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Home My WebLink About2011-12-06; City Council; 20745; TERMS CONDITIONS SETTLEMENT JEANNE BERG V CARLSBADCITY OF CARLSBAD - AGENDA BILL AB# MTG. 20.745 12/6/11 DEPT. CA REPORTING OUT THE TERMS AND CONDITIONS OF SETTLEMENT IN JEANNE BERG V. CITY OF CARLSBAD, ETAL. DEPT. DIRECTOR CITY ATTORNEY CITY MANAGER RECOMMENDED ACTION: There is no action to be taken by the City Council. ITEM EXPLANATION: The parties have now settled this issue under the authority given to the City Attorney by the City Council at its closed session of September 27, 2011. This item satisfies the Brown Act requirement to report the fact of a settlement approved in a prior closed session and makes the terms and conditions of the settlement available to the public. FISCAL IMPACT: The total cost of the settlement is $1,150,OOO.The City's portion of the settlement is $300,766, in addition to $199,234 already incurred in legal expenses. The remaining amount of $849,234 (in excess of the city's $500,000 self-insured retention limit) will be paid by the City's excess insurance carrier, Everest National Insurance Company. ENVIRONMENTAL IMPACT: Reporting out the fact of Settlement is not a "project" within the meaning of CEQA and therefore environmental review is not required pursuant to CEQA Regulation 15061(b)(3). EXHIBITS: 1. Settlement and Release Agreement (on file with the City Clerk). DEPARTMENT CONTACT: Ronald R. Ball 760-434-2891 ron.ball@carlsbadca.gov FOR CITY CLERKS USE ONLY. COUNCIL ACTION: APPROVED DENIED CONTINUED WITHDRAWN AMENDED D D D D D CONTINUED TO DATE SPECIFIC CONTINUED TO DATE UNKNOWN RETURNED TO STAFF OTHER -SEE MINUTES Council received the report. D D D D GENERAL RELEASE AND SETTLEMENT OF CLAIMS Re: Jeanne Berg v. City of Carlsbad, et al. USDC Case No. 09-cv-2669 JAH (BGS) At the Mandatory Settlement Conference held in this matter on September 28, 2011 before the honorable Magistrate Bernard Skomal of the United States District Court for the Southern District of California, a full and final settlement of this matter was reached for the sum of ONE MILLION ONE HUNDRED FIFTY THOUSAND DOLLARS ($1,150,000.00). The settlement was documented in a Settlement Memorandum of Understanding, a copy of which is attached hereto as Exhibit "A." The parties now enter into this General Release and Settlement of Claims to satisfy defendant's desire for a more comprehensive documentation of plaintiff s release of all claims. For the sole consideration of ONE MILLION ONE HUNDRED FIFTY THOUSAND DOLLARS and No/100 ($1,150,000.00), the undersigned hereby releases and further discharges the CITY OF CARLSBAD, OFFICER PATRICK FANENE, and all other CITY OF CARLSBAD employees, its police officers of any rank, its attorneys and agents, officers, council members, and insurance carriers, including, but not limited to, Everest National Insurance Company (hereinafter "CITY DEFENDANTS") and all other persons, firms and corporations from all liability, claims and demands, rights and causes of action of any kind the undersigned now has or hereafter may have on account of or in any way growing out of the damages resulting or to result from the incident occurring on or about August 2, 2009, which is the subject of United States District Court, Southern District, Case No. 09-cv-2669 JAH (BGS). ("Incident") The undersigned hereby agrees to dismiss said action, with prejudice, and will execute, with attorney for CITY DEFENDANTS, a joint motion to dismiss upon the payment of the settlement amount. This release expresses a full and complete settlement of a liability claimed and denied on the part of all parties, regardless of the adequacy of the above consideration, and the acceptance of this release shall not operate as an admission of liability or wrongdoing on the part of any party hereto. Specifically, CITY DEFENDANTS have contested liability and continue to contest liability and CITY DEFENDANTS deny any wrongdoing whatsoever. The above- mentioned consideration expressly includes all attorneys' fees and costs whatsoever. Any additional claims for attorneys' fees pursuant to 42 U.S.C. Sections 1983 and 1988 is hereby waived by the undersigned and her attorney. All rights given by Section 1542 of the Civil Code of California or any equivalent Federal statute or law, which is quoted below, are waived by the undersigned. CIVIL CODE SECTION 1542: "A general release does not extend to claims which the creditor does not know or suspect to exist in his or her favor at the time of executing the release, which if known by him or her must have materially affected his or her settlement with the debtor." The parties agree that the United States District Court shall retain jurisdiction to enforce this settlement, if necessary. Further, the parties consent that magistrate Skomal shall have jurisdiction for enforcement of the settlement and all further action (if any) necessary in the case. Each party shall bear its own attorney fees and costs incurred in this matter and neither party shall have the right to seek payment of attorney fees or costs from any other party. Plaintiff will be solely responsible for payment of any and all liens in this matter, including any and all attorney liens or liens for medical or other health care expenses. The undersigned and her attorney further agrees to hold harmless and defend the CITY DEFENDANTS and their agents, counsel, and insurance carriers should any entity, including private entity or any state or federal agency (such as Medicare, Medi-Cal, Victim's Compensation Fund, etc.) assert a claim that its/their rights have not been fully protected, Plaintiff has elected to structure a portion of the settlement by way of an annuity through EPS Settlement Group, Inc. The amount of that annuity is Three Hundred Thousand Dollars ($300,000.00). Additionally, plaintiffs counsel, James Hoey, has elected to structure Thirty Thousand Dollars ($30,000.00) of his fee through EPS Settlement Group. The balance of the settlement proceeds, in the sum of Eight Hundred Twenty Thousand Dollars ($820,000.00), shall be made payable to "The Hoey Law Firm Client Trust Account" and shall be paid on or before October 24, 201 1 by delivery to The Hoey Law Firm, 1 1975 El Camino Real, Suite 150, San Diego, CA 92 130. This agreement may be executed in counterparts with the same effect as if all original signatures were placed on one document, and all of which together shall be one and the same agreement. By signing this General Release, I intend to give up and discharge all rights and claims to damages to persons and/or property, even though some of such damages may not have shown themselves at the time of acceptance of this settlement. DATED: 1^ JEANl^E BfiRG, Pontiff APPROVED AS TO FORM AND CONTENT: " ^ DATED: iO~2O-2QU THE HOEY LAW FIRM rfes D. Hoey, III, Esq. Attorney for Plaintiff, Jeanne Berg 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 Settlement Memorandum of Understanding In the matter of Bergv. Officer Fanene, 09~cv-2669-JAH (BGS), the undersigned have agreed to a settlement on the following material terms and conditions, all of which are set forth herein: A 1. Payment in the sum of $ f, 15 •**. U By: C To: Jw t^ £s>» ^ As follows: _./N 2. A release of all claims, including C.C.P. § 1542 waiver, and a dismissal with prejudice of the above entitled action; X 3. The Court to retain jurisdiction to enforce the settlement for a period of }\ 4. The parties will consent to the magistrate judge's jurisdiction for enforcement of the settlement/all further action in the case; 5. The settlement shall be confidential; X 6. Each side will bear its own costs and fees. < 7. TT -^ t« 9. 10. I acknowledge and agree that this settlement was made before the Court and is binding and judicially enforceable. DATE: PLAINTIFFS DEFENDANTS A el EXHIBIT "A"