UNITED STATES BANKRUPTCY COURT

FOR THE MIDDLE DISTRICT OF TENNESSEE

NASHVILLE DIVISION

IN RE:

Chapter 11

CS DIP, LLC (f/k/a Church Street Health Management, LLC)

Case No. 12-01573

SSHC DIP, LLC (f/k/a Small Smiles Holding Company, LLC)

Case No. 12-01574

FNY DIP, LLC (f/k/a FORBA NY, LLC),

Case No. 12-01575

Debtors

Jointly Administered
Under Case No.: 12-01573

EXPEDITED MOTION OF DANNY DEROSE, EDWARD J. DEROSE, MICHAEL A.

DEROSE, WILLIAM A. MUELLER, MICHAEL W. ROUMPH, RICHARD B. LANE AND
ADOLPH R. PADULA TO CONTINUE HEARING ON MOTION OF THE LIQUIDATING
TRUSTEE FOR ORDER (A) APPROVING SETTLEMENT WITH INSURERS, (B)
GRANTING AN INJUNCTION IN FAVOR OF THE INSURERS, AND (C) APPROVING
TRUST DISTRIBUTION PROCEDURES, AND TO SET STATUS CONFERENCE
1.

Danny DeRose, Edward J. DeRose, Michael A. DeRose, William A. Mueller,

Michael W. Roumph, Richard B. Lane and Adolph R. Padula (the Objectors), by and through
counsel, hereby move this Court, on an expedited basis pursuant to LBR 9075-1, to continue the
hearing on the Motion of the Liquidating Trustee for Order (A) Approving Settlement with
Insurers, (B) Granting an Injunction in Favor of the Insurers, and (C) Approving Trust
Distribution Procedures (the Motion) and to set a status conference for June 2, 2015 at 9:00
a.m.
2.

Relief on an expedited basis is necessary because the Objectors were given

limited notice of the hearing on the Motion. The Objectors were served with a copy of the
Motion by mail on May 11, 2015. Service was effective only 23 days before the hearing
scheduled on June 2, 2015.

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3.

Notice of this expedited motion was given to all parties registered to receive

electronic notice through the Courts CM/ECF system on May 26, 2015. Notice also was given
to counsel for the Liquidating Trustee and the Insurers by first-class mail, postage prepaid, on
May 26, 2015.
4.

This expedited motion may be set for hearing on June 2, 2015 at 9:00 a.m., the

date of the scheduled hearing on the Motion.

5.

In further support of this expedited motion, the Objectors would state as follows:
a. Capitalized terms used but not defined herein have the meanings set forth in
the Motion.
b. On May 6, 2015, Dan B. Lain as Liquidating Trustee filed the Motion.
c. The hearing on the Motion currently is set for June 2, 2015 at 9:00 a.m.
d. The Objectors are individuals who were owners of certain Dental Clinics that
are the primary insureds under the professional liability insurance policies that
are the subject of the Motion and the Settlement and Release Agreement
(defined below).
e. The Motion seeks approval of a settlement with certain insurers of the
Debtors.
f. The Objectors have filed a timely Objection to the Motion. [Doc. No. 834]
g. The Settlement and Release Agreement attached to the Motion (Settlement
and Release Agreement) contains the following defined term:
Insureds means SSHC, any Dental Clinic and any of the
insureds, named insureds and additional insureds scheduled at any
time under any of the SSHC Policies. Notwithstanding the
foregoing, Insureds shall not include any of the following
individuals: Danny DeRose, Edward J. DeRose, Michael A.

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DeRose, William A. Mueller, Michael W. Roumph, Richard B.

Lane or Adolph R. Padula.
While the Motion purports to exclude the Objectors from the definition of Insureds, the
Objectors are in fact additional insureds under some or all of the policies of insurance
that are the subject of the Motion and Settlement and Release Agreement (the Policies).
h. As set forth in more detail in the Objectors Objection to the Motion, the
Settlement and Release Agreement purports to: (a) exclude the Objectors as
Insureds under the Policies, and (b) terminate the Objectors rights to assert
claims against National Union Fire Insurance Company of Pittsburgh, P.A.
(National Union) based upon, arising out of or in any way relating to certain
claims that are covered under the Policies.
i. The Settlement and Release Agreement purports to deprive the Objectors of
contractual rights they have under the Policies and subject them to the risk of
continued litigation; all without any proceeding wherein the Objectors are
parties where they will have an opportunity to have their contractual rights
adjudicated.

Basic principles of due process require that before the

contractual rights of the Objectors can be affected, the Objectors must be

joined as party in an adversary proceeding and have an opportunity to have
their rights adjudicated in such adversary proceeding.
j. Under these circumstances, the Court should not approve the Settlement and
Release Agreement at this time.
k. The Objectors move the Court to continue the hearing on the Motion, which is
currently set for June 2, 2015 at 9:00 a.m., and instead to set a status
conference for that date and time.

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WHEREFORE, the Objectors pray that the Court continue the hearing on the Motion for
the reasons set forth above, set a status conference for June 2, 2015 at 9:00 a.m., and provide the
Objectors such other and further relief as is just and proper.
Respectfully submitted,

NEAL & HARWELL, PLC

By: /s/ Marc T. McNamee
James R. Kelley, BPR #5525
Marc T. McNamee, BPR #6634
Stephen M. Montgomery, BPR #26489
150 Fourth Avenue North, Suite 2000
Nashville, TN 37219
(615) 244-1713 telephone
(615) 726-0573 facsimile
jkelley_br@nealharwell.com
mmcnamee_br@nealharwell.com
smontgomery@nealharwell.com
Counsel for Danny DeRose, Edward J. DeRose,
Michael A. DeRose, William A. Mueller,
Michael W. Roumph, Richard B. Lane and
Adolph R. Padula

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CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing has been served by the
Courts CM/ECF system on all parties registered to receive electronic notice in this case on this
26th day of May, 2015.
I further certify that a true and correct copy of the foregoing has been served by first-class
mail, postage prepaid, on the following on this 26th day of May, 2015:
John H. Rowland
Baker, Donelson, Bearman,
Caldwell & Berkowitz, PC
Baker Donelson Center
Suite 800
211 Commerce Street
Nashville, Tennessee 37201

Lawrence Klein
Sedgwick LLP
Brookfield Place
225 Liberty Street, 28th Floor
New York, New York 10281

/s/ Marc T. McNamee

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