Agenda 10/23/2012 Item #16K1 10/23/2012 Item 16.K.1.
EXECUTIVE SUMMARY
Recommendation to approve and authorize the Chairman to sign a Settlement Agreement
prior to trial in the lawsuit entitled Darling Elie, individually and as Guardian of Jadarrien
Elie, a minor child v. Collier County, et. al., filed in the Twentieth Judicial Circuit in and for
Collier County, Florida, Case No. 07-1463-CA for the sum of$334, to settle the consortium
claim for the minor child.
OBJECTIVE: Recommendation to approve the settlement for Jadarrien Elie, the minor child,
in the lawsuit filed by Darling Elie, individually and as Guardian of Jadarrien Elie, a minor child,
against the Board of County Commissioners, for the sum of$334.00 and authorize the Chairman
to execute the Settlement Agreement.
CONSIDERATIONS: On October 12, 2004, the Plaintiff, Darling Elie, was being transported
by Collier County EMS from Immokalee to North Collier Hospital while in labor with her first
child. On that night there was heavy rain and the ambulance hydroplaned causing the ambulance
driver to lose control of the vehicle. The ambulance spun around and ultimately overturned. The
ambulance itself broke apart causing the rear occupants, Plaintiff and a County Paramedic, to be
ejected from the ambulance. The Plaintiff suffered significant injuries causing the Plaintiff to be
airlifted to the trauma center in Lee County. The Plaintiffs child, Jadarrien Elie, was born
without any significant injury.
After review, the County, through the Risk Management Department and County Attorney's
Office, agreed to settle the minor child's consortium claim for $334.00, the total amount of
Medicaid lien. The parties have agreed to settle this part of the case in an effort to narrow the
issues for trial. The Plaintiff Darling Elie's claims remain and trial is expected in 2013.
FISCAL IMPACT: Funds are budgeted and available in Fund 516, Property & Casualty
Insurance Fund and the total impact will be $334.00.
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. This item is legally sufficient for Board
action and requires a majority vote for approval. —CMG
RECOMMENDATION: For the Board of County Commissioners to accept the settlement for
Jadarrien Elie, the minor child's claims in the lawsuit filed against the Board of County
Commissioners by Darling Elie, individually and as Guardian of Jadarrien Elie, a minor child, in
the Twentieth Judicial Circuit Court for the sum of $334.00 and authorize the Chairman to
execute the Settlement Agreement.
Prepared by: Colleen M. Greene, Assistant County Attorney
04.0411/4825
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10/23/2012 Item 16.K.1 .
COLLIER COUNTY
Board of County Commissioners
Item Number: 16.K.1.
Item Summary: Recommendation to approve and authorize the Chairman to sign a
Settlement Agreement prior to trial in the lawsuit entitled Darling Elie, individually and as
Guardian of Jadarrien Elie, a minor child v. Collier County, et. al., filed in the Twentieth Judicial
Circuit in and for Collier County, Florida, Case No. 07-1463-CA for the sum of$334,to settle the
consortium claim for the minor child.
Meeting Date: 10/23/2012
Prepared By
Name: NeetVirginia
Title: Legal Assistant/Paralegal,County Attorney
10/8/2012 8:59:48 AM
Submitted by
Title:Assistant County Attorney,County Attorney
Name: GreeneColleen
10/8/2012 8:59:49 AM
Approved By
Name: WalkerJeff
Title: Director-Risk Management,Risk Management
Date: 10/8/2012 11:45:58 AM
Name: GreeneColleen
Title: Assistant County Attorney,County Attorney
Date: 10/8/2012 2:06:08 PM
Name: FinnEd
Title: Senior Budget Analyst, OMB
Date: 10/9/2012 5:35:56 PM
Name: KlatzkowJeff
Title: County Attorney
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10/23/2012 Item 16.K.1.
Date: 10/10/2012 3:39:02 PM
Name: SheffieldMichael
Title:Manager-Business Operations, CMO
Date: 10/11/2012 2:48:22 PM
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10/23/2012 Item 16.K.1.
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 October, 2012 by and between DARLING ELIE, as Guardian of JADARRIEN
ELIE, a minor child, (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 DARLING ELIE,
individually and As Guardian of JADARRIEN ELIE, a minor child, v. Collier County, et.
al., Case No. 07-1463-CA (hereinafter referred to as the "Lawsuit"); and
WHEREAS, Plaintiff and the County, without either party admitting any liability or
fault, desire to settle JADRRIEN ELIE, the minor child's, allegations made in the
Complaint filed in 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 in
the Complaint; and
WHEREAS, the Plaintiff Darling Elie's claim remains disputed and is not included
in this Settlement Agreement; 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; and
WHEREAS, Plaintiff agrees and covenant to fully comply with all applicable
Medicare laws and liens specifically including 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 Three Hundred Thirty-Four Dollars and 00/100 ($334.00)
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 minor child's consortium claim in
Also
this Lawsuit, and for other good and valuable consideration, the receipt and adequacy
of which is hereby acknowledged, Plaintiff, on behalf of her minor child Jadarrien Elie
and 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, 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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10/23/2012 Item 16.K.1.
specifically for the allegations pertaining to the minor child Jadarrien Elie. The Plaintiff
Darling Elie's claim remains disputed and is not included in this Settlement Agreement.
4. Notwithstanding anything that may be to the contrary in Paragraph 3 of
this Agreement and Release, Plaintiff and on behalf of Jadarrien Elie 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 agrees and covenants to fully comply with all applicable Medicare
laws and liens specifically including 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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10/23/2012 Item 16.K.1.
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 Jadarrien Elie
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. Auk
12. Plaintiff and Plaintiffs attorney shall be solely responsible for any
Medicare lien or other liens that apply to Jadarrien Elie as referenced in the attached
Addendum.
IN WITNESS WHEREOF, Plaintiff, and the County have signed and sealed
this Agreement and Release as set forth below.
[Signature page to follow]
Aiwk
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10/23/2012 Item 16.K.1 .
Date:
ATTEST: BOARD OF COUNTY COMMISSIONERS
DWIGHT E. BROCK, Clerk OF COLLIER COUNTY, FLORIDA
By:
Deputy Clerk FRED W. COYLE, Chairman
Approved as to form and
legal sufficiency:
By:
•Ileen M. Greene DARLING ELIE, as Guardian of
Assistant County Attorney JADARRIEN ELIE, a minor child
STATE OF
COUNTY OF
THIS SETTLEMENT AGREEMENT AND RELEASE BETWEEN PLAINTIFF AND
COLLIER COUNTY, FLORIDA WAS SWORN TO and subscribed by DARLING ELIE,
as Guardian of JADARRIEN ELIE, a minor child before me on this day of
, 2012.
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:
04.0411/4826
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ADDENDUM TO SETTLEMENT
AGREEMENT AND GENERAL 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.
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
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.
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10/23/2012 Item 16.K.1.
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
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.
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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
Darling Elie, as Guardian of Jadarrien Elie, a minor child
Releasor Address
STATE OF 4
COUNTY OF
THIS ADDENDUM TO SETTLEMENT AGREEMENT AND MUTUAL RELEASE BETWEEN PLAINTIFF AND COLLIER
COUNTY, FLORIDA WAS SWORN TO and subscribed by Darling Elie,as Guardian of Jadarrien Elie,a
minor child, before me on this day of , 2012.
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:
As to the releasee only:
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10/23/2012 Item 16.K.1 .
BOARD OF COUNTY COMMISSIONERS
OF COLLIER COUNTY, FLORIDA
Releasee Date
Fred W. Coyle, Chairman
c/o Office of the County Attorney,
3299 Tamiami Trail, East, Suite 800, Naples, Florida 34112
Releasee Address
ATTEST:
DWIGHT E. BROCK, Clerk
Deputy Clerk
Approved as to form and
legal sufficiency:
- )
olleen M. Greene
Assistant County Attorney
04.0411/4827
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