HomeMy WebLinkAbout1990-04-03; City Council; 10560; Settlement+$3/
CII- OF CARLSBAD - AGENE-' BILL E)
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IITG.4/3/90
IEPT. CA
TITLE:
SETTLEMENT OF LAWSUIT ENTITLED MILLER V. CITY OF CARLSBAD, N45075 CITY MG
RECOMMENDED ACTION:
If Council concurs, adopt Resolution No. 90-29 .
ITEM EXPLANATION
Special counsel, the City Attorney, the City Manager and the Risk Manager jointly recommend that the Council approve the attached
settlement agreement in the above referenced action. It would
resolve the individual claims of James Miller, Patricia Miller,
Richard Scott Miller and James and Patricia Miller as heirs at law
of James I. Miller, deceased. Although we believe this tragic accident was caused by Mrs. Vargas, an unlicensed, inexperienced, uninsured driver who was driving much too fast for the conditions and crossed the center line, the possibility exists of some assignment of fault to the City because of the condition of Rancho Santa Fe Road. If that were to occur, an award against the City
is possible in an amount substantially in excess of the recommended
settlement figure. The Miller family who was wholly innocent has suffered a devastating loss with damages well into seven figures. The City's share of what we anticipate will be an ultimate settlement by all parties involved is less then 10% of the total. The settlement is recommended as being in the best interests of the
City.
FISCAL IMPACT
There are sufficient funds in the liability account to cover the settlement.
EXHIBITS
Resolution No. Ql?- 8fl Release Agreement
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RESOLUTION NO 90-84
A RESOLUTION OF THE CITY COUNCIL OF THE CITY
OF CARLSBAD, CALIFORNIA AUTHORIZING THE
EXPENDITURE OF FUNDS FOR SETTLEMENT OF THE
LAWSUIT ENTITLED MILLER V. CITY OF CARLSBAD
CASE NO. N45075
WHEREAS, on recommendation of the City Attorney the
City Council of the City of Carlsbad, California has determined
that a settlement in the case entitled Miller v. City of
Carlsbad is in the public interest; 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.
3. That the City Council approves the settlement and
authorizes disbursement of $550,500 from the liability self-
insurance reserve account for Miller v. Carlsbad.
3. That the Mayor is authorized to sign the Release
Agreement which is hereby approved.
PASSED, APPROVED AND ADOPTED at a Regular Meeting of
the City Council of the City of Carlsbad on the 3rd day of
April , 1990, by the following vote, to wit:
AYES: Council Members Lewis, Kulchin, Pettine, Mamaux and Larsc
NOES: None
ABSENT: None
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RELEASE AGREEMENT
KNOW ALL PERSONS BY THESE PRESENTS:
That the undersigned, JAMES MILLER, PATRICIA MILLER, and
RICHARD SCOT MILLER, by and through his Guardian ad Litem, JAMES
MILLER and JAMES MILLER and PATRICIA MILLER as heirs-at-law of
JAMES IAN MILLER, deceased, (hereinafter referred to as "RELEASORS") for and in consideration of the sum of FIVE HUNDRED
AND FIFTY THOUSAND ($550,000.00) DOLLARS for and on behalf of
themselves, their heirs, executors, administrators, successors
and assigns, do release, acquit and forever discharge and by
these presents do release, acquit and forever discharge THE CITY
OF CARLSBAD, its agents, servants, employees, successors,
assigns, heirs, executors, administrators, indemnitors, and
insurers of each of them, (hereinafter referred to as
"RELEASEES"), and all other persons, firms, corporations,
associations or partnerships including the City of Carlsbad's
attorneys, Neil, Dymott, Perkins, Brown & Frank, of arid from any,
all and every claim, action, cause of action, demand, right,
damages, lien, costs, loss of service, expenses, compensation and
liability of whatever kind and nature, which the undersigned,
their heirs, executors, administrators, successors or assigns
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 bodily and personal injuries, property damage and
other losses and the consequences thereof resulting or to result
from the accident, casualty or event(s), which occurred on or
about November 13, 1988 at approximately 3:25 p.m., at or near
Rancho Santa Fe Road approximately .IO miles north of Cadencia
Street in the City of Carlsbad, County of San Diego, State of
California, and made the subject of a lawsuit numbered N45075
(previously filed in San Diego Superior Court as Case No. 613234)
in the County of San Diego, wherein it was alleged that RELEASORS
and decedent JAMES IAN MILLER suffered certain personal injuries
and property damage as a result of the alleged negligence or
other wrongdoing of RELEASEES.
It is understood and agreed that this is a full and final
release of any and all claims arising out of said accident or
RELEASOR'S
INITIALS
RELEASOR'S
INITIALS
Page 1 of 3
occurrence, including the rights and interests of the spouse of
the undersigned, if any, and it is agreed as a further consider-
ation and inducement for this compromise settlement, that it
shall apply to all unknown and unanticipated injuries, death,
property damage, or any other damage, loss of liability resulting
from said accident, casualty or event, as well as to those now
disclosed. It is further understood and agreed that this agree-
ment has been made to resolve a disputed matter without any
admission of liability or wrongdoing by any party hereto.
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 execu-
ting the release, which if known by him must
have materially affected his settlement with
the debtor.
RELEASORS further understand and agree that said settlement
agreement is subject to the following:
1. Approval and/or ratification of the settlement by the
City of Carlsbad City Council after public hearing at
open session currently set for April 3, 1990;
2. The court's granting of the City of Carlsbad's motion
for good faith settlement and dismissal of cross-
complaints and/or claims for indemnity;
3. The court's approval with respect to any minor's
compromise hearing that may be required to effectuate
the settlement.
RELEASORS further understand and agree that in consideration
of said payment, the undersigned will indemnify and save harmless
the SAID RELEASEES, 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 because of any payments or benefits provided to RELEASORS as a result of this incident.
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 rely wholly upon their own judgment, belief and knowledge of the nature, extent, affect, and duration of said injuries and
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RELEASOR'S
INITIALS
Page 2 of 3
RELEASOR'S
INITIALS
liabilities therefor and is made without reliance upon any sta
ment or representation of the party or parties hereby or on
behalf of said RELEASEES.
e-
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 may be signed, if necessary in counterpart.
In further consideration of the aforesaid payment and the
settlement agreement above-described, the undersigned authorize their attorney, Craig R. McClellan, Esq., located at McCLELLAN &
ASSOCIATES 1144 State Street, 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, North County Branch and numbered N45075 (formerly filed in San Diego Superior Court Case No. 613234) on file herein.
THE UNDERSIGNED HAVE READ THE FOREGOING RECEIPT AND
RELEASE AGREEMENT AND FULLY UNDERSTAND IT.
Signed, sealed and delivered this 23rd day of March I
1990.
CAUTION: READ CAREFULLY BEFORE SIGNING.
LS .-:m LC > it \i 12---
JAMES MILLER, Plaintiff
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PATRICIA MILLER, Plaintiff
/ *- rriL1' 2 ' [\L.iGi---. LS
RICHARD SCOT MILLER, Plaintiff, by
and through his Guardian ad Litem,
James Miller
. -- LS I:, ,;,i , ~1JL.f '
JAMES MILLER and PATRICIA MILLER,
Plaintiffs, as heirs-at-law of
James Ian Miller, deceased
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RELEASOR'S INITIALS
Page 3 of 3
RELEASOR'S INITIALS