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HomeMy WebLinkAboutHilliard, Stephanie Grace | Whillock, Kevin Ray; 2025-11-14;Docusign Envelope ID: B2A9E15A-4C32-45C1-8370-83CEC1940D4D SETTLEMENT AGREEMENT AND RELEASE OF ALL CLAIMS This Settlement Agreement and Release of All Claims (hereafter referenced as the "Settlement Agreement") is entered into by Plaintiff Stephanie Grace Hilliard (''Plaintiff"), Defendant City of Carlsbad ("City"), and Defendant Kevin Ray Whillock ("Whillock"). The City and Whi11ock may be collectively referenced as "Defendants". Plaintiff, the City, and Whillock may also be co_llectively referenced as the "Parties". RECITALS . 1. On or about November 26, 2024, Plaintiff filed a lawsuit against Defendants, entitled Stephanie Grace Hilliard v. City of Carlsbad, State of California, County of San Diego, Kevin Ray Whillock, and Does 1 through 50, San Diego Superior, Case No. 24CU026849C (''Lawsuit") alleging causes of action for dangerous condition of public property and negligence, arising from an auto versus pedestrian incident dated January 31, 2024 ("Incident"); 2. The State of California and County of San Diego were dismissed from this Lawsuit in January 2025; 3. Subject to approval by the City Council for the City of Carlsbad, the Parties have reached a final resolution and settlement of any and all potential claims and causes of action among and between the Parties. This Settlement Agreement is entered into for the purposes of Plaintiff resolving and releasing all claims and causes of actions asserted, and all those that could have or may be asserted against Defendants, including, but not limited to dismissing the Lawsuit with prejudice against Defendants and DOES, and Defendants resolving and dismissing their cross-complaints against one another. AGREEMENT AND RELEASE 1. PAYMENT AND DISMISSAL Plaintiff agrees to dismiss the Lawsuit against Whillock, his heirs, successors, assigns, insurers and attorneys, with prejudice, and to settle and release any and all known, unknown, anticipated, and unanticipated claims and damages arising out of, in any way connected to, or resulting from Plaintiff's alleged damages in any way connected to the allegations of the Lawsuit against Whillock in exchange for the total sum of Three Hundred Thousand Dollars ($300,000.00), each party to bear their own attorneys' fees and costs ("Whillock Settlement Amount"). Plaintiff agrees to dismiss the Lawsuit against the City, its past and current employees, agents, officers, officials, affiliated entities and persons, insurers and attorneys with prejudice, and to settle and release any and all known, unknown, anticipated, and unanticipated claims and damages arising out of, in any way connected to, or resulting from Plaintiff's alleged damages in any way connected to the allegations of the Lawsuit against the City in exchange for the total sum of Three Hundred Thousand Dollars ($300,000.00), each party to bear their own attorneys' fees and costs ("City Settlement Amount"). Page 1 of5 Docusign Envelope ID: B2A9E15A-4C32-45C1-8370-83CEC1940D40 The Parties understand and acknowledge that this Settlement Agreement, the payment of the City Settlement Amount, and the releases contained here, are contingent upon the approval of the City Council for the City of Carlsbad, and that without such approval, this Settlement Agreement and its provisions are null and void. 2. MANNER OF PAYMENT AND DISMISSAL Within thirty (60) days of execution of this Agreement by the Parties and the provision of signed and current W9 from counsel for Plaintiff, the City and the Whillock Settlement Amounts shall be paid by Whillock and the City, respectively, via checks made payable to "Panish, Shea Ravipudi LLP Client Trust Account". Within ten ( I 0) calendar days of receipt of the City and Whillock Settlement Amounts, counsel for Plaintiff shall file a Request for Dismissal of the entire action with prejudice as to all Defendants and DOES. The City and Whillock will also file Requests for Dismissal with Prejudice of their cross-complaints against one another. The Parties in good faith agree that all sums set forth herein constitute damages on account of physical injuries or sickness. However, Plaintiff acknowledges and agrees that the ultimate determination of this characterization is beyond the control of the Parties, and therefore Plaintiff agrees to be solely responsible for the payment of any and all amounts governmental or tax authorities may claim are due, if any, out of the City and Whillock Settlement Amounts. Plaintiff acknowledges that Defendants are relying on, among other things, this specific provision in entering into this Settlement Agreement, in paying said Settlement Amounts, and that this Settlement Agreement is not contingent upon any particular tax characterization or treatment of said Settlement Amounts. 3. RELEASE In consideration of the foregoing payments, Plaintiff hereby irrevocably and unconditionally releases and forever discharges Defendants, and all the previously listed entities, their current and former officers, directors, employees, volunteers, agents, affiliates, contractors, predecessors, heirs, executors, administrators, successors, assigns, insurers, reinsurers, risk pools, joint powers authorities and all other persons, firms, corporations, subsidiaries, affiliates, attorneys and representatives, and all persons acting by, through or in concert with them (all of whom are coJlectively referred herein to as "Released Parties") from any and all claims, causes of action, complaints, charges, demands, liabilities, losses, costs, lien, or expenses of any kind whatsoever (including attorney's fees and costs), known or unknown, suspected or unsuspected, that Plaintiff may now have or have ever had against Released Parties by reason of any act, omission, transaction or event described or referenced by the Lawsuit and/or the Incident, occurring up to and including the date all Parties execute this Settlement Agreement ("Plaintiff's Released Claims"). Any such act, omission, transaction, or event, should it even arise, come to exist, or be discovered to have existed or arisen, released by this Settlement Agreement is intended to be and therefore so limited to those claims, whether known or unknown, that are related, whether derivative of or directly to, the underlying personal injury action. [INTENTIONALLY BLANK -CONTINUED ON NEXT PAGE] Pagel ofS Oocuslgn Envelope ID: B2A9E15A-4C32-45C1-8370-83CEC1940D4O 4. CROSS COMPLAINTS Contingent on the approval of this settlement by the City Council for the City of Carlsbad, the City and Whillock shalJ dismiss their cross-complaints against one another in exchange for a waiver costs, and shall irrevocably and unconditionally release and forever discharge one another from any and all claims, causes of action, complaints, cross-complaints, charges, demands, liabilities, losses, costs, lien, or expenses of any kind whatsoever (including attorney's fees and costs), known or unknown, suspected or unsuspected, arising out of the Lawsuit and the Incident. 5. REPRESENTATIONS AND WARRANTIES In further consideration for the above-mentioned value and consideration provided by Defendants, and in settlement of the above-referenced claims and disputes, all Parties represent and warrant that they (or their agent, guardian, representative or insurer) have not previously assigned, transferred, granted or purported to assign, transfer or grant any of the claims, rights, demands or causes of action, whether known or unknown, anticipated or unanticipated, disposed of by this Settlement Agreement. All Parties thereby represent and warrant that they maintain complete authority to enter into this agreement and to forever dismiss and discharge the claims, rights, demands and causes of action, whether known or unknown, anticipated or unanticipated, arising out of, in any way connected to, or resulting from Plaintiff's allegations in the Lawsuit. 6. SECTION 1542 RELEASE The Parties expressly agree that all rights she may have under section 1542 of the Civil Code of the State of California are hereby waived, and acknowledge and understand that this Settlement Agreement has been executed with the express intent of extinguishing all obligations described herein and as provided in Section 1542 of the California Civil Code. Section 1542 provides as follows: "A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS THAT THE CREDITOR OR RELEASING PARTY DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE AND THAT, IF KNOWN BY HIM OR HER, WOULD HA VE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR OR RELEASED PARTY." 7. COMPROMISE OF A DISPUTED CLAIM The Parties understand and acknowledge that liability is disputed by the City and Whillock and that this Settlement Agreement constitutes a compromise of disputed claims and shall not be construed as an admission of liability. The City and Whillock enter into this Settlement Agreement solely to avoid the uncertainties, delay, and expense of potential litigation and to buy their peace. [INTENTIONALLY BLANK -CONTINUED ON NEXT PAGE] Page 3 of5 Docusign Envelope ID: B2A9E15A-4C32-45C1-8370-83CEC1940D4D 8. FEE AND COST WAIVER The Parties to this Settlement Agreement agree to bear their own attorney's fees and costs for prosecution and/or defense of the subject matter and any other expenses for all matters related to or arising from the matter. 9. SATISFACTION OF LIENS Plaintiff will indemnify and hold Defendants (and all Released Parties), their attorneys and their insurance companies/risk pools/joint powers authorities, harmless from and against any and alJ past, present or future claims and liens (medical, legal or otherwise), regardless of whether or not they were known at the time of executing this Settlement Agreement. Plaintiff represents and warrants that she is aware of the lien obligations asserted which Plaintiff will fuIJy satisfy and discharge out of the City and Whillock Settlement Amounts. Plaintiff represents and warrants that she has not received care or treatment for the injuries alleged in the Lawsuit for which any sums remain due and owing (beyond those subject to lien) and Plaintiff acknowledges that Defendants are relying on this material representation in reaching the settlement outlined in this Settlement Agreement. To the extent any attorney fee/cost liens, or liens associated with any expert-related work commissioned on behalf of ( or for the benefit of) Plaintiff for this Lawsuit, Plaintiff agrees to satisfy and discharge such liens out of said Settlement Amounts and agrees to indemnify and hold Released Parties harmless from any such liens. 10. NO FURTHER CLAIMS Each party to the Settlement Agreement expressly agrees that neither they nor their heirs, assigns, executors, administrators, agents, employees, affiliates, managers, owners, or successors, will continue and/or institute any legal or administrative proceedings against the other party, or any person or entity released in this Agreement, before any court, administrative agency, arbitrator, or any other tribunal whatsoever, by reason of any claim, liability or cause of action, whether known or unknown, being released herein. Further, none of the Parties shall aid, cause, or otherwise encourage others, to make, assert, or maintain any action, demand, or lawsuit against the other party, its partners, agents, affiliated entities, successors, employees, heirs, insurers, attorneys, or representatives. 11. INTEGRATION AND INTERPRETATION This Settlement Agreement is the result of negotiation between the Parties and is the fully integrated and final expression of the settlement described herein and supersedes any and all previous written or oral communications. This Settlement Agreement may not be altered, changed, or amended without a subsequent written document signed by all of the Parties. This Settlement Agreement shall be deemed to have been executed and delivered within the State of California. The rights and obligations of the Parties hereto shall be construed and enforced in accordance with, and governed by, the laws of the State of California, without regard to choice of law rules. Venue for any action arising out of this agreement shall be in San Diego County, California. Page 4 ofS Docuslgn Envelope ID: B2A9E15A-4C32-45C1-8370-83CEC1940D4D 12. SEVERABILITY In the event that any one provision or portion of this Settlement Agreement is later determined by a court of competent jurisdiction to be void or voidable, the Parties agree that any such language or provisions sha11 be severable, and that any such provisions so severed shall not affect the validity of the remainder of the Settlement Agreement subsequent to such severance. 13. ENFORCEABILITY The Parties agree that the Court will retain jurisdiction to enforce this Settlement Agreement pursuant to Code of Civil Procedure section 664.6. The Parties agree that if either party seeks to enforce this Settlement Agreement, it may be done on an ex parte app1ication, and that the prevailing party sha11 be entitled to its reasonable attorneys' fees and costs. 14. COMPLETE AGREEMENT No party has made any statement, representation, or promise other than as set forth herein. Any representation, warranty, promise, or condition, whether written or oral, not specifical1y incorporated herein, shaH not be binding upon any of the Parties and Plaintiff acknowledges that in entering into this Settlement Agreement, the Parties have not relied upon any representations, promises, or conditions not specifically set forth herein. 15. COUNTERPARTS This Settlement Agreement may be executed in counterparts, and, when all executed signatures pages are taken together, sha11 constitute a complete Settlement Agreement. An electronic signature has the same force and effect as an original signature. IN WITNESS THEREOF, the Parties hereto have executed this Settlement Agreement as of the date specified below. Dated: 11/11/2025 Stephanie Grace Hilliard Dated: November 4, 2025 Kevin Ray Whillock Dated: \\ J"t.. -Z.S--City of Carlsbad ~P-+-~ Name: Geoff Patnoe APPROVED AS TO FORM Cindie K. McMahon, City Attorney Title: City Manager ~ ~ ,~ -~ Page 5 of5 Asslstantltlept!ty-City Attorney City of Carlsbad, California