HomeMy WebLinkAbout1987-04-21; City Council; Resolution 9023L.
..
1
2
3
4
5
E
7
E
9
IC
11
12
18
19
20
21
22
23
24
25
26
27
28
RESOLUTION NO. 9023
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
CARLSBAD, CALIFORNIA AUTHORIZING THE EXPENDITURE
CARLSBAD.
WHEREAS, by recommendation of the City Attorney the Cit
OF FUNDS FOR SETTLEMENT OF METZGER V. CITY OF
Council of the City of Carlsbad, California has approved a
settlement in the cases of Metzger v. City of Carlsbad: and
WHEREAS, there are sufficient funds available in the
liability self insurance reserve account to pay the settlement,
NOW, THEREFORE, BE IT RESOLVED by the City Council of
the City of Carlsbad, California as follows:
1. That the above recitations are true and correct.
2. That the expenditure of $15,000 from the liability
self insurance reserve is authorized for the settlement of said
cases.
3. That the mayor execute the Settlement and Release
Agreement and the Assignment and Assumption of Obligations to
make periodic payments, Exhibits A and B respectively, copies of
which are attached hereto and made a part hereof.
PASSED, APPROVED AND ADOPTED at a regular meeting of thl
City Council of the City of Carlsbad, California, held on the
21st day of April , 1987, by the following vote to wit:
AYES: Council Members Lewis, Kulchin, Pettine, Mamaux and Larson
NOES: None
ABSENT: None
ATTEST:
L. RAUTENKRANZ ,
.-
1.
SETTLEMENT AND RELEASE AGREEMENT
Pursuant to the Compromise of Minor's Claim, Superior Court of the State of California in and for the County of San
Diego, Case No. N19507 and to the terms and conditions included
therein, RUDOLF METZGER and SHERLEY METZGER, individually and as natural parents and as guardians ad litem for their minor child,
ELIZABETH K. METZGER, hereby release and forever discharge the CITY OE CARLSBAD, the STATE OF CALIFORNIA and SAN DIEGO GAS &
ELECTRIC COMPANY, their heirs, executors, administrators, agents and assigns and all other persons, firms or corporations liable,
or who might be claimed to be liable from any and all claims, demands, damages, actions, causes of action or suits of whatso- ever kind or nature, and particularly on account of bodily injuries, known and unknown and which have resulted or may in the
future develop, sustained by ELIZABETH K. METZGER, a minor born on the 27th day of August, 1979, or arising out of damage or
loss, direct or indirect, sustained by undersigned in consequence
of an injury on or about the 6th day of July 1981, at or near
Carlsbad State Beach in the City of Carlsbad, California.
This release expressly reserved all rights of the
parties released to pursue their legal remedies, if any, against
RUDOLE METZGER and SHIRLEY METZGER their heirs, executors, agents and assigns.
RULOLE METZGER and SHIRLEY METZGER hereby agree to
protect and hold harmless the CITY OF CARLSBAD, the STATE OE
CALIEORNIA and SAN DIEGO GAS & ELECTRIC COMPANY against any claim
for damages, compensation or otherwise on the part of said minor
or any other party, growing out of or resulting from injury to said minor in connection with the above-mentioned incident and to
reimburse or make good any loss or damage or costs that the CITY OF CARLSBAD, STATE OF CALIEORNIA and SAN DIEGO GAS & ELECTRIC
COMPANY may have to pay if any litigation arises from said injuries, and RUDOLF METZGER and SHIRLEY METZGER hereby waive any
and all rights of exemption, both as to real and personal pro-
perty, to which they may be entitled under the laws of this or
any other state as against such claims for reimbursement or
indemnity by the CITY OE CARLSBAD, the STATE OF CALIEORNIA and
SAN DIEGO GAS & ELECTRIC COMPANY.
This Release expresses a full and complete settlement
of a liability claimed and denied on the part of all parties,
regardless of the adequacy of the above consideration, and the
acceptance of this Release shall not operate as an admission of
liability on the part of any party hereto.
All rights given by Section 1542 of the Civil Code of
California, which is quoted below, are waived by the undersigned.
CIVIL CODE SECTION 1542: "A general release
does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially
affected his settlement with the debtor."
By signing this General Release, we intend to give up and dis-
charge all rights and claims to damages to property even though
some of such damages may not have shown themselves at the time of
acceptance of this settlement.
I. Payments
In consideration for the Release set forth above, the Insurer on
behalf of the Defendants CITY OE CARLSBAD, STATE OE CALIEORNIA
and SAN DIEGO GAS & ELECTRIC COMPANY, hereby agrees to pay the
following sums in the designated manner:
Periodic Payments, Insurer agrees to make payments
as follows:
$8,773.00 payable annually for a period of four (4) years. Payments to commence on August, 27, 2000 (at age 21)
All sums set forth in paragraph I above constitute damages on
account of personal injuries, arising from an occurrence, within
the meaning of Section 104(a) (2) of the Internal Revenue Code of
1954, as amended.
11, Qualified Assignment
The Parties hereto acknowledge and agree that the Defendants
and/or the Insurer may make a "qualified assignment" within the
meaning of Section 130(c), of the Internal Revenue Code of 1954,
as amended, to BENEEICIAL INSURANCE GROUP HOLDING COMPANY of
Defendants' and/or the Insurer's liability to make the periodic
payments described in paragraph I herein. Any such assignment,
if made, shall be accepted by the Plaintiffs without right of
rejection and shall completely release and discharge the Defen-
dants and/or the Insurer from such obligations hereunder as are
assigned to the assignee(s). The Plaintiffs recognize that, in
the event of such as assignment, the assignee(s) shall be their
sole obligor with respect to the obligations assigned, and that all other releases that pertain to the liability of the Defen-
dants and/or the Insurer shall thereupon become final, irrevoca- ble and absolute.
2
\.
I.
The Plaintiffs, ELIZABETH KATHLEEN METZGER, a minor, by RUDOLE
METZGER, her Guardian ad litem, RUDOLE METZGER, individually, and
SHIRLEY METZGER, individually, agree:
A. That periodic payments under this Settlement Agreement
cannot be accelerated, deferred, increased or decreased
by the Plaintiffs.
B. The Settlement Agreement and any subsequent assignment does
assignee(s) that are greater than those of a general creditor;
not provide to the Plaintiffs' rights against the parties or
and
C. In the event of an assignment, the assignee's obligation for
payment of the periodic payments shall not be greater than the person originally liable (whether by suit or agreement)
for payment and from whom the obligation was assigned.
111. Plaintiffs' Rights to Payments
The Defendants, the Insurer, and/or assignee(s) shall not segre-
gate or set aside any of its assests to fund the payments to
Plaintiffs required herein, it being understood Plaintiffs are
and shall be general creditors to the Defendants, the Insurer,
and/or the assignee(s). Said payments cannot be accelerated,
deferred, increased or decreased by the Plaintiffs and nor part
of the payments called for herein or any assets of the Defen-
dants, the Insurer, and/or the assignee(s) is to be subject to
execution or any legal process for any obligation in any manner, nor shall the Plaintiffs have the power to sell or anticipate the same, or any part thereof, by assignment or otherwise. *
IV. Right to Purchase an Annuity
Plaintiffs agree that the Defendants, the Insurer, and/or any
assignee(s) shall have the right to fund its liability to make periodic payments by purchasing a "qualified funding asset",
within the meaning of Section 130(d) of the Code, in the form of an annuity policy from WESTERN NATIONAL LIEE INSURANCE COMPANY.
The Defendants, the Insurer, and/or the assignee(s) shall be the
owner of the annuity policy or policies, and shall have all
rights of ownership. The Defendants, the Insurer, and/or the
assignee(s) may have the annuity carrier(s), WESTERN NATIONAL
LIEE INSURANCE COMPANY, mail payments directly to the Plaintiffs.
The Plaintiffs shall be responsible for maintaining the currency
of the proper mailing address and mortality information to
WESTERN NATIONAL LIEE INSURANCE COMPANY
V. Plaintiff's Beneficiary
Any payments to be made after the death of any Plaintiff pursuant
to the terms of this Settlement Agreement shall be made to such
person or entity as shall be designated in writing at the time of settlement by said Plaintiff to the Insurer or the Insurer's
3
..
I.
assignee(s). If no person or entity is so designated by said
Plaintiff, or if the person designated by said Plaintiff, or if
the person designated is not living at the time of the Plain-
tiff's death such payments shall be made to the estate of the
Plaintiff.
Dated: 9- f- fy
ELIZABE~ KATHLEEN~~TZGER, a
minor by RUDOLE METZGER, her
Guapd an ad--friSem
Dated: 4- 977
Dated: 4-9-63
-SHIRLEY AETZGER, 'an"Yndividua1
We agree to the above settlement terms.
CITY OE CARLSBAD, STATE OE
CALIFORNIA and SAN DIEGO GAS ti
Dated : &A7
EL
BY
ECTRIC COMPANY
4
ASSIGNMENT AND
TO MAKE
ASSUMPTION OE OBLIGATION
PERIODIC PAYMENTS
This agreement is made and entered into effect as of
day of April, 1987 by and between CITY OE CARLSBAD the
(hereinafter referred to as the "Assignor") and Beneficial
Insurance Group Holding Company, a Delaware Corporation
(hereinafter referred to as the "Assignee").
_I
WITNESSETH
WHEREAS ELIZABETH KATHLEEN METZGER (hereinafter referred to
as the "Plaintiff") filed suit (hereinafter referred to as the
"lawsui t1,) :
WHEREAS, the above lawsuit was settled in accordance with the
day of April Settlement and Release Agreement executed as the -
1987, which is incorporated herein and attached as Exhibit "A"
(hereinafter referred to as the "Settlement and Release
Agreement 'I) :
WHEREAS, Assignor, under the Settlement and Release
Agreement, is to make certain periodic payments to Plaintiff;
WHEREAS, such payments constitute damages on account of per-
sonal injuries or sickness within the meaning of Sections 104(a)
(2) and 130(c) of the Internal Revenue Code of 1954, as amended
(hereinafter referred to as the "Code") ;
WHEREAS, Assignor, under the Settlement and Release Agreement,
has the right to assign its liability and obligations to make
certain periodic payments to Plaintiff within the meaning of
Section 130(c) of the Code;
WHEREAS, Assignor wishes to make such assignment and Assignee
wishes to assume said assignment;
NOW THEREPORE, in consideration of the covenants contained
herein and for other good valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Assignor and
Assignee agree as follows:
ARTICLE I
(1)
Assingor hereby assigns and Assignee hereby accepts and
assumes all of Assignor's liability and obligations to make the
periodic payments to ELIZABETH KATHLEEN METZGER in the amount and
at the times set forth in Paragraph I of the Settlement and Release
Agreement and in accordance with the subject to applicable pro-
visions of the Settlement and Release Agreement, which applicable
provisions are as follows:
Assignee shall pay to ELIZABETH KATHLEEN METZGER
the periodic payments as shown on the attached
SCHEDULE OE PAYMENTS, which is incorporated herein
and attached as Exhibit ''B''.
Assignee may satisfy the liability and obligations
assumed herein by purchasing a single premium
annuity policy from Western National Life Insurance
Company. Assignee shall own said annuity policy if
so purchased and shall provide the Plaintiff with a
copy of any annuity policy so purchased and proof
of payment therefore, with premium data deleted,
when said policy is so issued.
2
(c) The liability and obligations assumed by the
Assignee to make each of the payments in the
amounts and at the times set forth in Paragraph I
of the Settlement and Release Agreement shall be
discharged Pro Tanto, upon payment of each amount
specified in this Agreement. Each payment contem-
-
plated in Paragraph I of the Settlement and Release
Agreement shall be deemed made upon mailing to
Plaintiff a valid check in the amount due in a
properly addressed envelope with postage prepaid to
the address so designated by the Plaintiff, unless
Plaintiff within fourteen (14) days after the due
date of any payment notifies Assignee that any
check so mailed was not received; provided that
nothing herein shall relieve Defendants' Assignee
from making such payment except actual receipt
thereof by Plaintiff or his successor hereunder.
IN WITNESS WHEREOF, the parties hereto execute this agreement
SEAL
By: Attest: .-
City Clerk Title: Mayor
1 1 ss STATE OE CALIFORNIA
COUNTY OF SAN DIEGO )
On this 22nd day of April , 19 87, before me,
Claude A. Lewis personally appeared; that he
a c k no w ledg ed h- Mayor described herein; and that he, as such executed the foregoing instrument for
the purposes contained herein for and on behalf of City of Carlsbad .
-
.............................. * OFFlClAL SEAL * KAREN R. KUNDTZ t * NOTARY PUBLIC-CALIFOANIA
SAN DIEM COUNTY * * * 2 My Comm. Exp. 91%. 27, 1989 2 ..............................
SEAL BENEFICIAL INSURANCE GROUP HOLDING COMPANY
ASSIGNEE
BY
BY
.
Attest: Secretary Title :
Title :
STATE OE
COUNTY OF
On this day of , 19-, before me,
personally appeared; that they acknowledged themselves to be the
respectively of BENEFICIAL INSURANCE GROUP HOLDING COMPANY, the
corporation described herein; and that they, as such, executed the
foregoing instrument for the purposes contained herein for and on behalf of BENEFICIAL INSURANCE GROUP HOLDING COMPANY.
and
and
Notary Public
Plaintiff hereby consents to and accepts said assignment and assumption of liability and obligations to make periodic payments
as set forth herein.