HomeMy WebLinkAbout1991-05-14; City Council; 11148; SettlementClr" OF CARLSBAD - AGEND-BILL
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DEPT. CA
DEPT. HD.
CITY MGR
TITLE SETTLEMENT OF LAWSUIT KELLY V. CITY OF CARLSBAD - N45613
RECOMMENDED ACTION:
It is recommended that the City Council authorize settlement of
this case by adopting Resolution No. q/-iY& and authorize the Risk
Manager to make payment of the settlement amount from the liability
fund .
ITEM EXPLANATION
Ms. Suzanne Kelly sustained a compound fracture of her right ankle when she tripped over an upraised portion of the City's gutter after leaving her mother's business on Elm Avenue to go home in her
friend's vehicle. She was taken to the emergency hospital and
underwent emergency surgery to repair the fracture. She was unable to work during her recuperation period and eventually returned to work. Ms. Kelly underwent a second surgery to remove the steel pins and plate that had temporarily been placed in her ankle during the recuperation. She is now fully recovered and has executed the attached Settlement and Release Agreement for $28,000 waiving all
past, present and future claims against the City arising from this incident and agreed to dismiss her lawsuit with prejudice. Neither
party acknowledges any liability as a result of this agreement.
Subsequent to plaintiff's fall, parking has been prohibited on Elm Avenue and the raised portion of the gutter has been temporarily repaired. It will be permanently repaired during construction of the Streetscape program.
FISCAL IMPACT
There are sufficient funds in the liability reserve account to
cover this settlement.
EXHIBITS
Resolution No. Settlement and Release Agreement 9 1 - / Y &
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RESOLUTION NO. 91-142
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CARLSBAD, CALIFORNIA AUTHORIZING THE EXPENDITURE OF FUNDS FOR SETTLEMENT OF THE
LAWSUIT ENTITLED KELLY V. CITY OF CARLSBAD
CASE NO. N45613
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 Kellv 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.
2. That the Settlement and Release Agreement is hereby
approved.
3. That the City Council approves the settlement and
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authorizes disbursement of $28,000 from the liability self-
insurance reserve account for Kellv v. City of Carlsbad.
PASSED, APPROVED AND ADOPTED at a Regular Meeting of
the City Council of the City of Carlsbad on the
of May , 1991, by the following vote, to wit:
14th day
AYES: Council Members Lewis, Kulchin, Larson, Nygaard and
Stanton
None
A NOES :
ATTEST:
ee(;tk. A. 6?&/!-
ALETHA L. RAUTENKRANZ, City plerk
?'
RELEASE AND SATISFACTION
KNOW ALL MEN BY THESE PRESENTS:
That for an in consideration of the sum of twenty eight
thousand dollars ($28,000), receipt of which is hereby acknowledge,
the undersigned, SUZANNE KELLY , does 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, its 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 April 26, 1989, in the City of Carlsbad, County of San
Diego, State of California, and for which said damages the
undersigned claims that said CITY OF CARLSBAD, its agents and
servants, at said time and place, are legally liable in damages,
which said legal liability and damages are disputed and denied.
The undersigned do hereby release and discharge said CITY OF
CARLSBAD, its agents and servants, and any other person or person,
firm, corporation, association, partnership or entity acting on
their behalf, of and 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 damage 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 Municipal Court, North County Judicial
District, for the County of San Diego, entitled SUZANNE KELLY V.
CITY OF CARLSBAD and numbered N45613 on the files therein.
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 attorney's 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
consequences thereof.
3. The undersigned understands and agrees that this is a full
claims and attorney's fees of every kind or nature, past, 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 :
"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 materj.ally affected his settlement with the debtor. 'I
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4. 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.
5. 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
APPEAR ON THIS FORM:
Among other things, Insurance Code Section 556 provides:
(a) It is unlawful to:
1. Knowingly present to or cause to be presented any
false or fraudulent claim for the payment of a loss under a
contract of insurance.
2. Knowingly file multiple claims for the same loss or
injury with more than one insurer with an intent to defraud the
insurer.
3. Knowingly 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.
(b) Every person who violates any provision of this section
is punishable by imprisonment in the state prison, for two, three,
or four years, or by fine not exceeding ten thousand dollars
($lO,OOO), or both.
The undersigned does hereby authorize and direct that payment
of said sum be made by check or draft payable to the undersigned.
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IN WITNESS WHEREOF, the undersigned does hereunto set her hand
and seal this d,f day of , 1991.
STATE OF CALIFORNIA 1
COUNTY OF SAN DIEGO 1
) :ss
On this mF day of , 19 91 before me, the undersigned notary public in a d for the above county and state, residing therein, duly commissioned and sworn, personally appeared , personally known to me, or provided to me on the basis 6f satisfactory evidence, to be the same person(s) described in and whose name is subscribed to this instrument, and
acknowledged to me that he/she/they executed the same.
Suzsme P. t<eCl\/
Ld. B&
NOTARY PUBLIC IN AND FOR THE
STATE OF CALIFORNIA
I represent plaintiff in this litigation and I have read the foregoing "Release and Satisfactiont1 and have recommended that my
client execute the same.
I d-
T, Attorney for Plaintiff
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