Agenda 05/13/2008 Item #16K 5
EXECUTIVE SUMMARY
Agenda Item No. 16K5
May 13, 2008
Page 1 of 9
Recommendation to approve settlement at mediation prior to trial in the lawsuit entitled
Estella lemma, et. aI, vs. Collier County Board of Commissioners filed in the Twentieth Judicial
Circuit in and for Collier County, Florida, Case No. 07-2295-CA, for $20,000.00.
OBJECTIVE: For the Board of County Commissioners to approve settlement at mediation prior
to trial, whereupon the County would pay $20.000.00, and the lawsuit and all claims against the
County would be dismissed with prejudice.
CONSIDERATIONS: On November 11, 2004, Plaintiff; Estella lemma, slipped on accumulated
dirt and mud on a sidewalk located at Vineyards Boulevard, Naples, Florida. The Plaintiff was
transported to the Cleveland Clinic Hospital and an intramedullary fixation of the left
intertrochanteric hip was performed with placement of two pins in the left hip. Upon Plaintiffs
release from the hospital, she received home health physical therapy. Although the Plaintiff s
recovery was long, she recovered fairly well. The Plaintiffs Estella lemma and Joseph lemma
(spouse) filed suit against the Board of County Commissioners and Vineyards Development
Corporation alleging negligent maintenance, negligent failure to warn, and loss of consortium.
In the area where the Plaintiff fell, the County and the Vineyards shared maintenance
responsibilities. Plaintiff fell on the sidewalk, which contained what appeared to be dried earth but
underneath the earth was mud. The County's investigation was unable to determine definitively
whether the County or the Vineyards had sole maintenance responsibilities.
Plaintiff incurred approximately $37,000.00 in medical bills. Based upon the happening of the
accident, the County's investigation, and the Plaintiffs medical bills, the $20,000.00 settlement is
reasonable. If this matter went to trial, the trial costs for an expert engineer and expert orthopedic
surgeon would range between $8,000.00 to $15,000.00. Moreover, Co-Defendant Vineyards has
also entered into settlement at mediation with Plaintiffs the terms of which are confidential.
FISCAL IMPACT: The settlement offer recommended by staff amounts to $20,000.00. 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: Plaintiffs assert that the County failed to maintain the sidewalk in
question. The County denied liability. Both the County Attorney and the Risk Management
Director opine that settlement in the sum of $20,000.00 for Plaintiffs claim is reasonable and cost
effective under all the circumstances.
RECOMMENDATION: That the Board of County Commissioners approve the settlement
proposal of $20,000.00 for the Plaintifls and authorize the Chainnan of the Board of County
Commissioners to execute all necessary documents.
PREPARED BY: William E. Mountford. Assistant County Attorney
Page I of 1
Agenda Item No. 16K5
May 13, 2008
Page 2 of 9
COLLIER COUNTY
BOARD OF COUNTY COMMISSIONERS
Item Number:
Item Summary:
16K5
Recommendation to approve settlement at mediation prior to trial in the lawsuit entitled
Estella lemma, et. al, VS. Collier County Board of Commissioners filed in the Twentieth
Judicial Circuit in and for Collier County, Florida, Case No. 07~2295-CA, for $20:000.00.
Meeting Date:
5/13/200890000 AM
Approved By
Jeff Klatzkow
Assistant County Attorney
Date
County Attorney
County Attorney Office
5/1/20088:08 AM
Approved By
Jeffrey A. Walker, CPCU,
ARM
Risk Management Director
Date
Administrative Services
Risk Management
5/1120088:38 AM
Approved By
William Mountford
Assistant County Attorney
Date
County Attorney
County Attorney Office
511/20088:39 AM
A pproved By
OMS Coordinator
OMS Coordinator
Date
County Manager's Office
Office of Management & Budget
511/20081 :23 PM
Approved By
John A. Y onkosky
Director of the Office of Management
Date
County Manager's Office
Office of Management & Budget
5/1/20083:26 PM
Approved By
James V. Mudd
County Manager
Date
Board of County
Commissioners
County Manager's Office
5/1/2008 5:55 PM
file://C:\AgendaTest\Export\ 107 -Mav%20 13.%202008\ 16. %20CONSENT%20AGENDA \] 6... 5/7/2008
P\genda item No. 16K5
May 13, 2008
Page 3 of 9
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
day of
, 200_ by and between ESTELLE lEMMA and
this
JOSEPH lEMMA, (hereinafter referred to as "Plaintiffs") and Board of County
Commissioners For Collier County (hereinafter referred to as the "County").
WIT N E SSE T H:
WHEREAS, Plaintiffs filed a lawsuit against the County in the Circuit Court for
the Twentieth Judicial Circuit in and for Collier County, Florida, styled Estelle lemma
and Joseph lemma v. Collier County Board of County Commissioners, et al., Case No.
07-2295-CA (hereinafter referred to as the "Lawsuit"); and,
WHEREAS, Plaintiffs 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, Plaintiffs 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.
,"'genda Item No, 16K5
May 13, 2008
Page 4 of 9
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. Plaintiffs 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 Twenty Thousand Dollars ($20,000.00) and other
valuable consideration, the receipt and adequacy of which is hereby acknowledged by
Plaintiffs, Plaintiffs 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,
Plaintiffs, on behalf of themselves, 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 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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Agenda item No. 16K5
May 13, 2008
Page 5 of 9
4. Notwithstanding anything that may be to the contrary in Paragraph 3 of
this Agreement and Release, Plaintiffs 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. Plaintiffs 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. Plaintiffs 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 Plaintiffs or
the County.
7. Plaintiffs 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, Plaintiffs
and the County agree that all underlying causes of action or claims of Plaintiffs have
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Agenda Item No. 16K5
May 13, 2008
Page 6 of 9
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, Plaintiffs 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, Plaintiffs and the County have signed and sealed
this Agreement and Release as set forth below.
DATED:
ATTEST:
DWIGHT E. BROCK, Clerk
BOARD OF COUNTY COMMISSIONERS
OF COLLIER COUNTY, FLORIDA
By:
TOM HENNING, Chairman
ESTELLE lEMMA, Plaintiff
JOSEPH lEMMA, Plaintiff
Date:
Date:
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,ll,genda item No. 16K5
May 13, 2008
Page 7 of 9
THIS SETTLEMENT AGREEMENT AND RELEASE BETWEEN PLAINTIFFS
AND COLLIER COUNTY, FLORIDA WAS SWORN TO and subscribed by Estelle
lemma and Joseph lemma, before me, this day of , 2008.
Personally Known
or
Produced Identification
Signature of Notary Public
Commissioned Name of Notary Public
(Please print, type or stamp)
Type of Identification Produced
My Commission expires:
Approved as to form and
legal sufficiency:
William E. Mountford
Assistant County Attorney
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Agenda Item No. 16K5
May 13, 2008
Page 8 019
The Twentieth Judicial Circuit Court in and for Collier County Florida
Estelle lemma and Joseph lemma,
Plaintiff,
YS.
CASE NO: 07-2295-CA
Collier County Transportation Services
And Vineyards Development Corporation,
Defendant
/
STIPULATION & SETTLEMENT AGREEMENT
Pursuant to the agreement of the parties and all applicable Cl'mrt orders and
procedures, mediation was conducted in the above-styled matter before Certified
Mediator Robin Doyle on Wednesday, April IS, 2008, and
TIffi PARTIES HERETO STIPULATE AND AGREE AS FOLLOWS:
I. Defendant Collier County agrees to pay to Plaintiffs the sum of
$20,000.00 as full and final settlement of this case.
2. Plaintiffs agree that at the time of payment by the Defendants this case
will be dismissed with prejudice and Plaintiffs will execute a general
release in form approved by the county.
3. This agreement is subject to approval by the Board of Commissioners of
Collier County and contingent upon settlement of the Plaintiffs' claims in
Agenda Item No. 15K5
May 13, 2008
Page 9 of 9
this case against Vineyards Development Corporation, the terms of which
are confidential.
This STIPULATION & SETTLEMENT AGREEMENT consisting of ~
pages is entered into freely by the parties, with their full knowledge and consent
and there have been no promises made to any party which are not contained in this
agreement.
WE THE UNDERSIGNED hereby acknowledge our agreement on
Wednesday, April 15, 2008.
Estelle lemma,
BY:~'~
Plaintiff
Joseph lemma,
--
B
~..ty CDmm;~i..en
Attorney for Defendant