Agenda 01/24/2012 Item #16K41/24/201.2 Item 16.x.4.
EXECUTIVE Si hO ARY
Recommendation to approve the, mediation settlement prior to trial in the lawsuit entitled
Maureen Benes and Laddie G Benes v Collier County, Florida, filed in the Twentieth
Judicial Circuit in and for Collier County, Florida, Case No.. 11-1879-CA for the sum of
$15,000 and authorize the Chairman to execute the Settlement Agreement.
OBJECTIVE: Recommendation to approve the mediation settlement in the lawsuit filed by
Maureen Benes and Laddie C. Benes, against the Board of County Commissioners, for the sum
of $15,000.00 and authorize the Chairman to execute the Settlement Agreement.
CONSIDERATIONS: The Plaintiff, Mrs. Maureen Benes, alleged that she tripped and fell-on
an uneven brick paver at the Collier County Regional Library on August 30, 2010. The Plaintiff
alleged that she and her husband were leaving the Library through the Courtyard and that she
unexpectedly tripped and fell. The Plaintiff suffered extensive injuries including a broken nose,
fractured right wrist, and fractured left elbow. The Complaint alleged that the County failed to
maintain the Courtyard and failed to warn the public of a known dangerous condition. The
County filed an Answer denying this claim.
The parties engaged in Court Ordered Mediation on January 5, 2012. After review, the County
agreed to -settle this case for $15,000. The County considered the extensive medical expenses
incurred by the Plaintiff of approximately $85,000, significant injuries, 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 $15,000.00.
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. This item is legally sufficient for Board action and requires a
majority vote for approval. — CMG
RECONEWNDATION: For the Board of County Commissioners to accept the mediation
settlement in the lawsuit filed against the Board of County Commissioners by Maureen Benes
and Laddie C. Benes in the Twentieth Judicial Circuit Court for the sum of $15,000.00 and
authorizes the Chairman to execute the Settlement Agreement
Prepared by: Colleen M. Greene, Assistant County Attorney
11- 1879- CA/4984
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COLLIER COUNTY
Board of County Commissioners
Item Number: 16.K.4.
1/24/2012 Item 16.K.4.
Item Summary: Recommendation to approve the mediation settlement prior to trial in
the lawsuit entitled Maureen Benes and Laddie C. Benes v. Collier County, Florida, filed in the
Twentieth Judicial Circuit in and for Collier County, Florida, Case No. 11- 1879 -CA for the sum of
$15,000 and authorize the Chairman to execute the Settlement Agreement.
Meeting Date: 1/24/2012
Prepared By
Name: CrotteauKathynell
Title: Legal Secretary,County Attorney
1/12/2012 12:33:36 PM
Approved By
Name: WalkerJeff
Title: Director - Risk Management,Risk Management
Date: 1/12/2012 2:41:33 PM
Name: GreeneColleen
Title: Assistant County Attorney,County Attorney
Date: 1/12/2012 3:12:06 PM
Name: KlatzkowJeff
Title: County Attorney,
Date: 1/13/2012 9:51:05 AM
Name: FinnEd
Date: 1/13/2012 5:58:27 PM
Name: OchsLeo
Title: County Manager
Date: 1/16/2012 3:25:00 PM
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1/24/2012 Item 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 day of January, 2012 by and between MAUREEN BENES and LADDIE C.
BENES, (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 Maureen Benes
and Laddie C. Benes v. Collier County, Florida, Case No. 11- 1879 -CA (hereinafter
referred to as the "Lawsuit "); and
WHEREAS, Plaintiffs and the County, without either party admitting any liability 10-N,
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.
WHEREAS, Plaintiffs 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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1/24/2012 Item 16.K.4.
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 Fifteen Thousand Dollars and 00/100 ($15,000.00) 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
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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1/24/2012 Item 16.K.4.
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 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. 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
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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.
B. 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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1/24/2012 Item 16.x.4.
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, other liens, or Medicare Set - Asides.
[Signature page to follow.]
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1/24/2012 Item 16.K.4.
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:
Colleen M. Greene
Assistant County Attorney
STATE OF
COUNTY OF
BOARD OF COUNTY COMMISSIONERS
OF COLLIER COUNTY, FLORIDA
By:
Fred W. Coyle, Chairman
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MAUREEN BENES, Plaintiff
By:
LADDIE C. BENES, Plaintiff
By:
Theodore Zelman, Esq.
Attorney for Plaintiffs
THIS SETTLEMENT AGREEMENT AND RELEASE BETWEEN PLAINTIFFS AND
COLLIER COUNTY, FLORIDA WAS SWORN TO and subscribed by MAUREEN
BENES and LADDIE C. BENES, before me on this day of ,
2012.
Signature of Notary Public
Commissioned Name of Notary Public
(Please print, type or stamp)
My Commission expires:
11- 1879- CA/4981
Personally Known
or
Produced Identification
Type of Identification Produced
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