Zurich Amer. Ins. Co.v.Health Care Mgt. Partners, Ltd.

United States District Court, D. ColoradoJun 25, 2009
Civil Action No. 05-cv-00835-RPM (D. Colo. Jun. 25, 2009)

Civil Action No. 05-cv-00835-RPM.

June 25, 2009


ORDER


RICHARD MATSCH, District Judge

THIS MATTER, having come before the Court on Zurich American Insurance Company's Unopposed Motion to Approve Form of Supersedeas Bonds, and the Court being fully advised in the premises, it is now

ORDERED that the form of the two proposed supersedeas bonds attached as exhibits to this Order is hereby APPROVED to secure the judgments in favor of Zurich American Insurance Company and against defendants Health Care Management Partners, Ltd., d/b/a O'Hara Regional Center for Rehabilitation, ORCR, Inc. d/b/a O'Hara Regional Center for Rehabilitation, Inc., Hersch "Ari" Krausz, David Sebbag (collectively, the "O'Hara Defendants"), and V. Robert Salazar ("Salazar") during the pendency of the appeal, and the Court has affixed its signature to each of them, indicating approval of their form.

IT IS FURTHER ORDERED that the O'Hara Defendants shall, within one business day of the entry of this Order, file with the Court through the ECF System an executed copy of the approved supersedeas bond without any alteration, and tender to the Financial Division of this Court an executed copy of the approved supersedeas bond without any alteration, along with cash or a cashier check or certified check made payable to "Clerk United States District Court" in the amount of $840,000.00.

IT IS FURTHER ORDERED that Salazar shall, within one business day of the entry of this Order, file with the Court through the ECF System an executed copy of the approved supersedeas bond without any alteration, and tender to the Financial Division of this Court an executed copy of the approved supersedeas bond without any alteration, along with cash or a cashier check or certified check made payable to "Clerk United States District Court" in the amount of $125,000.00.

IT IS FURTHER ORDERED that the execution of judgment against the O'Hara Defendants and Salazar is STAYED during the pendency of their appeal pursuant to Rule 62(d) of the Federal Rules of Civil Procedure, but that execution of the judgment as to the sole remaining defendant, Solomon Health Management, LLC d/b/a Solomon Health Services, LLC, may proceed.

IT IS FURTHER ORDERED that the O'Hara Defendants' Motion to Stay Execution of Final Judgment Pending Appeal and to Approve the Form and Amount of Security in Regard to Zurich, Docket No. 15 and Salazar's Motion for Approval of Supersedeas Bond and Stay of Execution of Judgment Pending Appeal, Docket No. 14 are DENIED AS MOOT.

Exhibit A to [Proposed] Order

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

Civil Action No. 05-cv-00835-RPM ZURICH AMERICAN INSURANCE COMPANY, a successor in interest to Zurich Insurance Company (U.S. Branch), Plaintiff, v. HEALTH CARE MANAGEMENT PARTNERS, LTD., d/b/a O'HARA REGIONAL CENTER FOR REHABILITATION; ORCR, INC. d/b/a O'HARA REGIONAL CENTER FOR REHABILITATION, INC.; O'HARA REGIONAL CENTER FOR REHABILITATION; SOLOMON HEALTH MANAGEMENT, LLC, d/b/a SOLOMON HEALTH SERVICES, LLC; HERSCH "ARI" KRAUSZ; DAVID SEBBAG and V. ROBERT SALAZAR, Defendants.

SUPERSEDEAS BOND

Defendants/Appellants Health Care Management Partners, Ltd., d/b/a O'Hara Regional Center for Rehabilitation, ORCR, Inc. d/b/a O'Hara Regional Center for Rehabilitation, Inc., O'Hara Regional Center for Rehabilitation, Hersch "Ari" Krausz and David Sebbag (collectively, the "O'Hara Defendants"), as principals, are held and firmly bound to Zurich American Insurance Company ("Zurich") in the sum of $825,506.87, plus interest and costs, to be paid to Zurich (its administrators or assigns, or its successors or assigns), from the proceeds of cash or a cashier check or certified check made payable to "Clerk United States District Court" in the amount of $840,000 deposited with the Financial Division of this Court within one business day of the Court's approval of this bond, for which payment well and truly to be made the O'Hara Defendants bind themselves, their heirs, executors, administrators or assigns, or their successors or assigns, jointly and severally, by this instrument.

Whereas, on May 28, 2009, in an action pending in the above court between Zurich and the O'Hara Defendants, judgment was entered against the O'Hara Defendants, and the O'Hara Defendants having filed a Notice of Appeal from such judgment to the United States Court of Appeals for the Tenth Circuit and having applied for and obtained an order of the District Court staying enforcement of such judgment during the pendency of the appeal.

Now, therefore, the condition of this obligation is that if the O'Hara Defendants shall prosecute their appeal to effect and shall satisfy the judgment in full, together with costs, interest, and damages for delay if the appeal is finally dismissed or the judgment is affirmed or shall satisfy in full such judgment as modified together with such costs, interests, and damages as the Court of Appeals may adjudge and award, this obligation shall be void; otherwise it shall remain in full service and effect. If the judgment is reversed by the Court of Appeals such that the O'Hara Defendants owe no obligation to Zurich, this obligation shall be void and the funds shall be returned to the O'Hara Defendants.

Dated this day of June, 2009.

By: ___________________________________________________________ Richard B. Podoll Robert A. Kitsmiller PODOLL PODOLL, P.C. Attorneys for Defendants/Appellants Health Care Management Partners, Ltd., d/b/a O'Hara Regional Center for Rehabilitation, ORCR, Inc. d/b/a O'Hara Regional Center for Rehabilitation, Inc., O'Hara Regional Center for Rehabilitation, Hersch "Ari" Krausz and David Sebbag APPROVED: s/Richard P. Matsch _______________________________________ United States District Court Judge

Exhibit B to [Proposed] Order

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 05-cv-00835-RPM ZURICH AMERICAN INSURANCE COMPANY, a successor in interest to Zurich Insurance Company (U.S. Branch), Plaintiff, v. HEALTH CARE MANAGEMENT PARTNERS, LTD., d/b/a O'HARA REGIONAL CENTER FOR REHABILITATION; ORCR, INC. d/b/a O'HARA REGIONAL CENTER FOR REHABILITATION, INC.; O'HARA REGIONAL CENTER FOR REHABILITATION; SOLOMON HEALTH MANAGEMENT, LLC, d/b/a SOLOMON HEALTH SERVICES, LLC; HERSCH "ARI" KRAUSZ; DAVID SEBBAG and V. ROBERT SALAZAR, Defendants.

SUPERSEDEAS BOND

Defendant/Appellant V. Robert Salazar, as principal, is held and firmly bound to Zurich American Insurance Company ("Zurich") in the sum of $121,266.93 plus interest and costs, to be paid to Zurich (its administrators or assigns, or its successors or assigns), from the proceeds of cash or a cashier check or certified check made payable to "Clerk United States District Court" in the amount of $125,000.00 deposited with the Financial Division of this Court within one business day of the Court's approval of this bond, for which payment well and truly to be made I bind myself, my heirs, executors, administrators, or assigns, jointly and severally, by this instrument.

Whereas, on May 28, 2009, in an action pending in the above court, between Zurich and Mr. Salazar, judgment was entered against Mr. Salazar, and Mr. Salazar having filed a Notice of Appeal from such judgment to the United States Court of Appeals for the Tenth Circuit applied for and obtained an order of the District Court staying enforcement of such judgment during the pendency of the appeal.

Now, therefore, the condition of this obligation is that if Mr. Salazar shall prosecute his appeal to effect and shall satisfy the judgment in full, together with costs, interest, and damages for delay if the appeal is finally dismissed or the judgment is affirmed or shall satisfy in full such judgment as modified together with such costs, interests, and damages as the Court of Appeals may adjudge and award, this obligation shall be void; otherwise it shall remain in full service and effect. If the judgment is reversed by the Court of Appeals such that Mr. Salazar owes no obligation to Zurich, this obligation shall be void and the funds shall be returned to Mr. Salazar.

Dated this day of June, 2009.

By: ___________________________________________________________ T. Jeffrey Fitzgerald FAEGRE BENSON LLP Attorney for Defendant/Appellant V. Robert Salazar APPROVED: s/Richard P. Matsch _______________________________________ United States District Court Judge