Loading...
Agenda 09/11/2012 Item #16K69/11/2012 Item 16.K.6. EXECUTIVE SUMMARY Recommendation to approve and authorize the Chairman to execute a mediated Settlement Agreement prior to trial in the lawsuit entitled Benjamin Groenewald v. Mary J. Wehrly, Jack Wehrly, and Collier County, filed in the Twentieth Judicial Circuit in and for Collier County, Florida (Case No. 11- 01366 -CA) for the sum of $15,000. OBJECTIVE: Recommendation to approve the mediation settlement in the lawsuit filed by Benjamin Groenewald, against the Board of County Commissioners, for the sum of $15,000.00 and authorize the Chairman to execute the Settlement Agreement. CONSIDERATIONS: On August 12, 2010, the Plaintiff, Mr. Benjamin Groenewald, was struck by a vehicle driven by Mrs. Mary J. Wehrly while crossing US 41 in Collier County. Mr. Groenewald was crossing southbound at the light at the intersection of US 41 and Lakewood Ave., allegedly proceeding in the crosswalk. Mr. Groenewald alleges that the County's walk/don't walk signal was not operating properly. In fact, the "don't walk" digital display was not working. In generic terms, the light bulb was out. However, the walk digital display was working properly. In addition, the traffic lights were also operating properly. Mr. Groenewald has filed suit against the driver, Mrs. Wehrly, her husband Mr. Wehrly, as the owner of the vehicle, and Collier County. Mr. Groenewald testified that he relied on the pedestrian signal to help him cross the street. The issue with the crosswalk signal is the alleged reason for the County's negligence. Mr. Groenewald suffered severe personal injuries including two fractured vertebrae and incurred significant medical expenses. The Plaintiff is 34 years old and also has a claim for lost earnings. The parties engaged in Court Ordered Mediation on August 23, 2012. After review, the County, through the Risk Management Department and County Attorney's Office, agreed to settle this case for $15,000.00. The County considered the extensive medical expenses incurred by the Plaintiff of approximately $27,000, future medical expenses, significant injuries, and the potential exposure involved with a jury trial. In addition, should the case proceed to trial, expert witness testimony would be required, and due to the extensive injuries, the County would incur costs to retain an expert witness to conduct an independent medical exam (IME) of the Plaintiff. 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. In this case, the cost to proceed to trial would likely outweigh the settlement amount of $15,000. This item is legally sufficient for Board action and requires a majority vote for approval. — CMG Packet Page -4140- 9/11/2012 Item 16.K.6. RECOMMENDATION: For the Board of County Commissioners to accept the mediation settlement in the lawsuit filed against the Board of County Commissioners by Benjamin Groenewald in the Twentieth Judicial Circuit Court for the sum of $15,000.00 and authorize the Chairman to execute the Settlement Agreement Prepared by: Colleen M. Greene, Assistant County Attorney 1 1- 1366- ca/126 Packet Page -4141- 9/11/2012 Item 16.K.6. COLLIER COUNTY Board of County Commissioners Item Number: 16.K.6. Item Summary: Recommendation to approve and authorize the Chairman to execute a mediated Settlement Agreement prior to trial in the lawsuit entitled Benjamin Groenewald v. Mary J. Wehrly, Jack Wehrly, and Collier County, filed in the Twentieth Judicial Circuit in and for Collier County, Florida (Case No. 11- 01366 -CA) for the sum of $15,000. Meeting Date: 9/11/2012 Prepared By Name: CrotteauKathynell Title: Legal Secretary,County Attorney 9/4/2012 9:40:43 AM Approved By Name: WalkerJeff Title: Director - Risk Management,Risk Management Date: 9/4/2012 10:28:34 AM Name: GreenwaldRandy Title: Management/Budget Analyst,Office of Management & B Date: 9/4/2012 11:11:10 AM Name: KlatzkowJeff Title: County Attorney Date: 9/4/2012 1:14:18 PM Name: IsacksonMark Title: Director -Corp Financial and Mgmt Svs,CMO Date: 9/4/2012 2:38:58 PM Packet Page -4142- 9/11/2012 Item 16.K.6. 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 September, 2012 by and between Benjamin Groenewald, (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 Benjamin Groenewald v. Mary J. Wehrly, Jack Wehrly and Copier County, Florida, Case No. 11- 01366 -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 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, 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. I Packet Page -4143- 9/11/2012 Item 16.K.6. 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 Fifteen Thousand Dollars and 00/100 ($15,000.00) and other valuable consideration, the receipt and adequacy of which is hereby acknowledged by Plaintiff, Plaintiff 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, Plaintiff, 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. 2 Packet Page -4144- 9/11/2012 Item 16.K.6. 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 Plaintiff 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. 3 Packet Page -4145- 9/11/2012 Item 16.K.6. 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 Plaintiff's attorney shall be solely responsible for any Medicare lien, other liens, or Medicare Set - Asides. [Signature page to follow. ] 4 Packet Page -4146- 9/11/2012 Item 16.K.6. 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 Approved as to form and By: legal sufficiency: ._ Colleen M. Greene Assistant County Attorney STATE OF COUNTY OF Fred W. Coyle, Chairman BENJAMIN GROENEWALD, Plaintiff Richard D. Weldon Esq. Attorney for Plaintiff THIS SETTLEMENT AGREEMENT AND RELEASE BETWEEN PLAINTIFF AND COLLIER COUNTY, FLORIDA WAS SWORN TO and subscribed by BENJAMIN GROENEWALD, before me on this day of , 2012. Signature of Notary Public Commissioned Name of Notary Public (Please print, type or stamp) My Commission expires: I1-1366-CA, 127 Personally Known or Produced Identification Type of Identification Produced 5 Packet Page -4147-