Loading...
Agenda 12/08/2015 Item #16K412/8/2015 16.K.4. EXECUTIVE SUMMARY Recommendation to approve and authorize the Chairman to execute a Settlement Agreement and Mutual Release in the lawsuit styled Alan R. Tortolani and Gail S. Tortolani v. Collier County (Case No. 14 -CA- 002017), 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 Alan and Gail Tortolani for the total sum of $35,000 and authorize the Chairman to execute the Settlement Agreement and Mutual Release. CONSIDERATIONS: This lawsuit arises out of a motor vehicle accident that occurred on March 16, 2012 between a vehicle operated by a Collier County employee and a vehicle operated by Plaintiff Gail Tortolani. Plaintiff Alan Tortolani was a passenger in his wife Gail's vehicle. Based on the depositions taken, including an independent eye witness, the County is liable for the accident. As a result of the accident, Plaintiff Alan Tortolani alleges that he suffered a right sided disc herniation, which is visible on MRI results. Mr. Tortolani underwent several months of treatment and has on -going complaints of weakness, numbness and tingling to his right foot and lower back pain. Plaintiff Gail Tortolani alleges that she suffered a cervical spine injury, consistent with a "whiplash" type injury. Mrs. Tortolani only received two treatments. The Parties attended Mediation on August 12, 2015 and reached impasse. An Offer of Judgment (settlement offer) was authorized by the Board and served on the Plaintiffs for a total sum of $31,000. Through further negotiations a tentative settlement was reached for $35,000. It is the County Attorney and Risk Management Department's position that this settlement is reasonable given the County's liability for the accident itself, the type of injuries alleged, and cost of defense through trial, including exhibit preparation, medical expert retention and doctor depositions. 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. RECOMMENDATION: For the Board of County Commissioners to accept the tentative settlement in the lawsuit styled Alan R. Tortolani and Gail S. Tortolani v. Collier County (Case No. 14 -CA- 002017), now pending in the Circuit Court of the Twentieth Judicial Circuit in and for Collier County, Florida and authorize the Chainnan to execute the Settlement Agreement and Mutual Release. PREPARED BY: Kevin L. Noell, Assistant County Attorney Jeffrey A. Klatzkow, County Attorney Packet Page -2349- 12/8/2015 16.K.4. COLLIER COUNTY Board of County Commissioners Item Number: 16.16.K.16.K.4. Item Summary: Recommendation to approve and authorize the Chairman to execute a Settlement Agreement and Mutual Release in the lawsuit styled Alan R. Tortolani and Gail S. Tortolani v. Collier County (Case No. 14- CA- 002017), now pending in the Circuit Court of the Twentieth Judicial Circuit in and for Collier County, Florida. Meeting Date: 12/8/2015 Prepared By Name: NeetVirginia Title: Legal Assistant/Paralegal, CAO Office Administration 11/20/2015 3:28:36 PM Submitted by Title: Assistant County Attorney, CAO General Services Name: NoellKevin 11/20/2015 3:28:38 PM Approved By Name: WalkerJeff Title: Division Director - Risk Management, Risk Management Date: 11/30/2015 7:43:38 AM Name: NoellKevin Title: Assistant County Attorney, CAO General Services Date: 11/30/2015 8:37:42 AM Name: WellsLaura Title: Management/Budget Analyst, Senior, Office of Management & Budget Date: 11/30/2015 8:58:39 AM Name: KlatzkowJeff Title: County Attorney, Date: 11/30/2015 9:06:18 AM Packet Page -2350- 12/8/2015 16.K.4. Name: CasalanguidaNick Title: Deputy County Manager, County Managers Office Date: 11/30/2015 9:17:34 AM Packet Page -2351- 12/8/2015 16.K.4. SETTLEMENT AGREEMENT AND MUTUAL RELEASE THIS SETTLEMENT AGREEMENT AND MUTUAL RELEASE (hereinafter referred to s the "Agreement and Release ") is entered into and made on this day of 2015, by and between GAIL S. TORTOLANI, (hereinafter referred to as "Plaintiff") and 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 Alan R. Tortolani and Gail S Tortolani v. Collier County, a political subdivision of the State of Florida, Case No. 14 -CA- 002011 (hereinafter referred to as the "Lawsuit "); and WHEREAS, Plaintiff and the County, without either party admitting any liability or fault, desires 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 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, assigns, heirs and affiliates. 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. [14- 2017- CA/1217480/1] 1 Packet Page -2352- 12/8/2015 16.K.4. 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 One Thousand and 00 /100 ($1,000.00) 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, 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, 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 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, 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. [I 4-2017-CA/ 1217480/ 11 2 Packet Page -2353- 12/8/2015 16.K.4. 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 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. 11. Plaintiff shall be solely responsible for payment and satisfaction of any liens, medical bills, or any other expense, debt, or loss arising out of, or anyway connected to, injuries and/or damages suffered from the incident described in the Lawsuit. 114- 2017 -CA/ 1217480/1 ] 3 Packet Page -2354- 12/8/2015 16.K.4. IN WITNESS WHEREOF, Plaintiff, and the County have signed and sealed this Agreement and Release as set forth below. AS TO COUNTY: ATTEST: DWIGHT E. BROCK, Clerk LaIn Deputy Clerk Approved as to form and legality: Kevin L. Noell Assistant County Attorney AS TO PLAINTIFF: By: �"• (,c.�vC, j1AIL. TORTOLANI, Plaintiff BOARD OF COUNTY COMMISSIONERS OF COLLIER COUNTY, FLORIDA By: TIM NANCE, Chairman STATE OF FLO COUNTY OF t r- f Sworn to (or affirmed) and subscribed before me this `I ` A day of , 2015, by GAIL S. TORTOLANI, who is ( ) personally known to me or ( ) produced DL- as identification. e of Notary Public - State of Florida) �� Notary Public State of Florida Crystal B Moore `�- �A n� My Corn mission FF ,26863 (Print, Type, or Stamp orti Expires IMN2017 Commissioned Name of Notary Public) [14- 2017- CA/1217480/11 4 Packet Page -2355- Commissioner Expires rr lz6 9G3 r2--Ug -17 12/8/2015 16.K.4. 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 1- day of n , 2015, by and between ALAN R. TORTOLANI, (hereinafter referred to as "Plaintiff") and 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 Alan R. Tortolani and Gail S Tortolani v. Collier County, a political subdivision of the State of Florida, Case No. 14 -CA- 002011 (hereinafter referred to as the "Lawsuit "); and WHEREAS, Plaintiff and the County, without either party admitting any liability or fault, desires 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 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, assigns, heirs and affiliates. 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. [14- 2017- CA/1217466/1] 1 Packet Page -2356- 12/8/2015 16.K.4. 2. In consideration of the resolution of all disputes or claims arising from or Aww referring or relating in any way, whether directly or indirectly, to the Lawsuit, and for and in consideration of the sum of Thirty -Four Thousand and 00 /100 ($34,000.00) 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 himself, his 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, 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 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, 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. [14- 2017- CA/1217466/1] 2 Packet Page -2357- 12/8/2015 16.K.4. 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 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. 11. Plaintiff shall be solely responsible for payment and satisfaction of any liens, medical bills, or any other expense, debt, or loss arising out of, or anyway connected to, injuries and/or damages suffered from the incident described in the Lawsuit. [ 14- 2017 -CA/I 217466/1] 3 Packet Page -2358- 12/8/2015 16.K.4. IN WITNESS WHEREOF, Plaintiff, and the County have signed and sealed this Agreement and Release as set forth below. AS TO COUNTY: ATTEST: DWIGHT E. BROCK, Clerk Deputy Clerk Approved as to form and legality: Of Kevin L. Noell Assistant County Attorney AS TO PLAINTIFF: B. I LAN R. TOkf OLANI, laintiff STATE OF F I COUNTY OF BOARD OF COUNTY COMMISSIONERS OF COLLIER COUNTY, FLORIDA By: TIM NANCE, Chairman Sworn to (or affirmed) and subscribed before me this _ V_' day of I , 2015, by ALAN R. TORTOLANI, who is ( ) personally known to me or (gip) produced T) L- 9-1 as identification. Notary PuWK State of Fbrida Cryatal B Moore My Cororrrittion FF 128883 PW A M4C 12!0812017 OF [14- 2017- CA/1217466/11 ( ignature of &No—tary�Public - State of Florida) (Print, Type, or Stamp Commissioned Name of Notary Public) Commissioner Expires l Z D$ -17 4 Packet Page -2359-