Agenda 09/23/2008 Item #16K 2Item # 16K2
September 23, 2008
Page 1 of 7
EXECUTIVE SUMMARY
Recommendation to approve settlement after mediation prior to trial in the lawsuit entitled
Gerald Pecar vs. Collier County filed in the Twentieth Judicial Circuit in and for Collier
County, Florida, Case No. 06- 1738 -CA, for $9,000.00.
OBJECTIVE: For the Board of County Commissioners to approve settlement after mediation
prior to trial, whereupon the County would pay $9,000.00, and the lawsuit and all claims against
the County would be dismissed with prejudice.
CONSIDERATIONS: On May 8, 2004, Plaintiff, a City of Naples firefighter, through the
SWAP program, was assisting a County paramedic in the transport of a large patient. Plaintiff
claims he was injured when the stretcher malfunctioned when the stretcher's legs did not fold out
while transporting the patient. Plaintiff filed suit against the County for negligence and failure to
properly maintain the stretcher and ensure the stretcher was operating properly. The Plaintiff
also filed suit against co- defendant, FERNO - Washington, Inc., ( "FERNO ") the manufacturer of
the stretcher, for strict liability, and co- defendant, MEDCO Equipment Repair, Inc., ( "MEDCO ")
the company that maintains the stretchers, for negligence. Plaintiff has approximately
$107,064.17 in medical bills and claims herniation of the discs between C-4, C -5, and C -6
vertebrae in his cervical spine.
At the June 26, 2008 mediation co- defendants, FERNO and MECO entered into settlement with
Plaintiff the terms of which are confidential. As the only remaining Defendant and based upon
the happening of the accident, the County's investigation, and the Plaintiff's medical bills, the
$9,000.00 settlement is reasonable. If this matter went to trial, the trial costs for a medical expert
would be $4,000.00 to $6,000.00 and for a liability engineering expert it would be $7,000.00 to
$8,000.00.
FISCAL IMPACT: The settlement offer recommended by staff amounts to $9,000.00. Funds
are budgeted and available in the Risk Management Property & Casualty Fund.
GROWTH MANAGEMENT IMPACT: There is no growth management impact associated
with this item.
LEGAL CONSIDERATIONS: Plaintiff asserts that the County failed to maintain the stretcher
in question. The County denied liability. Both the County Attorney and the Risk Management
Director opine that settlement in the sum of $9,000.00 for Plaintiffs claim is reasonable and cost
effective under all the circumstances. This item is legally sufficient for Board action. (WEM)
RECOMMENDATION: That the Board of County Commissioners' approve the settlement
proposal of $9,000.00 for the Plaintiff and authorize the Chairman of the Board of County
Commissioners to execute all necessary documents.
PREPARED BY: William E. Mountford, Assistant County Attorney
06- 1738- CA2689
Item # 16K2
September 23, 2008
Page 2 of 7
Recommendation to approve settlement after mediation prior to trial in the lawsuit entitled Gerald
Pecar vs. Collier Countyfiled in the Twentieth Judicial Circuit in and for Collier County, Florida,
Case No. 06- 1738 -CA, for $9,000.00.
Prepared By:
Department Date
Office of Management and Budget 9/10/2008 1:10:33 PM
Approved By
Department Approval Date
Office of
Management Approved 9/12/2008 9:28 AM
and Budget
Approved By:
Department Approval Date
County Attorney Approved 9/11/2008 3:16 PM
Approved By:
Department Approval Date
Office of
Management Approved 9/12/2008 9:28 AM
and Budget
Approved By:
Department Approval Date
County Approved 9/13/2008 10:57 AM
Manager's Office
ATTACHMENTS:
Name. Descrfptionr Typo:
❑ Pecar - Executive Summary I-xeri,nive Summary Cover Memo
- W E M.doc
❑ Pecar - Settlement
Agreement -. WEM.doc Settlement Agreement end Roleaso Eackup Material
Item # 161<2
September 23, 2008
Page 3 of 7
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 , 2008 by and between Gerald Pecar, (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 Gerald Pecar v.
Collier County, Case No. 06- 1738 -CA (hereinafter referred to as the "Lawsuit'); and,
WHEREAS, Plaintiff and the County, without either of them 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, 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 them as well as their respective owners,
principals, elected officials, officers, employees, ex- employees, agents, attorneys,
representatives, insurers, spouses, successors, assigns, heirs and affiliates.
Item # 16K2
September 23, 2008
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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, Plaintiffs 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 Nine Thousand Dollars 00/100 ($9,000.00) and other
valuable consideration, the receipt and adequacy of which is hereby acknowledged by
Plaintiff, Plaintiff agrees to dismiss the Lawsuit with prejudice.
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, as well as on behalf of 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 he has
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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Item # 16K2
September 23, 2008
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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 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.
6. 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.
7. 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.
8. 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.
9. 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
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Item # 16K2
September 23, 2008
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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.
10. This Agreement and Release shall be governed by the laws of the State of
Florida.
IN WITNESS WHEREOF, Plaintiff 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:
William E. Mountford
Assistant County Attorney
Date:
BOARD OF COUNTY COMMISSIONERS
OF COLLIER COUNTY. FLORIDA
By:
TOM HENNING, Chairman
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Item # 16K2
September 23, 2008
Page 7 of 7
Date:
GERALD PECAR
Signature
Print Name
STATE OF
COUNTY OF
THIS SETTLEMENT AGREEMENT AND RELEASE BETWEEN PLAINTIFF AND
COLLIER COUNTY, FLORIDA WAS SWORN TO and subscribed by
Gerald Pecar, before me on this day
of 2008.
Personally Known
Signature of Notary Public or
Produced Identification
Commissioned Name of Notary Public
(Please print, type or stamp)
My Commission expires:
Approved as to form and
legal sufficiency:
Michael L. Beckman, Esquire
06- 1738- CAl2690
Type of Identification Produced
5