Agenda 06/10/2008 Item #16K 6
Agenda Item No. 161<6
June 10, 2008
Page 1 of 7
EXECUTIVE SUMMARY
Recommendation to approve settlement in the lawsuit entitled Travelers Indemnity Company a/s/o
Mitchell & Stark Construction Co" Inc., v. Collier County, filed in the Twentieth Judicial Circuit in
and for Collier County, Florida, Case No. 07-0139-CA, for $15,000.00.
OBJECTIVE: For the Board of County Commissioners to approve the settlement prior to
mediation and trial, whereupon the County would pay $15,000.00 and the lawsuit and all claims
against the County would be dismissed with prejudice.
CONSIDERA TIONS: Donald Smith employee of Mitchell & Stark was allegedly injured when
the vehicle in which he was a passenger hit a sinkhole on a side road at the South County Regional
Water Treatment Plant. Donald Smith is now deceased. His cause of death is currently unknown.
Travelers Indemnity Company, Mitchell & Stark's workers' compensation carrier is suing the
County for damages and/or losses, including but not limited to worker's compensation benefits,
property damage, personal injuries, medical bills, and loss of use and/or loss of life. Plaintiff's
damages were $27,191.69. Based upon the happening of the accident and the County's
investigation, the $15,000.00 settlement is reasonable. If this matter went to trial, the trial costs for
experts would range betwecn $3,000.00 to $9,000.00.
FISCAL IMPACT: The settlement otTer recommended by staff amounts to $15,000.00. Funds
- are budgeted and available in the Risk Management Property & Casualty Fund.
GROWTH MANAGEMENT IMPACT: There is no growth management impact associated
with this item.
LEGAL CONSIDERATIONS: Plaintiff asserts that the County failed to maintain, inspect, and
repair the roadway. The County denied liability. Both the County Attorney and the Risk
Management Director opine that settlement in the sum of $] 5,000.00 for Plaintiffs claim is
reasonable and cost effective under all the circumstances.
RECOMMENDATION: That the Board of County Commissioners approve the settlement
proposal of $ I 5,000.00 for the Plaintiff and authorize the Chairnlan of the Board of County
Commissioners to execute all necessary documents.
PREPARED BY: Willianl E. Mountford, Assistant County Attorney
07.0182/38
~
Item Number:
Item Summary:
Meeting Date:
Page] of I
Agenda Item !".]o. 16K6
,June 10, 2008
Page 2 of 7
COLLIER COUNTY
BOARD OF COUNTY COMMISSIONERS
16K6
Recommendation to approve settlement in the lawsuit entitled Travelers Indemnity Company
alslo Mitchell & Stark Construction Co., Inc., v. Collier County, filed in the Twentieth Judicial
Circuit in and for Collier County, Florida. Case No. 07 -D139-CA. for $15.00000
6110120089.0000.AM
Approved By
Jeffrey A. Walker, CPCU,
ARM
Administrative Services
Risk Management Director
Date
Risk Management
5129120082:45 PM
Approved By
Jeff Klatzkow
County Attorney
Assistant County Attorney
Date
County Attorney Office
5129120083:16 PM
Approved By
OMS Coordinator
County Manager's Office
OMS Coordinator
Date
Office of Management & Budget
5f30/2008 9:59 AM
Approved By
John A. Y onkosky
County Manager's Office
Director of the Office of Management
Date
Office of Management & Budget
5,'30/2008 12:58 PM
Approved By
James V. Mudd
Board of County
Commissioners
County Manager
Date
County Manager's Offfce
5/30f200S 2:30 PM
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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
, 2008 by and between Travelers Indemnity
Company a/s/o Mitchell & Stark Construction Co., Inc., (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 Travelers
Indemnity Company a/s/o Mitchell & Stark Construction Co., Inc., v. Collier County,
Case No. 07-0139-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. 16K6
June 10. 2008
Page 4 of7
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 Fifteen Thousand Dollars ($15,000.00) 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 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 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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L,genda it9m r'~Q. 161-<6
clune 10. 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
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Aoenda Item No. 16K6
" June 10. 2008
Page 6 of 7
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 RE'dease 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:
Travelers Indemnity Company, a/s/o
Mitchell & Stark Construction Co., Inc.,
Signature
Print Na:ne
4
!jf:m !'~o, 1 C)~(6
June 10, 20U8
;=',];:387 of 7
STATE OF
COUNTY OF
THIS SETTLEMENT AGREEMENT AND RELEASE BETWEEN PLAINTFF AND
COLLIER COUNTY, FLORIDA WAS SWORN TO and subscribed by
representative of Travelers Indemnity
Company a/s/o Mitchell & Stark Construction Co., Inc., before me on this day
of , 2008.
Signature of Notary Public
Personally Known
or
Produced Identification
Commissioned Name of Notary Public
(Please print, type or starnp)
My Commission expires:
Type of Identification Produced
Approved as to form and
legal sufficiency:
William E. Mountford
Assistant County Attorney
07.0]8239
5