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HomeMy WebLinkAboutMoncrief, Halston; 2024-01-25;SETTLEMENT AGREEMENT AND RELEASE I.PARTIES: The parties to this Settlement Agreement and Release (hereinafter the "AGREEMENT") are Plaintiff Halston Moncrief (hereinafter referred to as "PLAINTIFF") and DEFENDANTS City of San Diego, HP Communications, Ine. and Pacitic Bell Telephone Company ("DEFENDANTS"). PLAINTIFF and DEFENDANTS are herein sometimes referred to collectively as the "PARTIES". PLAINTIFF initiated a civil action venued in the San Diego Superior Court, North County Branch, entitled Ha/ston Moncrief v. City ofCar/sbad, et al.; Case No. 37-2022-00048050-CU-PO-NC ("LA WSU IT"), for injuries arising out of a skateboarding accident that occurred on May 19, 2022 at or near 2700 State Street, Carlsbad, California ("INCIDENT"). 2.RECITALS: 2.1 WHEREAS there is a dispute, controversy, and/or claim between THE PARTIES which concerns and/or involves PLAINTIFF'S alleged injuries resulting from the INCIDENT. 2.2 WHEREAS PLAINTIFF initiated the LA WSUIT against DEFENDANTS as a result of the INCIDENT. 2.3 WHEREAS by this AGREEMENT, the PARTIES intend to enter into a complete and final settlement and release of all claims asserted, or which could be asserted by PLAINTIFF relating to the INCIDENT and which are subject of the LA WSUIT, which claims now exist or may hereafter arise between the PARTIES by reason of all events leading up to the present and relating to the INCIDENT and LA WSUIT. ("'SUBJECT DISPUTE.") 2.4 WHEREAS this AGREEMENT is a compromise of disputed claims, and the payment of the consideration and the obligations called for in this AGREEMENT shall not be deemed or construed as an admission of liability or fault on the part of any of the parties to this AGREEMENT but, on the contrary, any such liability or fault is expressly denied by all parties to this AGREEMENT. 3.RELEASE AND AGREEMENT: IT IS HEREBY AGREED AS FOLLOWS: 3.1 DEFENDANTS, by and through their defending insurance carrier, will pay to Halston Moncrief a total of Forty Thousand Dollars and Zero Cents ($40,000.00). 3.2 The payment set forth in section 3.1, above, shall be made payable as follows: Petrov Law Firm AND Halston Moncrief, Tax ID No. 47-4000433. The check will be mailed to Petrov Law Firm, 380 S. Melrose Drive, Suite 201, Vista, CA 92081. 3.3 Payment is to be made within 30 days of delivery ofthis fully executed AGREEMENT to counsel for DEFENDANTS. Moncrief v. City o/Carlsbad, el al. Settlement Agreement and Release Page 2 3.4 Within ten (10) business days of receipt ofthe payment set forth in section 3.1 and pursuant to section 3.2, above, P LAINTIFF'S counsel shall cause to be filed in San Diego Superio r Court Case No. 37-2022-00048050-CU-PO-NC, a Request for Dismissal with Prejudice of the Entire Action. 3.5 Upon execution of this AGREEMENT, PLAINTIFF, his heirs, executors, administrators, successors, agents, representatives, attorneys, and assigns release, acquit and forever discharge DEFENDANTS, and any and all of their agents, servants, successors, heirs, executors, admini strators and all other persons, employees, corporations, counc il members, departments, subsidiaries, aftiliates, firms, predecessors and successors in interest, and their insurance companies, inc luding member companies, including but not limited to Greenwich lnsurance Company (coll ectively referred to as "RELEASEES"), of and from any and all claims (including bad faith claims against insurers). actions, causes of action, liens or conditional payments, demands, rights, da mages, costs, loss of service, lost earnings, medical damages, loss of support, punitive damages, expense and compensation whatsoever of every name and nature, known or unknown, which PLAINTIFF now has or which may hereafter accrue on account of or in any way growing out of any and all known and unknown, foreseen or unforeseen bod i ly and personal injuries, illnesses, property damage, and the consequences thereof resulti ng from or arising out of the INClDENT. 3.6 T he foregoing release and discharge is intended by PLAINTIF F to be as broad in favor of DEFENDANTS and RELEASEES as can possibly be created. 3.7 PLA IN TIFF further recognizes that any injuries or illnesses sustained in the INCIDENT are or may be permanent and progressive and that the recovery from said injuries or illnesses is uncertain and indefinite, and in entering into this AGREEMENT they are not relying on any statement of any of the RELEASEES or DEFENDANTS w ith respect to the nature, extent, or du ration of said injuries. PLA INTIFF further declares and represents that no promise, inducement or agreement not herein expressed has been made to PLAINTIFF. PLAINTIFF further stipulates that the terms o f this AGREEMENT are contractual and nota mere recital, and that the representations in this AGREEMENT are material representations upon which DEFENDANTS and RELEASEES have relied in making this AGREEMENT. 3.8 PLAINTIFF stipulates and agrees that PLAINTIFF is respons i ble for payment of any and all outstanding and future bills relating to medical and prescription drug items or services associated with inj uries or illnesses arising from or relating to the INCIDENT or forming the basis of the claims asserted by PLAIN TIFF (hereinafter referred to as "MEDICAL SERVICES"). 4. RELEASE OF LIENS: 4.1 PLAINTIFF is aware that certain liens, rights, obligations, and/or claims exist and may exist relative to the payment received pursuant to section 3.1 ofthi s AGREEMENT. PLAINTIFF agrees to settle, satisfy, or otherwise resolve any and all liens, rights, obligations, and/or claims incurred by PLAINTIFF for medical services, medical treatment, and treating equi pment includi ng, but not 2 Moncrief v. City ofCar/sbad, el al. Settlement Agreement and Release Page 3 limited to Medi-Cal, The Rawlings Company, Kaiser Permanente, Tri-City Medical Center, CMRE Financial Services, Ine., as well as any and all liens, rights, obligations and/or claims for any and all legal services, workers' compensation benefits, workers' compensation payments, child support payment obligations, disability payments, and government payments, of any kind and nature whatsoever, as a result of the INCIDENT released herein. PLAINTrFF further agrees to defend, indemnify, and hold harmless DEFENDANTS and RELEASEES, and each of them, from any and all liens, rights, obligations, and/or claims including any and all liens for medical expenses, medical services, medical treatment, treating equipment, Med i-Cai liens, as set forth above, and legal services, workers' compensation payments, child support payment obligations, disability payments, of any kind and nature, incurred by medical service providers, medical treatment facilities, physicians, medical treatment providers, insurers, and/or the Centers for Medicare and Medicaid Services (hereinafter "CMS"). 5.RELEASE OF LIABILITY -MEDICARE: 5.1 PLAINTfFF has been apprised of his rights to seek assistance from counsel regarding the impact this AGREEMENT may have on any of the PLAINTIFF'S current or future entitlements to governmental benefits pursuant to MMSEA. 5.2 PLAINTIFF has advised he is not a Medicare beneficiary. PLAINTIFF has advised there is no outstanding lien by CMS/Medicare for treatment related to the INCIDENT. However, PLAINTIFF acknowledges that, if he is treated or continues to treat for injuries sustained in the INCIDENT as a Medicare beneficiary, CMS has a right to recover any conditional payments pursuant to section 3.1 of this AGREEMENT which were unresolved at the time of the settlement and may have a right to recover the entire settlement amount as defined in section 3.1 of this AGREEMENT. PLAINTIFF accepts said risk and agrees to hold harmless, defend, and indemnify DEFENDANTS and RELEASEES, and each of them, their respective insurers and third party administrators including Greenwich Insurance Company and their respective counsel, for any Medicare conditional payments, reimbursement, demanded or required by the Medicare Secondary Payer Recovery Contractor (hereinafter "MSPRC"), CMS, collection agency, or any other governmental entity, that may be uncovered and demanded in the future. 5.3 If a set-aside account is required under applicable Medicare or CMS ru les and regulations, PLAINTIFF agrees to create and fund such an account using settlement proceeds referenced in section 3.1 herein. PLAINTIFF understands that his counsel will hold the proceeds referenced in section 3.1 herein in a trust account and will not release said funds until the amount of any conditional payments or reimbursements to MSPRC, CMS, collection agency, or any other governmental entity are paid. 5.4. PLAINTIFF agrees to waive any and all rights, actions, claims, and causes of action, against DEFENDANTS and RELEASEES, and any and all of their agents, servants, successors, heirs, executors, administrators and all other persons, employees, corporations, council members, departments, subsidiaries, affiliates, ftrms, predecessors and successors in interest, and their insurance companies, their member companies, including but not limited to Greenwich lnsurance Company and all persons 3 Moncrief v. City o[Curlsbad. et al. Settlement Agreement and Re lease Page4 acting by or through them, based on any withdrawal, removal, revocation, or limiting of Medicare and/or Medicaid benefits to PLAINTIFF as a result of the failure to comply with SCHIP and/or MSP. 6. W AIVER OF CALIFORNIA CIVIL CODE SECTION 1542: The releases and discharges set forth herein extend to all claims of any kind or nature, known or unknown, suspected or unsuspected, relating to the alleged conditions which are the subject matter of the SUBJECT DISPUTE as specified herein, and all rights under Cali fornia Civil Code seclion 1542 are hereby expressly waived. California Civil Code section 1542 reads as foll ows: A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS THA T THE CREDITOR OR RELEASING PARTY DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FA VOR AT THE TIME OF EXECUTING THE RELEASE AND THAT, IF KNOWN BY HIM OR HER, WOULD HA VE MATERIALL Y AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR OR RELEASED PARTY. PLAINTIFF hereby waives and relinquishes any and all rights against DEFENDANTS and RELEASEES that may exist pursuant to California Civil Code section 1542, as outlined above. 7. REPRESENTATIONS AND WARRANTIES: 7.1 PLAINTIFF has received independent legal advice from counsel with respect to the advisability of making this AGREEMENT. 7.2 PLAINTIFF has made such investigation of the facts pertaining to this AGREEMENT, and all of the matters pertaining thereto, as they deem necessary. 7.3 PLAINTIFF has read this AGREEMENT and understands the contents thereof. 8. CONFIDENTIALITY: RELEASOR and RELEASOR's attorney agree to strict confidentiality regarding the: (I) AGREEMENT and a ll of its terms, (2) the faet of settlement, settlement amount, any prior offers, and negotiations leading up to this AGREEMENT, (3) identity of the Parties to this AGREEMENT, and/or (4) facts givi ng rise to this AGREEMENT that could identify any RELEASEE other than those facts that have already been disclosed as part of the public record in this Claim ("Confidential Information''). Should any Party receive an inquiry regarding Confidential Information, said Party shall respond: "No comment other than this matter was resolved." RELEASOR shall not, unless required by law, disclose any Confidential Information to anyone but RELEASOR's attorney and tax advisors, provided they first agree to the terms ofthis section. RELEASOR shall notify counsel for RELEASEES. JohnPau l Salem or Vik Nagpal by erna il at jsalem@bremerwhite.com or Vnagpal@bremerwhyte.com at least ten ( I 0) 4 Moncrief v. City ofCarlsbad. et al. Settlement Agreement and Release Page 5 business days prior to disclosure of Confidential Information, for the purpose of enabling RELEASEES to take action to limit or prevent the disclosure of Confidential Information as deemed necessary. By execution of this AGREEMENT, RELEASOR directs RELEASoR·s attorney to adhere to the terms of this section, which is independent of all other sections of this AGREEMENT. All other provisions of this AGREEMENT shall remain in fult force and effect, notwithstanding any breach of this section. RELEASOR and RELEASOR's attorney affirm that they have not previously disclosed any Confidential Information. Nothing in this AGREEMENT is intended to or does restrict or limit cooperation with or provision of information to any federal, state or local government agency. Any violation of this section shall be a material breach of the AGREEMENT. 9.NON-DISPARAGEMENT. RELEASOR and RELEASOR's attorney agree that they will not take any action or make anystatements, verbal, electronic, or written, to any third-party that disparage or defame RELEASEES with regard to the INCIDENT and the SUBJECT DISPUTE. By execution of this Release, RELEASOR also directs RELEASOR's attorney to adhere to terms as stated in this Non-Disparagement Provision specifically with regard to the INCIDENT and the SUBJECT DISPUTE. Nothing in this clause restricts the RELEASOR's attorney's ability to exercise their independent professional judgment in any future claims that may be brought against the RELEASEES that arise out of unrelated incidents. Any future claims or complaints brought against the Released Parties arising out of an unrelated incident shall not be seen as a violation of this Non-Disparagement Clause, except however, that this Non-Disparagement Clause shall continue to govern and apply to the Incident and Claim that is the subject of this AGREEMENT. 10.MISCELLANEOUS: I 0.1 This AGREEMENT shall be deemed to have been executed and delivered within the State of California, and the rights and obligations of the parties hereto shall be construed and enforced in accordance with and governed by the internat laws of the State of California. I 0.2 In the event of any dispute or controversy concerning the interpretation or meaning of this AGREEMENT, or in the event of any litigation relating thereto, the prevailing party shall be entitled to recover their reasonable costs, expenses, and attorneys' fees. I 0.3 This AGREEMENT represents the complete and entire agreement between THE PARTIES with respect to the subject matters hereof and supersedes all prior and contemporaneous oral and written understandings, negotiations and agreements. This AGREEMENT may not be modified, supplemented, amended, terminated, or superseded except by an agreement in writing signed by the party or parties to be charged. I 0.4 This AGREEMENT is binding on and shall inure to the benefit of THE PARTIES and any and all of their agents, servants, successors, heirs, executors, administrators and all other persons. employees, corporations, council members, departments, subsidiaries, affiliates, firms, predecessors and 5 Aloncrief v. City oJCar/sbad. et al. Settlement Agreemcnt and Release Page 6 successors in interest, and their insurance companies, including member companies, including but not limited to Greenwich lnsurance Company, and all persons acting by or through them. I 0.5 Each party has cooperated in the drafti ng and preparation of this AGRCEM ENT. Hence, in any construction to be made of this AGREEMENT, the same shall not be construed against any party. I 0.6 The validity or enforceability of any particul ar provision of thi s AGREEMENT shall not affect the other provisions hereto, and this AGREEMENT shall be construed in all respects as if such invalid or unenforceable prov ision were omitted. 10.7 This AGREEMENT may be executed in one or more counterparts, each of which when executed and delivered shall be an original, and all of the counterparts when executed and taken together sha ll constitute one and the same instrument. A photocopy or facsimile copy of a signature page shall be deemed to be an original for all purposes. 11. EFFECT: This AGREEMENT shall become effective immediately upon the occurrence of each of the fo liowing: 11.1 PLAINTIFF and his counsel execute this AGREEMENT and hi s counsel delivcrs both signatures to this AGREEMENT to counsel for DEFEN DANTS. 11.2 Payment is made to PLAINTIFF and his counsel on behalf of DEFENDANTS as set forth in sections 3.1 and 3.2 of this AGREEMENT. IN WITNESS WHEREOF, the parties hereto have entered into this AGREEMENT to become effective in the manner set forth herein, and thereupon intending to be legal ly bound hereby. Dated: 0 I /25/2024 2024 HALSTON MONCRI EF PETROY LAW FIRM Dated: January 12 , 2024 By: Christie Palcisko, Esq. Attorney for Plaintiff Hal ston Moncrief 6