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HomeMy WebLinkAboutGrins, Donna; 2024-10-14;SETTLEMENT AGREEMENT AND RELEASE OF ALL CLAIMS CASE NAME: Donna Grins v. Mahin Nobel, et al. COUNTY AND COURT CASE NUMBER: San Diego Superior Court Case # 37- 2023-00019150-CU-PO-CTL DATE OF INCIDENT: June 9, 2022 SETTLEMENT AMOUNT: $35,000.00 1. Release FOR AND IN CONSIDERATION OF THE SUM OF THIRTY FIVE THOUSAND AND 00/100 DOLLARS ($35.000.00) ("Settlement Funds"), paid or to be paid to or on behalf of RE LEASOR, Donna Grins, does hereby for herself and for her heirs, executors, administrators, successors and assigns release, acquit and forever discharge MAHIN NOBEL, NOBEL FAMILY TRUST, THE CITY OF CARLSBAD and their respective agents, servants, successors, heirs, executors, administrators and all other persons, employees, corporations, subsidiaries, affiliates, firms, predecessors and successors-in- interest, assigns, parents, members, shareholders, partners, divisions, directors, officers, managers, agents, employees, attorneys, insurers, reinsurers and Additional Insurers, including but not limited to Universal North America Insurance Co. and American Claims Management, Inc. (hereinafter, collectively, "RELEASEES"), and each and all of them from any and an claims, actions, causes of action, liens or conditional payments, demands, rights, damages, costs, loss of service, expense and compensation whatsoever of every name and nature, known or unknown, which the RELEASOR now have or which may hereafter accrue on account of or in any way growing out of any and all known and unknown, foreseen or unforeseen bodily and personal injuries, illnesses and property damage and the consequences thereof resulting from or arising out of an accident or incident which occurred on or about June 9, 2022 on the sidewalk in front of the property located at 7025 El Fuerte Street, Carlsbad, CA, as more fully described in RELEASOR'S Complaint, San Diego Superior Court Case# 37-2023-00019150-CU-PO- CTL ("Incident"). The foregoing release and discharge is intended by RELEASOR to be as broad in favor of RELEASE ES as she can possibly create. The Settlement Agreement and Release of All Claims is intended to cover any and all present, past and future injuries, damages or losses, whether known to the parties to this agreement or not, including injuries, damages or losses which may later develop or be discovered in connection with the injuries sustained by RELEASOR including, but not limited to, claims for worsening of condition, further claims for medical, hospital or healthcare expense, or future wrongful death claims. The settlement contributions from defendants/defendants' respective Insurers on behalf of the defendants, which are several and not joint, are as follows: (Grins v. Nobel, el :;i/. -S:m Diggo SupGrior Court CaGG No. 37-2023 00019150-CU-PO-CTL $7,500.00 on behalf of CITY OF CARLSBAD; and $27,500.00 on behalf of MAHIN NOBEL and NOBEL FAMILY TRUST. RELEASOR recognizes that the consideration referred to above is intended to effectuate the compromise of a doubtful and disputed claim, and is not to be construed as an admission of liability on the part of any of the RELEASE ES, each of whom expressly denies liability. RE LEASOR 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 Release is not relying on any statement of any of the RELEASEES with respect to the nature. extent. or duration of said injuries. RELEASOR further declares and represents that no promise, inducement or agreement not herein expressed has been made to RELEASOR. RELEASOR further stipulates that the terms of this Release are contractual and not a mere recital and that the representations in this Release are material representations upon which RELEASEES have relied in making this settlement. Each party to this Release will bear his/her/it's/their own costs, fees , and expenses, including attorneys' fees, whether taxable or otherwise, incurred in or arising out of or in any way related to the matters released herein. 2. Disbursement of the Settlement Amount Disbursement & Exhaustion: Upon execution and submission of this Settlement Agreement and Release of All Claims, RELEASEES shall pay the settlement amount set forth above as follows: Donna Grins and her attorneys, Friedberg & Bunge. A dismissal with prejudice dismissing San Diego County Case No. 37-2023-00019150-CU-PO-CTL in its entirety will be filed within 10 days after the settlement checks are served on RE LEASOR. RELEASOR stipulates and agrees that she is responsible for payment of all outstanding and future bills relating to medical and prescription drug items or services associated with injuries or illnesses arising from or relating to the Incident or forming the basis of the claims asserted by RE LEASOR ("Medical Services"). 3. Medicare Status RELEASOR further stipulates and agrees that she is solely responsible for satisfying any conditional payment, lien or other obligation to reimburse the Centers for Medicare & Medicaid Services {"CMS") and/or its contractors, other governmental entities or programs, Insurers or other sources of payment or benefits for any Medical Services furnished to RELEASOR. RELEASOR acknowledges and agrees that it is her responsibility, and not that of RELEASEES, to satisfy any and all conditional payments, liens, subrogation and other claims or demands for payment associated with Medical Services that may arise in any manner, including without limitation under the Medicare 2 ( Grins v. Nobel, et al. -San Diego Superior Court Case No. 37-2023-00019150-CU-PO-CTL Secondary Payer ("MSP") statute (42 U.S.C. § 1395y(b)), contract, or other applicable slate or federal law. RELEASOR further agrees satisfaction of any Medicare and/or Medicaid lien stemming from the Incident shall be paid from the agreed upon settlement of the instant matter. but the payment shall be made directly to Medicare and/or Medicaid from the settlement amount set forth in this Release. A. □ With respect to the Medicare status of RELEASOR: RELEASOR hereby represents and warrants that they (a) are not currently entitled to Medicare benefits, (b) were not entitled to Medicare benefits on or between the date of the Incident and execution of this Release and (c) do not reasonably expect to qualify for Medicare coverage within 30 months of executing this Release; or RELEASOR hereby represents and warrants that she (a} currently qualifies for Medicare coverage, (b) was entitled to Medicare benefits on or between the date of the Incident and execution of this Release, or (c) expects to so qualify within 30 months of executing this Release. In further consideration for this Release, a Medicare Addendum executed by RELEASOR is attached hereto and incorporated herein by reference. B. In order to give full effect to the intent expressed in this Release, RELEASOR stipulates and agrees in consideration for the aforesaid payment, to fully defend, indemnify and hold harmless RELEASEES from any and all loss associated with any conditional payment, lien, subrogation or other claim or demand asserted by CMS and/or its contractors, other governmental entities or governmental programs, insurers or other sources of payment or benefits that may arise in any manner, including without limitation under the MSP statute (42 U.S.C. § 1395y(b)}, contract, or other applicable state or federal law relating to Medical Services or from RELEASOR' failure to make the payments and satisfaction described in this Release. RELEASOR further agrees to defend, indemnify and hold harmless RELEASEES from any and all loss resulting from RELEASOR'Ss failure to provide accurate representations and warranties or to adhere to the representations and warranties contained herein. Thls Indemnification from loss includes all damages and costs incurred by RELEASEES and/or their attorneys, including without limitation, any attorneys· fee s, fines and penalties, Interest, expenses, judgments, and multipliers. C. RELEASOR agrees to cooperate with RELEASEES in the event Medicare requires any information and/or in the event an action is commenced against RELEASEES seeking further reimbursement stemming from the loss associated with this claim. 4. Indemnification for Subrogation or Lien Claims RE LEASOR acknowledges that all liens or other claims of third parties have been 3 (Grins v. Nobel, et al. -San Diego Superior Court Case No. 37-2023-00019150-CU-PO-CTL disclosed to RELEASEES, or will be so disclosed, and RELEASOR agrees to defend, hold harmless and indemnify RELEASEES and their attorneys and agents for any and all liens or other claims of third parties which have been or may be asserted for services rendered to or on behalf of RELEASOR, specifically including but not limited to any and all liens which may be asserted by any medical care providers, insurance companies, ERISA based healthcare plans, Workers' Compensation liens, hospital liens including those pursuant to Civil Code Section 3045, et seq., and any governmental agency including but not limited to Veteran's Affairs ("VA"), Medi-Cal, Medicare, Medicare Advantage, State of California/California Victim Compensation Board, and/or any other statutory or other lienholder, as a result of the events giving rise to this claim and settlement. RE LEASOR will defend, indemnify and hold harmless RELEASEES from any loss, claim, expense, demand, lien (both known and unknown), and/or from any cause of action of any kind or character, asserted to be related to the claim or claims which are the subject matter of this release, and from any loss incurred directly or indirectly by reason of the falsity or inaccuracy of any representation herein by RELEASOR. 5. Warranty of Capacity to Execute Agreement RELEASOR hereby confirms she is an adult and over the age of 18. RE LEASOR warrants that no other persons or entities have or have had any interest in the claims or causes of action referred to in this Settlement Agreement and Release of All Claims, and that she has the sole right and exclusive authority to execute this Settlement Agreement and Release of All Claims and receive the sums specified in it. RELEASOR agrees to defend, indemnify and hold harmless RELEASEES should any other persons claim to have an interest in the claims and injuries described in this Settlement Agreement and Release of All Claims. 6. Denial of Liability RELEASOR understands that liability for said Incident is disputed by RELEASE ES and this Settlement Agreement and Release of All Claims is a compromise and shall not be construed as an admission of liability. RELEASEES hereunder have denied liability on the claim herein and intend merely to avoid litigation and buy their peace by this compromise. RELEASOR agrees she has received no inducement, promise or offer of any kind whatsoever for the consideration delineated herein above, and that this Settlement Agreement and Release of All Claims is executed without reliance on any statement or representations by RELEASEES or their representatives, or anyone, other than the sole consideration described herein. The compromise and settlement which forms the basis of this Settlement Agreement and Release of All Claims has been arrived at after thorough bargaining, negotiations. and mediation and represents a final, mutually agreeable compromise. 4 (Grms v. Nobel, et al. -San Diego Superior Court Case No. 37-2023-00019150-CU-PO-CTL 7. Waiver of Rights RELEASOR agrees. as a further condition ot th is agreement, tnat tn1s settlement Agreement and Release of All Claims applies to any and all injuries, damages and losses resulting from the Incident which is the subject of this Settlement Agreement and Release of All Claims, even though now unanticipated, unexpected and unknown, as well as any and all injuries, damages and losses which have already developed and which are now known or anticipated. RELEASOR hereby knowingly and specifically accepts the risk thereof. RELEASOR acknowledges that she has sufficient Info rmation to knowingly enter into this final release, and further expressly waive any claim that this Settlement Agreement and Release of All Claims is not fairly and knowingly made. RELEASOR agrees that all rights under Section 1542 of the Civil Code of California and of any similar law of any state or territory of the United States are hereby expressly waived. Section 1542 {eff. January 1, 2019) reads as follows: "A general release does not extend to claims that the creditor or releasing party does not know or suspect to exist in his or her favor at the time of executing the release and that, if known by him or her, would have materially affected his or her settlement with the debtor or released party." RELEASOR acknowledges 42 U.S.C. §1395y(b)(3)(A) and agrees to waive the private cause of action that has accrued or may accrue against RELEASEES for medical items and services related to the subject Incident incurred after the date of this Settlement Agreement and Release of All Claims, due to their acceptance of the lump sum settlement amount in the manner as set forth previously. RELEASOR agrees to provide RELEASEES with copies of any correspondence Medicare initiates with respect to this Incident. 8. Confidentiality Releasor and her attorneys agree that, except as otherwise required by specific court order, statute or other binding requirement of law and for work with tax professionals, th ey will keep confidential any and all information obtained in this litigation, including all investigations, mediations and settlement negotiations relating to Releasor and her claim. While Releasees and Releasor represent that this agreement would not have been consummated absent the foregoing confidentiality covenants, Releasees and Releasor acknowledge that no portion of the settlement amount represents monetary consideration for the mutual promise to maintain confidentiality of all the terms of this agreement. Notwithstanding the above, the parties to this action acknowledge that this release is subject to the Public Records Act. 9. Governing Law and Enforceability This Release shall be construed, interpreted and enforced according to the laws of the State of California as applied to contracts made and to be performed within the State of 5 (Grins v. Nobel, et al. -San Diego Superior Court Case No. 37-2023-00019150-CU-PO-CTL California. In the event any party hereto shall commence legal proceedings against the other to enforce the terms hereof, or to declare rights hereunder, as the result of a breach of any covenant or condition of this Settlement Agreement and Release of All Claims, the prevailing party in any such proceeding shall be entitled to recover from the losing party its cost of suit, including reasonable attorneys' fees, as may be fixed by the Court. RELEASOR agrees this Release of All Claims contains the entire agreement between the parties hereto, that the terms of this Release are contractual and not a mere recital, and that the terms of this settlement are enforceable pursuant to C.C.P. Section 664.6. Should suit be instituted to enforce terms of any of the provisions contained herein, suit shall be filed in the jurisdiction where the Complaint concerning the Incident has been filed and the prevailing party shall be entitled to recover its reasonable attorney's fees and cos.ts. 10. Drafting, Integration and Severabllity RELEASOR agrees this Settlement Agreement and Relea:3e of All Claims contains the entire agreement between the parties hereto and that the terms of this Settlement Agreement and Release of All Claims are contractual and not a mere recital. It is agreed that all parties to this Release shared equally in drafting the same and that none of the parties shall be considered the sole drafting party. It is further agreed that the rule of interpreting ambiguities against the drafting party shall not apply to the interpretation of this Release and that any presumption or rule of law in favor of or against the drafter of this Release is hereby waived. RELEASOR agrees that if, after the date of execution hereof, any provision of this Release is held to be illegal, or unenforceable under present or future laws effective during the term of this Release, such provision shall be fully severable. ~n lieu thereof, there shall be added a provision as similar in terms to such illegal, invalid, or unenforceable provision as may be possible and be legal, valid , or enforceable. 11. Execution RELEASOR agrees she has read, and fully understands, this Settlement Agreement and Release of All Claims, and that the opportunity has been afforded to discuss the terms and contents of said Settlement Agreement and Release of All Claims with legal counsel. In entering into this Release, RELEASOR represents that she has relied upon the legal advice of their attorneys, and that the terms of the Release have been read and explained to the RE LEASOR by her attorneys, and are fully understood and voluntarily accepted by them. This Release may be executed In counterparts. Facslmlle, "e-slgnatures" and/or "PDF" signatures are deemed origina1 signatures for purposes of execution of this Release. BY SIGNATURE, RELEASOR AFFIRM THAT THEY HAVE READ THE FOREGOING RELEASE ANO FULLY UNDERSTAND IT. 6 (Grins v. Nobel, et al. -San Diego Superior Court Case No. 37-2023-00019150-CU-PO-CTL MEDICARE ADDENDUM TO RELEASE In further consideration for the Release to which this Medicare Addendum is attached and incorporated therein , RELEASEES rely on the following representations, warranties and promises made by RELEASOR and RELEASOR's counsel. Capitalized terms shall have the meaning defined in the Release, as applicable. I. Representations and Warranties RELEASOR, RELEASOR's Counsel and RELEASEES agree that all representations and warranties made herein shall survive settlement. A. Medicare Secondary Payer. 1. In entering Into this settlement, it is the intent of the parties that the settlement terms adequately consider and protect Medicare's interests under the MSP laws, 42 U.S.C. §1395y(b), and regulations (collectively, "MSP Laws"). It is not the purpose of this settlement agreement to shift responsibility to Medicare for medical or prescription drug expenses that arise from, or relate to, the alleged Incident giving rise to this settlement and/or that arise from or relate to the matters forming the basis of the claims asserted by RE LEASOR. RELEASOR and their Counsel acknowledge and agree that the parties hereto have taken reasonable steps to comply with the requirements of the MSP Laws. 2. RELEASOR and her Counsel are aware of Medicare's interest in this settlement to the extent Medicare has made any conditional payments under the MSP Laws for medical or prescription drug items or services received by RE LEASOR that are related to the Incident giving rise to this settlement, and/or arising from or related to the matters forming the basis of the claims by RE LEASOR. 3. RELEASOR and her Counsel represent and warrant that they have provided or will provide the requisite information to RELEASEES or their attorneys necessary to comply with the mandatory reporting obligations under the MSP Laws. Any information requested by a RELEASEE shall be provided by RELEASOR on a timeframe that allows such RELEASEE to report to CMS timely, without penalty. B. RELEASOR' Responsibility for Reimbursement of Medicare's Conditional Payments. 1. RELEASOR and her Counsel represent and warrant that they have notified CMS and/or its Coordination of Benefits Contractor of the Incident giving rise to th is settlement. 8 (Grins v. Nobel. et al. -San Diego Superior Court Case No. 37-2023-0001 9150-CU-PO-CTL 0 Option C RELEASOR authorize payment out of the Settlement Funds by RELEASEES pursuant to this Release to CMS by check, payable solely to CMS, and issued directly to CMS and/or its contractors from the Settlement funds of $35,000.00 by RELEASE ES upon RELEASE ES' receipt of the final CMS demand letter from RELEASOR for full satisfaction of the lien on behalf of Medicare. c. RELEASOR' Responsibility for Payment for Future Medical Services 3. RELEASOR agrees that it is her responsibility, and not that of RELEASEES, to pay for future Medical SeNices. RELEASOR shall defend , indemnify and hold RELEASEES harmless from any and all adverse consequences in the event that this settlement results in loss of Medicare benefits by RELEASOR that she would have been entitled to absent settlement. With respect to future Medical Services, RELEASOR agrees that it is her sole responsibility to (1) maintain an accounting of all Medical Services after the date of settlement relating to the Incident giving rise to this settlement, and/or arising from or relating to the matters forming the basis of the claims asserted by RELEASOR in this litigation, and {2) sufficiently set aside and administer such funds for future Medical Services to protect Medicare's interest relating to this claim or litigation. All future Medical Services are the sole responsibility of RELEASOR and have been factored into the settlement amount and are to be paid out of the Settlement Funds. II. Reliance on Representations and Warranties In agreeing to the Release, RELEASEES and their attorneys are relying on the representations, warranties and/or agreements set forth in this Release, including w ithout limitation regarding RELEASOR'S Medicare status and the actions that have been and/or will be taken to satisfy any and all conditional payments, liens, subrogation, and other claims or demands for payment associated with medical or prescription drug items or services furnished to RELEASOR arising from or relating to the Incident and or arising from or relating to the matters forming the basis of RELEASOR'S claims. If the above representations are not correct or the above promised actions are not performed, it is acknowledged and agreed that RELEASOR are in material breach of this Medicare Addendum, and RELEASEES and their attorneys shall receive complete repayment of the Settlement Funds from the RELEASOR. In addition, RELEASOR shall defend, indemnify and hold RELEASEES harmless as set forth elsewhere in this Release 10 (Grins v. Nobel, et al. -San Diego Superior Court Case No. 37-2023-00019150-CU-PO-CTL