GENERAL RELEASE OF CLAIMS AND SETTLEMENT
AGREEMENT
THIS GENERAL RELEASE OF CLAIMS AND SETTLEMENT AGREEMENT
(“Agreement”) is made and entered into this _____ day of __________ 2014, by and among
_________________________________ (“Releasor”), Caring For Montanans, Inc., f/k/a Blue Cross
and Blue Shield of Montana, Inc., a Montana nonprofit mutual benefit corporation (“CFM”), Health
Care Service Corporation, an Illinois Mutual Legal Reserve Company (“HCSC”), and The CFM
Known Claims Settlement Trust (“CFMKCST”). CFM, HCSC and CFMKCST are collectively
referred to as “Releasees.”
A.
INTRODUCTION AND BACKGROUND
This Agreement is Releasor’s full, final, and forever binding release of Releasees of
Releasor’s claims arising from and related to the class action litigation In Re Blue Cross and Blue
Shield of Montana, Inc. n/k/a Caring For Montanans, Inc. and Montana Comprehensive Health
Association Insurance Litigation, Montana Second Judicial District Court, Cause No. DV-08-553,
Department II (“Litigation”). It is not intended to bind other Class Members in the Litigation. It is
an affirmation of Releasor’s right to resolve Releasor’s claims by the independent exercise of
Releasor’s individual judgment and determination of Releasor’s best interests. It is intended to bring
an end to all Releasor’s claims in the Litigation by acceptance of the express terms and conditions of
that certain January 25, 2010 Stipulation and Settlement Agreement (“Class Settlement Agreement”)
(Ex. A) filed and preliminarily approved in the Litigation on May 26, 2010.
Releasor is an individual and may be a beneficiary of the July 24, 2014 CFMKCST.
Releasor, as a beneficiary of the CFMKCST, has a claim against CFM for $____________ as
provided in the Class Settlement Agreement for “Known Claims.” Releasor may have “Unknown
Claims” that have not been determined that will be processed and settled as provided by this
Agreement.
The Class Settlement Agreement did not reduce any payment under the Class Settlement
Agreement except by payments determined to have been already paid. Insurance plan deductibles,
copayments, coordination of benefits, or any other reductions or offsets were not applied to reduce
the payments provided in the Class Settlement Agreement.
CFM has funded the CFMKCST with the deposit of funds in the specific amount identified
for the Class’s Known Claims under the Class Settlement Agreement. Unknown Claims have not
been funded in the CFMKCST but will be paid directly by CFM to Class Counsel for the benefit of
Releasor upon Releasor’s proper submission of the “Unknown Claim” under the Class Settlement
Agreement.
Releasor desires to settle Releasor’s Known Claims by accepting the amount that has been
funded for Releasor’s individual claim as an identified beneficiary of the CFMKCST. Releasor
desires to settle Releasor’s Unknown Claims under the terms in the Class Settlement Agreement.
The consummation of this Agreement may occur before the second Fairness Hearing on the Class
Settlement Agreement in the Litigation. Releasor has been provided a copy of the Class Settlement
Agreement and previously received actual notice of it. A summary notice of the Class Settlement
Agreement was also published by legal notice.
1.
GENERAL RELEASE OF CLAIMS AND SETTLEMENT AGREEMENT
B.
RELEASE
Releasor hereby fully, finally, and forever releases and discharges Releasees, and their
respective affiliated and related entities, predecessors, successors, assigns, agents, current and former
board members, current and former officers, former employees, insurers, agents, and attorneys, from
any and all actions, claims, causes of action, demands, or expenses for damages or injuries, whether
alleged or unalleged, asserted or unasserted, known or unknown, foreseen or unforeseen, arising out
of or related to the Litigation, set forth in the Class Settlement Agreement as “Known Claims” or
“Unknown Claims,” relating to Releasee’s processing and handling or failure to pay Releasor’s
previously identified and previously submitted automobile accident or premises liability health
insurance claims under Releasor’s health insurance plan with CFM, including claims for any and all
past, present, or future damages, whether in contract or tort; interest; punitive damages; and attorney
fees or other costs. The released claims, also referred to as “526” submitted and unsubmitted claims,
are set forth in the Class Settlement Agreement at Part III, ¶¶ 3.1 through 3.6.
C.
ACKNOWLEDGEMENT OF ADDITIONAL INFORMATION SOURCES PROVIDED BY CLASS
COUNSEL
Releasor acknowledges that the May 27, 2010 Notice of Pendency of Class and Proposed
Settlement was served on Releasor and was published by Court approved public notice. Ongoing
litigation since the service and publication of the Notice, including appeals, could affect Releasor’s
knowing and informed decision to enter into this Agreement. Releasor acknowledges that before
Releasor’s consideration and execution of this Agreement, Class Counsel expressly referred
Releasor to sources of information regarding the Litigation, including the Class claims, the Class
Settlement Agreement, and pleadings in favor and opposed to the Class Settlement Agreement, all of
which are contained in the pleadings and records of proceedings in the District Court and Supreme
Court. All of the information has been available to Releasor, and Releasor was encouraged by Class
Counsel and Releasees to request it and review it. Requests can be directed to Class Counsel, Robert
G. McCarthy at bob@mccarthylaw.net and by phone at (406) 494-2500. Class Counsel shall also
provide electronic copies of all documents on file in the Litigation upon Releasor’s request. Releasor
was also referred to the web page www.mchaclassaction.com which contains relevant pleadings.
Releasor also acknowledges receipt of the Court’s Notice of Opportunity to Settle Individual Claims.
D.
PAYMENT OF UNKNOWN CLAIMS
To achieve final settlement of all of Releasor’s Unknown Claims, Releasor may submit any
Unknown Claims provided for under the Class Settlement Agreement within one year of the
execution of this Agreement. CFM shall process the submitted Unknown Claims and notify
Releasor through Class Counsel of the amounts owed to Releasor within 60 days of submission.
Releasor agrees to accept the consideration provided for such Unknown Claims in the Class
Settlement Agreement. Releasor shall comply with the Class Settlement Agreement relative to the
method and means of submitting Releasor’s Unknown or unsubmitted claims resolution of disputes,
and payment to heirs.
E.
WAIVER OF POSSIBLE FUTURE CLAIMS
Inasmuch as the injuries, taxes, damages, and losses resulting from the events described in
this Agreement may not be fully known or may be more numerous or more serious than it is now
2.
GENERAL RELEASE OF CLAIMS AND SETTLEMENT AGREEMENT
understood or expected, Releasor agrees, as a further consideration of this Agreement, that this
Agreement applies to any and all injuries, taxes, damages, and losses arising out of or related to
Releasor’s Known or Unknown Claims described in the Class Settlement Agreement, even though
now unanticipated or unexpected, as well as any and all injuries, damages, and losses that are now
known or anticipated.
Releasor acknowledges that Releasor understands that there have been previous and ongoing
objections to the Class Settlement Agreement and that objectors continue to object to the Court’s
approval of the Class Settlement Agreement of the Known and Unknown Claims on a Class basis.
Releasor acknowledges that Releasor is aware that objectors to the Class Settlement Agreement are
seeking a different result that may result in a greater future recovery for each of the individual Class
Members.
Releasor acknowledges that by executing this Agreement, Releasor expressly and explicitly
waives and abandons any right to receive any additional funds over those promised in the Class
Settlement Agreement and as reserved in ¶ G of this Agreement if the non-settling Class Members
receive additional compensation by future settlement of the “Known Claims” or ”Unknown Claims”
or by Court order. In this regard, Releasor affirms and agrees that Releasor is accepting the certainty
of present payment over the uncertainty of an unknown and uncertain future result which may or may
not be in Releasor’s financial best interest.
F.
RELEASE OF INSURERS
Releasor further releases Releasees’ respective insurance companies and affiliated and related
entities from all obligations under any part of Releasees’ insurance policies applicable to Releasor’s
claims, if any, and from any and all claims arising out of the investigation, handling, adjusting,
defense, or settlement of the claims including, without limitation, any claims for breach of contract,
in tort, violation of the covenant of good faith and fair dealing, violation of Mont. Code Ann. §§ 3318-201 et seq., and common-law bad faith.
G.
CONSIDERATION AND TIME FOR PAYMENT
Releasor and Releasees are desirous of resolving all claims among them and have hereby
resolved Releasor’s claims as defined and set forth in the Class Settlement Agreement. In
consideration of the payment made to Releasor and for the covenants and conditions contained in this
Agreement, Releasor agrees to forever and fully release all Releasees of all Releasor’s Known and
Unknown claims as defined and set forth in the Class Settlement Agreement. The receipt and
adequacy of this consideration is hereby acknowledged by the Releasor. Payment for Releasor’s
Known Claims by the Trustee out of the CFMKCST shall be made within 14 days of the receipt of
this executed Agreement. CFM shall pay the “Unknown Claims” that are properly submitted to
Class Counsel within 21 days after determination of the claim payment amount following proper
submission. Class Counsel shall then pay to Releasor the Unknown Claim sum after deduction of his
attorney’s fees and expenses as provided in ¶ N.
H.
COMPROMISE OF A DISPUTED CLAIM
It is understood that the above-mentioned consideration is accepted as the sole consideration
for full satisfaction and accord to compromise doubtful and disputed claims, and that neither the
payment of the sums by Releasees nor the negotiations for settlement shall be considered as an
3.
GENERAL RELEASE OF CLAIMS AND SETTLEMENT AGREEMENT
admission of liability. Releasor acknowledges that CFM contests that HCSC would have been a
proper party in any civil action, including the Litigation, and it maintains that any liability arising
from the Known or Unknown Claims described in the Class Settlement Agreement belong solely to
CFM.
I.
SETTLED CLAIMS SHALL BE REMOVED FROM CLASS CLAIMS
IN LITIGATION
It is understood and agreed that Releasor will be forever removed from the Litigation’s list of
Class Members or beneficiaries upon payment of the agreed settlement amount. It is also understood
that neither Releasor nor Releasees will file any other cause of action arising from these settled
claims, nor will they assign to any party any right they may have to file a cause of action arising out
of these claims.
J.
RELEASOR’S WARRANTY
Releasor expressly warrants to Releasees and the District Court that no other person or entity
has asserted or is able to assert any lien, claim, or entitlement to any portion of the consideration
recited above. In the event any additional claim is made which directly or indirectly results in
additional liability exposure to any Releasee for the losses, injuries, damages, expenses, interest,
costs, and attorneys’ fees for which this Agreement is given, Releasor covenants and agrees to
indemnify and save Releasees harmless from all such claims and demands, including reasonable
attorneys’ fees, and all other expenses necessarily incurred.
K.
TAXABILITY OF PAYMENT
Neither Releasees nor their respective attorneys make any representations about the taxability of
any portion of the consideration made in exchange for this Agreement. Releasor shall bear the sole
responsibility for any and all tax consequences related to this Agreement, and shall fully indemnify
Releasees for any tax liability that arises therefrom, including any fees and costs related to enforcement
of this Paragraph K. Releasor shall be issued a 1099 or other applicable income tax reporting form for
the payment made to Releasor under this Agreement.
L.
WARRANTY OF CAPACITY TO EXECUTE AGREEMENT
Releasor represents and warrants that Releasor has full legal authority to enter into this
Agreement and that no other person or entity has or has had any interest in the claims, demands,
obligations, or causes of action referred and forever settled and resolved in this Agreement.
The CFMKCST Trustee is CFM’s authorized representative to execute this Agreement on
CFM’s behalf.
M.
GOVERNING LAW
This Agreement shall be construed and interpreted in accordance with Montana laws.
N.
ATTORNEY’S FEES AND COSTS
“Known Claims”
4.
GENERAL RELEASE OF CLAIMS AND SETTLEMENT AGREEMENT
Robert G. McCarthy has made a claim for an amount equal to approximately 20% of the approximate
total amount that has been set aside for the beneficiaries in the CFMKCST. The claimed fees are
$600,000.00 of the total $2,987,000.00 deposited by CFM into the CFMKCST. No reduction of the
amount payable to Releasor for “Known Claims” from the CFMKCST may occur for attorney fees.
Robert G. McCarthy has made no additional claims for any fees for obtaining a waiver of deductibles
and copayments.
“Unknown Claims” or previously unsubmitted claims
Robert G. McCarthy has requested a contingency fee of one-third of the amount recovered for
“Unknown Claims” or previously unsubmitted claims paid by CFM. Releasor acknowledges that
Class Counsel claims an attorney lien for fees equal to one third of any amount paid to Releasor for
“Unknown Claims” or previously unsubmitted claims. Releasor understands that Robert G.
McCarthy may also incur costs for obtaining medical records and medical bills in order to complete
the claim submission. Such costs actually incurred shall be repaid to Robert G. McCarthy.
Releasor agrees and acknowledges that CFM shall issue payment of Releasor’s Unknown Claim to
Robert G. McCarthy from which he shall deduct his fees and actual costs incurred for the Unknown
Claims and then pay Releasor the balance.
O.
FINAL AGREEMENT
This Agreement contains the entire agreement among the parties to the Agreement, and its
terms are contractual and not a mere recital. This Agreement supersedes any other agreements, oral
or written, regarding any Known or Unknown Claims set forth in the Class Settlement Agreement.
In entering into this Agreement, Releasor does not rely upon any promise, representation, or other
inducement that is not expressly contained in this Agreement.
This Agreement may only be modified by the written consent of Releasees and may not be
modified by oral agreement.
Should any provision of this Agreement become legally unenforceable, the remaining
provisions are severable and shall be construed as if the legally unenforceable provision was never
included in the Agreement.
P.
RIGHT AND OPPORTUNITY TO SEEK INDEPENDENT LEGAL ADVICE
Releasor acknowledges that Class Counsel has advised Releasor that Releasor may seek
independent legal advice regarding this Agreement and the status of the Litigation. Releasor
acknowledges that this Agreement was provided to Releasor for consideration and review prior to its
execution. Releasor has carefully read this Agreement, discussed its legal effect with Releasor’s
attorneys or has waived Releasor’s right to seek independent counsel before signing this Agreement,
understands its contents, and signs it of Releasor’s own free will and accord.
This Agreement shall be binding upon Releasor and Releasees’ respective spouses, heirs,
successors, personal representatives, and assigns.
READ AND REVIEW THIS RELEASE CAREFULLY BEFORE SIGNING.
5.
GENERAL RELEASE OF CLAIMS AND SETTLEMENT AGREEMENT
READ AND REVIEW THIS ENTIRE DOCUMENT CAREFULLY BEFORE SIGNING
BY SIGNING BELOW YOU ARE AGREEING TO BE
BOUND BY THE WRITTEN TERMS CONTAINED IN
THIS ENTIRE DOCUMENT
DATED this _____ day of _____________ 2014.
_________________________________
Releasor (Class Member’s Signature)
Printed Name _____________________
Address:__________________________
__________________________
Date of Birth:______________________
Social Security Number: _____________
Dated: ___________________________
CFM Known Claims Settlement Trust
_________________________________
Trustee
Duly Authorized
Dated: ___________________________
APPROVED BY THE COURT, IT IS SO ORDERED:
________________________________
Honorable Bradley G. Newman
District Court Judge
Second Judicial District Court
Dated: __________________________
6.
GENERAL RELEASE OF CLAIMS AND SETTLEMENT AGREEMENT