The URL can be used to link to this page

Home My WebLink About1994-03-08; City Council; 12612; Settlementc"TY OF CARLSBAD - AGF-DA BILL AB# MTG, 3/8/94 -1 SETTLEMENT OF LAWSUIT ENTITLED PERRY, DEMERSON V. CITY CASE NO. TITLE: N54487 kA I DEPT. a DEPT. HD. CITY ATTY CITY MGR RECOMMENDED ACTION: It is recommended that the City Council authorize settlement of this case by adopting Resolution No. 9Y'-IPe and authorize the Risk Manager to make payment of the settlement amount from the liability fund . ITEM EXPLANATION This case arises from an incident on February 2, 1991 where a stepson shot and killed his stepfather. Attached is the executed Release Agreement. FISCAL IMPACT There are sufficient funds in the liability account to cover the settlement. EXHIBITS Resolution No. 9 b98 Release Agreement RELEASE AGREEMENT KNOW ALL PERSONS BY THESE PRESENTS: That the undersigned, DESIREE DEMERSON and EDWARD DEMERSON, JR., Minors, by and through their Guardian Ad Litem, GWENDOLYN DEMERSON; JOHN PERRY, IV and GWENDOLYN DEMERSON, (hereinafter referred to as "RELEASORS") for and in consideration of the sum of THREE HUNDRED TWENTY THOUSAND ($320,000.00) DOLLARS (Plaintiffs GWENDOLYN DEMERSON and JOHN PERRY, IV are to receive the sum of $126,667.00 each and plaintiffs DESIREE DEMERSON and EDWARD DEMERSON, JR. are to receive the sum of $33,333.00 each. The attorney fees for plaintiffs DESIREE DEMERSON and EDWARD DEMERSON, JR. shall not exceed 25 percent of their respective settlement amounts and the settlement of DESIREE DEMERSON and EDWARD DEMERSON, JR. are subject to court approval by minor's compromise which is to be prepared forthwith by their attorney Robert MacFarlane) for and on behalf of themselves, their heirs, executors, administrators, successors and assigns, have released, acquitted and forever discharged and by these presents do re- lease, acquit and forever discharge THE CITY OF CARLSBAD, ROBERT BETZ, DAVID BOER, KENNETH BOWLIN, SHANNON BOWLIN, CHRIS BOYD, KELLY CAIN, STEVEN FORMAN, GREG FRIED, ROBERT GALLOWAY, RICHARD KATES, DAVID LOWE, JAMES MARSTELL, SAND1 SHARP, ROBERT SIMON the 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 their attorneys Neil, Dymott, Perkins, Brown 61 Frank, of and 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, incidents, or event(s), which occurred on and before February 2, 1991, including the events which led to the incident on February 2, 1991, at 2270 Avenida Magnifica in the City of Carlsbad, County of San Diego, State of California, and made the subject of a lawsuit numbered N n RELEASOR'S INITIALS Page 1 of 4 INITIALS 54487 in the County of San Diego, wherein it was alleged that RELEASORS 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 incidents, accident or occurrence, including the rights and interests of the spouses of the undersigned, if any, 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 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 READS AS FOLLOWS: 1542 OF THE CIVIL CODE OF THE STATE OF CALIFORNIA, WHICH SECTION 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 in consideration of said payment, the undersigned will indemnify and save harmless the SAID RELEASEES, and all other persons, firms or corporations 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 subro- gation or any other proceeding by reason of said injuries, prop- erty damage, or other loss or damage, or the effects or conse- quences thereof by the undersigned, or their heirs or assigns or any other person, natural or artificial, claiming to be damaged thereby. This applies only to damages which are incurred as a result of 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 liabilities therefor and is made without reliance upon any state- ment or representation of the party or parties hereby or on RELEASOR'S INITIALS Page 2 of 4 INITIALS --- behalf of said RELEASEES. If, for any reason, any portion of this Release Agreement is determined to be invalid or unlawful, the remainder of the Release Agreement shall still be valid and enforceable as between RELEASORS and RELEASEES. If the settlement between any RELEASOR and RELEASEES is invalid or unenforceable for any reason, this shall not affect the settlement between the remaining RELEASORS and the 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. settlement agreement above-described, the undersigned authorize their attorney, Robert J. HacFarlane, located at 2533 S. Highway 101, Cardiff by the Sea, California to dismiss with prejudice the said action at law now pending in the Superior Court Court in and for the North County of San Diego and numbered N 54487 on file herein. In further consideration of the aforesaid payment and the THE UNDERSIGNED HAS READ THE FOREGOING RELEASE AGREEMENT AND FULLY UNDERSTAND IT. Signed, sealed and delivered this ,23- day of YLLh. , 1994. CAUTION: READ CAREFULLY BEFORE SIGNING. LS LS LS through her Guardian ad Litem, GWENDOLYN DEMERSON, Plaintiff n c a Minor, by and through his Guardian ad Litem, GWENDOLYN DEMERSON, Pbintiff / RELEASOR'S INITIALS -& RELEA OR'S Page 3 of 4 INITIALS c L. J THE UNDERSIGNED HAS READ THE FOREGOING Signed, sealed and delivered this - 33 day of cb ,Yy RELEASE AGREEMENT AND FULLY UNDERSTAND IT. , 1994. AUTION: READ CAREFULLY BEFORE SIGNING. 4 I LS JOHN PEMT, IV, Plaintiff RELEASOR'S INITIALS * RELEASOR'S INITIALS Page 4 of 4 RESOLUTION NO. 94 - 68 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CARLSBAD, CALIFORNIA AUTHORIZING THE EXPENDITURE OF FUNDS FOR SETTLEMENT OF THE LAWSUIT ENTITLED PERRY. DEMERSON V. CITY OF CARLSBAD CASE NO. N54487 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 Perrv, Demerson 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 City Council approves the settlement and Release Agreement and authorizes disbursement of $320,000 from the liability self-insurance reserve account for Perm. Demerson v. City of Carlsbad. PASSED, APPROVED AND ADOPTED at a Regular Meeting of the City Council of the City of Carlsbad on the 8th day of MARCH , 1994, by the following vote, to wit: AYES: Council Members Lewis, Stanton, Kulchin, Nygaard, Finnila NOES: None ABSENT: None ATTEST : ALETHA L. RAUTENKRANZ, City gerk