Agenda 09/11/2012 Item #16K59/11/2012 Item 16.K.5.
EXECUTIVE SUMMARY
Recommendation to approve and authorize the Chairman to sign a mediated Settlement
Agreement prior to trial in the lawsuit entitled Jorge Magana, et al., v. and Collier County,
filed in the Twentieth Judicial Circuit in and for Collier County, Florida (Case No. 11-
2441-CA) for the sum of $7,500.
OBJECTIVE: Recommendation to approve the mediation settlement in the lawsuit filed by
Jorge Magana, by and through his parents and natural guardian Maria De Los Angeles Diaz,
against the Board of County Commissioners, for the sum of $7,500.00 and authorize the
Chairman to execute the Settlement Agreement.
CONSIDERATIONS: The Plaintiff, Jorge Magana, a minor, was allegedly injured when
playing at a Collier County playground. Jorge and his parents allege that Jorge was playing at
the Aaron Lutz Neighborhood Park on August 4, 2010 with other children, and that Jorge ran
underneath the playground equipment and cut the top of his head on the equipment. Emergency
Medical Services (EMS) was called and transported Jorge to North Collier Hospital. Plaintiff's
physical injuries included a laceration across the top of his head requiring 12 staples. If the case
were to proceed to trial, expert witness depositions may have been required to quantify the
damages and long -term effects, if any, on the minor Plaintiff.
The parties engaged in Court Ordered Mediation on August 10, 2012. The Plaintiffs initial
demand for settlement was the statutory limits of $100,000.00. After review, the County,
through the Risk Management Department and County Attorney's Office, agreed to settle this
case for $7,500.00. The County considered the medical expenses incurred by the Plaintiff, the
severity of the injury, and the potential exposure involved with a jury trial.
FISCAL IMPACT: Funds are budgeted and available in Fund 516, Property & Casualty
Insurance Fund and the total impact will be $7,500.00.
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 recommends that the Board of County
Commissioners approve this Settlement Agreement. There is a significant risk of exposure
associated with trying this case based on the severity of the injury and Plaintiffs medical
expenses. In addition, if this case were to proceed to trial, it might require costly expert witness
testimony. This item is legally sufficient for Board action and requires a majority vote for
approval. — CMG
RECOMMENDATION: For the Board of County Commissioners to accept the mediation
settlement in the lawsuit filed against the Board of County Commissioners by Jorge Magana, by
and through his parents and natural guardian Maria De Los Angeles Diaz, in the Twentieth
Judicial Circuit Court for the sum of $7,500.00 and authorize the Chairman to execute the
Settlement Agreement.
Prepared by: Colleen M. Greene, Assistant County Attorney
11-2441 -ca/5240
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COLLIER COUNTY
Board of County Commissioners
Item Number: 16.K.5.
9/11/2012 Item 16.K.5.
Item Summary: Recommendation to approve and authorize the Chairman to sign a
mediated Settlement Agreement prior to trial in the lawsuit entitled Jorge Magana, et al., v. and
Collier County, filed in the Twentieth Judicial Circuit in and for Collier County, Florida (Case No.
11- 2441 -CA) for the sum of $7,500.
Meeting Date: 9/11/2012
Prepared By
Name: CrotteauKathynell
Title: Legal Secretary,County Attorney
9/4/2012 8:48:26 AM
Approved By
Name: WalkerJeff
Title: Director - Risk Management,Risk Management
Date: 9/4/2012 10:28:24 AM
Name: GreenwaldRandy
Title: Management/Budget Analyst,Office of Management & B
Date: 9/4/2012 11:08:20 AM
Name: KlatzkowJeff
Title: County Attorney
Date: 9/4/2012 1:14:06 PM
Name: IsacksonMark
Title: Director -Corp Financial and Mgmt Svs,CMO
Date: 9/4/2012 2:38:46 PM
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9/11/2012 Item 16.K.5.
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 , 2012 by and between MARIA DE LOS
ANGELES DIAZ, As Parent and Natural Guardian of JORGE MAGANA, a Minor,
(hereinafter referred to as "Plaintiffs ") and Board of County Commissioners for Collier
County (hereinafter referred to as the "County").
WITNESSETH:
WHEREAS, Plaintiffs filed a lawsuit against the County in the Circuit Court for
the Twentieth Judicial Circuit in and for Collier County, Florida, styled Jorge Magana, by
and through his parent and natural guardian, Maria De Los Angeles Diaz v. Collier
County, A Political Subdivision of the State of Florida, Case No. 11- 2441 -CA
(hereinafter referred to as the "Lawsuit "); and
WHEREAS, Plaintiffs 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, Plaintiffs and the County desire to reduce their settlement to a
writing so that it shall be binding upon them as well as their respective owners,
principals, elected officials, officers, employees, ex- employees, agents, attorneys,
representatives, insurers, spouses, successors, assigns, heirs and affiliates; and
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9/11/2012 Item 16.K.5.
WHEREAS, Plaintiffs agree and covenant to fully comply with all applicable
Medicare laws and liens specifically including 42 USC § 1395y.
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, Plaintiffs and the County agree as follows:
1. Plaintiffs 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 Seven Thousand Five Hundred Dollars and 00/100
($7,500.00) and other valuable consideration, the receipt and adequacy of which is
hereby acknowledged by Plaintiffs, Plaintiffs agree to dismiss the Lawsuit with
prejudice.
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,
Plaintiffs, on behalf of themselves, their 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
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9/11/2012 Item 16.K.5.
or indirectly, to the Lawsuit or any incident, event or allegation referred to or made in the
Complaint in the Lawsuit.
4. Notwithstanding anything that may be to the contrary in Paragraph 3 of
this Agreement and Release, Plaintiffs 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. Plaintiffs agree and covenant to fully comply with all applicable Medicare
laws and liens specifically including 42 USC § 1395y.
6. Plaintiffs 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, heirs, and affiliates.
7. Plaintiffs 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 Plaintiffs or
the County.
8. Plaintiffs 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.
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9/11/2012 Item 16.K.5.
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.
10. In the event of an alleged breach of this Agreement and Release, Plaintiffs
and the County agree that all underlying causes of action or claims of Plaintiffs 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, Plaintiffs 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, This Agreement and Release shall be governed by the laws of the State of
Florida.
12. Plaintiffs and Plaintiffs' attorney shall be solely responsible for any
Medicare lien or other liens as referenced in the attached Addendum.
IN WITNESS WHEREOF, Plaintiffs, and the County have signed and sealed
this Agreement and Release as set forth below.
Date:
ATTEST:
DWIGHT E. BROCK, Clerk
Deputy Clerk
Approved as to form and
legal sufficiency:
C,bIleen M. Greene
Assistant County Attorney
BOARD OF COUNTY COMMISSIONERS
OF COLLIER COUNTY, FLORIDA
By:
FRED W. COYLE, Chairman
By:
MARIA DE LOS ANGELES DIAZ, As
Parent and Natural Guardian of Jorge
Magana, a Minor, Plaintiff
W
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9/11/2012 Item 16.K.5.
STATE OF
COUNTY OF
THIS SETTLEMENT AGREEMENT AND RELEASE BETWEEN PLAINTIFFS AND
COLLIER COUNTY, FLORIDA WAS SWORN TO and subscribed by MARIA DE LOS
ANGELES DIAZ, As Parent and Natural Guardian of JORGE MAGANA, a Minor, before
me on this day of
Signature of Notary Public
Commissioned Name of Notary Public
(Please print, type or stamp)
My Commission expires:
I1- 2441- CAJ5238
.2012.
Personally Known
or
Produced Identification
Type of Identification Produced
5
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9/11/2012 Item 16.K.5.
ADDENDUM TO SETTLEMENT
AGREEMENT AND GENERAL RELEASE
Representations With Regard to Medicare's Interests
Releasor hereby warrants and represents that I presently am not, nor have ever been enrolled in
Medicare Part A or Part B. Further, I have no claim for Social Security Disability benefits nor am I
appealing or re- filing for Social Security Disability benefits.
Medicare's Interests
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 for Medicare
and Medicaid Services ( "CMS ") to subrogation and intervention, pursuant to 42 U.S.C. § 1395y(b) (2)
to recover any overpayment made by CMS, The parties to this Release agree that this Release is not
intended to shift to CMS the responsibility for payment of medical expenses for the treatment of
injury related conditions. The parties agree that this settlement is intended to provide Releasor a
lump sum and /or future periodic payment which will foreclose Releasee's responsibility for future
payment of all injury related medical expenses.
Non - reimbursable Expenses (where there is an MSA or other future medical expense
consideration)
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 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 and settlement of
Releasor's future medical expenses. Funds for these non - Medicare covered medical expenses have
been included in the lump sum settlement amount and shall not be paid from any Medicare
allocation amount.
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9/11/2012 Item 16.K.5.
Benefit Eligibility
Releasor acknowledges that any decision regarding entitlement to Social Security benefits or
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
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
Releasor has been apprised of his /her right to seek assistance from legal counsel of his /her choosing
or directly from the Social Security Administration or other government agencies regarding the
impact this Release may have on Releasor's current or future entitlement to Social Security or other
governmental benefits. Releasor acknowledges that acceptance of these settlement funds may
affect Releasor's rights to other governmental benefits, insurance benefits, 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,
Medicare Recovery Action
Releasor agrees to hold harmless, indemnify and defend Releasee from any cause of action,
including, but not limited to, an action by CMS to recover or recoup Medicare benefits or loss of
Medicare benefits, if CMS determines that the money set -aside has been spent inappropriately or
for any recovery sought by Medicare, including past, present, and future and /or conditional
payments. Releasor agrees not to use designated Medicare allocation funds to pay claims for
conditional payments that may have been made by Medicare.
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380652.1
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9/11/2012 Item 16.K.5.
Cornpiete Understanding
Releasor hereby declares that the terms of this Release have been completely read and are fully
understood and voluntarily accepted for the purpose of making a full and final settlement of any
and all claims, disputed or otherwise, on account of injuries and /or damages related to the Claims
set forth herein, and for the express purpose of precluding forever any further additional claims
against the Release arising out of the aforesaid incident, accident or occurrence.
As to the releaser only:
Releasor Name Date
Maria De Los Angeles Diaz, as parent and natural guardian of
Jorge Magana, a minor
Releasor Address
STATE OF
COUNTY OF
THIS ADDENDUM TO SETTLEMENT AGREEMENT AND MUTUAL RELEASE BETWEEN PLAINTIFFS AND COLLIER
COUNTY, FLORIDA WAS SWORN TO and subscribed by MARIA DE LOS ANGELES DIAZ, As Parent and
Natural Guardian of JORGE MAGANA, a Minor, before me on this day of ,
2012.
Signature of Notary Public
Commissioned Name of Notary Public
(Please print, type or stamp)
My Commission expires:
380652.1
Personally Known
or
Produced Identification
Type of Identification Produced
3
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As to the releasee only:
BOARD OF COUNTY COMMISSIONERS
OF COLLIER COUNTY, FLORIDA
9/11/2012 Item 16.K.5.
Releasee Date
Fred W. Coyle, Chairman
Releasee Address
ATTEST:
DWIGHT E. BROCK, Clerk
Deputy Clerk
Approved as to form and
legal sufficiency:
Veen M. Greene
Assistant County Attorney
11 2441 CA/5239
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)80652.1
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