Agenda 10/11/2016 Item #16K1 16.K.1
10/11/2016
EXECUTIVE SUMMARY
Recommendation to approve and authorize the Chair to execute a Settlement Agreement and
Mutual Release in the lawsuit styled Gina Balducci v. Collier County(Case No. 15-CA-001904), now
pending in the Circuit Court of the Twentieth Judicial Circuit in and for Collier County,Florida.
OBJECTIVE: Recommendation to approve the settlement in the lawsuit filed by Gina Balducci for the
total sum of$35,000 and authorize the Chair to execute the Settlement Agreement and Mutual Release.
CONSIDERATIONS: This lawsuit arises out of incident that occurred on May 14,2013. Plaintiff Gina
Balducci alleges that she was walking to the park restroom at Vanderbilt Beach, utilizing the County
owned and maintained wooden walkway. As she neared the restroom area, Plaintiff Balducci alleges that
she slipped and fell due to algae growth on the walkway. As a result of the fall, Plaintiff sustained a
fracture to the wrist of her dominant hand and underwent an open reduction, internal fixation surgery to
treat the fracture. She subsequently wore a cast for six weeks and received nearly five months of physical
therapy. Plaintiff's medical bills total approximately$33,391.13.
The Parties attended Mediation on September 26, 2016. A tentative settlement was reached for $35,000
to resolve the lawsuit, including any and all outstanding liens and medical expenses. It is the County
Attorney and Risk Management Department's position that this settlement is reasonable given the
County's exposure for the accident itself,the type of injury sustained and the amount of medical expenses
incurred.
FISCAL IMPACT: Funds are budgeted and available in Fun 516, Property & Casualty Insurance fund
and the total impact will be$35,000.
GROWTH MANAGEMENT IMPACT: None.
LEGAL CONSIDERATIONS: This item is legally sufficient for Board action and requires a majority
vote for approval. -KLN
RECOMMENDATION: For the Board of County Commissioners to accept the tentative settlement in
the lawsuit styled Gina Balducci v. Collier County(Case No. 15-CA-001904),now pending in the Circuit
Court of the Twentieth Judicial Circuit in and for Collier County, Florida and authorize the Chair to
execute the Settlement Agreement and Mutual Release.
PREPARED BY: Kevin L.Noell,Assistant County Attorney
Jeffrey A.Klatzkow,County Attorney
ATTACHMENT(S)
1.Settlement Agreement and Addendum-Balducci 101116 (PDF)
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10/11/2016
COLLIER COUNTY
Board of County Commissioners
Item Number: 16.K.1
Item Summary: Settlement Agreement and Mutual Release, Gina Balducci v. Collier County
(Case No. 15-CA-1904).
Meeting Date: 10/11/2016
Prepared by:
Title: Legal Assistant—County Attorney's Office
Name: Rosa Villarreal
09/27/2016 3:27 PM
Submitted by:
Title: County Attorney—County Attorney's Office
Name: Jeffrey A. Klatzkow
09/27/2016 3:27 PM
Approved By:
Review:
Risk Management Jeff Walker Level 1 Sim.Reviewer 1-8 Completed 09/28/2016 4:57 PM
County Attorney's Office Kevin Noell Level 2 Attorney Review Completed 09/29/2016 8:30 AM
Office of Management and Budget Valerie Fleming Level 3 OMB Gatekeeper Review Completed 09/29/2016 4:18 PM
County Attorney's Office Jeffrey A.Klatzkow Level 3 County Attorneys Office Review Completed 09/29/2016 4:57 PM
Budget and Management Office Mark Isackson Level 3 OMB 1st Reviewer 1-4 Completed 09/30/2016 9:32 AM
County Manager's Office Nick Casalanguida Level 4 County Manager Review Completed 10/03/2016 3:56 PM
Board of County Commissioners MaryJo Brock Meeting Pending 10/11/2016 9:00 AM
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SETTLEMENT AGREEMENT AND MUTUAL RELEASE
THIS SETTLEMENT AGREEMENT AND MUTUAL RELEASE (hereinafter referred
to as the "Agreement and Release") is entered into and made on this day of
2016, by and between 'GINA BALDUCCI, (hereinafter referred to as
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"Plaintiff') and Collier County (hereinafter referred to as the "County").
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WITNESSETH:
WHEREAS, Plaintiff filed a lawsuit against the County in the Circuit Court for the
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Twentieth Judicial Circuit in and for Collier County, Florida, styled Gina Balducci v. Collier
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County, a political subdivision of the State of Florida. Case No. 15-1904-CA (hereinafter E'
referred to as the "Lawsuit"); and
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WHEREAS, Plaintiff and the County, without either party admitting any liability or
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fault, desires to settle the Lawsuit and any and all disputes that arise from, relate or refer in any
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way, whether directly or indirectly, known or unknown, to the incidents described or allegations
made in the Complaint filed in the Lawsuit; and, o
WHEREAS, Plaintiff and the County desire to reduce the settlement to a writing so that
it shall be binding upon both parties' respective owners, principals, elected officials, officers,
employees, ex-employees, agents, attorneys, representatives, insurers, spouses, successors,
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assigns, heirs and affiliates. `t
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NOW, THEREFORE, in consideration of the mutual covenants, promises and
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consideration set forth in this Agreement and Release, and with the intent to be legally bound, a
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Plaintiff and the County agree as follows:
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1. Plaintiff and the County adopt and incorporate the foregoing recitals, sometimes
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referred to as "Whereas Clauses", by reference into this Agreement and Release.
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[15-CA-1904/12901151] 1 //1.
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2. This settlement agreement and mutual release is contingent upon approval by the
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Board of County Commissioners of Collier County, Florida.
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3. In consideration of the resolution of all disputes or claims arising from or
referring or relating in any way, whether directly or indirectly, to the Lawsuit, and for and in cn
consideration of the sum of Thirty-Five Thousand Dollars and 00/100 (S35,000.00) and other cc
valuable consideration,consideration, the receipt and adequacy of which is hereby acknowledged by Plaintiff,
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Plaintiff agrees to dismiss the Lawsuit with Prejudice.
4. In consideration of the resolution of the Lawsuit, and for other good and valuable
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consideration, the receipt and adequacy of which is hereby acknowledged, Plaintiff, on behalf of
herself, her attorneys, agents, representatives, insurers, heirs, successors and assigns, hereby
expressly releases and forever discharges the County, as well as its elected officials, officers,
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employees, ex-employees, agents, attorneys, representatives, successors, assigns, insurers and
affiliates from any and all claims, demands, causes of actions, damages, costs, liens, attorney's
fees, expenses and obligations of any kind or nature whatsoever that she has asserted or could
have asserted in the Lawsuit or that arise from or relate or refer in any way, whether directly orE
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indirectly, to the Lawsuit or any incident, event or allegation referred to or made in the
Complaint in the Lawsuit.
5. Notwithstanding anything that may be to the contrary in Paragraph 4 of this
Agreement and Release, Plaintiff and the County agree that either of them (as well as any other
persons or entities intended to be bound) shall, in the event of any breach, retain the right to
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enforce the terms and conditions of this Agreement and Release.
6. Plaintiff and the County acknowledge and agree that this Agreement and Release
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is intended to and shall be binding upon their respective owners, piincipals, officials, officers,
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employees, ex-em ex-employees, agents, attorneys, representatives, insurers, successors, assigns,
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spouses, heirs, and affiliates.
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7. Plaintiff and the County recognize and acknowledge that this Agreement and
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Release memorializes and states a settlement of disputed claims and nothing in this Agreement t�
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and Release shall be construed to be an admission of any kind, whether of fault, liability, or of a a
particular policy or procedure, on the part of either Plaintiff or the County.
S. Plaintiff and the County acknowledge and agree that this Agreement and Release 2
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is the product of mutual negotiation and no doubtful or ambiguous language or provision in this E"
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Agreement and Release is to he construed against any party based upon a claim that the party
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drafted the ambiguous provision or language or that the party was intended to be benefited by the
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ambiguous provision or language.
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9. This Agreement and Release may be amended only by a written instrument ao
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specifically referring to this Agreement and Release and executed with the same formalities as
this Agreement and Release.
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10. In the event of an alleged breach of this Agreement and Release, Plaintiff and the
County agree that all underlying causes of action or claims of Plaintiff have been extinguished
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by this Agreement and Release and that the sole remedy for breach of this Agreement and
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Release shall be for specific performance of its terms and conditions or any damages arising
from the breach. In this regard, Plaintiff and the County further agree that the sole venue for any
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such action shall be in the Twentieth Judicial Circuit in and for Collier County, Florida in
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Naples, Florida.
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11. This Agreement and Release shall be governed by the laws of the State of Florida.
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12. Plaintiff shall be solely responsible for payment and satisfaction of any liens o
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arising out of. or anyway connected to, injuries and/or damages suffered from the incident 0
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described in the Lawsuit. co
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IN WITNESS WHEREOF, Plaintiff, and the County have signed and sealed this i3
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Agreement and Release as set forth below. a)
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ATTEST: 2
DWIGHT E. BROCK, Clerk BOARD OF COUNTY COMMISSIONERS c
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OF COLLIER COUNTY, FLORIDA 4E'
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By: By: <
Deputy Clerk DONNA FIALA, Chairman 4E'
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Approved as to form and legality: AS TO PLAINTIFF: *a>
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Kevin L. Noell G.NA BALOUCCL P1. ntiff •t•-•
Assistant County County Attorney / ,-.•
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STATE OF FLORIDA
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The foregoing instrument was acknowledged before me this z--- --" day of a
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2016, by GINA BALDUCCI, who is ( ) personally known to me or (\,/ )
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produced it (c,. .c,c.,". . A....D.L., as identification. i 0
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(Signature of Notary Ptblk - State oflorida)
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ADDENDUM TO SETTLEMENT
AGREEMENTS AND GENERAL RELEASES
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Representations With Regard to Medicare's Interests
Releasor hereby warrants and represents that I presently am not, nor have ever been enrolled in
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Medicare Part A, Part B or Part C. Further, I have no claim for Social Security Disability benefits
nor am I appealing or re-filing for Social Security Disability benefits.
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Releasor is a male/female whose •• e of birth is and has a M-o care claim
number of . I presently a -nrolled in Medicare '•rt A, Part B or Part
C or previously was rolled from to . Releasor warrants
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and represent there has been full disclosure of his/her Medicare atus to Releasee. C3
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Medicare's Interests
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In reaching agreement on the terms of this Release, the parties acknowledge Releasor's possible
entitlement to Social Security disability benefits pursuant to 42 U.S.C. § 423, and receipt of
Medicare or Medicaid benefits under 42 U.S.0 § 1395y, as well as the entitlement of the Centers cs
for Medicare and Medicaid Services ("CMS") to subrogation and intervention, pursuant to 42
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U.S.C. §1395y(b)(2) to recover any overpayment made by CMS or other Medicare Advantage
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Organization ( MAO).The parties to this Release agree that this Release is not intended to shift to -a
CMS or an MAO, the responsibility for payment of medical expenses for the treatment of injury a
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related conditions.The parties agree that this settlement is intended to provide Releasor a lump
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sum and/or future periodic payment which will foreclose Releasee's responsibility for future m
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payment of all injury related medical expenses.
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Non-reimbursable Expenses (where there is an MSA or other future medical expense
consideration)
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The parties to this Release understand that many common medical expenses are not payable or
reimbursable under the Medicare program. These medical expenses, not covered by Medicare
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but necessary in the ongoing treatment of the Releasor's injury, and without an admission of
liability on the part of the Releasee, have been taken into consideration in the calculation andcc
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settlement of Releasor's future medical expenses. Funds for these non-Medicare covered
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medical expenses have been included in the lump sum settlement amount and shall not be c
paid from any Medicare allocation amount.
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Benefit Eligibility
Releasor acknowledges that any decision regarding entitlement to Social Security benefits or
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Medicare or Medicaid benefits, including the amount and duration of payments and offset
reimbursement for prior payments is exclusively within the jurisdiction of the Social Security co
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Administration, the United States Government, and the U.S. Federal Courts, and is determined by
Federal law and regulations. As such, the United States Government is not bound by any of the
terms of this Release.
Future Benefits
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Releasor has been apprised of his/her right to seek assistance from legal counsel of his/her -a
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choosing or directly from the Social Security Administration or other government agencies
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regarding the impact this Release may have on Releasor's current or future entitlement to Social
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Security or other governmental benefits. Releasor acknowledges that acceptance of these aiu'
settlement funds may affect Releasor's rights to other governmental benefits, insurance benefits,
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disability benefits, or pension benefits. Notwithstanding this possibility, Releasor desires to enter
into this Release agreement to settle his/her injury claim according to the terms set forth in this
Release. E;
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Medicare Recovery Action
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Releasor agrees to hold harmless, indemnify and defend Releasee from any cause of action, m
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including, but not limited to,an action by CMS to recover or recoup Medicare benefits or loss of 3
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Medicare benefits, it CMS determines that the money set-aside has been spent inappropriately a`oi
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or for any recovery sought by Medicare, including past, present, and future and/or conditional
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payments. Releasor agrees not to use designated Medicare allocation funds to pay claims for =
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conditional payments that may have been made by Medicare. c
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Releasor hereby declares that the terms of this Release have been completely read and are c
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fully understood and voluntarily accepted for the purpose of making a full and final settlement a)
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of any and all claims, disputed or otherwise, on account of injuries and/or damages related to fo
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the Claims set forth herein, and for the express purpose of precluding forever any further co
additional claims against the Release arising out of the aforesaid incident, accident or `°
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7 Rt//// LEASOR'S GNATU Any person who knowingly and with intent to m
injure,defraud,or deceive any insurance E
company,files a statement of claim containing E
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guilty of a felony of third degree.
STATE OF '� I��r ;t �::_ Q
COUNTY OF (',;fl ''' - SS: _
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On this =- ' day of )e,t,24 , 20 t L.: before a appeared "1'(roc,_ )(II() tr-+ 4.
, to me personally known,or who produced 1ti`.s5 i i-, as a)
identification, and who, after first being duly sworn, acknowledged before me the execution of a)
th� ore Ding instrument as free act and deed for the consideration set forth therein. 6
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Signature of o ary Publl .i Notary Public—Print, Type, or Stamp Commissioned E
Name
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My Commission Expires: � ...Or HEATHER BUY
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A. , EXPIRES:September 20,2011
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