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HomeMy WebLinkAboutContract 45267 (2)CAUSE NO. 141-264744-13 CITY OF FORT WORTH AS SUBROGEE OF RYAN STEPP, MICHAEL JOHNSON, THOMAS LOFFLAND, AND CHRISTOPHER GRAY VS. DIANN S. FINCEL, PERSONAL REPRESENTATIVE, HEIR, AND BENEFICIARY OF THE ESTATE OF BEVERLY L. KNUTSON CITY SECRETARVI CONTRACT No.. IN THE DISTRICT COURT 141s` JUDICIAL DISTRICT TARRANT COUNTY, TEXAS COMPROMISE SETTLEMENT AGREEMENT AND RELEASE OF ALL CLAIMS On or about March 10, 2011 an incident allegedly occurred in the City of Fort Worth, Tarrant County, Texas, involving the parties to this suit. City of Fort Worth ("Plaintiff") brought this suit for injuries and damages as a result of its claim that it suffered serious and disabling bodily injuries as a result of the incident, alleging that the incident was occasioned by the negligence of Diann Fincel ("Defendant"), who answered, denying all of Plaintiff's allegations. The pleadings of the parties are hereby referred to for a more complete description of the incident and the claims, contentions and defenses of the parties, and such pleadings are made a part hereof for all purposes. Plaintiff has offered to accept the sum of Twenty -Three Thousand Five Hundred Dollars and 00/100 Cents ($23,500.00) in full, final and complete settlement of all rights, claims or causes of action of any kind which Plaintiff has or may claim to have growing out of or arising from said occurrence. Defendant, though denying all liability, in order to effect an amicable settlement and in order to avoid the time, expense and uncertainty which would accompany further litigation, agreed to pay said sum purely and simply as a compromise of a disputed claim. NOW, THEREFORE, KNOW ALL MEN BY THESE PRESENTS: That City of Fort Worth, for and in consideration of the total sum of Twenty -Three Thousand Five Hundred 'JFlN 0 3 201Q ©FFJCNi 11 T T SECRETARY I, • Dollars and 00/100 Cents ($23,500.00), to it in hand paid by the Defendant, Diann Fincel, the receipt of which is hereby acknowledged and confessed, do hereby release Defendant and LIBERTY MUTUAL INSURANCE COMPANY, their heirs, assigns, successors, limited partners, general partners, parent corporations, subsidiaries, agents, servants, employees, legal representatives, and all those in privity with them, and any other person, firm or corporation legally responsible (hereinafter, the "Released Parties"), of and from all claims, demands, rights or causes of action of any kind for damages, whether now known or unknown, which Plaintiff has or may claim to have growing out of or resulting from said occurrence. PLAINTIFF DOES HEREBY COVENANT TO THE E X T F N T ALLOWED BY LAW, TO FULLY INDEMNIFY AND SAVE HARMLESS THE RELEASED PARTIES FROM AND AGAINST ALL CLAIMS AND DEMANDS WHATSOEVER ON ACCOUNT OF OR IN ANY WAY GROWING OUT OF SAID O C C U R E N C E ITS RESULTS, OR THE UNDERLYING LAWSUIT, INCLUDING WITHOUT LIMITATION ALL CLAIMS FOR CONTRIBUTION AND INDEMNITY, AND EXPRESSLY INCLUDING ANY CLAIMS ARISING OUT OF THE RELEASED PARTIES' OWN NEGLIGENCE OR FAULT PLAINTIFF AGREES THAT TO THE EXTENT ALLOWED BY LAW, THE INDEMNIFICATION INCLUDES THE AMOUNT OF THE CLAIMS, THE COST OF DEFFNDING AGAINST THE CLAIMS, AND ATTORNEYS' FEES Without limiting the generality of the foregoing, it is expressly agreed and understood that, for the consideration named, Plaintiff does by these presents release, relinquish, and discharge the Released Parties of and from any and all claims of whatsoever kind or character arising from the occurrence in question, and especially, but not limited to: claims for negligence, gross negligence, recklessness and intentional torts; personal injuries; mental and physical pain and suffering; loss of wages, earnings and earning capacity; doctor, hospital, nurse and drug bills; medical expenses; property damage or loss; workers' compensation subrogation claims, exemplary damages; loss of consortium, and any other loss or detriment of any kind, past, present or future, regardless of whether said claim or damage is known or unknown, asserted or unasserted, in Plaintiff's pleadings, or otherwise. COMPROMISE SETTLEMENT AGREEMENT AND RELEASE OF ALL CLAIMS PAGE 2 It is further understood that the Released Parties do not assume liability for medical bills incurred by Plaintiff, and Plaintiff further agrees to pay and discharge all medical bills outstanding or to be incurred growing out of the matters and things in controversy herein, and to the extent allowed by law indemnify and hold harmless the Released Parties from the payment of such items of expense, past, present or future. Further, Plaintiff warrants that either there are no outstanding unpaid attorney's liens, Medicare/Medicaid liens, hospital liens and medical or workers' compensation insurance subrogation claims, or that all such liens and claims shall be fully satisfied out of the proceeds of this settlement, and Plaintiff agrees, to the extent allowed by law, to indemnify and hold harmless the Released Parties from the payment of such liens and claims. For the same consideration, Plaintiff hereby agrees to cause to be dismissed with prejudice, with costs being paid by the party incurring same, the above -entitled and numbered cause, so that no cause of action or claim can ever again be asserted against the Released Parties at any time in any Court by reason of the incident heretofore described, and described in the aforesaid lawsuit. Plaintiff hereby declares that in making and executing this Release, it is understood that Plaintiff relies wholly upon its own judgment, belief and knowledge, and that of its own Attorney, and that this Release is made without reliance upon any statement or representation of the Released Parties or their representatives, or by any Attorney or other person by them employed, except for the payment of the sum which constitutes the consideration for this Release. Plaintiff further declares and represents that no promise, inducement or agreement not herein expressed has been made to it and that this Release constitutes the entire agreement between the parties hereto, and that the terms of this Release are contractual and not a mere recital. COMPROMISE SETTLEMENT AGREEMENT AND RELEASE OF ALL CLAIMS PAGE 3 NOTHING CONTAINED HEREIN SHALL EVER BE CONSTRUED SO AS TO REQUIRE CITY TO CREATE A SINKING FUND OR TO ASSESS, LEVY AND COLLECT ANY TAX TO FUND ITS OBLIGATIONS UNDER THIS COMPROMISE SETTLEMENT AND RELEASE AGREEMENT. Plaintiff has read the foregoing Release and understands the same. SIGNED this o2l✓d day of 3aFiLJcI re J APPROVED, AGREED TO AND ACCEPTED AS TO SUBSTANCE AND FORM 1 / / , disA 64A•ces-aes 444 D. KF,ITH HARRISON STATE BAR No. 09114000 LAW OFFICES OF GALLERSON & Y 2110 WALNUT HILL LANE SUITE 200 IRVING, TX 75038 PHONE: 972-580-1249 FAX: 603-334-7527 Attorney for Defendant DIANN FINCEL . 201 y . CITY OF FORT WORTH, Plaintiff C • RLES DANIELS ASSIS NT CITY MANAGER FORT WORTH CITY REPRESENTATIVE APPROVED AS TO FORM AND LEGALITY t FORT WORTH ASSISTANT CITY ATTORNEY COMPROMISE SETTLEMENT AGREEMENT AND RELEASE OF ALL CLAIMS kYt1404- EgT Fir. Mi.< `g:3 TAM STATE OF 'TEXAS COUNTY OF TARRANT BEFORE ME, the undersigned authority, on this day personally appeared Charles Daniels, Assistant City Manager for the CITY OF FORT WORTH, known by me to be the person whose name is subscribed to the above and foregoing Compromise Settlement Agreement and Release of All Claims, and acknowledged to me that the same was the act of the CITY OF FORT WORTH and that he executed the same as the CITY OF FORT WORTH for the purposes and consideration therein expressed and in the capacity therein stated. TO CERTIFY WHICH WITNESS MY HAND AND SEAL OF s OFFICE this cf/V d C t day 201 '� . otary Public in and for The State of Texas � .�Ni�Y3Pi ` 'a 'i • _. A.. - • • Q? • '4 11p114I NN• EVONIA DANIELS Notary Public, State of Texas My commission Expires July 10, 2017 COMPROMISE SETTLEMENT AGREEMENT AND RELEASE OF ALL CLAIMS PAGE 5 City of Fort Worth, Texas COUNCIL ACTION: Approved on 3119/2013 - Resolution No. 4190-03-2013 DATE: Tuesday, March 19, 2013 LOG NAME: 12FINCEL LAWSUIT SUBJECT REFERENCE NO.: G-17835 Adopt Resolution Ratifying the Lawsuit Entitled the City of Fort Worth as Subrogee of Ryan Stepp, Michael Johnson, Thomas Loffland and Christopher Gray v. Diann S. Fincel, Personal Representative Heir and Beneficiary of the Estate of Beverly L. Knutson, Cause No. 141-264744-13 (ALL COUNCIL DISTRICTS) RECOMMENDATION: It is recommended that the City Council adopt the attached Resolution ratifying the lawsuit against Diann S. Fincel, Personal Representative, Heir and Beneficiary of the Estate of Beverly L. Knutson, Cause No. 141-264744-13, filed on March 8, 2013 regarding a collision with a City police vehicle. DISCUSSION: On March 10, 2011, four City of Fort Worth Police Officers, Ryan Stepp, Michael Johnson, Thomas Loffland, and Christopher Gray were travelling northbound in a police vehicle in the right lane of the 1500 block of South University Drive. Beverly L. Knutson was operating a vehicle travelling southbound in the 1400 block of South University Drive and executed a turn onto West Rosedale colliding with the Police vehicle. As a result of the impact, all four Police Officers suffered bodily injuries. Since the accident, the Department of Risk Management has attempted to enforce the City's lien against the negligent driver's insurance company Until recently, they believed the case would be resolved without the necessity of a lawsuit. However with the two-year filing deadline approaching, in order to preserve the City's lien, Risk Management asked the City Attorney's Office to file suit, The normal statute of limitations e xemption provided the City as a political subdivision does not apply in cases brought by a municipality, as a subrogee, to recover workers' compensation benefits paid to its employees as a result of the n egligence of a tortfeasor. Initially, the City prepared to file suit against the actual tortfeasor, Beverly L Knutson, but discovered she passed away on October 24, 2012 due to complications from an unrelated illness. Consequently, suit was filed against the personal representative of her estate, Diann Fincel. Because of the impending deadline to file suit imposed by the two-year state statute of limitations and the City Council meeting schedule, the City Attorney s Office and the City Manager's Office were not able to seek prior City Council authorization. Texas workers' compensation laws require the City to provide medical treatment and salary benefits to e mployees injured in the line of duty. Approval to file this lawsuit would allow the City to seek recovery of medical costs in the amount of $22,996.89, and indemnity (wages paid) in the amount of $9 648.00 for a total of $32,644.89. An estimated $2,500,00 is expected to be spent pursuing this lawsuit. Logname: 12FINCEL LAWSUIT Page 1 of2 FISCAL INFORMATION / CERTIFICATION: The Financial Management Systems Director certifies that funds are available in the current operating budget, as appropriated, of the Risk Management Fund. FUND CENTERS: TO Fund/Account/Centers FROM Fund/Account/Centers FE71 534080 0137120 $2 500.00 CERTIFICATIONS: Submitted for City Manager's Office by: Originating Department Head: Additional Information Contact: Charles Daniels (7504) Sarah Fullenwider (8006) Gerald Pruitt (7616) Benjamin Sampract (7617) Logname: i 2FINCEL LAWSUIT" Page 2 of 2 A Resolution NO. 4190-3-2013 RATIFYING THE LAWSUIT ENTI PLED THE CITY OF FORT WORTH AS SUBROGEE OF RYAN STEPP M1CHAEL JOIINSON, THOMAS LOFFLAND AND CHRISTOPHER GRAY v. DIANN S. FINCEL, PERSONAL REPRESEN l ATIVE, HEIR AND BENEFICIARY OF THE ES FATE OF BEVERLY L. KNUTSON; CAUSE NO. 141-264744-13 WHEREAS, on Match 10, 2011, City of Fort Worth Police Officers Ryan Stepp, Michael Johnson, Thomas Loffland, and Christopher Gray were injured in a motor vehicle accident, ‘ hen a vehicle driven by Beverly L Knutson collided into the City vehicle o periled by Officer Stepp and carrying Officers Johnson, Loffland, and Gray. WHEREAS, the collision caused by the negligent actions of Beverly L. Knutson n ecessitated the expenditure of City funds for salary benefits and reasonable and n ecessary medical treatment of Officers Stepp, Johnson, Loffland, and Gray, pursuant to the provisions of the Texas Labor (_'ode. WHEREAS, Chapter 417 of the Texas Labor Code provides that if benefits are claimed by an injured employee, based on the liability of a third part}, the City is subrogated to the rights of the injured employee and may enforce the liability of the third party in the name of the injured employee. WHEREAS due to the two year statute of limitations to bring this lawsuit, on March 8, 2013 to preserve the City's ability to enforce its subrogation lien, suit was filed against Diann Fincel, personal representative, heir and beneficiary of the estate of Beverly L. Knutson. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF FOIU WORTH, TEXAS: 1 The decision by the City Attorney's Office to file suit against Diann Fined, personal representative, heir and beneficiary of the estate of Beverly L. Knutson is hereby ratified. FOR WORTIj • Resolution No. 4190-03.2013 7 The City is authorized and directed to take all necessary legal action against Diann S. F'incel, personal representative of the estate of Beverly L. Knutson to recoup indemnity (wages paid) and medical costs in the amount ofS32,641.89 Adopted this 191h day of March, 2013. A'I.,-EST: / [3/�� Y , - Mary J. Kaysc>L 1 l-r- rnir ORT WORTI