HomeMy WebLinkAbout1988-08-09; City Council; 9577; Settlement AgreementClT- OF CARLSBAD - AGEND-BILL
MTG. 8/9/88
DEPT. RM
APPROVAL OF SETTLEMENT IN
ROTCHFORD V CITY OF CARLSBAD
ITEM EXPLANATION:
This lawsuit arose as the result of a traffic collision which occurred on
November 22, 1986, between vehicles driven by Plaintiff Patrick Rotchford
and Carlsbad Police Officer Alan James Edwards. Both drivers were
injured and both vehicles sustained substantial damage.
A settlement has been reached between the parties whereby Plaintiff
Patrick Rotchford has agreed to dismiss his complaint and waive his
right to a recovery in exchange for the City of Carlsbad dismissing its
cross-complaint and waiving its right to a recovery.
The City Attorney and the Risk Manager recommend approval of the
settlement.
of the facts and circumstances, is in the best interests of the City.
It represents a resolution of the litigation which, under all
FISCAL IMPACT
Each party will assume responsibility for payment of their own loss and
expense.
EXHIBITS
1. Resolution No. ff-zfi
2. Mutual Release and Waiver Agreement
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RESOLUTION NO. 88-283
A RESOLUTION OF THE CITY COUNCIL OF THE CITY
OF CARLSBAD, CALIFORNIA APPROVING THE
SETTLEMENT OF THE LAWSUIT ENTITLED PATRICK
M. ROTCHFORD V CITY OF CARLSBAD, ET AL
WHEREAS, The City Attorney and the Risk Manager recommend a
settlement of the case entitled Patrick M. Rotchford v City of Carlsbad,
et al and the City Council agrees that it is in the City's best interest;
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 City Council approves the settlement of this lawsuit
and authorizes the City Attorney to sign the settlement agreement on
behalf of the City of Carlsbad.
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PASSED, APPROVED AND ADOPTED at a Regular Meeting of the
City Council of the City of Carlsbad on the 9th day of August 8
1988, by the following vote, to wit:
AYES: Council Members Lewis, Kulchin, Pettine, and Mamaux
NOES: None
ABSENT: Council Member Larson
ABSTAIN:
ATTEST :
MUTUAL RELEASE AND WAIVER AGREEMENT
KNOW ALL PERSONS BY THESE PRESENTS:
That the undersigned, PATRICK M. ROTCHFORD (hereinafter referred to as tlPLAINTIFFtt) and THE CITY OF CARLSBAD and ALAN JAMES EDWARDS (hereinafter referred to as ttDEFENDANTStl), for and in consideration of a mutual release and dismissal with prejudice
of all pending or future claims, do release, acquit, waive and
forever discharge each the other and their agents, servants, employees, employers, successors, assigns, heirs, executors, administrators, indemnitors, and insurers of each of them, of any, all and every claim, action, cause of action, demand, right, damages, lien, costs, attorneys' fees, loss of service, loss of employment, expenses, compensation, court costs and liability of whatever kind and nature, which the undersigned, their heirs, executors, administrators, successors, assigns, indemnitors, or insurers ever had, now have, or may hereafter have, arising from or in any way growing out of any and all known and unknown, foreseen and unforeseen personal injuries, property damage or other losses and the consequences thereof resulting or yet to result from the events giving rise to the subject lawsuit, a set of events allegedly occurring on or about November 22, 1986, arising from an automobile collision between a vehicle driven by PLAINTIFF, and a Carlsbad police vehicle driven by DEFENDANT ALAN JAMES EDWARDS, said events having been made the subject of a lawsuit numbered N37423 in the San Diego Superior Court, wherein
it was alleged that PLAINTIFF suffered certain personal injuries and property damage as a result of the alleged negligence,
misconduct and other wrongdoing of defendants: and defendants allege they suffered certain personal injuries and property damage as a result of the alleged negligence, misconduct and other wrongdoing of plaintiff.
It is further understood and agreed that THE UNDERSIGNED DO HEREBY WAIVE ALL RIGHTS AND BENEFITS WHICH THEY NOW HAVE OR IN THE FUTURE MAY HAVE UNDER AND BY VIRTUE OF THE TERMS OF SECTION 1542 OF THE CIVIL CODE OF THE STATE OF CALIFORNIA, WHICH SECTION READS AS FOLLOWS:
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 affec- ted his settlement with the debtor.
It is further understood and agreed that in considera- tion of said mutual release of all claims and dismissal of the
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action with prejudice, the undersigned will indemnify and save harmless the DEFENDANTS, and all other persons, firms or corpor-
ations of and from, any and every claim, lien or demand of every kind or character which has been or may ever be asserted by way of subrogation or any other proceeding by reason of said injuries, property damage, or other loss or damage, or the effects or consequences thereof by the undersigned, or their heirs or assigns or any other person, natural or artificial, claiming to be damaged thereby.
In further consideration of said mutual release of all claims and dismissal of the action with prejudice, the undersigned agree that in addition to their general application, the hold harmless provisions hereof shall specifically apply to the claims or demands for damage, loss or expense of the spouse, children and other family of the undersigned, as well as to those of any
insurance company, medical plan, governmental entity or agency,
fraternal or benevolent organization, employer, or any other party claiming to have suffered damage, loss or expense by reason of the accident or occurrence hereinabove described, the cost of medical care and treatment of injuries to the undersigned or damage to property of the undersigned, thereby occasioned, whether by way of subrogation, lien, intervention or otherwise.
The undersigned hereby declare and represent that the injuries sustained are, or may be, permanent and progressive and that recovery therefrom is uncertain and indefinite and in making this release it is understood and agreed that the undersigned relies wholly upon his own judgment, belief and knowledge of the nature, extent, affect, and duration of said injuries and
liabilities therefor and this release is made without reliance
upon any statement or representation of the party or parties hereby or on behalf of the DEFENDANTS, or any other person.
It is further understood and agreed that a true,
accurate and complete photocopy of this document is deemed a
duplicate original, each of them to have the full force and legal
effect as such and that the original signature may be signed in
counterpart on duplicate photocopies of the signature page.
In further consideration of the aforesaid consideration and the Mutual Release and Waiver Agreement above-described, the undersigned, PATRICK M. ROTCHFORD, hereby authorizes and directs his attorney, MELVIN F. COHEN, Esq., located at 22992 Mill Creek Road, Suit A, Laguna Hills, California 92653 to dismiss with prejudice the said action at law now pending in the Superior Court in and for the County of San Diego and numbered N37423 on file herein.
In further consideration of the aforesaid consideration and the Mutual Release and Waiver Agreement above-described, the
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undersigned, CITY OF CARLSBAD and ALAN JAMES EDWARDS, hereby authorize and direct their attorneys, ROGER G. PERKINS, Esq. and CONSTANTINE D. BUZUNIS, Esq. of Hollywood & Neil, located at 1010 Second Avenue, Suite 1712, San Diego, California 92101 to dismiss with prejudice the said action at law now pending in the Superior Court in and for the County of San Diego and numbered N37423 on file herein.
It is further agreed and understood that this settlement agreement has been reached without any admission of liability or wrongdoing whatsoever by the DEFENDANTS and has been entered into by them solely to obtain their peace in this contested matter and any collateral matters that might otherwise arise therefrom.
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c.
THE UNDERSIGNED HAVE READ THE FOREGOING THREE (3) PAGE RELEASE DOCUMENT AND FULLY UNDERSTAND IT.
Signed, sealed and delivered this day of , 1988.
CAUTION: READ CAREFULLY BEFORE SIGNING.
Ls
PATRICK M. ROTCHFORD, Plaintiff
\
LS
ESQ City Attorney for &!CY OF
CARLSBAD
LS
ALAN JAMES EDWARDS
NOTARY ACKNOWLEDGEMENT
STATE OF CALIFORNIA )
) ss.
COUNTY OF 1
On this the day of 1988, before me , the undersigned Notary Public,
personally appeared PATRICK M. ROTCHFORD personally known to me
or proved to me on the basis of satisfactory evidence to be the
person whose name subscribed to the within instrument, and
acknowledged to me that executed it.
WITNESS my hand and official seal.
[SEAL]
Signature of Notary Public
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DECLARATION OF ATTORNEY
I am an attorney licensed to practice law in the State of California, and I hereby represent and declare that I have fully explained the foregoing Mutual Release and Waiver Agreement
to my client PATRICK M. ROTCHFORD, who in turn acknowledged to me an understanding of said release and the legal effect thereof: and the signature on the release was personally made by my client PATRICK M. ROTCHFORD upon my advice and recommendation.
Dated: , igaa MELVIN F. COHEN, Esq.
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