HomeMy WebLinkAbout1989-07-11; City Council; 10119; Settlement Agreementi- 4 a CIF OF CARLSBAD - AGENr4 BILL
c- 4B#a I TITLE: IDEPT. HD.-
SETTLEMENT OF HAVINS V. WULLKOTTE
CASE NO. 584326 MTG.7/1118q
DEPT.cA
RECOMMENDED ACTION:
Adopt Resolution No.89dah authorizing payment by the City of
$135,000 for the settlement of Havins v. Wullkotte.
ITEM EXPLANATION
Mrs. Havins was killed on December 17, 1986 when her car was hit by a dump truck in the intersection of Rancho Santa Fe Road and
Melrose. The case was brought by the guardian of Mrs. Havins’ children for wrongful death and for the injuries they sustained in the crash. In addition to the insurance company for the owner of the dump truck, the suit was brought against the City of Carlsbad, City of San Marcos and County of San Diego who were all responsible for various portions of the intersection as well as the successors to Daon and the La Costa Land Company and Rick Engineering who were responsible for the design and construction of the intersection in connection with a subdivision. Special settlement conferences have been held with retired Judge Yale, retired Judge Lopardo and Superior Court Judge O’Neil. These conferences have resulted in a compromise. Plaintiffs will receive the sum of $432,500 with the
parties contributing as follows: City of Carlsbad $135,000, City
of San Marcos $105,000, BCE Development Company $105,000, County
of San Diego $50,000 and Rick Engineering $37,500. Plaintiffs have
also previously received a sum in excess of $500,000 from the
parties responsible for the dump truck . It is my recommendation
that the City Council adopt Resolution No. 89-27 6 approving the settlement and authorizing the payment of $135,000 from the
liability self insurance account.
EXHIBIT
Resolution No. 8Wd6
1 '.
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
RESOLUTION NO. 89-226
A RESOLUTION OF THE CITY COUNCIL OF THE CITY
OF CARLSBAD, CALIFORNIA AUTHORIZING THE
EXPENDITURE OF FUNDS FOR SETTLEMENT OF THE
LAWSUIT ENTITLED HAVINS V. WULLKOTTE
WHEREAS, after recommendation of the City Attorney the
City Council of the City of Carlsbad, California has determined
that it is in the City's best interest to settle the case entitled
Havins v. Wullkott; 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 City Council approves the settlement
agreement attached as Exhibit A and the joint release agreement
attached as Exhibit B and authorizes disbursement of $135,000 from
the liability self-insurance reserve account.
3. That the Mayor of the City of Carlsbad is hereby
authorized and directed to execute said agreements for an on behalf
of the City of Carlsbad.
.-
I.
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
PASSED, APPROVED AND ADOPTED at a Regular Meeting of the
City Council of the City of Carlsbad on the 11th day of July
1989, by the following vote, to wit:
AYES: Council Members Lewis, Kulchin, Pettine, Mamaux and Larson
NOES: None
ABSENT: None
ATTEST:
ALETHA L. RAUTENKRANZ, City Chrk
(SEAL)
SETTLEMENT AGREEMENT AND RELEASE
THIS SETTLEMENT AGREEMENT AND RELEASE ("Settlement
Agreement") is made and entered into this day of June, 1989 by and between GREGORY HAVINS, individually,
CASSIE LEE ANN HAVINS, a minor, KENDRA HAVINS, a minor, and BRANDON SORENSON, a minor, by and through their Guardian ad Litem, GREGORY HAVINS (the "Plaintiffs"), and BCE DEVELOPMENT, INC., as successor in interest to DAON CORPORATION, PENINSULA COVE CORPORATION, as successor in interest to LA COSTA LAND COMPANY, CITY OF CARLSBAD, CITY OF SAN MARCOS, COUNTY OF SAN DIEGO, a political subdivision of the State of California, and RICK ENGINEERING COMPANY (the "Defendants"). The Plaintiffs and Defendants are collectively defined as the parties or settling parties.
RECITALS
A. Certain disputes have arisen between the parties hereto resulting in a lawsuit for damages for wrongful death, personal injuries and property damage in the Superior Court of the State of California for the County of San Diego, North County Branch, Case Number N 38009 entitled GREGORY-HAVINS, individually, CASSIE LEE ANN HAVINS, a minor, KENDRA HAVINS, a minor, BRANDON HAVINS, a minor, by and through their Guardian ad Litem, GREGORY HAVINS v. THE CITY OF CARLSBAD, et al., (the "Action").
B. A First Amended Complaint was filed in the Action on or about September 8, 1988 by attorneys Haskins, Nugent, Newnham, Kane ti Zvetina. The complaint was signed by Thomas P. Nugent.
C. In the Action, Plaintiffs allege that they suffered injuries and losses as a result of an automobile accident which occurred on or about December 17, 1986 in the County of San Diego, State of California. Plaintiffs allege that Defendants BCE DEVELOPMENT, INC., as successor in interest to DAON CORPORATION, PENINSULA COVE CORPORATION, as successor in interest to LA COSTA LAND COMPANY, CITY OF
CARLSBAD, CITY OF SAN MARCOS, COUNTY OF SAN DIEGO, a
political subdivision of the State of California, and RICK ENGINEERING COMPANY, and others, are liable for any and all injuries they suffered, and for compensatory damages and other relief. All allegations by Plaintiffs have been denied by Defendants, who continue to deny such allegations. The allegations made by Plaintiffs in the Action are referred to and incorporated by reference herein solely to set forth the allegations made, and not as an admission of any such allegations.
, . -.
D. The parties desire to enter into this
Settlement Agreement to provide for certain payments and full settlement and complete discharge of any and all claims which are the subject of this occurrence, upon the terms and conditions set forth herein.
AGREEMENT
The Parties hereby agree as follows:
1. Release and Discharge.
In consideration of the payments called for herein,
Plaintiffs hereby completely release and forever discharge the Defendants, the insurance carriers for Defendants (the "Insurers"), and all other persons, firms, and corporations whomsoever and each of them and their past, present and future officers, directors, stockholders, attorneys, agents, servants, representatives, employees, subsidiaries,
affiliates, partners, predecessors and successors in
interest, and assigns and all other persons, firms or
corporations with whom any of the former have been, are now
or may hereafter be affiliated (hereinafter "Releasees") of
and from any and all past, present or future bodily and
personal injury claims, wrongful death claims, loss of
consortium claims, rights, damages, costs, attorney fees,
losses of services, losses of earnings, future medical expenses, expenses and compensation of any nature whatsoever, whether based on a tort, contract (express, implied or otherwise) or any other theory of recovery, and whether for compensatory or punitive damages, which the Plaintiffs now have, or which may hereafter accrue or otherwise be acquired,
in any way growing out of, or which is the subject of the
occurrence of an automobile accident on or about December 17,
1986, at or near the intersection of Rancho Santa Fe Road and Melrose Avenue, in the County of San Diego, California, (hereinafter "the Accident"), including without limitations,
any and all known or unknown claims of bodily, personal, loss
of consortium and economic injuries to the Plaintiffs, and
the consequences thereof, including but not limited to any
future claims for wrongful death as a result of this
occurrence or otherwise, which have resulted or may result from the alleged acts or omissions of the Defendants or the handling of any insurance claim or the defense of any legal proceeding arising out of said occurrence or any of them.
The foregoing release is intended by the settling parties to be as broad as the parties can possibly create with respect to the allegations giving rise to the Action and includes, but is not limited to, any liability whatsoever:
-2-
(a) which arises directly or indirectly out of or is in any manner related to the Accident, or any damages resulting directly or indirectly therefrom;
(b) which arises directly or indirectly out of or is in any manner related to the injuries which were
sustained by Plaintiffs GREGORY HAVINS, individually, CASSIE LEE ANN HAVINS, a minor, KENDRA HAVINS, a minor, and BRANDON
SORENSON, a minor, in or as a result of the Accident, including, without limitations, those, if any, which may
hereafter be acquired should the deaths of Plaintiffs result, directly or indirectly, from such injuries;
(c) which arises directly or indirectly out of or is in any manner related to any of the matters, occurrences or transactions which were set forth or which could have been set forth in that certain First Amended Complaint filed September 8, 1988 by Plaintiffs, including, without limitations, any and all claims for damages including all claims for punitive or exemplary damages.
This release shall be a fully binding and complete settlement between the Plaintiffs and the Defendants and Releasees and all parties represented by or claiming through the Plaintiffs, save only the executory provisions of this Settlement Agreement.
2. Payments.
In consideration of the release set forth above, the Defendants or their Insurers, on behalf of the Defendants, hereby agree to pay Plaintiffs the following sums
in the following manner:
(a) Initial Payments.
Upon execution of this Settlement Agreement, the Defendants, or their Insurers on the Defendants' behalf,
agree to pay:
i. To GREGORY HAVINS, $132,569.00;
ii. To CASSIE LEE ANN HAVINS, $100,000.00;
iii. To KENDRA HAVINS, $25,000.00; and
iv. To BRANDON SORENSON, $25,000.00.
The sums to be paid to minors CASSIE LEE ANN HAVINS, KENDRA HAVINS and BRANDON SORENSON will be paid to the Superior Court of the State of California for the County of San Diego for distribution as ordered in a minors' compromise proceeding.
-3-
(b) Monthly Payments.
Subject to the other terms and conditions of this Settlement Agreement, the Defendants, or their Insurers on Defendants' behalf, hereby agree to pay, in the manner suggested by Section 3 hereof:
i. Plaintiff CASSIE LEE ANN HAVINS, the sum of Seven Hundred Fifty Dollars and No Cents ($750.00) per month, commencing August 16, 2002, and continuing for the duration of Plaintiff CASSIE LEE ANN HAVINS' life, with twenty years (240 months) guaranteed. If Plaintiff CASSIE LEE ANN HAVINS dies prior to July 16,
2022, then the remaining monthly payments shall be made to her Estate.
ii. Plaintiff KENDRA HAVINS, the sum of Eight Hundred Seventy-Five Dollars and No Cents
($875.00) per month, commencing May 5,
2005, and continuing for the duration of Plaintiff KENDRA HAVINS' life, with twenty years (240 months) guaranteed. If
Plaintiff KENDRA HAVINS dies prior to April 5, 2025, then the remaining monthly payments shall be made to her Estate.
(c) Lump Sum Payments
i. Cash payments shall be made to Plaintiff
BRANDON SORENSON in accordance with the
following schedule:
At age 18 (9/27/96) -
At age 21 (9/27/99) -
At age 25 (9/27/03) -
At age 30 (9/27/08) - At age 35 (9/27/13) - At age 40 (9/27/18) - At age 45 (9/27/23) -
At age 50 (9/27/28) -
At age 55 (9/27/33) -
At age 60 (9/27/38) -
$ 5,000.00
10,000.00
20,000.00
30,000.00
40,000.00
50,000.00
75,000.00
100,000.00
150,000.00
220,000.00
If Plaintiff BRANDON SORENSON dies prior to September 27, 2038, then the remaining cash payments shall be made to his Estate.
ii. In addition to the monthly payments referenced herein, cash payments shall be made to Plaintiff CASSIE LEE ANN HAVINS in accordance with the following schedule:
-4-
..
At age 16 (8/16/97) - $ 5,000.00 At age 18 (8/16/99) - 10.000.00
At age 21 (8/16/02) - 20,000.00
If Plaintiff CASSIE LEE ANN HAVINS dies prior to August 16, 2002, then the remaining cash payments shall be made to her Estate.
iii. In addition to the monthly payments referenced herein, cash payments shall be made to Plaintiff KENDRA HAVINS in accordance with the following schedule:
At age 16 (5/5/00) - $ 10,000.00 At age 18 (5/5/02) - 15,000.00 At age 21 (5/5/05) - 25,000.00
If Plaintiff KENDRA HAVINS dies prior to May
5, 2005, then the remaining cash payments shall be made to her Estate.
3. Assignment and Assumption.
It is expressly understood and agreed that none of
the recipients of any future payments provided for herein, including Plaintiffs or any other person entitled to payments
hereunder, shall have the right to:
vary in any respects the payments;
payments :
from which payments are made;
payments ;
meeting any payments or discharging any obligations set forth in this agreement.
a. accelerate said future payments to any time or
b. receive the present discounted value of future
c. have any control of the investments of funds
d. have any right to increase or decrease any
e. change or modify the manner, mode or method of
The parties hereto acknowledge and agree that the Releasees and/or their insurers may make a "qualified assignment" within the meaning of Section 130(c), of the Internal Revenue Code of 1954, as amended, of the releasees' and/or their insurers' liability to make the periodic payments required herein to SAFECO ASSIGNED BENEFITS CORPORATION, whose performance will be guaranteed by a surety bond issued by SAFECO Insurance Company of America, which carries an A.M. Best rating of A+ (Superior). Any such assignment, if made, shall be accepted by the Plaintiffs without right of rejection and shall completely release and discharge the Releasees and their insurers from such obligations hereunder as are assigned to SAFECO ASSIGNED
-5-
BENEFITS CORPORATION. The Plaintiffs recognize that, in the event of such an assignment, the assignee shall be their sole obligor with respect to the obligations assigned, and that
all other releases that pertain to the liability of the Releasee and their insurers shall thereupon become final, irrevocable and absolute.
If the liability to make periodic payments is assigned by way of a "qualified assignment", Plaintiffs agree: 1. That periodic payments from the assignee cannot
be accelerated, deferred, increased or decreased by the releasor: 2. The assignee does not provide to the Plaintiffs
rights against the assignee that are greater than those of a general creditor; and
3. The assignee's obligation for payment of the periodic payments is no greater than the obligation of the
person originally liable (whether by suit or agreement) for payment and from whom the obligation was assigned.
The Releasees, their insurers or, if they so elect,
their assignee reserves the right to fund their liability to make future payments by purchasing a "qualified funding asset," within the meaning of Section 130(d) of the Internal Revenue Code of 1986 as amended, in the form of an annuity
contract from SAFECO LIFE INSURANCE COMPANY, which carries an A.M. Best rating of A+ (Superior), with CASSIE LEE ANN
HAVINS, KENDRA HAVINS and BRANDON SORENSON designated as ,'limiting lives" under said contract. to said annuity contract shall operate as a pro tanto discharge of the payment obligations set forth above. The
Releasees, their insurers or, if they elect, their assignee, shall be the owner of the annuity contract, and shall have all rights of ownership. The Releasees, their insurers or, if they elect, their assignee, may have the annuity carrier, SAFECO LIFE INSURANCE COMPANY, mail payments directly to Plaintiffs for the Assignee's convenience. The Plaintiffs shall be responsible for maintaining the currency of the proper mailing address and mortality information to SAFECO
LIFE INSURANCE COMPANY.
Payments made pursuant
The monthly payments and lump sum payments required by Section 2 hereof are not, nor are they intended by the parties to be, compensation for lost income, and the provisions of this instrument shall be construed to give effect to such intent.
4. Warranties.
Plaintiffs, and their attorneys of record warrant
and represent:
-6-
(a) The extent of the damages, if any, sustained by Plaintiffs, or any of them, is unknown, and Plaintiffs understand, agree and warrant that the release contained in this Settlement Agreement extends to all unknown or unanticipated damages, as well as to those which are now known or disclosed;
(b) Plaintiffs rely wholly on their own judgment and that of their attorneys of record as to the extent of the damages they have sustained, or will sustain in the future,
Plaintiffs have not been influenced by any statement made by or on behalf of any of the other parties to this settlement;
(c) Plaintiffs warrant that they have retained Haskins, Nugent, Newnham, Kane & Zvetina as their attorneys and that these attorneys are the attorneys of their choice who are concluding this settlement on their behalf:
(a) Plaintiffs warrant and represent that they
have been fully informed and have full knowledge of the terms, conditions, and effects of this Settlement Agreement;
have either personally or through their attorneys of record fully investigated, to the Plaintiffs' full satisfaction, all the facts surrounding the various claims, controversies, and disputes and are fully satisfied with the terms and effects of this Settlement Agreement.
(e) Plaintiffs warrant and represent that they
5. Attorneys' Fees.
Each party hereto shall bear their own attorneys' fees and costs arising from the actions of their own counsel
in connection with the Accident, this Settlement Agreement and the matters and documents referred to herein, the
obtaining of the appropriate court approval of this Settlement Agreement, and the filing of a dismissal of the Action, and all other related matters.
6. Requirement of Lawful Claim.
For your protection, California law requires the
"It is unlawful to: (a) present or cause to be presented any false or fraudulent claim for a payment of a loss under a contract of insurance;
(b) prepare, make or subscribe any writing, with intent to present or use the same, or allow it to be presented or used in support of such claim. Every person who violates any
following to appear in this Settlement Agreement:
-7-
provision of this section is punishable by imprisonment in the State Prison not exceeding three years or by fine not exceeding $1,000 or by
both. "
7. Discharge Of Obligation.
The obligation of the Defendants or their Insurers
(or any assignee pursuant to Section 3 hereof) to make
monthly or annual payment or lump sum payment shall be discharged upon the timely mailing of a valid check in the amount of such payment to the party to whom the payment is required to be made under this Settlement Agreement, and no Defendants or Insurers (or any assignee pursuant to Section 3) shall be liable for failure of the appropriate persons to receive any such check if said check is so mailed. Should said monthly, annual or lump sum payments not be received by Plaintiffs, they should give notice to the assignee referenced in Section 3 above, and replacement checks will be issued.
8. General Release.
The parties hereby acknowledge and agree that the
releases set forth in Section 1 hereof are general releases
and they further expressly waive and assume the risk of any
and all claims for damages which exist as of this date but which the parties do not know or suspect to exist, whether through ignorance, oversight, error, negligence, or otherwise, and which, if known, would materially affect their decision to enter into this Settlement Agreement. The parties further acknowledge that they have read the provisions of California Civil Code Section 1542 and they waive all rights thereunder, which Section provides:
"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.
9. Delivery Of Dismissal With Prejudice.
Concurrently with the mutual execution of this Settlement Agreement and upon Court approval in the minors' compromise proceeding, counsel for the Plaintiffs will deliver to counsel for the Defendants an executed Dismissal with Prejudice of the Action. The Plaintiffs have authorized their attorneys to execute this Dismissal on their behalf and thereby authorize counsel for the Defendants to file said Dismissal and enter it as a matter of record.
-8-
10. Acknowledgment Of Compromise.
The parties acknowledge that they have executed and
agreed to this Settlement Agreement and made or accepted
payment of the sums or other concessions specified herein as
a complete compromise of matters involving disputed issues of
law and fact and fully assume the risk that the facts or law
may be other than they believe.
11. Warranty of Capacity To Execute Agreement.
The Plaintiffs, and their attorneys represent and
warrant that no other person or entity has or has had any
interest in the claims, demands, obligations, or causes of action referred to in this Settlement Agreement: that they
have the sole right and exclusive authority to execute this
Settlement Agreement and receive the sums specified in it; and that they have not sold, assigned, transferred, conveyed,
or otherwise disposed of any of the claims, demands,
obligations, or causes of actions referred to in this Settlement Agreement.
Plaintiffs represent and warrant that with the exception of a medical lien held by Yuma Rehabilitation
against CASSIE LEE A" HAVINS' recovery, the actions, causes of action, claims, demands, damages and controversies described herein are free and clear of any pledges, claims,
covenants, liens or encumbrances (including, without limitation, any pledges, claims, covenants, liens or encumbrances) which may exist, by way of subrogation or
otherwise, in favor of any insurer, compensation fund or health care provider, or any of them. Plaintiffs further warrant and represent that there are no persons other than the Plaintiffs, who have had, now have or may hereafter acquire against the parties released by this Agreement, or any of them, any action, cause of action, claim, demand, damage or controversy whatsoever arising out of or relating in any manner whatsoever to the injuries and damages sustained by Plaintiffs as a result of the Accident, or any damages resulting directly or indirectly therefrom. Should any lien, subrogation, or indemnity claim be made against Defendants or Releasees, based on services, goods, or benefits provided to Plaintiffs, the Plaintiffs shall indemnify, defend, and hold harmless Defendants and Releasees from any and all such claims.
12. Disclaimer Of Liability.
The Plaintiffs agree and acknowledge that they
accept payment of the sums or other concessions specified in this Settlement Agreement as a full and complete compromise of matters involving disputed issues: that neither payment of the sums or other considerations by the Defendants or their
-9-
Insurers on the Defendants' behalf nor the negotiations for this settlement (including all statements, admissions, or communications) by the Defendants and their attorneys or representatives shall be considered admissions by any of said parties; and that no past or present wrongdoing or liability on the part of the Defendants or Insurers shall be implied by such payment or negotiations.
13. Entire Agreement And Successors In Interest.
This Settlement Agreement contains the entire agreement between the parties with regard to the matters set forth in it and shall be binding upon and inure to the benefit of the executors, administrators, personal representatives, heirs, successors (including, without limitation, any successor Guardian Ad Litem or Guardian of the Estate of the Plaintiffs), and assigns of each.
14. General Indemnification To Secure Performance.
In order to induce every party to execute and deliver this Settlement Agreement, and to pay the considera- tion required hereby, Plaintiffs warrant that their heirs, descendants, successors, assigns, or legal representatives, individually and collectively, shall perform all duties and obligations hereunder and shall abide by each and every term,
condition, provision, covenant and agreement contained
herein; and that Plaintiffs' heirs, descendants, successors,
assigns, and legal representatives not parties hereto, shall abide by, observe, and perform each and every term, condition, agreement, obligation, covenant, and release contained herein the same as though such heirs, descendants, successors, assigns, and legal representative were signatory parties hereto: and Plaintiffs with the intention of binding themselves (including therein their heirs, descendants, successors, assigns or legal representatives) shall indemnify and hold harmless every other settling party and their attorneys and such party's successors, assigns or legal representatives in the event of any breach of the foregoing.
15. Court Approval.
Plaintiffs, and their attorneys shall cooperate with Defendants and their attorneys to secure court approval of this Settlement Agreement, if required by Defendants, including determinations that the Plaintiffs and Defendants have entered into a fair and good faith settlement under the terms specified herein and that the Plaintiffs are competent and have comprehension of the terms of this Agreement. If a 'minors compromise and release is required, then the Plaintiffs, and their attorneys will so provide. However, all such proceedings shall include proper notice to BCE DEVELOPMENT, INC., as successor in interest to DAON
-10-
CORPORATION, PENINSULA COVE CORPORATION, as successor in
interest to LA COSTA LAND COMPANY, CITY OF CARLSBAD, CITY OF SAN MARCOS, COUNTY OF SAN DIEGO, a political subdivision of
the State of California, and RICK ENGINEERING COMPANY and
their attorneys.
16. Survival Of Representations.
The representations and warranties set forth herein shall endure forever and shall survive any investigation made by or on behalf of Plaintiffs, or any of them, regardless of any actual or constructive knowledge on the part of Plaintiffs, or any of them, with respect to the truth or accuracy of any such representation or warranty. Plaintiffs, and each of them, agree to indemnify, hold harmless and defend the Defendants, their Insurers, and their attorneys of record, from and against any and all actions, causes of action, liabilities, loss or expense, including attorney’s
fees incurred in the future by reason of the assertion of
claims arising out of this occurrence, either directly or indirectly, or by reason of any inaccuracy in any matter set forth in this Settlement Agreement.
17 . Indemnification.
In the event that any action or proceeding shall be commenced or any claim shall be asserted which may entitle the parties released by this agreement, or any of them, to indemnification, written notice of such action shall be given reasonably promptly after notice of the claim. released by this agreement shall at all times have exclusive control of the defense of such action and shall have the exclusive right to prosecute, defend, compromise or settle same. Any judgment or award entered in such action, or
settlement of such action, shall be conclusive and binding on the indemnitors.
The parties
18. Agreement Supersedes Other Agreements.
This Settlement Agreement supersedes all prior agreements or understandings, whether written or oral, of the parties hereto relating to the subject matter hereof and incorporates the entire understanding of the parties with respect thereto. In the event of uncertainty in the terms of this Settlement Agreement, such uncertainty shall be resolved fairly and in accordance with the intent of the parties as
set forth herein.
19. Invalid Provisions.
If, after the date hereof, any provision of this Settlement Agreement is held to be illegal, invalid or unenforceable under present or future laws effective during
-11-
--
the terms of this Settlement Agreement, such provision shall be fully severable. In lieu thereof, there shall be added a
provision as similar in terms to such illegal, invalid or unenforceable provision as may be possible and be legal,
valid and enforceable.
20. Construction By California Law.
This Settlement Agreement is entered into in the State of California and shall be construed and interpreted in accordance with its laws.
21. Representation Of Comprehension Of Document.
In entering into this Settlement Agreement the settling parties represent that they have relied upon the legal advice of their attorneys, who are the attorneys of their own choice and that the terms of this Settlement Agreement have been completely read and explained to them by their attorneys, and that those terms are fully understood
and voluntarily accepted by them.
Defendants and all other parties released by this Settlement Agreement, and their attorneys of record, make no warranty whatsoever as to the tax consequences of this Settlement Agreement or any portion thereof. Plaintiffs have exclusively relied upon legal advice of their attorneys who are the attorneys of their choice as to the terms and effect of this Settlement Agreement and Plaintiffs warrant and represent that they have not relied upon representations or been influenced by any statement made by or on behalf of any of the other parties to this settlement.
A division, if any, of the sums of money to be paid to Plaintiffs, between Plaintiffs, and anyone else, shall in no way affect the validity of this Settlement Agreement and Release.
22. Additional Documents.
All parties agree to cooperate fully and execute any and all supplementary documents and to take all additional actions which may be necessary or appropriate to give full force and effect to the basic terms and intent of
this Settlement Agreement.
23. Effectiveness.
This Settlement Agreement shall become effective immediately upon execution and may be executed by duplicate original.
-12-
Executed at , California, this
day of , 1989.
GREGORY HAVINS, individually
CASSIE LEE ANN HAVINS, by and through her Guardian Ad Litem, GREGORY HAVINS
KENDRA HAVINS, by and through her Guardian Ad Litem, GREGORY HAVINS
BRANDON SORENSON, by and through his Guardian Ad Litem, GREGORY HAVINS
HASKINS, NUGENT, NEWMIAM, KANE h ZVETINA, Attorneys at Law
BY THOMAS P. NUGENT
-13-
DATED:
DATED:
DATED: /9f? /
DATED :
DATED:
BCE DEVELOPMENT, INC., as successor in interest to
DAON CORPORATION
Bv
PENINSULA COVE CORPORATION, as successor in interest to LA COSTA LAND COMPANY
CITY OF SAN MARC08
COUNTY OF SAN DIEGO, a political subdivision of the State of California
-14-
DATED: RICK ENGINEERING COMPANY
-15-
DECLARATION OF ATTORNEYS
I, Thomas P. Nugent, hereby state: I am a member of Haskins, Nugent, Newnham, Kane & Zvetina, the attorneys for Plaintiffs GREGORY HAVINS, individually, CASSIE LEE ANN HAVINS, a minor, KENDRA HAVINS, a minor, BRANDON HAVINS, a minor, by and through their Guardian ad Litem, GREGORY HAVINS in Court Action No. N
38009. I have reviewed the foregoing Settlement Agreement and each of its provisions, and have advised my clients to
execute it. I have fully explained the foregoing Settlement Agreement to my clients, who have acknowledged to me that they understand it and its legal effect. The signatures which appear on the preceding pages are their true personal signatures.
Bv -4 THOMAS P. NUGENT
-16-
'_
State of California 1
)
County of )
ss.
On this day of I 198 I before me a notary public in and for said county and state,
personally appeared GREGORY HAVINS known to me to be the
person whose name is subscribed to the within instrument and
acknowledged to me that he executed the same.
WITNESS my hand and official seal.
Notary Public
s j w/ 3 0 108/o/g
-17-
.
JOINT AND MUTUAL RELEASE
This Joint and Mutual Release ("Release") is.made
and entered into by and between BCE DEVELOPMENT, INC., as successor in interest to DAON CORPORATION, PENINSULA COVE
CORPORATION, as successor in interest to LA COSTA LAND COMPANY, CITY OF CARLSBAD, CITY OF SAN MARCOS, COUNTY OF SAN DIEGO, a political subdivision of the State of California,
and RICK ENGINEERING COMPANY.
RECITATIONS AND REPRESENTATIONS
A. On or about December 17, 1986, an automobile
accident occurred at or near the intersection of Rancho Santa
Fe Road and Melrose Avenue, in the County of San Diego,
California (hereinafter referred to as the "Accident").
B. On or about September 8, 1988, Plaintiffs
GREGORY HAVINS, individually, CASSIE LEE ANN HAVINS, a minor,
KENDRA HAVINS, a minor, and BRANDON SORENSON, a minor, by and
through their Guardian ad Litem, GREGORY HAVINS (hereinafter
collectively ("Plaintiffs") filed a First Amended Complaint 8
against BCE DEVELOPMENT, INC., as successor in interest to
DAON CORPORATION, PENINSULA COVE CORPORATION, as successor in
interest to LA COSTA LAND COMPANY, CITY OF CARLSBAD, CITY OF
SAN MARCOS, COUNTY OF SAN DIEGO, a political subdivision of
the State of California, and RICK ENGINEERING COMPANY in the Superior Court of the State of California, County of San
Diego, North County Branch, Case No. N 38009 (hereinafter
"the Action") seeking damages for wrongful death, personal
injuries and property damage arising out of the Accident.
C. Defendants BCE DEVELOPMENT, INC., as successor
in interest to DAON CORPORATION, PENINSULA COVE CORPORATION,
as successor in interest to LA COSTA LAND COMPANY, CITY OF
CARLSBAD, CITY OF SAN MARCOS, COUNTY OF SAN DIEGO, a political subdivision of the State of California, and RICK
ENGINEERING COMPANY have filed cross-complaints against one another in the Action, which include claims for indemnity and
contribution.
D. The parties to this Release, in order to avoid protracted litigation and without determination of any rights of the parties hereto raised in the Action and/or related cross-complaints, and without the admission of liability of
any party hereto, wish to compromise the dispute as to all
parties hereto on the terms and conditions set forth below.
NOW, TBEREFORE, IN CONSIDERATION OF THE FOLLOWING
RESPECTIVE AGREEMENTS, PROVISIONS AND COVENANTS, BCE DEVELOPMENT, INC., as successor in interest to DAON CORPORATION, PENINSULA COVE CORPORATION, as successor in interest to LA COSTA LAND COMPANY, CITY OF CARLSBAD, CITY OF
SAN MARCOS, COUNTY OF SAN DIEGO, a political subdivision of
the State of California, and RICK ENGINEERING COMPANY AGREE
AND RELEASE EACH OTHER AS FOLLOWS:
DISMISSAL OF THE SUBJECT CROSS-COMPLAINT8 WITH PREJUDICE
1. Concurrently with the execution and delivery of this Release, BCE DEVELOPMENT, INC., as successor in interest
to DAON CORPORATION, PENINSULA COVE CORPORATION, as successor in interest to LA COSTA LAND COMPANY, CITY OF CARLSBAD, CITY OF SAN MARCOS, COUNTY OF SAN DIEGO, a political subdivision of the State of California, and RICK ENGINEERING COMPANY, and each of them, by and through their attorneys of record herein, shall execute and file with the court Requests for Dismissal with prejudice of their respective cross- complaints.
2. Upon execution of this Release by the parties
hereto and upon performance of the terms and provisions of
paragraph 1 above, and in consideration therefor, each of the parties to this Release agree to bear as between themselves their own costs and attorneys' fees arising out of either the defense of Plaintiffs' complaint, or the defense or prosecution of their respective cross-complaints.
3. Each of the parties hereto does hereby release,
acquit and forever discharge each other party, their past and
present officers, directors, general and limited partners,
employees, agents, successors and/or assigns, of and from any
and all demands, and any and all manner of actions and causes of action, suits, debts, dues, sums of money, accountings,
reckonings, bonds, bills, specialties, covenants, contracts,
controversies, agreements, promises, variances, trespasses,
damages, judgments, executions, claims and demands
whatsoever, in law or in equity, which they or any of them
ever had or now have or which their officers, directors,
general and limited partners, employees, agents, successors
and/or assigns, or any of them, hereinafter can, shall or may
have against each other, or any of them, for, upon or by
reason of any matter, cause or thing whatsoever, arising out
of the Accident and giving rise to this Action and its
related cross-complaints.
4. The undersigned represent, warrant and certify
that in signing this Release, they do so with full knowledge of any and all rights which they may have, and they do not
-2-
rely and have not relied upon any representations or
statements of each other, or any of them, or their officers, agents or representatives with regard to any of their rights
or asserted rights, and they hereby assume the risk of any mistake of fact in connection with the true facts involved or
with regard to any facts involved or with regard to any facts which are now unknown to any of them.
further represent, warrant and certify that they have consulted and secured independent legal advice and consultation in connection with this Release and any rights which they may be relinquishing.
5. It is further expressly understood and agreed
that with regard to the Action and its related cross-
complaints, the parties hereto waive the provisions of Section 1542 of the Civil Code of California which reads as
follows:
The parties hereto
"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."
6. In the event an action is brought to enforce
any of the provisions of this Release, the prevailing party in said action shall be entitled to costs and attorneys' fees therein.
7. This Release may be pleaded as and is a complete defense and bar to any action or proceeding of any kind that may be taken by the parties hereto on any claim arising from or in connection with the Accident and the
resulting Action or its related cross-complaints, and the parties hereto each agree to forebear from any lawsuit(s) against each other arising from or in any way related to the
Action and/or its related cross-complaints except to enforce
the provisions of this Release.
8. This Release is a compromise settlement agreement and is not to be construed as, nor is it intended
to be, an admission of the liability of any of the parties hereto, and each of said parties expressly denies liability
of any kind arising from or in connection with the Accident or the Action or its related cross-complaints.
9. Each signature hereon is conditional upon and in consideration of all other signatures required herein and it is understood and agreed that this Release may be signed in several counterparts, each of which shall be deemed to be an original, but all of which taken together shall constitute
one and the same document.
-3-
10. This Release contains the entire agreement
between the parties hereto and no addition or modification of any term or provision shall be effective unless set forth in
writing and signed by all of the parties.
11. Except where the intent of the parties to this
Release is materially affected thereby, if any part of provision of this Release or the application thereof to any person or circumstance shall to any extent be invalid or
unenforceable, the remainder of this Release and the application of such part or provision to persons or
circumstances other than those to which it is held invalid or
unenforceable shall not be affected thereby and each term or provision of this Release shall be valid and enforceable to the fullest extent permitted by law,
12. This Release shall be interpreted and construed in accordance with the laws of the State of California.
13. This Release shall be binding upon and shall inure to the benefit of the heirs, executors, administrators, successors and assigns of the parties hereto.
as of the date first set forth above. IN WITNESS WHEREOF, this Release has been executed
BCE DEVELOPMENT, INC., as successor in interest to DAON CORPORATION
DATED:
PENINSULA COVE CORPORATION,
LA COSTA LAND COMPANY as successor in interest to
DATED: By: Title:
DATED:
-4-
I.
1, LAW OFFICES OF JOHN C. BARBER
By: JOHN C. BARBER
Attorneys for CITY OF SAN MARCOS
LLOYD M. HARMON, JR., County Counsel
SUSAN A. CRABTREE, Deputy County Counsel
DANIEL J. WALLACE, Chief Deputy County Counsel
By:
SUSAN A. CRABTREE Attorneys for COUNTY OF SAN DIEGO, a political subdivision of the State of California
EDWARDS, WHITE & BOOY
By:
MICHAEL M. EDWARDS
Attorneys for
RICK ENGINEERING COMPANY
s j w/ 3 0 108/o/h
-6-