Agenda 12/12/2017 Item #16K 212/12/2017
EXECUTIVE SUMMARY
Recommendation to approve and authorize the Chair to execute a Settlement Agreement and
Mutual Release in the lawsuit styled Jose Encalada v. Preferred Materials, Inc. and Collier County
(Case No. 15-CA-2124), now pending in the Circuit Court of the Twentieth Judicial Circuit in and
for Collier County, Florida, for $30,000, with payment to be made by Preferred Materials, Inc. and
no contribution by Collier County.
OBJECTIVE: Recommendation to approve the settlement in the lawsuit filed by Jose Encalada for
$30,000, to be paid solely by Preferred Materials, Inc. (PMI), and authorize the Chair to execute the
Settlement Agreement and Mutual Release.
CONSIDERATIONS: Plaintiff Jose Encalada alleges that, on December 29, 2014, while driving a
dump truck northbound on Corkscrew Road in Immokalee, Florida, his truck overturned due, in part, to
an alleged drop off on the shoulder area of the roadway. Plaintiff alleges he suffered numerous physical
injuries, including a brain injury, due to the accident. Plaintiff also claimed over $350,000 in economic
losses, due to the loss of past and future work income.
Shortly before the accident, PMI had repaved the subject roadway pursuant to a contract with the County.
There were no deficiencies noted in the repaving work performed by PMI. However, pursuant to the
County’s contract with PMI, the County tendered its defense and requested indemnification from PMI in
the lawsuit. PMI honored its contractual obligation with the County and accepted the County’s defense
and agreed to provide indemnification.
PMI reached a tentative settlement with the Plaintiff for $30,000 to resolve all claims against all
defendants. The County will contribute no money toward the $30,000 settlement and will be dismiss ed
from the lawsuit. It is the County Attorney and Risk Management Department’s position that this
settlement is reasonable given there will be no funds expended by the County and the lawsuit will be
dismissed.
FISCAL IMPACT: There is no fiscal impact, as PMI will be paying the entire settlement amount.
GROWTH MANAGEMENT IMPACT: None.
LEGAL CONSIDERATIONS: This item is approved as to form and legality and requires a majority
vote for approval. - KLN
RECOMMENDATION: For the Board of County Commissioners to accept the tentative settlement in
the lawsuit styled Jose Encalada v. Preferred Materials, Inc. and Collier County (Case No. 15-CA-2124),
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 Encalada 121217 (PDF)
12/12/2017
COLLIER COUNTY
Board of County Commissioners
Item Number: 16.K.2
Doc ID: 4219
Item Summary: Recommendation to approve and authorize the Chair to execute a Settlement
Agreement and Mutual Release in the lawsuit styled Jose Encalada v. Preferred Materials, Inc. and Collier
County (Case No. 15-CA-2124), now pending in the Circuit Court of the Twentieth Judicial Circuit in
and for Collier County, Florida, for $30,000, with payment to be made by Preferred Materials, Inc. and no
contribution by Collier County.
Meeting Date: 12/12/2017
Prepared by:
Title: Legal Assistant – County Attorney's Office
Name: Rosa Villarreal
11/17/2017 9:15 AM
Submitted by:
Title: County Attorney – County Attorney's Office
Name: Jeffrey A. Klatzkow
11/17/2017 9:15 AM
Approved By:
Review:
Risk Management Jeff Walker Additional Reviewer Completed 11/21/2017 4:18 PM
County Attorney's Office Kevin Noell Level 2 Attorney Review Completed 11/21/2017 4:19 PM
Office of Management and Budget Valerie Fleming Level 3 OMB Gatekeeper Review Completed 11/21/2017 4:42 PM
County Attorney's Office Scott Teach Level 3 County Attorney's Office Review Completed 11/21/2017 6:27 PM
Budget and Management Office Mark Isackson Additional Reviewer Completed 11/28/2017 3:27 PM
County Manager's Office Leo E. Ochs Level 4 County Manager Review Completed 11/29/2017 2:50 PM
Board of County Commissioners MaryJo Brock Meeting Pending 12/12/2017 9:00 AM
SETTLEMENT AGREEMENT AND
GENERAL RELEASE
Defendants, Preferred Materials, Inc. and Collier County, a political subdivision of the State
of Florida ("Releasees' , and Jose Encalada("Plaintiff `� (collectively the "Parties' agree as follows:
RECITALS: Plaintiff suffered nonfatal injuries as a result of a single vehicle accident that
occurred on December 29, 2014, on Corkscrew Road near the intersection of Whidden Loop Road
in Collier County, Florida (the "Accident'D.
The Parties deny any negligence or wrongdoing in connection with the Accident.
Plaintiff filed a lawsuit in the Circuit Court of Collier County styled Jose Encalada P. Preferred
N faterials, Inc. and Collier County, apolitical subdivision of the State of Florida, Case No. 2015 -CA -2124 (the
"lawsuit'.
The Parties desire to settle all issues and disputes related to the Accident and avoid the risks
and uncertainties of litigation, along with further time and expense.
In consideration of the mutual covenants contained herein and other good and valuable
consideration, the Parties agree and covenant as follows:
SETTLEMENT AVOUNT: Releasees agree to pay the total sum of Thirty Thousand
Dollars and No/100 ($30,000) made payable to The Pendas Law Firm Trust Account f/b/o Jose
Encalada, the receipt and sufficiency of which is hereby acknowledged by the Plaintiff. The Plaintiff
agrees to accept said payment in consideration of the releases, waivers, covenants, and other
provisions of this Settlement Agreement and General Release (referred to herein as "Release" or
"Agreement', and in full settlement, accord, and satisfaction of all claims, demands, rights, and Gens
the Plaintiff has or may have, now known or unknown, against Releasees in any way arising out of,
or related to, the Accident. Each party will bear its own costs and attorney's fees.
REPRESENTA77ONS BYPLAI -17FF: Plaintiff acknowledges, warrants, and agrees to
satisfv all Gens, reimbursement rights, subrogation interests, or claims on behalf of Medicare and
Medicaid as required by law.
DISIbII.SSAL OF LAWSUIT. Delivery of the settlement proceeds shall be made within
twenty (20) days of the receipt of the signed and executed Agreement, and the Plaintiff shall file a
Dismissal with Prejudice for claims made against the Releasees in the lawsuit within five (5) days of
the Plaintiff's counsel's receipt of the settlement funds.
GENERAL RELEASES: In return for this payment, the Parties do hereby fully and forever
release, acquit, and discharge each other, including the Parries' respective insurance carriers (including
but not limited to, Liberty Mutual Insurance Companv, Liberry Mutual Fire Insurance Company,
American Guarantee and Liability Insurance Company, Zurich, N.A., and their affiliates), officers,
directors, shareholders, agents, employees, predecessors, successors, parent companies, sister
companies, and subsidiaries, from all claims of any nature or character whatsoever, known or
unknown which the Parties have, or may hereafter have, against each other, arising out of, or in
connection with, the Accident.
This Release does not include any claim for damages which Plaintiff may have against any
other person or any entity not named or described herein, as referenced above or intended to be
released herein, and Plaintiff expressly reserves all rights and remedies they may have to pursue and
prosecute those claims which are not released against those persons or entities. By executing this
Release, the Plaintiff authorizes his attorney to dismiss the above -styled lawsuit with prejudice.
RESERVATION OF FIRST PARTY CLALVIS: Notwithstanding anything to the contrary,
this Release shall not release any health, disability, or other insurance carrier or self-insured from its
obligation to provide any personal injury protection coverage, medical payments coverage, uninsured
or underinsured motorist coverage, health insurance coverage, major medical insurance coverage,
workers' compensation benefits/ insurance, and/or disability insurance coverage from any claims and
demands, rights, and causes of action of any kind the Plaintiff now has, or hereafter may have, on
account of personal injuries known or unknown to the Plaintiff arising from the Accident. It is the
intention of the Parties to this Agreement to release and discharge each other only, and to reserve all
rights of the Plaintiff to obtain all first party benefits to which the Plaintiffs may be entitled.
WAIiTR: It is possible that other injuries, damages, losses, or future consequences or results
arising from the Accident, not now known, will develop or be discovered. The general release
contained in the preceding paragraph is expressly intended to cover and include a release by the
Plaintiff of all such future injuries, damages, losses, or future consequencesor results of known or
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unknown injuries and known or unknown causes of action that may exist or arise in the future as a
result of the Accident.
MEDICARE COiWPL 4NICE: It is not the purpose of this settlement agreement to shift
responsibility of medical care in this matter to the Medicare system. Instead, this settlement is
intended to resolve a dispute between the Plaintiff and Released Party. In order to ensure compliance
with Medicare and applicable federal regulations, the Plaintiff acknowledges that he or his attorney
has reported this claim to the Centers for Medicare and Medicaid Services (CVIS). The Plaintiff
acknowledges that Medicare will be reimbursed out of these settlement proceeds for any and all
payments made in the past or that may be made in the future related to this accident.
No monev out of the settlement is allocated towards future medical treatment. While it is
impossible to accurately predict the need for future treatment, this decision was based upon a good
faith review of the Plaintiff's current medical condition. The Parries have attempted to resolve this
disputed matter in compliance with both state and federal law and it is believed that the settlement
terms adequately consider Medicare's interest and do not reflect any attempt to shift the burden of
future care to Medicare pursuant to 42 U.S.C. §1395y(b). In the event Medicare required
reimbursement related to future medical care, this would be the sole responsibility of the Plaintiff.
HOLD HARMLESS: This Release includes all outstanding liens and possible liens and
subrogation interests including, but not limited to, Gens by any insurer for property damage, liens by
providers of medical and related services, liens and subrogation interests of medical benefits
providers, liens and subrogation interests of uninsured and underinsured motorist carriers, liens and
subrogation interests of state or federal governments, Gens, and subrogation interests of Medicare,
Medicaid, letters of protection, and child support, Gens for workers' compensation benefits, and liens
for attorneys' fees which may have accrued or which are accruing against Plaintiff as a result of the
Accident, and Plaintiff specifically agrees to hold Releasees, as described in the "General Release"
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provision above, harmless from any Liability on account of such liens or subrogation interests.
Plaintiff agrees to waive his right to any private cause of action related to his Liability claim pursuant
to 42 U.S.C. 1395y(b)(3)(A). Plaintiff also agrees to revoke any prior assignment, if any, of rights to
providers which would include a private cause of action brought on behalf of the Plaintiff.
REPRESS VE-1770NS BY PL✓lL\'77FF.• Plaintiff acknowledges, warrants, and agrees to
satisfy all liens, reimbursement rights, subrogation interests, or claims on behalf of Medicare, workers'
compensation, and Medicaid as required by law.
NO .ADMISSION OF LLABILITY It is understood and agreed Char acceptance of the
payment specified above is in full settlement, accord, and satisfaction of disputed claims, and this
Agreement is for the compromise of disputed claims, and is not to be construed as an admission of
any liability, fault, or responsibility on the part of the Parties, by whom liability and fault are, and
always have been, expressly denied.
CO1\FIDE1\TL4L17Y OF SETME.WaNM The parties hereto are obligated to keep the
terms of this settlement confidential. It is specifically understood that no release of information
concerning this settlement shall be made to the news media or general public, and that disclosure of
the terms of this settlement shall be restricted to those disclosures which are required by law, required
by Releasees to maintain a separate cause of action for the recovery of funds paid herein, and/or as
may be necessary to enable the undersigned to facilitate appropriate taxi reporting or lien settlements,
or in the conduct of business necessary to complete this settlement. If inquiry is made by any person
about this Agreement, the Parties agree that they will state only that they have resolved their
differences amicably and that any litigation has ended. The Parties' reciprocal promises to maintain
confidentiality constitute the sole consideration for the provisions of this paragraph, the sufficiency
of which is hereby acknowledged.
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CO.LNTS7RUCI7OiV- It is acknowledged that the Parties participated in the drafting of this
Agreement and this language shall not be presumptively construed either in favor or against any of
the Parties.
ADDIT7O1v:%IL TERMS. The Parties have read and reviewed with their attorneys, and fully
understand, the complete contents of this Agreement and are voluntarily entering into this Agreement
upon the advice of their attorneys. The Parties expressly understand and agree that this Agreement
shall be binding on their personal representatives, agents, successors, privies, and assigns, and no
rescission, modification, or release of them from the terms of this Agreement will be made for any
mistakes.
The parties may execute this Agreement in separate counterparts, each of which constitutes
an original, and all of which, collectively, constitute only one Agreement. The counterparts may be
delivered in original or electronic versions.
This Agreement comprises the entire agreement between the Parties with respect to the
settlement of claims arising from the Accident. This Agreement supersedes all prior and
contemporaneous oral and written agreements and discussions. It may be amended only by an
agreement in writing, signed by all the Parties to this Agreement.
Executed atFlorida, this � day of November, 2017.
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WITNESSES:
(Two witnesses required)
YOU ARE MAKING A FINAL
SETTLEMENT -THIS IS A RELEASE -READ
FULLY BEFORE SIGNING
c
' 'M C �
Jose Encalada
STATE OF FLORIDA
COUNTY OF
BEFORE ME, the undersigned authority, personally appeared Jose Encalada, who, after
being duly sworn by me, deposes and says that he has read the foregoing Settlement Agreement and
General Release, understands its terms, and has executed the same for the purposes set forth therein.
SWORN TO AND SUBSCRIBED before me this edgy of POVO.4 e.r, 2017.
L) I' ,
W
Signatu e p
/ ✓t Q� 5o%?i4 (e.) .
Name of officer taking acknowledgment
(typed, printed or stamped)
Nly commission expires: 31(1/X 2-1 6C, %
Page 6 of 8
WITNESSES: YOU ARE MAKING A FINAL SETTLEMENT
-THIS IS A RELEASE -READ CAREFULLY
BEFORE SIGNING
PREFL ?v1ATERLrllS, INC/;k.
i3v
(Two witnesses required)
STATE OF
COUNTY OF
BEFORE ME, the undersigned authority, personally appeared , as
__. of Preferred ;Materials, Inc., who, after being duly sworn by me, deposes and says
that he/she has read the foregoing Settlement Agreement and General Release, understands its terms,
and has executed the same for the purposes set forth therein.
SWORN TO AND SUBSCRIBED before me this day of
2017.
My commission expires:
(SEAL.)
Signature
Name of officer taking acknowledgment
(typed, printed or stamped)
Page 7 of 8
AS TO COUNTY:
ATTEST:
DWIGHT E. BROCK, Clerk
0
Deputy Clerk
Approved as to form and legality:
Kevin L. Noell
BOARD OF COUNTY COMMISSIONERS
OF COLLIER COUNTY, FLORIDA
I:
PENNY TAYLOR, Chairman
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