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Home My WebLink About1990-10-09; City Council; 10853; Settlement0 Lc:' CIT - 3F CARLSBAD - AGEND -SILL 4B# it,g53 MTG. 10/9/90 CA 3EPT.- DEPT. HD. CITY MG TITLE: SETTLEMENT OF LAWSUIT ENTITLED KAHN V. CITY OF CARLSBAD, N41143 RECOMMENDED ACTION: It is recommended that the City Council authorize settlement of this case by adopting Resolution No.9 -and authorize the Risk Manager to make payment of the settlement a ount from the liability fund. ITEM EXPLANATION On two separate occasions in 1987 and 1989 Mrs. Kahn fell on defective City sidewalks and sustained serious injuries. She suffered a compound fracture and underwent emergency surgery and hospitalization on both occasions. An independent medical examiner hired by the City has determined that her medical care resulted from the accident and was reasonable under the circumstances. The case was settled, subject to Council approval, at a judically supervised settlement conference in which the City will pay $26,000 and the adjacent property owner $12,000 to settle all claims against them resulting from these incidents. Plaintiff has agreed to these settlement amounts and an executed Release and Satisfaction is attached. FISCAL IMPACT There are sufficient funds in the liability account to cover the settlement. EXHIBITS Resolution No. 7 Release and Satisfaction Agreement 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. 90-364 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CARLSBAD, CALIFORNIA AUTHORIZING THE EXPENDITURE OF FUNDS FOR SETTLEMENT OF THE LAWSUIT ENTITLED KAHN V. CITY OF CARLSBAD CASE NO. N41143 WHEREAS, by recommendation of the City Attorney the City Council of the City of Carlsbad, California has approved a settlement in the case entitled Kahn v. Citv 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 $26,000 from the liability self-insurance reserve account is authorized for the settlement of said case. 3. That the City Council approve the settlement and authorize disbursement of $26,000 from the liability self- insurance reserve account. PASSED, APPROVED AND ADOPTED at a Regular Meeting of the City Council of the City of Carlsbad on the 9th day of October , 1990, by the following vote, to wit: AYES: Council Members Lewis, Kulchin, Larson, Mamaux and Pettine NOES : None ABSENT: None ATTEST: ALETHA L. RAUTENKRANZ, City Cle)-k L RELEASE AND SATISFACTION KNOW ALL MEN BY THESE PRESENTS: That for an in consideration of the sum of twenty six thousand dollars Daid bv the Citv of Carlsbad and twelve thousand dollars paid bv Narendra and Renee Aqarwal receipt of which is hereby acknowledge, the undersigned, JUDITH A. and RAYMOND H. KAHN, do hereby acknowledge full satisfaction and payment of each and every claim and/or demand of whatever kind or nature that now exists or may hereafter accrue on behalf of the undersigned against the CITY OF CARLSBAD and NARENDRA AND RENEE AGARWAL, their agents and servants, or any other person or persons, firm, corporation, association, partnership or entity acting on their behalf, charged with responsibility for or liable directly, indirectly or vicariously for damages and injuries to the undersigned, alleged to have arisen or resulted from an incident, casualty or event which occurred Auqust 11, 1987 and June 26, 1989, as alleged in San Diego Superior Court case no. N41143 in the City of Carlsbad, County of San Diego, State of California, and for which said damages the undersiqne? claim that said CITY OF CARLSBAD and NARENDRA and RENEE AGARWAL, their agents and servants, at said time and place, are legally liable in damages, which said legal liability and damages are dispuped and denied. The undersigned do hereby release and discharge said CITY OF CARLSBAD AND NARENDRA and RENEE AGARWAL, their agents and servants, and any other person or persons, firm, corporation, association, partnership or entity acting on their behalf, of and -1- from each and every claim and/or demand of whatsoever kind or nature, arising or to arise in favor of the undersigned, including all claims for damages to property, attorney's fee, loss of earnings, loss of services, or special damage of any character, by reason of or growing out of the aforesaid incident, casualty or event. The undersigned will dismiss with prejudice that certain action now pending in the Superior Court, North County Judicial District, for the County of San Diego, entitled KAHN v. AGARWAL, CITY OF CARLSBAD and numbered N41143 on the files therein. Further, City of Carlsbad agrees to dismiss its cross-complaint against Renee E. Agarwal and Narendra K. Agarwal. AS A FURTHER CONSIDERATION FOR THE MAKING OF SAID SETTLEMENT AND PAYMENT, IT IS EXPRESSLY AGREED THAT: 1. All claims, past, present or future, are disputed and this full and final settlement shall never be treated as an admission of liability or responsibility at any time or in any manner whatsoever on the part of the parties herein released. 2. This release is expressly intended to cover and include all claims and attorneys' fees, several or otherwise, past, present or future, which can or may ever be asserted by heirs, or otherwise, including all causes of action therefor, as the result of the aforesaid accident, casualty or event, or the effects or I consequences thereof. 3. The undersigned understands and agrees that this is a full and final release and that this release covers and includes all claims and attorneys' fees of every kind or nature, past, -2- , 2- present or future, known or unknown, suspected or unsuspected, and all claims under Section 1542, Civil Code of California, are hereby expressly waived. The undersigned understands said Section 1542 provides: 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." 4. The undersigned will indemnify said CITY OF CARLSBAD its agents, and servants, of and from any and every claim arising out of settlement of this action if and only if said settlement is determined by a court of competent jurisdiction to have been made wrongfully or fraudulently. 5. The undersigned shall be considered to have agreed to all the terms of this release and that the above-mentioned sum is the entire and only consideration for this release. 6. This release shall bind and be binding upon the heirs, executors, administrators and assigns of the undersigned. FOR YOUR PROTECTION, CALIFORNIA LAW REQUIRES THE FOLLOWING TO T...PPEAP, CIJ THIS FORM: It is unlawful to: a. Present or cause to be presented, false or fraudulent claim for the 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 to allow it to be presented or used in support of any such claim. -3- Every person who violates any provision of this section is punishable by imprisonment in state prison or by fine not exceeding one thousand dollars ($1,000) or both. The undersigned does hereby authorize and direct that payment of said sum be made by check or draft payable to the undersigned. IN WITNESS WHEREOF, the undersigned does hereunto set his hand and seal this JBtA day of lJ~p *ember 1990. ' c "/ A , [ ,' I / ,- /JUDITH A. KAHN CLAUDE A. LEWIS, MAYOR I [ 2 02\JS\KAHN. RAS ] -4- L _- STATE OF CALIFORNIA ) COUNTY OF SAN DIEGO ) ) :ss - -rH On this I%-- day of S6.(?TCthiYtL , 19‘0 before me, the undersigned notary public in and for the above, county and state, residing therein,-duly commissioned and sworn, personally appeared Q-WIVIOGJ k. kGwF3 rhr~Lr) ~UCOITH A. KtTt4h) - , personally known to me, or provided to me on the basis of satisfactory evidence, to be the same person(s) described in and whose name is subscribed to this instrument, and acknowledged to me that hetskejthey executed the same. TARY PUBLIC IN AND FOR THE CALIFORNIA I represent plaintiffs in this litigation and I have read the foregoing “Release and Satisfactiont1 and have recommended that my client execute the same. JOANNE M MARSHALL NOTARY PUBLIC - CALIFORNIA SAN DIEGO COUNTY ~ENNINGS, ENGSTRAND & HENRIKSON c,,; I -5-