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Agenda 11/18/2008 Item #16K 1 Agenda Item No. 16K1 November 18. 2008 Page 1 of 7 EXECUTIVE SUMMARY Recommendation to approve settlement prior to completion of discovery in the lawsuit entitled Susan Phillips vs. Collier County, filed in the Twentieth Judicial Circuit in and for Collier County, Florida, Case No. 07-2988-CA, for $5,000.00. OBJECTIVE: That the Board of County Commissioners' approve settlement prior to the completion of discovery, whereupon the County would pay Plaintiff $5,000.00 and all claims against the County would be dismissed with prejudice. CONSIDERATIONS: On September 28, 2006, Plaintifl' was transporting in her vehicle several pieces of fine art. Plaintiff was traveling on Vineyards Boulevard to meet with and deliver the art to a buyer. At that time, a County employee working in the area turned the fire hydrant screw the wrong way causing a forceful stream of water onto the roadway. The Plaintiff was instantly startled causing her to lose control of her vehicle. At the time of the incident, Plaintiff had the windows rolled down and the artwork in the front seat was exposed to the elements. The stream of water damaged seven original signed Salvador Dali woodblock engravings from the "Divine Comedy" series, destroying the pencil signature on them. The art buyer had agreed to purchase the artwork for $ I 7,500.00 per an affidavit by the buyer. The Plaintiff also sustained injury to her neck and left shoulder. After completion of the County's investigation, the $5,000.00 settlement for all the Plaintifrs claims is reasonable. If this matter went to trial, trial costs for an art expert would range somewhere between $2,000.00 to $5,000.00 not counting potential medical expert fees. An independent preliminary investigation of the value of the art showed the claim was not unreasonable. FISCAL IMPACT: The settlement offer recommended by staff amounts to $5,000.00. 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 that the County negligently failed to supervise its employees and secure the working area. The County denies liability. Both the County Attorney and the Risk Management Director opine that settlement in the sum of $5,000.00 for Plaintiff's claims is reasonable and cost effective under all the circumstances. RECOMMENDATION: That the Board of County Commissioners approve the settlement proposal of $5,000.00 for the Plaintifl' and authorize the Chainnan of the Board of County Commissioners to execute all necessary documents. PREPARED BY: William E. Mountford, Assistant County Attorney .~ 07.0037/2681 . Item Number: Item Summary: Meeting Date: Page I of I Agenda Item No. 16K1 November 18, 2008 Page 2 of 7 COLLIER COUNTY BOARD OF COUNTY COMMISSIONERS 16K1 Recommendation to approve settlement prior to completion of discovery in the lawsuit entitled Susan Phillips vs Collier County, filed in the Twentieth Judicial Circuit in and for Collier Counly, Florida, Case No 07 -2988-CA. for $5.000.00 11/18/2008 9:0000 AM Prepared By William Mountford County Attorney Assistant County Attorney Date County Attorney Office 10/29/20064:09:56 PM Approved By William Mountford County Attorney Assistant County Attorney Date County Attorney Office 10/29/2008 4:28 PM Approved By Jeffrey A. Walker, CPCU, ARM Administrative Services Risk Management Director Date Risk Management 11/3/200810:48 AM Approved By Jeff Klatzkow County Attorney Assistant County Attorney Date County Attorney Office 11/4/20082:39 PM Approved By OMS Coordinator Administrative Services Applications Analyst Date Information Technology 11/4/20082:47 PM Approved By John A. Yonkosky County Manager's Office Director of the Office of Management Date Office of Management & Budget 11/4/20083:55 PM Approved By James V. Mudd Board of County Commissioners County Manager Date County Manager's Office 11/5/20086:08 PM file://C:\AQendaTest\ExDort\116-November%20 18_%202008\16.%20CONSENT%20AGE... 11/12/2008 Agenda Item No. 16K 1 November 18, 2008 Page 3 of 7 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 , 2008 by and between Susan Phillips, (hereinafter referred to as "Plaintiff") 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 Susan Phillips v. Collier County Florida, a Subdivision of the State of Florida, Case No. 07 -2988-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. Agenda Item No. 16K 1 November 18, 2008 Page 4 of 7 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 Five Thousand Dollars ($5,000.00) and other valuable consideration, the receipt and adequacy of which is hereby acknowledged by Plaintiff, Plaintiff agrees to dismiss the Lawsuit with prejudice. 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, as well as on behalf of 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 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. 2 ..'\oenda Item No. 16K1 ~ November 18. 2008 Page 5 of 7 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 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 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. 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. 9. 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 3 Agenda Item No. 16K1 November 18, 2008 Page 6 of7 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 Deputy Clerk By: TOM HENNING, Chairman Date: PLAINTIFF, SUSAN PHILLIPS Signature of Susan Phillips 4 STATE OF COUNTY OF l\oenda Item No. 16K 1 o November 18. 2008 Page 7 of 7 THIS SETTLEMENT AGREEMENT AND RELEASE BETWEEN PLAINTFF AND COLLIER COUNTY, FLORIDA WAS SWORN TO and subscribed by Susan Phillips, before me on this day of , 2008. Signature of Notary Public Commissioned Name of Notary Public (Please print, type or stamp) My Commission expires: Approved as to form and legal sufficiency: William E. Mountford Assistant County Attorney 07.0037/2682 Personally Known or Produced Identification Type of Identification Produced 5