Order Granting Motion of Darrick and Emily Gust for Relief

Summary

Proposed order, Doc 151-1 in In re Panthera Enterprises, LLC, BK No. 2:19-bk-00787, Chapter 11, United States Bankruptcy Court for the Northern District of West Virginia, filed May 28, 2020, on the Motion of Darrick and Emily Gust for Relief from Automatic Stay to Pursue Insurance with Combined Request for Allowance of Administrative Expense Claim. The order would grant the motion and modify the automatic stay so the movants may name the Debtor as a defendant in a civil action in state court in West Virginia and seek recovery from available insurance coverage. It would grant an allowed administrative expense claim under 11 U.S.C. § 503(b)(1), in an amount to be fixed through liquidation of the claim in state court. It is presented by /s/ Spencer D. Elliott, counsel for Darrick and Emily Gust.

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IN THE UNITED STATES BANKRUPTCY COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
(Martinsburg)

In re

PANTHERA ENTERPRISES, LLC,

BK No. 2:19-bk-00787

Chapter 11
Debtor.

ORDER GRANTING MOTION OF DARRICK AND EMILY GUST FOR RELIEF
FROM AUTOMATIC STAY TO PURSUE INSURANCE WITH COMBINED REQUEST
FOR ALLOWANCE OF ADMINISTRATIVE EXPENSE CLAIM

Upon consideration of the MOTION OF DARRICK AND EMILY GUST FOR RELIEF
FROM AUTOMATIC STAY TO PURSUE INSURANCE WITH COMBINED REQUEST FOR
ALLOWANCE OF ADMINISTRATIVE EXPENSE CLAIM, Docket # ____ (“Motion”), and this
Court having jurisdiction to consider the Motion and the relief requested therein pursuant to 28
U.S.C. §§ 157 and 1334; and consideration of the Motion and the request for stay relief and for an
administrative expense therein being a core proceeding pursuant to 28 U.S.C. § 157(b); and venue
being proper before this Court pursuant to 28 U.S.C. §§ 1408 and 1409; and due and proper notice
of the Motion having been provided under the particular circumstances, and it appearing that no
other or further notice need be provided; and after due deliberation and sufficient cause appearing
therefor, it is hereby ORDERED THAT:
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1.
The Motion is GRANTED as set forth herein.
2.
Darrick Gust has claims for personal injury arising from a post-petition explosion
during a training exercise on the Debtor’s premises.  Emily Gust has related claims, including but
not limited to, claims for loss of consortium arising from Darrick Gust’s injuries. Movants are
informed and believe that there are one or more insurance policies, owned by the Debtors, and also
owned by non-debtor Panthera Training, LLC, covering Movants’ claims against the Debtor
(“Available Coverage”).
3.
It is accordingly  ORDERED that the Automatic Stay is hereby modified to enable
and allow Movants to name the Debtor as a defendant in a civil action to be filed in state court in
West Virginia: (a) to proceed to a final judgment or settlement of Movants’ claims; and (b) to
attempt to recover any liquidated final judgment or settlement on the claims from and under the
terms of Available Coverage, and (c) to fix the amount of Movants’ administrative expense claim
awarded under this Order as set forth below.
4.
Movants’ personal injury claims are post-petition tort claims entitled to
administrative expense priority against the Debtor’s estate pursuant to 11 U.S.C. § 503(b)(1) of
the Bankruptcy Code, as authorized under Reading Co. v. Brown, 391 U.S. 471 (1968).
5.
Movants are hereby granted an allowed administrative expense claim pursuant to
11 U.S.C. § 503(b)(1) in an amount to be fixed through liquidation of such claim in state court in
West Virginia.  Movants shall first seek recovery from the combined sources available for payment
of Movants’ claims, including the Available Coverage, as follows: (i) insurance covering claims
against the Debtor, (ii) insurance covering claims against any non-debtor, and (iii) any direct
recovery against any non-debtor.  In the event all sources listed above are insufficient to satisfy
any judgment in Movants’ favor, Movants may seek to fix and obtain payment of the
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administrative expense claim granted under this Order.  In the event all sources listed above are
sufficient to satisfy Movants’ claims, Movants’ administrative expense claim granted under this
Order may be fixed at $0.00.
6.
The relief granted by this Order shall survive any discharge and/or injunction
provisions set forth in any Plan of Reorganization confirmed by the Debtor.
7.
This Order may be filed in any Court of competent jurisdiction to establish that
Movants’ claims are not stayed or otherwise impaired by the Debtor’s bankruptcy case.
8.
Nothing in this Order is intended to bind any non-debtor defendant nor shall it be
deemed to waive or release any claim against any non-debtor defendant in any of civil action filed
by Movants.
9.
The Court shall retain jurisdiction with respect to all matters arising from or related
to the implementation of this Order.
IT IS SO ORDERED

Presented by:

/s/ Spencer D. Elliott
Spencer D. Elliott (WVSB 8064)
LEWIS GLASSER PLLC
P.O. Box 1746
Charleston, WV 25326
(304)345-2000 Tel
(304)343-7999 Fax
selliott@lewisglasser.com
Counsel for Darrick and Emily Gust
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