Agenda 10/08/2013 Item #16K1 10/8/2013 16.K.1.
EXECUTIVE SUMMARY
Recommendation to approve the mediation settlement in the lawsuit of Elayne Jackson v.
Board of County Commissioners of Collier County, Florida, filed in the Twentieth Judicial
Circuit in and for Collier County, Florida, Case No. 12-1316-CA for the sum of $75,000
and authorize the Chairwoman to execute the Settlement Agreement.
OBJECTIVE: Recommendation to approve a settlement reached during Court-ordered
mediation in the lawsuit filed by Elayne Jackson against the Board of County Commissioners,
for the sum of$75,000, and authorize the Chair to execute the Settlement Agreement.
CONSIDERATIONS: The incident occurred on February 29, 2012 at the intersection of
Vanderbilt Beach Road and U.S. 41. Plaintiff, Elayne Jackson, was riding her bicycle heading
eastbound on Vanderbilt Beach, and came to a stop at the intersection of Vanderbilt Beach Road
and U.S. 41. A County employee was driving a County owned truck pulling a trailer eastbound,
on the straight through lane on Vanderbilt Beach Road. As the truck approached the intersection
Ms. Jackson rode her bicycle around the vehicle in front of her, was struck by the trailer, and
subsequently pinned underneath. The driver crossed the intersection, stopped in his travel lane to
inspect the truck and trailer, and observed Ms. Jackson pinned underneath the trailer.
Ms. Jackson was airlifted to Lee Memorial Hospital and remained hospitalized for approximately
thirty days. She sustained significant injuries and underwent multiple skin grafts and surgeries,
with extensive scarring. Her total Medicare lien is $115,035.72.
At trial, Plaintiff would put in front of the jury the Medicare lien of $115,035.72 and
approximately $15,000/$20,000 in future medical procedures. In addition, full value for pain,
suffering, and permanent disfigurement would likely range in the amount of $300,000 to
$500,000. The County would incur minimum hard costs of$40,000 in defending the case,which
figure includes retention of an accident re-constructionist and psychologists. In considering the
extensive medical expenses incurred by the Plaintiff, the significant nature of the injuries, the
exposure and costs involved,the County has reached a tentative settlement for$75,000.
FISCAL IMPACT: Funds are budgeted and available in Fund 516, Property & Casualty
Insurance Fund and the total impact will be $75,000.00.
GROWTH MANAGEMENT IMPACT: There is no Growth Management Impact associated
with this Executive Summary.
LEGAL CONSIDERATIONS This item has been approved as to form and legality, and
requires majority support for approval. -KLN
RECOMMENDATION: The County Attorney's Office has reviewed this settlement with the
Risk Management Department and both parties recommend that the Board of County
Commissioners approve this tentative settlement agreement.
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.1.
Item Summary: Recommendation to approve the mediation settlement in the lawsuit of
Elayne Jackson v. Board of County Commissioners of Collier County, Florida,filed in the
Twentieth Judicial Circuit in and for Collier County, Florida, Case No. 12-1316-CA for the sum of
$75,000 and authorize the Chairwoman to execute the Settlement Agreement.
Meeting Date: 10/8/2013
Prepared By
Name: CrotteauKathynell
Title: Legal Secretary,County Attorney
9/24/2013 9:39:24 AM
Approved By
Name: WalkerJeff
Title: Director-Risk Management,Risk Management
Date: 9/24/2013 9:55:12 AM
Name:NoellKevin
Title:Attorney of Record(CAO)
Date: 9/24/2013 10:18:52 AM
Name: GreenwaldRandv
Title: Management/Budget Analyst,Office of Management&B
Date: 9/24/2013 1:41:41 PM
Name: KlatzkowJeff
Title: County Attorney
Date: 9/26/2013 8:35:58 AM
Name: OchsLeo
Title: County Manager
Date: 9/26/2013 1:42:45 PM
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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 , 2013 by and between ELAYNE JACKSON
(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 Elayne Jackson v.
Collier County, Florida, Case No. 12-1316-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 Plaintiffs 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 Seventy-Five Thousand Dollars and 00/100 ($75,000.00)
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
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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 Plaintiffs attorney agree and covenant to fully comply with all
applicable Medicare laws, liens, and Set-Asides, specifically including 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, 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.
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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, 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. This Agreement and Release shall be governed by the laws of the State of
Florida.
12. Plaintiff and Plaintiffs attorney shall be solely responsible for any
Medicare lien, other liens, or Medicare Set-Asides.
13. The document titled "Addendum to Settlement Agreement and Mutual
Release" attached as Exhibit "1" is incorporated into this Agreement by reference.
[Signature page to follow.]
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IN WITNESS WHEREOF, Plaintiff, and the County have signed and sealed
this Agreement and Release as set forth below.
Date:
ATTEST: BOARD OF COUNTY COMMISSIONERS
DWIGHT E. BROCK, Clerk OF COLLIER COUNTY, FLORIDA
By:
Deputy Clerk Georgia A. Hiller, Esq.
Chairwoman
Approved as to form and By:
legality: Elayne Jackson, Plaintiff
By:
Kevin L. Noel! Theodore Zelman, Esq.
Assistant County Attorney Attorney for Plaintiff
STATE OF
COUNTY OF
THIS SETTLEMENT AGREEMENT AND RELEASE BETWEEN PLAINTIFF AND
COLLIER COUNTY, FLORIDA WAS SWORN TO and subscribed by ELAYNE
JACKSON, before me on this day of , 2013.
Personally Known
Signature of Notary Public or
Produced Identification
Commissioned Name of Notary Public Type of Identification Produced
(Please print, type or stamp)
My Commission expires:
12-1316-ca/663
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ADDENDUM TO
SETTLEMENT AGREEMENT AND MUTUAL 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.
OR
Releasor is a male/female whose date of birth is and has a Medicare claim number
of . I presently am enrolled in Medicare Part A or Part B or previously was
enrolled from to . Releasor warrants and represents there has been full
disclosure of his/her Medicare status to Releasee.
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
1 EXHIBIT
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Amok
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.
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
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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.
Complete 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
Elayne Jackson
Releasor Address
STATE OF
COUNTY OF
THIS ADDENDUM TO SETTLEMENT AGREEMENT AND MUTUAL RELEASE BETWEEN PLAINTIFF AND COLLIER
COUNTY,FLORIDA WAS SWORN TO and subscribed by Elayne Jackson,before me on this day
of ,2013.
Personally Known
—
Signature of Notary Public or
Produced Identification
Commissioned Name of Notary Public Type of Identification Produced
(Please print, type or stamp)
My Commission expires:
3
380652.1
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As to the Releasee only:
BOARD OF COUNTY COMMISSIONERS
OF COLLIER COUNTY, FLORIDA
Releasee Date
GEORGIA A. HILLER, ESQ., Chairwoman
ATTEST:
DWIGHT E. BROCK, Clerk
Deputy Clerk
Approved as to form and
legality:
L
Kevin L. Noell
Assistant County Attorney
4
380652.1
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