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HomeMy WebLinkAbout1991-09-10; City Council; 11339; SettlementCIW OF CARLSBAD - AGENDA BILL SETTLEMENT OF LAWSUIT CLEARY V. CITY OF CARLSBAD CASE NO. 60080 RECOMMENDED ACTION: It is recommended that the City Council authorize settlement of this case by adopting Resolution No.91-362 and authorize the Risk Manager to make payment of the settlement amount from the liability fund . ITEM EXPLANATION This case arises from police assault and battery. executed release and the dismissal. Attached is the FISCAL IMPACT There are sufficient funds in the liability account to cover the settlement. EXHIBITS Resolution No. Release and Satisfaction Agreement 9 1 @ 3 23 1 2 c: 4 5 E 7 a 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 RESOLUTION NO. - A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CARLSBAD, CALIFORNIA AUTHORIZING THE EXPENDITURE OF FUNDS FOR SETTLEMENT OF THE LAWSUIT ENTITLED CLEARY V. CITY OF CARLSBAD CASE NO. 60080 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 Clearv 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 $16,769.75 from the liability self- insurance reserve account for Clearv v. City of Carlsbad. 3. That the City Attorney is authorized to sign the Settlement Agreement and Release which is hereby approved. PASSED, APPROVED AND ADOPTED at a Regular Meeting of day the City Council of the City of Carlsbad on the of September , 1991, by the following vote, to wit: 10th AYES: Council Members Lewis, Kulchin, Larson, Stanton and Nygaard NOES: None ATTEST: hdP- ALETHA L. RAUTENKRANZ, City Clerk , RECEIPT AND RELEASE AGREEMENT KNOW ALL PERSONS BY THESE PRESENTS: That the undersigned, ALAN B. CLEARY (hereinafter referred to as I'RELEASOR) , for and in consideration of the sum of fifteen thousand dollars ($15,000.00) plus costs of one thousand seven hundred sixty nine and seventy five cents ($1,769.75) for a total of sixteen thousand seven hundred sixty nine dollars and seventy five cents ($16,769.75) to the undersigned in hand this day paid, the receipt whereof being hereby acknowledged, for and on behalf of himself, his heirs, executors, administrators, successors, and assigns, has released, acquitted and forever discharged and by these presents does release, acquit and forever discharge THE CITY OF CARLSBAD, LAWRENCE MOORE and ROBERT EYER, the agents, servants, employees, successors, assigns, heirs, executors, administrators, managers, officers, directors, officials, indemnitors, and insurers of each of them, (hereinafter referred to as "RELEASEES"), and all other persons, firms, corporations, associations or partnerships of and from any, all and every claim, action, cause of action, demand, right, damages, lien, attorney's fees, costs, loss of service, expenses, compensation and liability of whatever kind and nature, which the undersigned, his 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 yet to result from the event(s), which occurred on or about July 23, 1985, at or near Elm Avenue east of Highland in the City of Carlsbad, County of San Diego, State of California, and made the subject of a lawsuit numbered 60080 filed in the Municipal Court, in the County of San Diego, wherein it was alleged that RELEASOR suffered certain personal injuries as a result of the alleged battery by RELEASEES. RELEASOR further acknowledges and agrees that of the total settlement amount, ONE THOUSAND SEVEN HUNDRED SIXTY-NINE AND 75/100 DOLLARS ($1,769.75) is specifically allocated to payment of plaintiff's recoverable costs. RELEASOR warrants that he will be solely responsible for any costs, expenses and lien payments due to others (e.g., payment of the judge pro tem) and shall hold RELEASEES harmless from any liability incurred therefrom. It is understood and agreed that this is a full and final release of any and all claims arising out of said accident or occurrence, including the rights and interests of the spouse of the undersigned, and it is agreed as a further consideration 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 event, as well as to those now disclosed. It is further understood and agreed that this agreement has been made to resolve a disputed matter without any admission of liability or wrongdoing by any party hereto. PAGEloF4 It is further understood and agreed that THE UNDERSIGNED DOES WAIVE ALL RIGHTS AND BENEFITS WHICH HE NOW HAS 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 affected his settlement with the debtor. The undersigned hereby declares and represents that in making this release it is understood and agreed that the undersigned relied wholly upon his own judgment, belief and knowledge of the nature, extent, affect, and duration of said injuries and liabilities therefor and is made without reliance upon any statement or representation of the party or parties hereto or on behalf of said RELEASEES. 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 authorizes his attorney, WILLIAM C. HALSEY, to dismiss with prejudice the said action in its entirety. In further consideration therefore, RELEASEES agree to withdraw and abandon the pending motions for judgment notwithstanding the verdict and for new trial. RELEASEES further agree to waive any right to appeal the jury verdict of June 14, 1991. THE UNDERSIGNED HAS READ THIS FOUR (4) PAGE RELEASE DOCUMENT AND FULLY UNDERSTANDS IT. Signed, sealed and delivered this &"aay of ,/Qc.id/,.;J , 1991. n CAUTION : READ CARE~BEFORE SIGNING B. CLEARW PLAINTIFF RONALD R. BALL, Assistant City Attorney of Carlsbad on behalf of Defendants. RELEASOR'S INITIALS NOTARY ACKNOWLEDGMENT STATE OF CALIFORNIA ) COUNTY OF SAN DIEGO ) d(jGU{,7 , 1991, before On this, the /& day of me I Jclh , the unders gned Notary Public, personally appeared Alan B. Cleary, personally known to me or proved to me on the basis of satisfactory evidence to be the person whose name is subscribedto the within instrument, and acknowledged that he executed it. )ss. '& WITNESS my hand and official se pursuant to Title 10 USG 936, Article 136, UCW NOTARY ACKNOWLEDGMENT STATE OF CALIFORNIA ) COUNTY OF SAN DIEGO ) before me, Karen R. Kundtz , the undersigned Notary Public, personally appeared Ronald R. Ball, Esq. personally known to me or proved to me on the basis of satisfactory evidence to be the person who executed the within instrument on behalf of CITY OF CARLSBAD, LAWRENCE MOORE AND ROBERT EYER and acknowledged that he executed it on their behalf. )ss. On this, the 5th day of September , 1991, WITNESS my hand and official seal. RELEASOR'S INITIALS DECLARATION OF PLAINTIFB'B 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 Receipt and Release Agreement to my client, 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 Mr. Cleary upon my advice and recommendation. Dated: DECLARATION OF DEFENDANTS' 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 Receipt and Release Agreement to my client, 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 Mr. Ball upon my advice and recommendation. Dated: z's , 1991 c \ Attorney for Defendants City of Carlsbad, Lawrence Moore and Robert Eyer RELEASOR'S INITIALS Page 4 of 4