HomeMy WebLinkAbout1998-03-24; City Council; 14615; Settlement Sumitoma v. LA et al (N072752),
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CI I-Y OF CARLSBAD - AGENuH BILL 4-I
AB# y dL$ TITLE. SElTLEMENT OF SUMITOMO MARINE V. CITY OF
MTG. 3-2 I/-. ?8
LOSNGELES. ET AL.
DEPT. HD.
CITY AIT
DEPT. CA CITY MGR.
RECOMMENDED ACTION:
That Council authorize settlement of this case by adopting Resolution No. a ,
and authorize the Mayor to sign the Settlement Agreement and Release.
I ITEM EXPLANATION:
A settlement has been reached in a lawsuit brought by Sumitomo Marine against the City of
Los Angeles, T. L. James and City of Carlsbad as a result of a flooding event which occurred
on March 5, 1995 at the La Costa Hotel and Spa.
The insurance carrier for T. L. James paid $30,000 to the plaintiff who released and dismissed
its action against the City of Los Angeles, City of Carlsbad, and T.L. James.
The Settlement Agreement and Release is provided for public review.
FISCAL IMPACT:
The cost of settlement was paid by the carrier for T.L. James.
EXHIBITS:
Resolution No. 58 -g(
Settlement Agreement and Release
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RESOLUTION NO. 98-81
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
CARLSBAD, CALIFORNIA AUTHORIZING THE
SETTLEMENT OF THE LAWSUIT ENTITLED SUMITOMO
MARINE V. CITY OF LOS ANGELES, ET AL. NO72752
WHEREAS, on recommendation of the City Attorney, the City Council of
6 the City of Carlsbad, California has determined that a settlement in the case entitled.
7 Sumitomo Marine V. Citv Of Los Anaeles. Et Al. is in the public interest,
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9 NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of
10 Carlsbad, California, as follows:
11 1. That the above recitation is true and correct.
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2. That the Settlement Agreement and Release is hereby approved.
3. That the Mayor is authorized to sign the Settlement Agreement and
Release.
PASSED, APPROVED AND ADOPTED at a Regular Meeting of the City
Council of the City of Carlsbad on the 24th day of March , 1998, by the
following vote, to wit:
AYES: Council Members Lewis, Finnila, Nygaard, Kulchin and Hall
NOES: None
ABSENT: None
ATTEST:
ALETHA L. RAUTENKRANZ, City Clerk)
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SETTLEMENT AGREEMENT AND RELEASE
This Settlement Agreement And Release is made between
Plaintiff SUMITOMO MARINE AND FIRE INSURANCE COMPANY, LIMITED
(llSumitomo") , as subrogee for La Costa Hotel & Spa Corp., and
Defendants CITY OF LOS ANGELES ("Los Angelesll), T.L. JAMES &
COMPANY ("T-L. James"), and CITY OF CARLSBAD (l'Carlsbad").
RECITALS
WHEREAS, certain claims and disputes have arisen between
Sumitomo and Los Angeles, T.L. James and Carlsbad as the result of
a flooding event which occurred on March 5, 1995 at the La Costa
Hotel & Spa, in the City of Carlsbad, California ("the incident");
and
WHEREAS, certain of these claims and disputes have been
asserted in the lawsuit filed in the Superior Court of the State of
California in and for the County of San Diego, North County
Judicial District, Case No. NO72752 ("the Lawsuit") ; and
WHEREAS, Sumitomo, Los Angeles, T.L. James and Carlsbad
desire to resolve all claims and disputes between them, including
without limitation all claims and disputes concerning the incident
and the Lawsuit.
NOW, THEREFORE, in consideration of the mutual promises
and covenants provided herein, and other good and valuable
consideration, the sufficiency and receipt of which are hereby
acknowledged, Sumitomo, Los Angeles, T.L. James and Carlsbad agree
as follows:
75434\00005\sumitomo.rel 1
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AGREEMEN!C AND RELEASE
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Sumitomo, for and in consideration of the sum of THIRTY
THOUSAND DOLLARS ($30,000.00), receipt of which is hereby
acknowledged, and by these presents does for itself, its respective
administrators, successors and assigns, and each of them, remises
and releases and forever discharges Los Angeles, T.L. James and
Carlsbad, their respective officers, agents, directors,
stockholders, owners, employers, employees, attorneys,
underwriters, insurers, insurance brokers and agents, adjusters'
representatives, successors, assigns, and affiliatedand subsidiary
corporations and companies, past and present, and each of them,
(all of the above persons are hereinafter referred to as the
"Released Parties"), for and from all manner of actions, suits,
liens, debts, dues, damages, claims, judgments, bonds, executions
and demands of every nature, kind and description whatsoever,
whether known or unknown, and whether suspected or unsuspected
which Sumitomo ever had, now has or hereafter can, shall or may
have against the Released Parties, or any of them, arising out of
the incident as alleged in the complaint filed by Sumitomo which
Sumitomo hereby agrees to and directs its attorneys to dismiss with
prejudice.
Sumitomo hereby covenants and agrees that it will not, at
any time hereafter, attempt to assert any claims or commence,
maintain or prosecute any actions at law, in equity or otherwise
against the Released Parties, or any of them, or their respective
officers, agents, directors, stockholders, owners, employers,
75434\00005\sumitomo.rel 2
4
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employees, insurers, underwriters, brokers, attorneys, successors,
assigns, or affiliated or subsidiary corporations or companies, or
against the monies, goods, properties or assets of any description
or kind of any of the Released Parties, upon or on account of any
loss, damage, claim, demand, action or cause of action of any kind
or nature, whether known or unknown, arising out of the incident
and the Lawsuit, both of which are the subject of this Settlement
Agreement And Release.
Sumitomo, Los Angeles, T.L. James and Carlsbad hereby
acknowledge and represent that the settlement of Sumitomo's claims
against the Released
understood within the
§877.6 and the broad
Parties was entered into in l'good faith" as
context of California Code of Civil Procedure
parameters of Tech-Bilt, Inc. v. Woodward-
Clvde & Associates (1985) 38 Cal.3d 488,. 213 Cal.Rptr. 256 and
further, that any other party to the Lawsuit, including without
limitation CENTENNIAL ENGINEERING, INC. ("Centennial"), is barred
from making any further claims against the Released Parties for
equitable comparative contribution, or partial or comparative
indemnity, based on comparative negligence or comparative fault.
The undersigned further acknowledge and represent that
they have read this Settlement Agreement And Release, or have had
it read to them, and that they know and understand the full
contents and effect of it.
Sumitomo hereby fully releases the Released Parties from
any and all liability and responsibility of any kind on account of
the incident which is the subject of the Lawsuit, whether known or
75434\00005\sumitomo.rel 3
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unknown, past, present, or future, and acknowledges and represents
that it has been fully and independently advised by its own counsel
regarding the effect of this Settlement Agreement And Release.
Sumitomo hereby expressly waives all rights under Section
1542 of the Civil Code of California and similar laws of any state
or territory of the United States or other jurisdiction. Section
1542 of the Civil Code of California provides as follows:
"S1542. Certain Claims Not Affected by General Release. A general release does not extend to ciaims 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 acknowledge and represent that
they are legally entitled to settle every claim herein referred to.
Sumitomo, through its undersigned representative, hereby
acknowledges and represents that it is entitled to release every
claim against the Released parties, and to receive the sum of
$30,000.00 hereinabove referred to, and to give a valid, full and
final acquittance therefore.
The undersigned hereby acknowledge and represent that
they have relied solely upon facts obtained from their own
investigation and upon the advices of the attorneys and legal
representatives for Sumitomo, Los Angeles, T.L. James and Carlsbad
in executing this Settlement Agreement And Release and that they
have not relied upon any statement or representation of any nature
by any other party, or their respective insurers, underwriters,
brokers, agents, attorneys, surveyors, or representatives.
75434\00005\sumitomo.rel 4
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This Settlement Agreement And Release is the entire
agreement of the parties, and supersedes all prior agreements,
whether oral or in writing. This Settlement Agreement And Release
cannot be modified, supplemented, or amended unless agreed in
advance, in writing, by all of the parties.
This Settlement Agreement And Release, and each and all
of its provisions, shall inure to the benefit of and be binding
upon the respective successors, administrators and assigns of
Sumitomo, Los Angeles, T.L. James and Carlsbad.
SUMITOMO
Dated: &/j/ By
Dated:
Dated: By:
Dated: By: +/&+f
75434\00005\sumitomo.rel 5
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RONALD R. BALL
CITY ATTORNEY
D. RICHARD RUDOLF
ASSISTANT CITY ATTORNEY
JANE MOBALDI
DEPUTY CITY ATTORNEY
CITY OF CARLSBAD
1200 CARLSBAD VILLAGE DRIVE
CARLSBAD, CALIFORNIA 92008-l 989
(760) 434-2891
FAX: (760) 434-8367
July 13, 1998
Tracy R. Richmond
Worden, Williams, Richmond & Ellis
Suite 102
462 Stevens Avenue
Solana Beach, CA 92075
RE: SUMITOMO MARINE V. CITY OF LOS ANGELES
Dear Mr. Richmond:
Enclosed is a certified copy of the Settlement Agreement and Release between
Sumitomo Marine & Fire Insurance Co. and the City of Los Angeles, T.L. James & Co.
and the City of Carlsbad as it was approved by Council on March 17, 1998. I’m sorry I
dropped the ball on this. But, I assumed (wrongly) that if the Council approved it, it was
fine the way it was.
In any case, please use this certified copy to obtain the signature of the representative
of T.L. James and Company and return the original signature page to me. I will give the
original to the City Clerk for the permanent record and keep a copy for our office.
Thank you for having Ruthie following up on this. Hopefully, this case will be closed in
a very short while.
Please give me a call if you have any questions or concerns.
n
Very truly yours,
RANDEE HARLIB
Secretary to the City Attorney
enclosure
c: Assistant City Clerk ;
July 9, 1998
TO: City Clerk
FROM: City Attorney
SUMITOMO MARINE AND FIRE INSURANCE V. CITY OF LOS ANGELES, T.L.
JAMES & COMPANY AND CITY OF CARLSBAD - CASE NO. NO72752
Attached is the original Settlement Agreement and Release in the above> -p/ eferenced
case which was approved by the City Council at its meeting of Febr&ry 24. 1998.
Would you be kind enough to provide me with a certified copy of it?‘ltls our-i&ntion to
have a representative of T.L. James sign the certified copy and return it to us so that
the original Settlement Agreement and Release will be fully executed.
At that time, I will provide you with the original to be placed back in your files.
Thank you for your assistance in this regard.
i$
RONALD R. BALL
City Attorney
rmh
attachment
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This Settlement Agreement And Release is made between
Plaintiff SUMITOMO MARINE AND FIRE INSURANCE COMPANY, LIMITED
(l~Sumitomol~) , as subrogee for La Costa Hotel & Spa Corp., and
Defendants CITY OF LOS ANGELES ("Los Angeles"), T.L. JAMES &
COMPANY ("T.L. James"), and CITY OF CARLSBAD ("Carlsbadt').
RECITALS
WHEREAS, certain claims and disputes have arisen between
Sumitomo and Los Angeles, T.L. James and Carlsbad as the result of
a flooding event which occurred on March 5, 1995 at the La Costa
Hotel & Spa, in the City of Carlsbad, California ("the incident");
and
WHEREAS, certain of these claims and disputes have been
asserted in the lawsuit filed in the Superior Court of the State of
California in and for the County of San Diego, North County
Judicial District, Case No. NO72752 ("the Lawsuit"); and
WHEREAS, Sumitomo, Los Angeles, T.L. James and Carlsbad
desire to resolve all claims and disputes between them, including
without limitation all claims and disputes concerning the incident
and the Lawsuit.
NOW, THEREFORE, in consideration of the mutual promises
and covenants provided herein, and other good and valuable
consideration, the sufficiency and receipt of which are hereby
acknowledged, Sumitomo, Los Angeles, T.L. James and Carlsbad agree
as follows:
75434\00005\sumitomo.rel
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AGREEMENT AND RELEASE
Sumitomo, for and in consideration of the sum of THIRTY
THOUSAND DOLLARS ($30,000.00), receipt of which is hereby
acknowledged, and by these presents does for itself, its respective
administrators, successors and assigns, and each of them, remises
and releases and forever discharges Los Angeles, T.L. James and
Carlsbad, their respective officers, agents, directors,
stockholders, owners, employers, employees, attorneys,
underwriters, insurers, insurance brokers and agents, adjusters'
representatives, successors, assigns, and affiliated and subsidiary
corporations and companies, past and present, and each of them,
(all of the above persons are hereinafter referred to as the
"Released Parties"), for and from all manner of actions, suits,
liens, debts, dues, damages, claims, judgments, bonds, executions
and demands of every nature, kind and description whatsoever,
whether known or unknown, and whether suspected or unsuspected
which Sumitomo ever had, now has or hereafter can, shall or may
have against the Released Parties, or any of them, arising out of
the incident as alleged in the complaint filed by Sumitomo which
Sumitomo hereby agrees to and directs its attorneys to dismiss with
prejudice.
Sumitomo hereby covenants and agrees that it will not, at
any time hereafter, attempt to assert any claims or commence,
maintain or prosecute any actions at law, in equity or otherwise
against the Released Parties, or any of them, or their respective
officers, agents, directors, stockholders, owners, employers,
75434\00005\sumitomo.rel 2
r
employees, insurers, underwriters, brokers, attorneys, successors,
assigns, or affiliated or subsidiary corporations or companies, or
against the monies, goods, properties or assets of any description
or kind of any of the Released Parties, upon or on account of any
loss, damage, claim, demand, action or cause of action of any kind
or nature, whether known or unknown, arising out of the incident
and the Lawsuit, both of which are the subject of this Settlement
Agreement And Release.
Sumitomo, Los Angeles, T.L. James and Carlsbad hereby
acknowledge and represent that the settlement of Sumitomo's claims
against the Released Parties was entered into in "good faith" as
understood within the context of California Code of Civil Procedure
8877.6 and the broad parameters of Tech-Bilt, Inc. v. Woodward-
Clyde & Associates (1985) 38 Cal.3d 488, 213 Cal.Rptr. 256 and
further, that any other party to the Lawsuit, including without
limitation CENTENNIAL ENGINEERING, INC. ("Centennialt'), is barred
from making any further claims against the Released Parties for
equitable comparative contribution, or partial or comparative
indemnity, based on comparative negligence or comparative fault.
The undersigned further acknowledge and represent that
they have read this Settlement Agreement And Release, or have had
it read to them, and that they know and understand the full
contents and effect of it.
Sumitomo hereby fully releases the Released Parties from
any and all liability and responsibility of any kind on account of
the incident which is the subject of the Lawsuit, whether known or
75434\00005\sumitomo.rel 3
5
unknown, past, present, or future, and acknowledges and represents
that it has been fully and independently advised by its own counsel
regarding the effect of this Settlement Agreement And Release.
Sumitomo hereby expressly waives all rights under Section
1542 of the Civil Code of California and similar laws of any state
or territory of the United States or other jurisdiction. Section
1542 of the Civil Code of California provides as follows:
"§1542. Certain Claims Not Affected by General Release. A general release does not extend to ciaims 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 acknowledge and represent that
they are legally entitled to settle every claim herein referred to.
Sumitomo, through its undersigned representative, hereby
acknowledges and represents that it is entitled to release every
claim against the Released parties, and to receive the sum of
$30,000.00 hereinabove referred to, and to give a valid, full and
final acquittance therefore.
The undersigned hereby acknowledge and represent that
they have relied solely upon facts obtained from their own
investigation and upon the advices of the attorneys and legal
representatives for Sumitomo, Los Angeles, T.L. James and Carlsbad
in executing this Settlement Agreement And Release and that they
have not relied upon any statement or representation of any nature
by any other party, or their respective insurers, underwriters,
brokers, agents, attorneys, surveyors, or representatives.
75434\00005\sumitomo.rel 4
b
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This Settlement Agreement And Release is the entire
agreement of the parties, and supersedes all prior agreements,
whether oral or in writing. This Settlement Agreement And Release
cannot be modified, supplemented, or amended unless agreed in
advance, in writing, by all of the parties.
This Settlement Agreement And Release, and each and all
of its provisions, shall inure to the benefit of and be binding
upon the respective successors, administrators and assigns of
Sumitomo, Los Angeles, T.L. James and Carlsbad.
SUMITOMO MARINE AND FIRE
Dated: q/</+f By
Dated:
T.L. JAMES & aMPANY
Dated: By:
Dated: By:
75434\00005\sumitomo.rel
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