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SALTZ, MONGELUZZI, BARRETT & BENDESKY, P.C.
8000 Sagemore Drive
Suite 8303
Marlton, NJ 08053
(856) 751-8383
FAX (856) 751-0868
LARRY BENDESKY/ROBERT W. ZIMMERMAN/
ATTORNEYS FOR PLAINTIFFS
Identification Nos: 017051990/003952010
BRENDA MCCRACKEN as Administratrix
Ad Prosequendum of the ESTATE OF
HARRY G. MCCRACKEN, III, Deceased
48 Pedrick Avenue
Williamstown, NJ 08094

SUPERIOR COURT OF NEW JERSEY
CAMDEN COUNTY
LAW DIVISION
DOCKET NO.

Petitioner
v.
STUDENT TRANSPORTATION OF
AMERICA, Inc. d/b/a STUDENT
TRANSPORTATION OF AMERICA
3349 Highway 138
Wall, NJ 07719

CIVIL ACTION
PLAINTIFF’S PETITION FOR
APPORTIONMENT PURSUANT TO
N.J.S.A. 2A:31-4 AND ENTRY OF
JUDGMENT PURSUANT TO N.J. RULE
4:44-3

And
LISA DAVIDSON
29A South Academy St.
Glassboro, NJ 08028
Respondents
I, Larry Bendesky, Esquire, being of full age and duly sworn according to law, am an
attorney in the State of New Jersey and, in that capacity, I am responsible for handling the
representation of the Plaintiff, Brenda McCracken as Administratrix Ad Prosequendum of the
Estate of Harry G. McCracken, III, deceased, and in her own right, in this wrongful death and
survival action. This matter settled after extensive pre-suit investigation and negotiations, as
discussed further below. Accompanying this petition as “Exhibit A”1 is a settlement video
1

Counsel for Plaintiff Petitioner will forward a copy of this video directly to the Court.

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prepared by counsel for Plaintiff which was utilized as part of the pre-litigation negotiations.
Upon my oath, I Larry Bendesky, hereby depose and say:
1.

Plaintiff, Brenda McCracken, residing at the above captioned address, is the

widow of Harry G. McCracken, deceased, and the Administratrix of the Estate of Harry G.
McCracken. A copy of the Administration Ad Prosequendum Short Certificate is attached hereto
as “Exhibit B.”
2.

Plaintiff, Brenda McCracken, is the mother and natural guardian of three children,

two of which are natural descendants of Plaintiff’s decedent, Harry McCracken, and are
beneficiaries in the above captioned matter:
a.

Shannon McCracken, age 18 (DOB: 2/25/2001)

b.

Colleen McCracken, age 15 (DOB: 6/5/2003)

3.

Plaintiff’s children reside with her at 48 Pedrick Ave., Williamstown, NJ 08094.

4.

This is a personal injury action arising from the death of Harry G. McCracken,

who suffered an untimely death after he was struck by Defendants’ school bus while travelling
through the intersection of Glassboro and Tuckahoe Roads in Williamstown, New Jersey.
5.

On February 12, 2018, 49 year old Harry McCracken was on his way to work to

begin his 5:00 p.m. shift at Kast Distributors in Carneys Point New Jersey. Harry was driving his
2008 Honda Accord on Glassboro Road travelling west. While wearing his seat belt, Harry
approached the intersection of Glassboro Road and Tuckahoe Road, intending to make a left
hand turn onto Tuckahoe Road.

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6.

At the same time, Defendant, Lisa Davidson was operating Defendant, Student

Transportation of America’s (hereinafter “STA”) school bus, driving northbound on Tuckahoe
Road towards the intersection with Glassboro Rd.
7.

As Ms. Davidson approached the intersection, she accelerated her vehicle from

approximately 30 to 39 miles per hour, despite having a red light, and despite there being traffic
stopped in front of her school bus as she approached the intersection.
8.

Ms. Davidson passed by other drivers who were stopped in front of her at the red

light, drove into the intersection against the right of way, and collided directly with Harry’s car,
destroying his vehicle and causing Harry to suffer fatal injuries.

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9.

Plaintiff alleges Ms. Davidson operated her school bus in a dangerous and

reckless manner, and demonstrated reckless disregard for the safety of Mr. McCracken as she
drove through a red light, violently striking the side of Mr. McCracken’s vehicle as he proceeded
lawfully through the intersection.
10.

The law firm of Saltz, Mongeluzzi, Barrett & Bendesky, P.C. (“SMBB”) was

retained to represent the Estate of Harry McCracken shortly after the accident.

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11.

Counsel for Plaintiff conducted extensive investigation and pre-suit preparation

of this matter. In investigating the case and preparing the case for pre-suit mediation and filing,
plaintiff’s counsel’s efforts included, but were not limited to, the following:


Drafted and served preservation letters on Defendant;



Collected various items from family including photos, marriage certificate, death
certificate and obituary;



Worked with family to obtain Letters of Administration for litigation purposes;



Obtained, cataloged, reviewed and summarized numerous news articles and video
footage related to the accident;



Researched the Corporate Identity of Defendant, STA;



Researched the ownership structure of STA;



Researched operations and management personnel of STA;



Researched the assets of STA;



Retained an investigator to take photographs of the crash scene;



Retained an investigator to obtain statements and photographs from witnesses to
the crash;



Retained an investigator to attempt to retrieve surveillance footage of the crash
from nearby establishments;



Retained Steve Schorr, P.E. as a liability expert with respect to accident
reconstruction;



Secured Plaintiff’s Decedent’s vehicle following the accident;



Purchased Plaintiff’s Decedent’s vehicle from auto insurance carrier to retain this
critical evidence;



Secured storage arrangements for Plaintiff’s Decedent’s vehicle during the
pendency of this matter;



Attended inspections of the accident scene;

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

Attended an inspection of Harry McCracken’s Honda Accord;



Attended an inspection of the School Bus operated by Ms. Davidson;



Retained experts to photograph, perform 3D laser imaging scans, and obtain
electronic data from the vehicles involved in this accident;



Performed 3D laser imaging scans of the accident site, and the vehicles involved
in the accident;



Compiled information from several sources on plaintiff’s decedent’s work history,
wage history, and future economic potential;



Retained Kristin Kuscma, M.A. as an expert with respect to Harry McCracken’s
economic losses;



Obtained a written report from Kristin Kuscma, M.A. with respect to Harry
McCracken’s economic losses (See “Exhibit C”);



Retained Wayne Ross, M.D. as a damages expert with respect to Mr.
McCracken’s cause of death and conscious pain and suffering;



Obtained a written report from Wayne Ross, M.D. with respect to Mr.
McCracken’s cause of death and conscious pain and suffering (See “Exhibit D”);



Obtained accident video footage (inward and outward facing) from the STA
School Bus;



Conducted a criminal background investigation and driver history investigation
on the school bus driver involved in the accident;



Prepared multiple distinct New Jersey Open Records Act requests to obtain
relevant State records;



Obtained State records related to the Defendant driver’s employment history,
driving history, and copies of Defendant, STA’s contracts to operate public school
busses;



Obtained, reviewed and analyzed State records of the Defendant driver’s
employment history and driving history,



Obtained and reviewed prosecutor files related to the school bus driver;



Obtained and reviewed audio recordings of prior municipal court hearings related
to the school bus driver;
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

Reviewed and analyzed Defendant, STA’s contracts to operate public school
busses in New Jersey;



Worked with the McCracken family to identify, collect, and retain information
with respect to Harry, including, but not limited to, employment information,
bank account information, funeral expenses, tax returns, photographs, and video;



Conducted extensive client meetings at Plaintiff’s counsel’s offices, the family’s
home, the home of decedent’s parents, and by phone;



Spent over 100 hours between the Plaintiff’s counsel’s attorneys, in house video
production team and contractors on the production and editing of a video
presentation used in the negotiations with Defendants. See, “Exhibit A.”



Obtained Plaintiff’s Decedent’s medical records;



Obtained Plaintiff’s Decedent’s emergency responder records;



Obtained Defendant’s primary and excess insurance information after rounds of
information exchanges between the parties;



Performed legal research into various legal issues impacting liability, damages
and punitive awards;



Obtained police report and investigative materials created and secured by the
Glassboro Police Department;



Performed legal research on other New Jersey wrongful death verdicts and
settlements;



Retained a research firm, and worked with this research firm to expand the firm’s
research on New Jersey wrongful death verdicts and settlements;



Prepared a twenty-seven page mediation memorandum which, in conjunction with
Plaintiff’s settlement video, served as the basis for Plaintiff’s demand and
negotiations. See, Plaintiff’s Mediation Memorandum Attached as “Exhibit E”);



Attended mediation with the Honorable John E. Keefe, Sr., (JAD ret.) as mediator
on December 5, 2018;



Conducted additional negotiations over the course of two months following the
mediation with the mediator and Defendants’ counsel to achieve a successful case
resolution; and



Drafted detailed, thirty-nine page Complaint with the intent of filing the
Complaint in Camden County if the matter did not resolve pre-suit;
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12.

As noted, to prepare for mediation, Plaintiff’s counsel interviewed and videotaped

Harry’s family members about Harry, his love for and devotion to his family, which was used to
create a 12 minute, comprehensive settlement video which required the use of videographers, a
professional production studio, professional editors and test screenings (See “Exhibit A”).
13.

Counsel for Plaintiff exhausted significant financial and human resources

investigating this case and preparing for mediation, including drafting a comprehensive and
engaging twenty-seven page mediation memorandum, which resulted in this matter being
resolved without the need for filing a formal complaint. See, “Exhibit E.”
14.

In prosecuting Plaintiff’s claims, Saltz, Mongeluzzi, Barrett & Bendesky, P.C.,

spent $61,882.95 in costs. (See Itemized costs, attached hereto as “Exhibit F”).
15.

These costs were reasonable and necessary to adequately represent Plaintiff and

maximize the ultimate value of the case.
16.

As a result of good faith negotiation of the parties, Plaintiffs’ counsel negotiated a

settlement for a total of $7,000,000.
17.

On February 23, 2018, Brenda McCracken signed a New Jersey Power of

Attorney/Contingent Fee Agreement with Saltz, Mongeluzzi, Barrett & Bendesky, P.C.,
providing for statutory contingent fees. (See Contingent Fee Agreement, attached hereto as
“Exhibit G”).
18.

All matters that resolve for amounts greater than $3,000,000 are subject to fee

approval by the Court. Rather than requesting fees of one third for the proceeds above
$3,000,000, Plaintiff’s counsel and Plaintiff herself jointly request a “blended” fee percentage of
27.08%, which is representative of the average of New Jersey’s contingency fee amounts as
provided for settlements of less than $3,000,000 pursuant to New Jersey Rule 1:21-7.
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19.

Pursuant to the laws of New Jersey regarding contingency attorney fees, counsel

and Plaintiff request an attorney’s fee of $1,878,942.09. After costs and attorney’s fee, the
remaining proceeds to be apportioned between the McCracken family will be $5,059,174.96.
Recovery

Percentage

McCracken recovery Atty Fee

$750,000

33-1/3%

$500,000

$250,000

$750,000

30%

$525,000

$225,000

$750,000

25%

$562,500

$187,500

$750,000

20%

$600,000

$150,000

$3,938,117.05

27.08% (blended)

$2,871,674.956

$1,066,442.09

$5,059,174.96

$1,878,942.09

Totals:
20.

Plaintiff has agreed to the terms of the $7 million settlement, subject to the final

terms of the release and final approval of this Honorable Court.
21.

After costs and attorney’s fees, there will be $5,059,174.96 to

divide

between

Plaintiff’s Wrongful Death and Survival Actions.
22.

Plaintiffs request an Apportionment Hearing pursuant to N.J.S.A. 2A:31-4.

23.

Under the Intestacy Statutes, N.J.S.A. 3B:5-2, et seq., Brenda McCracken, as the

surviving spouse and mother of all of the decedent’s descendants, is entitled to the first 25% of
Harry McCracken’s intestate estate, but not less than $50,000.00 nor more than $200,000.00,
plus one-half of the balance of the remaining intestate estate. See N.J.S.A. 3B:5-3(c)(1).
24.

Thereafter, pursuant to New Jersey Intestacy Laws, N.J.Stat. § 3B:5-4(a), the

entire remainder of Harry G. McCracken’s Estate will pass to his two children, Shannon and
Colleen McCracken, in equal shares.

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25.

Under the Wrongful Death Statute governing the allocation of Wrongful Death

proceeds, “[t]he amount recovered in proceedings under this chapter shall be for the exclusive
benefit of the persons entitled to take any intestate personal property of the decedent, and in the
proportions in which they are entitled to take the same.” See N.J.S.A. 2A:31-4.
26.

Plaintiff’s Counsel therefore respectfully asserts that that the settlement in this

matter is appropriate and reasonable and that the funds should be allocated and distributed as
follows:
Gross Recovery:
To:

$7,000,000

Saltz, Mongeluzzi, Barrett & Bendesky, P.C.:
For costs:

$61,882.95

For counsel Fee:

$1,878,942.09

Net Settlement to be allocated between Wrongful
Death and Survival Actions

$5,059,174.96

Wrongful Death:

$ 2,529,587.48

To:

Brenda McCracken, to be placed
into a structured settlement annuity as
outlined below

$1,364,793.74

Shannon McCracken , to be placed
into a structured settlement annuity as
outlined below

$582,396.87

Colleen McCracken a minor, to be
placed into a structured settlement annuity
as outlined below

$582,396.87

Survival Action:

$2,529,587.48

To:

Brenda McCracken

$1,229,587.48

Brenda McCracken, to be placed
into a structured settlement annuity as
outlined below

$135,206.26

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Shannon McCracken

$250,000.00

Shannon McCracken, to be placed
into a structured settlement annuity as
outlined below

$332,396.87

Colleen McCracken a minor, to be
placed into a structured settlement annuity
as outlined below

$582,396.87

As outlined below under the terms of settlement, the Defendant and/or its Insurer will
fund the following future periodic payments:
Payee:

Brenda McCracken
Payments:

Beginning June 1, 2019, $6,052.46 per month for life,
guaranteed 30 years with the last guaranteed payment on
May 1, 2049.

Life Co:
Assignment Co:

Payee:

Colleen McCracken
Payments:

Beginning June 5, 2021, $2,625.00 per month for life,
guaranteed 30 years with the last guaranteed payment on
May 5, 2051,
Guaranteed lump sum of $250,000.00 on June 5, 2021,
Guaranteed lump sum of $50,000.00 on June 5, 2024,
Guaranteed lump sum of $100,000.00 on June 5, 2028,
Guaranteed lump sum of $150,000.00 on June 5, 2033.

Life Co:
Assignment Co:
Payee:

Pacific Life Insurance Company
Pacific Life & Annuity Services, Inc.

Berkshire Hathaway Life Ins. Co. of Nebraska
BHG Structured Settlement, Inc.

Shannon McCracken
Payments:

Beginning June 1, 2019, $2,340.00 per month for life,
guaranteed 30 years with the last guaranteed payment on
May 1, 2049,
Guaranteed lump sum $50,000.00 on February 25, 2022,
Guaranteed lump sum $100,000.00 on February 25, 2026,
Guaranteed lump sum $150,000.00 on February 25, 2031.
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Life Co:
Assignment Co:
27.

Berkshire Hathaway Life Ins. Co. of Nebraska
BHG Structured Settlement, Inc.

It is respectfully submitted that the recoveries by Brenda McCracken, as

Administratrix of the Estate of Harry G. McCracken are fair and reasonable as to the amount and
terms under the circumstances of these claims and should be approved.
28.

It is respectfully requested that this Honorable Court enter the attached Order

entering judgment and directing the deposit of funds to an escrow account until such time that
the Court approves the distribution amongst Brenda McCracken, Colleen McCracken, and
Shannon McCracken.
29.

Petitioner requests that she be permitted to enter into settlement recited above and

that the Court enter an Order of Partial Distribution, and set an Apportionment Hearing, to
approve distribution of the settlement funds as described in the attached Form of Order.
I hereby certify that the foregoing statements made by me are true, correct and accurate to
the best of my knowledge, information and belief. I am aware that if any statement aforesaid is
willfully false, I am subject to punishment in accordance with the laws of the State of New
Jersey.
Respectfully submitted,
SALTZ, MONGELUZZI, BARRETT & BENDESKY, P.C.

BY: /s/ Larry Bendesky_______________________________
LARRY BENDESKY
ROBERT W. ZIMMERMAN
Attorneys for Petitioner

Date: March 15, 2019

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SALTZ, MONGELUZZI, BARRETT & BENDESKY, P.C.
8000 Sagemore Drive
Suite 8303
Marlton, NJ 08053
(856) 751-8383
FAX (856) 751-0868
LARRY BENDESKY/ROBERT W. ZIMMERMAN/
ATTORNEYS FOR PLAINTIFFS
Identification Nos: 017051990/003952010
BRENDA MCCRACKEN as Administratrix
Ad Prosequendum of the ESTATE OF
HARRY G. MCCRACKEN, III, Deceased
48 Pedrick Avenue
Williamstown, NJ 08094

SUPERIOR COURT OF NEW JERSEY
CAMDEN COUNTY
LAW DIVISION
DOCKET NO.

Petitioner
v.
STUDENT TRANSPORTATION OF
AMERICA, Inc. d/b/a STUDENT
TRANSPORTATION OF AMERICA
3349 Highway 138
Wall, NJ 07719

ORDER OF APPORTIONMENT
PURSUANT TO N.J.S.A. 2A:31-4 AND
ENTRY OF JUDGMENT PURSUANT TO
N.J. RULE 4:44-3

And
LISA DAVIDSON
29A South Academy St.
Glassboro, NJ 08028
Respondents
This matter having come before the Court in accordance with N.J.S.A. 2A:31 and N.J.
Rule 4:44-3 for approval of distribution of funds in satisfaction of Plaintiff’s claims, has been
resolved between the Plaintiff and settling Defendants and the Court, having taken proofs on the
record:
IT IS on this

day of

, 2019, ORDERED

and DECREED that the settlement between Plaintiff, Brenda McCracken as Administratrix Ad

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Prosequendum of the Estate of Harry G. McCracken, III, deceased, and in her own right, and
Defendants, Student Transportation of America and Lisa Davidson, is APPROVED.
IT IS FURTHER ORDERED that the proposed settlement funds of $7,000,000 will be
distributed as follows:
Gross Recovery:
To:

$7,000,000.00

Saltz, Mongeluzzi, Barrett & Bendesky, P.C.:
For costs:

$61,882.95

For counsel Fee:

$1,878,942.09

Net Settlement to be allocated between Wrongful
Death and Survival Actions

$5,059,174.96

Wrongful Death:

$ 2,529,587.48

To:

Brenda McCracken, to be placed
into a structured settlement annuity as
outlined below

$1,364,793.74

Shannon McCracken, to be placed
into a structured settlement annuity as
outlined below

$582,396.87

Colleen McCracken a minor, to be
placed into a structured settlement annuity
as outlined below

$582,396.87

Survival Action:

$2,529,587.48

To:

Brenda McCracken

$1,229,587.48

Brenda McCracken, to be placed
into a structured settlement annuity as
outlined below

$135,206.26

Shannon McCracken

$250,000.00

Shannon McCracken, to be placed

$332,396.87

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into a structured settlement annuity as
outlined below
Colleen McCracken a minor, to be
placed into a structured settlement annuity
as outlined below

$582,396.87

The Defendants and/or theirs Insurer(s) will fund the following future periodic payments:
Payee:

Brenda McCracken
Payments:

Beginning June 1, 2019, $6,052.46 per month for life,
guaranteed 30 years with the last guaranteed payment on
May 1, 2049.

Life Co:
Assignment Co:
Payee:

Pacific Life Insurance Company
Pacific Life & Annuity Services, Inc.

Colleen McCracken
Payments:

Beginning June 5, 2021, $2,625.00 per month for life,
guaranteed 30 years with the last guaranteed payment on
May 5, 2051,
Guaranteed lump sum of $250,000.00 on June 5, 2021,
Guaranteed lump sum of $50,000.00 on June 5, 2024,
Guaranteed lump sum of $100,000.00 on June 5, 2028,
Guaranteed lump sum of $150,000.00 on June 5, 2033.

Life Co:
Assignment Co:
Payee:

Berkshire Hathaway Life Ins. Co. of Nebraska
BHG Structured Settlement, Inc.

Shannon McCracken
Payments:

Beginning June 1, 2019, $2,340.00 per month for life,
guaranteed 30 years with the last guaranteed payment on
May 1, 2049,
Guaranteed lump sum $50,000.00 on February 25, 2022,
Guaranteed lump sum $100,000.00 on February 25, 2026,
Guaranteed lump sum $150,000.00 on February 25, 2031.

Life Co:
Assignment Co:

Berkshire Hathaway Life Ins. Co. of Nebraska
BHG Structured Settlement, Inc.
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The obligation to make the future periodic payments above will be assigned
pursuant to qualified assignments as set forth in section 130(c) of the Internal Revenue Code and
funded with annuity contracts.

J.

4