Agenda 02/10/2009 Item #16K 1
EXECUTIVE SUMMARY
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Recommendation to approve settlement prior to trial in the lawsuit entitled Osvaldo Gayon
v. Dennis Larson, et at.; filed in the Twentieth Judicial Circuit in and for Collier County,
Florida, Case No. 06-340-CA, for $9,500.00.
OBJECTIVE: That the Board of County Commissioners' approve settlement prior to trial,
whereupon the County would pay Plaintiff $9.500.00 and all claims against the County and
Dennis Larson, former County employee, would be dismissed with prejudice.
CONSIDERATIONS: On April ] 9, 2005, Plaintiff walked into the courthouse and as he
walked through the security area he set off the metal detector. Plaintiff was asked by Dennis
Larson, Collier County Security Officer, to turn his belt around. While Plaintiff attempted to
turn his belt around, Larson proceeded to conduct the procedural screening with a handheld
magnetometer, when Larson's finger accidentally touched Plaintiffs forehead/eye area. Plaintiff
is alleging that Larson intentionally struck his forehead and eye with the magnetometer causing
damage to his vision. Plaintiff further alleges he was unable to perform his job, resulting in lost
wages. Plaintiff sued Dennis Larson, individually. Pursuant to Collier County Resolution No.
95-632, the Board of County Commissioners' provided Larson with legal representation, as
Larson was acting within the scope of his employment. The parties participated in mediation on
August 14, 2007 which resulted in an impasse. On September 16, 2008, Plaintiff's counsel
represented to the Court that Plaintiff would file an Amended Complaint joining Collier County
Board of County Commissioners, as a defendant and an Order to that effect was entered. Should
Collier County Board of County Commissioners be joined as a defendant, the County will need
to retain outside counsel for the representation of Dennis Larson in accordance with the Canons
of Ethics.
After completion of discovery, impasse mediation, and the possibility of joining Collier County
as a defendant, the $9,500.00 settlement for the Plaintiffs claims is reasonable. If this matter
went to trial, trial costs for an optometric expert alone would range somewhere between
$3,000.00 to $4,000.00.
FISCAL IMPACT: The settlement offer recommended by staff amounts to $9,SOO.00. Funds
are budgeted and available in the Risk Management Property & Casualty Fund No. 516121650.
GROWTH MANAGEMENT IMPACT: There is no growth management impact associated
with this item.
LEGAL CONSIDERATIONS: Plaintiff asserts Larson's negligent conduct and also that the
County negligently failed to supervise its employees and secure the working area. The County
denies liability. Both the COWlty Attorney and the Risk Management Director opine that
settlement in the sum of$9,500.00 for Plaintitrs claims is reasonable ffild cost effective under all
the circumstances. This item is not quasi judicial, and as such ex parte disclosure is not required.
This item requires majority vote only. This item is legally sufficient Il)r Board Action.
Approved: WEM, ACA
--
RECOMMENDATION: That the Board of County Commissioners approve the settlement
proposal of $9,500.00 for the Plaintiff and authorize the Chairman of the Board of County
Conl111issioners to execute all necessary documents.
PREPARED BY: Willi,m1 E. Mountford. Assistant County Attorney
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Agenda item r'~'J, -16K1
Februarv 10, 2009
Page 2 of 7
COLLIER COUNTY
BOARD OF COUNTY COMMISSIONERS
Item Number:
16K1
Item Summary:
Recommendation to approve settlement prior to trial in the lawsuit entitled Osvaldo Gayon v
Dennis Larson, et al. filed in the Twentieth Judicial ClrcLllt in and for Collier County, Florida,
Case No. 06-340-CA, for $9,50000
21101200990000 AM
Meeting Date:
Prepared By
WiHiam Mountford
p.ssistant County Attorney
Date
County Attorney
County Attorney Office
1/27/20099:45:48 AM
Approved By
William Mountford
County Attorney
Assistant County Attorney
County Attorney Office
Date
1/27/200910:52 AM
A.pproved By
Jeffrey A. Walker, CPCU,
ARM
Risk Management Director
Date
Administrative Services
Risk Management
1/27120092:24 PM
Appro\'ed By
Jeff Klatzkow
Assistant County Attorney
County A ttorney Office
Date
County Attorney
1128/20091 :43 PM
Approvt'd B)'
OMS Coordinator
OMS Coordinator
Date
County Manager's Office
Office of Management & Budget
1/28120092:12 PM
Approved By
John A. Yonkosky
County Manager's Office
Director of the Office of Management
Office of Management & Budget
Date
1/31/20099:12 AM
Approved By
James V. Mudd
County Manager
Date
Board of County
Commissioners
County Manager's Office
1/31120091:20 PM
file://C:\AuendaTest\Exnort\ I 23-Februarv%20 I 0_%202009\ 16.%20CONSFNT%20MiFND...
2/4/2009
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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
, 2009 by and between Osvaldo Gayon,
(hereinafter referred to as 'Plaintitr) and Board of County Commissioners for Collier
County (hereinafter referred to as the .County").
WIT N E SSE T H:
WHEREAS, Plaintiff filed a lawsuit against the County in the Circuit Court for
the Twentieth Judicial Circuit in and for Collier County, Florida, styled Osvaldo Gayon v.
Dennis Larson, et a.; Case No. 06-340-CA (hereinafter referred to as the "Lawsuit");
and,
WHEREAS, Plaintiff and the County, without either of them 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, 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.
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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, Plaintiffs 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 Nine Thousand Five Hundred Dollars ($9,500.00) 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 his behalf, as well as on behalf of 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 he 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.
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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. Piaintiff 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.
6. Plaintiff and the County recognize and acknowledge that this Agreement
and Release memorializes and slates 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.
g, 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
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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.
IN WITNESS WHEREOF, Plaintiff and the County have signed and sealed
this Agreement and Release as set forth below.
Date:
Date:
ATTEST:
DWIGHT E. BROCK, Clerk
BOARD OF COUNTY COMMISSIONERS
OF COLLIER COUNTY, FLORIDA
By:
Deputy Clerk
, Chairman
Date:
Plaintiff, Osvaldo Gayon
Signature
Print Name
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STATE OF
COUNTY OF
THIS SETTLEMENT AGREEMENT AND RELEASE BETWEEN PLAINTFF AND
COLLIER COUNTY, FLORIDA WAS SWORN TO and subscribed by Osvaldo Gayon.
belore me on this day 01 , 200_.
Personally Known
or
Produced Identification
Signature of Notary Public
Commissioned Name of Notary Public
(Please print, type or stamp)
My Commission expires:
Type of Identification Produced
Approved as to form and
legal sufficiency:
1fM/)
William E. Mountford
Assistant County Attorney
06-340-CA/2334
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