Agenda 12/10/2013 Item #16K4 12/10/2013 16.K.4.
EXECUTIVE SUMMARY
Recommendation to approve and authorize the Chair to execute a mediated Settlement
Agreement in the lawsuit of Darling Elie v. Collier County, filed in the Twentieth Judicial
Circuit in and for Collier County,Florida, Case No. 07-1463-CA for the sum of$400,000.00
and authorize the requested budget amendment for the Risk Management Department
pursuant to the settlement terms.
OBJECTIVE: Recommendation to approve the mediated Settlement Agreement in the lawsuit
filed by Darling Elie against the Board of County Commissioners, for the sum of$400,000 and
authorize the Chair to execute the Settlement Agreement.
CONSIDERATIONS: On October 12, 2004, the Plaintiff, Darling Elie, was being transported
by Collier County EMS from Immokalee to North Collier Hospital while in labor with her first
child. On that night there was heavy rain and the ambulance hydroplaned, causing the
ambulance driver to lose control of the vehicle. The ambulance spun around, overturned, and
subsequently broke apart. The Plaintiff, who was secured to a stretcher at the time, was ejected
from the ambulance. The Plaintiff suffered significant injuries and was airlifted to the trauma
center in Lee County.
Ms. Elie suffered a cervical spine fracture at the C-2 level and underwent an emergency C-
section. She underwent physical therapy and has permanent left-sided upper and lower extremity
weakness consistent with her injury. Her medical bills total approximately $130,000.
After investigating the facts of the accident and conducting numerous depositions, there is the
potential probability of a finding of liability against the County. Due to Ms. Elie's young age at
the time of the accident and the lifelong permanency of her limitations given the nature of the
injury, a jury verdict exceeding the one million dollar excess insurance policy is possible. The
County's Excess Carrier also participated in the mediation and has offered to pay out of their
excess policy given the potential exposure to their one million dollar policy limit. This
settlement additionally protects the County from any exposure over the one million dollar policy
limit should a claims bill be obtained following a verdict in excess of the policy.
The parties engaged in Court ordered mediation and reached a tentative agreement. At the end
of mediation, representatives from the County Attorney's Office, Risk Management Department,
and the County's Excess Insurance Carrier agreed to a tentative settlement for $400,000, pending
Board approval.
FISCAL IMPACT: This case is covered by the County's Excess Insurance Carrier, Princeton
Excess. Funds are budgeted and available in Fund 516, Property & Casualty Insurance Fund.
The total fiscal impact to County funds is approximately $233,864.79. The first $200,000 is the
County's statutory limit, inclusive of defense fees and costs incurred to date. The additional
$33,864.79 is the amount paid for the workers' compensation claim that also arose out of the
subject accident. The remainder of the settlement amount paid will be reimbursed to the County
by the County's Excess Insurance Carrier. Staff is recommending the approval of the attached
budget amendment to recognize the receipt of the insurance reimbursement, which will be
administratively processed.
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GROWTH MANAGEMENT IMPACT: There is no Growth Management Impact associated
with this Executive Summary.
LEGAL CONSIDERATIONS: The County Attorney's Office has reviewed this settlement
with the Risk Management Department and the Excess Insurance Carrier and recommends that
the Board of County Commissioners approve this Settlement Agreement. This item has been
approved as to form and legality, and requires majority vote for approval. -KN
RECOMMENDATION: For the Board of County Commissioners to approve and authorize the
Chair to execute the Settlement Agreement for Plaintiff Darling Elie's claims in the lawsuit filed
against the Board of County Commissioners by Darling Elie, individually and as Guardian of
Jadarrien Elie, a minor child, in the Twentieth Judicial Circuit Court for the sum of$400,000 and
authorize the requested budget amendment.
Prepared by: Kevin L. Noell,Assistant County Attorney
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COLLIER COUNTY
Board of County Commissioners
Item Number: 16.16.K.16.K.4.
Item Summary: Recommendation to approve and authorize the Chair to execute a
mediated Settlement Agreement in the lawsuit of Darling Elie v. Collier County,filed in the
Twentieth Judicial Circuit in and for Collier County, Florida, Case No. 07-1463-CA for the sum of
$400,000 and authorize the requested budget amendment for the Risk Management
Department pursuant to the settlement terms.
Meeting Date: 12/10/2013
Prepared By
Name: CrotteauKathynell
Title:Legal Secretary,County Attorney
11/25/2013 12:04:43 PM
Approved By
Name: WalkerJeff
Title: Director-Risk Management,Risk Management
Date: 11/25/2013 5:06:02 PM
Name: GreeneColleen
Title:Assistant County Attorney,County Attorney
Date: 11/26/2013 9:38:15 AM
Name: PryorCheryl
Title: Management/Budget Analyst, Senior,Office of Manag
Date: 11/26/2013 12:48:59 PM
Name: KlatzkowJeff
Title: County Attorney
Date: 12/2/2013 4:30:49 PM
Name: OchsLeo
Title: County Manager
Date: 12/2/2013 11:58:04 PM
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SETTLEMENT AGREEMENT AND MUTUAL RELEASE
THIS SETTLEMENT AGREEMENT AND MUTUAL RELEASE (hereinafter referred
an6--
to as the "Agreement and Release") is entered into and made on this day of
DeGevnber
2013 by and between DARLING ELIE (hereinafter referred to as
"Plaintiff') and Board of County Commissioners for Collier County (hereinafter referred to as
the"County").
WITNESSETH:
WHEREAS, Plaintiff filed a lawsuit against the County in the Circuit Court for the
Twentieth Judicial Circuit in and for Collier County, Florida, styled Darling Elie, individually
and as Guardian of JADARRIEN ELIE, a minor child v. Collier County, Bernice Forester;
Freightliner, LLC, and Daimlar Chrysler Corporation, Case No. 07-1463-CA (hereinafter
referred to as the"Lawsuit");and
WHEREAS, Plaintiff and the County, without either party admitting any liability or
fault, desire to settle the Lawsuit and any and all disputes that arise from, relate or refer in any
way, whether directly or indirectly, known or unknown, to the incidents described or allegations
made in the Complaint filed in the Lawsuit;and,
WHEREAS, Plaintiff and the County desire to reduce their settlement to a writing so
that it shall be binding upon her as well as her respective owners, principals, elected officials,
officers, employees, ex-employees, agents, attorneys, representatives, insurers, spouses,
successors,assigns,heirs and affiliates.
WHEREAS, Plaintiff and Plaintiff's attorney agree and covenant to fully comply with
all applicable Medicare laws, liens, and Set-Asides, specifically including Section 42 USC §
1395y.
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NOW, THEREFORE, in consideration of the mutual covenants, promises and
consideration set forth in this Agreement and Release, and with the intent to be legally bound,
Plaintiff and the County agree as follows:
1. Plaintiff and the County adopt and incorporate the foregoing recitals, sometimes
referred to as"Whereas Clauses",by reference into this Agreement and Release.
2. 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
consideration of the sum of Four Hundred Thousand Dollars and 00/100($400,000.00) and other
valuable consideration, the receipt and adequacy of which is hereby acknowledged by Plaintiff,
Plaintiff agrees to dismiss the Lawsuit with prejudice. Settlement proceeds shall be paid within
twenty (20) days from the date the Agreement is approved by the Board of County
Commissioners.
3. In consideration of the resolution of the Lawsuit, and for other good and valuable
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,
employees, ex-employees, agents, attorneys, representatives, successors, assigns, insurers and
affiliates from any and all claims, demands, causes of actions, damages, costs, attorney's fees,
expenses and obligations of any kind or nature whatsoever that they have asserted or could have
asserted in the Lawsuit or that arise from or relate or refer in any way, whether directly or
indirectly, to the Lawsuit or any incident, event or allegation referred to or made in the
Complaint in the Lawsuit.
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C.)
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4. Notwithstanding anything that may be to the contrary in Paragraph 3 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
enforce the terms and conditions of this Agreement and Release..
5. Plaintiff and Plaintiff's attorney agree and covenant to fully comply with all
applicable Medicare laws, liens,and Set-Asides, specifically including but not limited to,Section
42 USC § 1395y.
6. Plaintiff and the County acknowledge and agree that this.Agreement and Release
is intended to and shall be binding upon their respective owners, principals, officials, officers,
employees, ex-employees, agents, attorneys, representatives, insurers, successors, assigns,
spouses, children, heirs, and affiliates.
7. Plaintiff and the County recognize and acknowledge that this Agreement and
Release memorializes and states a settlement of disputed claims and nothing in this Agreement
and Release shall be construed to be an admission of any kind, whether of fault, liability,or of'a
particular policy or procedure,on the part of either Plaintiff or the County.
8. Plaintiff and the County acknowledge and agree that this Agreement and Release
is the product of mutual negotiation and no doubtful or ambiguous language or provision in this
Agreement and Release is to be construed against any party based upon a claim that the party
drafted the ambiguous provision or language or that the party was intended to be benefited by the
ambiguous provision or language.
9. This Agreement and Release may be amended only by a written instrument
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
by this Agreement and Release and that the sole remedy for breach of this Agreement and
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
such action shall be in the Twentieth Judicial Circuit in and for Collier County, Florida in
Naples, Florida.
11. Plaintiff hereby declares that she has consulted with and received the advice of a
competent attorney prior to executing the Release,the terms of this Release have been
completely read and is fully understood and voluntarily accepted for the purpose of making a full
and final compromise adjustment and settlement of any and all claims,disputed or otherwise,on
account of the injuries and damages above mentioned and for the express purpose of precluding
forever any further additional claims arising in any way out of the aforesaid accident and
subsequent treatment or lack thereof.
12. Plaintiff agrees to pay any and all medical bills and/or liens out of the settlement
proceeds. Plaintiff further agrees to indemnify,to save, defend,and hold harmless the Released
Party from and of any and all claims, subrogated interests, or liens of any third parties, including
but not limited to hospital and physician's liens,Medicare liens or subrogation rights,Medicaid
liens or subrogation rights,attorney's fee charging liens, any local county, city, state or federal
government liens, Internal Revenue Service liens,damages,compensation, and any and all other
subrogated interests or liens, regardless of their source. The Plaintiff acknowledges and
agrees that it is her responsibility to satisfy and hereby agrees to satisfy any of the foregoing
liens or subrogated interests from the proceeds of the aforementioned settlement amount.
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13. Plaintiff warrants that no promise, inducement,or agreement not herein expressed
has been made to the undersigned and that this Release contains the entire Release between the
parties hereto. This Release is executed without reliance upon any statement of representation
by the person or parties released or their representatives or physicians concerning the nature and
extent of the injuries and damage and liability thereof;that the undersigned is of legal age,
legally competent to execute this Release,and accepts full responsibility therefore.
IN WITNESS WHEREOF, Plaintiff, and the County have signed and sealed this
Agreement and Release as set forth below.
Date: t tO, 13
ATTEST: BOARD OF COUNTY COMMISSIONERS
DWIGHT E.BROCK, Clerk OF COLLIER COUNTY, FLORIDA
By:
Deputy Clerk Georgia A.Hiller,Esq.
C. irwoman
Approved as to form and By: .02 j •
legality: Darlin, lie,p ', i
A••.... —
evin L.Noell Scott W. Leeds,Esq.
Assistant County Attorney Attorney for Plaintiff
STATE OF
COUNTY OF
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THIS SETTLEMENT AGREEMENT AND RELEASE BETWEEN PLAINTIFF
AND COLLIER COUNTY, FLORIDA WALak( SWORN TO and subscribed by DARLING
P
ELIE, before me on this day of O V • ,2013.
Personally Known
Signature of Notary Public or
Produced Identification
eci
Commissioned Name of Notary Public Type of Identification Produced
(Please print,type or stamp)
My Commission expires:
WANE urn
8Mbhc• of florl/a I
z .: *Comm Expires May 8,2017 I
aya ." Commission FF 18381
07-1463-CN490I
•
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