IN THE COURT OF COMMON PLEAS FIFTEENTH NDICIAL CIRCUIT CASE NO: 2011-CP-2b-126b

Transcription

1 EXHIBIT C FORM OF SETTLEMENT NOTICE TO CLASS MEMBERS STATE OF SOUTH CAROLINA COUNTY OF HORRY IN THE COURT OF COMMON PLEAS FIFTEENTH NDICIAL CIRCUIT CASE NO: 2011-CP-2b-126b Ronnie Ferrell, Tammy Vance and David Montoria, on behalf of themselves and all others similarly situated, Plaintiffs, V5. Harry Electric Cooperative, Defendant. NOTICE OF PROPOSED CLASS ACTION SETTLEMENT You are NOT being sued. You MUST submit a claim to be eligible for payment. This notice informs you of a proposed settlement of certain class action claims against Horry Electric Cooperative ("Homy E{ectric"}concerning Horry Electric's Good Cents Program and the vapor barrier specifications. This notice advises you of your rights with respect to the settlement, including the possible right to make a claim for payment, as well as your right to opt out of the settlement or object to the se#dement This notice is being sent to you because you have been identified as a member of a class of persons who may be entitled to the t~enefits provided by the 5ettfement Agreement. This Notice affects your legs! rights Please read this Notice carefully. READ THIS FIRST WHY DTD I RECEIVE THIS NOTICE? You were sent this notice because you are in the Class certified by the Court, and you pre~sously were mailed a Ckass Action Notice in January You may be entitled to receive benefits under a settlement of legal claims relating to the vapor barrier required by Horry Electric's Good Cents Program for New Homes. DO I HAVE TO DO ANYTHIlVG? If the court approves the settlement and it becomes effective,you wi11 be entitled to file a claim form together with proper supporting documentation showing your entitlement to a payment under the Automatic Payment fund or tt~e Remediation Fund. You may object to the proposed settlement dtaring the Objection Period if you wish, arid you may exclude yourself from the class, in which case you will have the right to fife any claim you may have against Horry Electric on your own at your own expense.

2 WHAT IF MY ADDRESS HAS CHANGED? To assure correct delivery, if your address is different from the one on this envelope, or if you are moving, please notify Class Counsel at or by at The Basis of the Claims Against Horry Electric.This matter is before the Court because the Class Representatives have alleged that the Horry Electric Good Cents Program's vapor barrier requirement for the interior side of the exterior walls was inappropriate and a design defect, which caused property damage to the homes. The Plaintiffs have asserted claims for breach of warranty, gross negligence, breach of contract, and breach of the covenant of good faith and fair dealing. The Defendant has denied the allegations and has asserted several defenses. The parties engaged in discovery and multiple mediations of the claims, resulting in the proposed settlement here. Reasonsfor Settlement. The settlement is between the Class on the one hand and the Defendant on the other, and it includes a release and dismissal with prejudice of the claims of the Class against the Defendant. Class Counsel view this settlement's benefits as advantageous to the Class in light of risks to recovery iflitigation continues. The Defendant, while denying that it is liable to anyone and denying that it has committed any wrongdoing, wishes to avoid further lengthy, costly, and time-consuming litigation, to obtain total and final settlement of the Class claims, and to extinguish any liability of the Defendant with respect to the Class claims, as well as the common liability of any joint tortfeasors. Who is In~the Class and What is the Settlement. The "Class" consists of all persons whose homes were enrolled in the Horry Electric Good Cents Program for New Homeswho were mailed a Notice of Class Action in January Under the settlement, you are entitled to fle the Claim Form,which is included in this Notice, for either an automatic payment of Two Thousand Dollars ($2,000.00} OR a reimbursement claim of up #o Twelve Thousand Do11ars {$12,000.00) if you remove the vapor barrier, subject to the terms of the Settlement Agreement. You have received this Notice because you were previously determined to be a member of the Class. Binding Effect. In completing tine settlement approval process, Plaintiffs and the Defendant will petition the Court for a Final Order dismissing this Action as to the Class Members with prejudice, and any person in the Class who does not request exclusion from ("opt out ofl') the settlement will be bound by it. Attorneys' Fees and Costs. Class Counsel will petition the Court for a class representative incentive award for plaintiffstammy Vance and David Montorioof Five Thousand Dollars ($5,000.00) each for their work ~on behalf of the Classand for an award of attorneys' fees and costs of Nine Hundred Ninety Thousand Dollars { 990;000.00) out of the Six Million Dollar ($6,000,0OO.Od} settsement fund as more fully described in the Settlement Agreement. Obta~[tng Benefi. s~under tti~' - Se'~tlement If you are a Class Member as reflected in Defendant's records, you w H be enfitled to elect between 'tlie Automatic Payment Fund or The Remediation Pund by timely subrriitting ~tlie enclosed Claim' Form.!f the proposed settlement is finally approved, settlement benefits will be administered in accordance with the Settlement Agreement. Exclusion Requests "Opting hut." You have the right to request exclusion from ("opt out ofl'} this settlement by advising Class Counsel and Defendant's Counsel in writing at the addresses given below. If you elect to opt out, then you will not receive a payment or receive any other benefits of the settlement. If you elect to opt out, you must mail a request for exclusion on or before May 1, Optout requests received after such date shall be of no force or effect. If you elect to opt out, you must fill out, sign, and date the enclosed Opt-Out Form atld mail it to Class Counsel and Defendant's Counsel on or before May 1, 20 i 4. 2

3 Objections. If you are a member of the Class, you have the right to object in writing to any part of the proposed settlement. To object, you must both file with the Court and mail to Class Counsel and Defendant's Counsel, no later than May 15, 2014,a written objection referring specifically to the Vance vs. Horry Electric Class Action pending before the Court of Common Pleas far Horry County, Civil Action Na CP , that includes: (a) your full name and address sufficient to identify your membership in the Class; (b) a notice of intention to appear; (c) the specific grouttds for the objection, as well as all documents or writings that you desire the Court to consider, and (d) identification of any previously filed objections in state or federal courts by the Class member and any attorney representing the Class Member. Except for good cause shown, an objector who has not timely filed and served written objections with the requisite information will not be allowed to be heard at the hearing. Any person who fails to appear at the hearing will be deemed to have waived any such objections.to file file objection with the Court, you must mail or personally deliver the original of the written objection by the date specified in this Paragraph to: Horry County Clerk of Court Horry County Government cf~ Justice Center Conway, South Carolina, PLEASE DO NOT CALL THE COURT. You must also mail copies of your written objections by the same date specified in the paragraph above to these attorneys' off ces: Class Coansel: Nate Fata, Esq. Nate Fata, P.A. P. O. Box Surfside Beach, SC Class Counsel T. Christopher Tuck, Esq. James L. Ward, Jr., Esq. Richardson, Patricfc, Westbrook & Brickman, LLC P.O. Box 1007 Mount Pleasant, SC Defendant's Counsel Pope.lohnson, Esq. Johnson and Barnette, LLC P.O. Drawer Columbia, SC Hearing on the Settlement. The Court will hold a hearing to consider the fairness and adequacy of this proposed settlement and to consider Class Counsel's petition for fees and costs on May 34, 2014at 9:30 a.m. at ti~eiiorry County Courthouse,1301 Second Avenue, Conway, South Carolina Release. The proposed se#tlement is intended to resolve and terminate all claims that were raised by or on behalf of the Class members concerning the vapor barrierrequired by Horry Electric's specifications. The proposed settlement, if finally approved by the Court, will result in the release by each Class member of all such claims, as rr2ore specif:cally provided in thesettlement Agreement. The

4 h claims against the Defendant alleged in the Complaint will be dismissed with prejudice as to all Ciass members. Further Information. The descriptions in this Notice of the claims and settlement documents in this case are only summaries. The Settlement Agreement and all papers filed in the lawsuit may be inspected at the Office of the Clerk of Court for Horry County, Horry County Courthouse, 1301 Second Avenue, Conway, South Caro4ir~a If you have any questions with respect to this Notice or the lawsuit generally, please call Class Counsel at the Law Offices of Nate Fats, Esquire, Nate Fata, P.A., P. O. Box 16620, Surfside Beach, SC (843} 238-2b76 or T. Christopher Tuck, Esquire, Richardson, Patrick, Westbrook & Brickman, LLC, P.O. Box 1007, Mount Pleasant, SC at [n addition you may view the settlement documents at PLEASE DO NOT CONTACT THE COURT informati0i~t. OR THE CLERK'S OFFICE FOR Date of Notice: March l7, 2014 Benjamin H. Culbertson Presiding Judge, Court of Common Pleas FOR HORRY COUNTY 4

5 OPT-OUT FORM I *Print Full Name am anowner of a Good Cents Home and do hereby opt out of the Class Action lawsuit entitled Vance, et ai v. Horry Electric, 2011-CP I understand that by opting out I will receive no benefits or compensation from the lawsuit. *Date: *Signature of Home Owner *Street Address: *City, State and Zip Code: `Area Code and Phoue Number: MUST BE POSTMARKED BY May 1, 2014 TO BE RETURNED TO: Class Counsel Nate Fata, Esquire Nate Fata, P.A. P.O. Box Sarfside Beach, SC and a copy to Defendant's Counsel Pope Johnson, Esq. Johnson and Barnette, LLC P.O. Drawer Columbia, SC ******PLEASE COMPLETE ENTIRE FORM****** CLAIM FORM 5

6 VANCE VS. HORRY ELECTRIC I~,hereby ceeclare under penalties of perjury Print Full Name pursuant to 28 U.S.C.A that I am a current homeowner of a home located at: Street Address City Zip Code Signature of homeowner Date I hereby elect to obtain one of the following benefits (check one): (1) Automatic Payment Fund with automatic payment of Two Thousand Dollars ($2,000.00) OR (2} Remediatio~ Fund with reimbursement of incurred Expenses up to Twelve Thousand Dollars ($12,000.00) after vapor barrier is removed This CLAIM FORM must be mailed and postmarked no later than June 16, 2014 to the following address: Eddy Blackburn 114arketing Analyst/Key Accounts Horry Electric Cooperative, Inc. P.O. Box 119 Conway, SC I understand I may only elect either~the Automaric Payment Fund benefit OR the Remediation Fund benefit and NOT BOTH. Please see next page for an explanation of each Fund.

7 AUTOMATIC PAYMENT FUND EXPLANATION Class members may claim an automatic payment of $2,000 by timely submittingthe properly completed Claim Form. If the Automatic Payment Fund is insufficient to pay all qualifying Class members at $2000 per claim, then the payments shall be made with a pro rata reduction. Payments to the Class members electing the Automatic Payment Fund shall be made within the later of 64 days after the Effective Date of the Settlement or 6d days after the Claims Period. REMEDIATION FUND EXPLANATION Class members may claim reimbursement for Reimbursable Remediation Expenses bsubmission of a Claims Form and Documented proof. T'he Documented proof shall be submitted toeddy Blackburn, Marketing AnalystlKey Accounts, Horry Electric Cooperative, Inc., P.O. Box 119, Conway, SC 29528no later than 180 days from the Effective Date of Settlement, and the claim shall not exceed$12,000. If the Remediation Fundis insufficient to pay ali qualifying Class members their actual Reimbursable Remediation Expenses at an amount up to $12,000 per claim, then the payments shall be made with a pro rata reduction. Documented Proof, with respect to remediation expenses eligible for reimbursement, means costs incurred by a Class member for removing the vapor barrier. Some examples of common documentation are copies of cancelled checks, credit or debit card receipts, receipts for materials used for repairs, credit cazd statements, affidavits, declarations and/or repair invoices or repair orders, which documents, singly or cumulatively, show Reimbursable Remediation Expenses. In addition, photographs of the remediated exterior wall space without the vapor barrier s~ail be included as proof that the vapor barrier was removed. Payments to Class members electing the Remediation Fund shall be made within 30 days of Defendant's receip# of the Class Member's Documented Reimbursable Remediation Expenses. If more than 250 Class members select the Remediation Rind, the Defendant shall make payment within the later of thirty days of the expiration of the period #o submit Documented Reimbursement Remediation Expenses or thirty days after the last decision by the arbitrator of all claims submitted in arbitration. Reimbarsable Remediation Expenses means Documented expenses incurred by a Ciass member for repazzs associated with the vapor barrier removal, including, without limitation, moisture accumulation, mold growth, remediation of mold and mildew, repainting or sheetrocking of walls, re-insulating of walls, moving of furnit~ire, storage of personal items and furniture during remediation, and any relocation expenses incurred doling the remediation. You should not undertake any remediation until after the EffectiveDate of Settlement, as defined in the Settlement Agreement. Tf you elect the Remediation Fund, you must remove the vapor barrier in the exterior walls and submit the reverse side of this Farm with documentation far reimbursement to:eddy Blackburn, Marketing Analyst/Key Accounts, Horry Electric Cooperative, Inc., P.O. Box 1 i 9, fij

8 Conway, SC within 180 days from Effective Date of Settlement.

9 REIMBURSEMENT REQUEST FORM I submit the following documents in support of my reimbursement claim: I also submit the Number photographs as evidence that I removed the vapor barriez. I am requesting a total of $ for reimbursement. Sign here Date Name Physical address of home This Reimbursement Form with documentation must be submitted NO LATER than One Hundred Eighty (180) days from the Effective Date of Settlement, as defined in the Settlement Agreement to: Eddy Blackburn Marketing Analyst/Key Accounts Horry Electric Cooperative, Inc. P.O. Box 119 Conway, SC E