOT RETURN THIS COMPLETED FORM BY FEBRUARY 15, 2004, OR IF THIS FORM WAS NOT MAILED TO YOU UNTIL AFTER JANUARY J, 1004 AND YOU DO NOT RETURN THIS FORM WITHIN FORTY-FIVE DAYS OF THE DATE THIS FORM WAS MAILED TO YOU, YOUR CLAIM WILL BE FOREVER BARRED AND DISALLOWED.
PART B — CLAIM INFORMATION
1. Give your date of birth: ____________ 2. Date of injury
3. Where did the injury occur? ______________________________ _______________________________________________________________ _______________________________________________________________ _______________________________________________________________ Please specify the location and address
4. Are you pursuing this claim against any other party? Yes No If so, against whom (List the name, the addresses and counsel for each party, if known)?
_________________________________________________________________
__________________________________________________________________ (Attach additional sheets if necessary)
5. Did you notify the Debtor in writing of the injury? (If yes, attach a copy of such writing.)
Yes No
6. Is there a pending lawsuit regarding your claim'.' If so, identify the court where the lawsuit is pending, the case number and the judge, if known. ________________________________________________________________________ _________________________________________________________________________
7. What type of injuries do you have? Provide a medical description of your injuries, (Please state if the claim is based, in whole or in part, on an injury to someone else.)
_________________________________________________________________________ _________________________________________________________________________
9. Did you miss any work as a result of your injury? If so, how many days? _________________________________________________________________________ _________________________________________________________________________
10. Give the name and address of your employer and your salary at the time of your injury. _________________________________________________________________________ _________________________________________________________________________
11, Was anyone else injured at the time of your injury? (If yes, list the names and addresses.) _________________________________________________________________________ _________________________________________________________________________
12. List the names, addresses and phone numbers of all witnesses and people with relevant knowledge of your claim (including, but not limited 10, any representatives or agents of Kmart). _________________________________________________________________________ _________________________________________________________________________
13. Are treatments still being given for the injury? Yes No (If yes, provide the name and address of the doctor that is currently treating you and the nature of the treatment.) _________________________________________________________________________ _________________________________________________________________________
14. Physician Data
a. Give the name and address of any ____ physician, clinic or hospitals that have ____ treated this injury. Include treatment dates. ____ (Attach additional sheets if necessary) ____
b. Itemize all damages you claim, including any damages for emotional distress, loss of. consortium or pain and suffering. __________________________________________________ __________________________________________________
c. Give the total amount of the medical bills you incurred as a result of suffering your injury. __________________________________________________ __________________________________________________
d. Attach medical and hospital records which relate to your claim.
e. Itemize any other expenses you incurred as a result of the incident for which you are making a claim. __________________________________________________ __________________________________________________ __________________________________________________ __________________________________________________
f. Give a list of medical expenses and amounts paid by your insurance company as a result of your injury. __________________________________________________ __________________________________________________
g. Give the name, address and policy number of your insurance company. __________________________________________________ __________________________________________________
15. In what amount would you agree lo settle your claim? _________________________________________________________________________ _________________________________________________________________________
PART C — SIGNATURE
NOTICE: UNDER FEDERAL LAW, CRIMINAL PENALTIES MAY BE IMPOSED FOR FILING A CLAIM CONTAINING FALSE OR MISLEADING STATEMENTS.
I declare under penalty of perjury that the foregoing statements are correct.
DATE:____________ _______________________________
Claimant's Signature
Please recheck cash of your answer to be sure that you have completed this form fully and accurately.
NAME AND ADDRESS OF ATTORNEY OR OTHER AUTHORIZED AGENT
Complete the items below if you have an attorney or other agent who represents you in this matter. If completed, all future notices will go to your attorney or agent rather than to you personally.
Name (First/Middle/Last)
Address
City/State/Zip
Country
Relationship to Claimant
Phone Number
EXHIBIT 2 . NOTICE OF RESOLUTION OK PERSONAL INJURY CLAIM OF (CLAIM No. 189451