HomeMy WebLinkAboutContract 48340 �'A VV SECRETARY'
CAUSE NO. 067-280451-15
BRITTANY ROSEBERRY AND § IN THE DISTRICT COURT
ROBERT ROSEBERRY, §
Plaintiffs, §
§ 67TH JUDICIAL DISTRICT
V. §
CITY OF FORT WORTH, §
Defendant. § TARRANT COUNTY, TEXAS
COMPROMISE SETTLEMENT AGREEMENT AND RELEASE OF ALL CLAIMS
I. RECITALS
WHEREAS, Brittany Roseberry and Robert Roseberry, Plaintiffs in the above-entitled
and numbered cause, allege that on or about January 24, 2014, they received personal injuries in
an automobile accident when the vehicle Plaintiffs were driving collided with a City of Fort
Worth Police vehicle;
WHEREAS, Plaintiffs further allege that the negligence of the City of Fort Worth
("City"), by way of its employee, proximately caused the above-described accident;
WHEREAS, as a result of such accident, injuries and damages allegedly suffered by
Plaintiffs, suit has been filed against the City in the above-entitled and numbered cause,
reference being made to the pleadings on file in said cause for a more full and complete
description of Plaintiffs' claims and cause of action;
WHEREAS, Plaintiffs have offered to compromise and settle all claims and causes of
action of any kind which they may have against the City, its agents, employees, workers and
representatives, and all others connected with or in privity with the City, arising out of or
connected in any way with the above described accident in consideration of payment by the City
COMPROMISE SETTLEMENT AGREEMENT AND RELEASE OF ALL CLAIMS-Ro e� berm_
CAUSE NO.067-280451-15
OFFICIAL RECORD
CITY SECRETARY
FT.WORTH,TX
to Plaintiffs Brittany Roseberry and Robert Roseberry, and their attorneys Eberstein & Witherite,
LLP, the sum of Sixty Thousand Dollars ($60,000.00) in full and final settlement of all claims
against the City, its agents, employees, workers or representatives, arising out of the Plaintiffs'
alleged injuries; and
WHEREAS, even though the City denies any liability of any kind on account of the
alleged incident made the subject of Plaintiffs' suit, the City has agreed to the payment terms
described above in compromise and settlement of the disputed claims and in order to avoid
further time consuming and costly litigation.
. II.TERMS
NOW, THEREFORE, in consideration of the recitals set forth above, the mutual
promises and agreements made herein, and other valuable consideration, the receipt and
sufficiency of which is acknowledged, the City and Plaintiffs agree that:
1. Brittany Roseberry and Robert Roseberry, Plaintiffs herein, for and in
consideration of payment by the City of Fort Worth to Plaintiffs, Brittany Roseberry and Robert
Roseberry, and their attorneys, Eberstein & Witherite, LLP, the sum of Sixty Thousand Dollars
($60,000.00) in full and final settlement of all claims against the City, its agents, employees,
workers or representatives, arising out of Plaintiffs' alleged injuries, and the receipt and
sufficiency of such consideration being hereby acknowledged and confessed by Plaintiffs, do for
themselves, their representatives, successors and assigns, unconditionally release, acquit and
forever discharge the City of Fort Worth, and its agents, employees,workers and representatives,
and all others connected with or in privity with the City of Fort Worth, of and from any and all
claims of every kind, character or nature which said Plaintiffs might assert by reason of the
above described incident together with all claims heretofore asserted in Cause No. 067-280451-
COMPROMISE SETTLEMENT AGREEMENT AND RELEASE OF ALL CLAIMS-Roseberry Page 2 of 8
CAUSE NO.067-280451-15
15, in the 67th District Court, Tarrant County, Texas, including claims for physical pain and
mental anguish (past and future), medical expenses (past and future), lost wages in the past and
loss of earning capacity in the future, physical impairment (past and future), and any other kind,
character or nature of damage which could or might be the subject of a claim by them arising
from the incident hereinabove described. The $60,000.00 will be divided and made payable, in
part, $30,000 to Brittany Roseberry and, in part, $30,000 to Robert Roseberry and their
attorneys, Eberstein & Witherite, LLP.
2. In consideration of the respective payment described above, Plaintiffs agree to
indemnify and forever hold harmless and defend the City of Fort Worth, and all agents,
employees, workers and representatives of the City of Fort Worth, and all others connected with
or in privity with the City of Fort Worth, its heirs, representatives, successors and assigns, from
any and all claims or causes of action, including any costs or expenses in connection therewith,
which may hereafter be brought by Plaintiffs, or by anyone on their behalf, arising out of the
above described incident.
3. For the same consideration, Plaintiffs declare and warrant that all medical,
hospital, and/or other expenses of any and every nature and character whatsoever incurred by
Plaintiffs, or on their behalf, or in any way pertaining to or arising out of the injury that allegedly
occurred on or about January 24, 2014, made the basis of this litigation, has been or will be paid
or compromised by Plaintiffs, and Plaintiffs hereby agree to defend, indemnify and hold
harmless Defendant, City of Fort Worth and any other person, corporation, association,
partnership, or entity in privity with or connected with them, as well as any person, corporation,
association, partnership, or entity they are or may be required to defend, indemnify, or hold
harmless from and against any claims for medical, hospital, and/or other claims and expenses of
COMPROMISE SETTLEMENT AGREEMENT AND RELEASE OF ALL CLAIMS-Roseberry Page 3 of 8
CAUSE NO.067-280451-15
{
any and every nature, including but not limited to, claims which may hereafter be made under the
authority of the Texas Hospital Lien Law or any other state or federal statute, rule, or regulation.
PLAINTIFFS REPRESENTS THAT NONE OF THE MEDICAL BILLS OF BRITTANY
ROSEBERRY AND ROBERT ROSEBERRY HAVE BEEN PAID BY MEDICARE OR BY
ANY OTHER GOVERNMENTAL OR QUASI-GOVERNMENTAL AGENCY. IF
PLAINTIFFS ARE MISTAKEN IN THIS REGARD AND MEDICARE OR SOME OTHER
GOVERNMENTAL OR QUASI-GOVERNMENTAL AGENCY HAS PAID ANY BILLS,
WHATSOEVER, PLAINTIFFS WILL FULLY SATISFY ANY CLAIM EVER ASSERTED
BY MEDICARE OR OTHER GOVERNMENTAL OR QUASI-GOVERNMENTAL AGENCY
FOR REIMBURSEMENT AND WILL DEFEND, INDEMNIFY AND HOLD HARMLESS
THE CITY OF FORT WORTH AND ANY OTHER PERSON, CORPORATION,
ASSOCIATION, PARTNERSHIP OR ENTITY IN PRIVITY WITH OR CONNECTED WITH
IT AGAINST ANY SUCH CLAIM.
PLAINTIFFS ALSO REPRESENT THAT THEY WILL FULLY SATISFY ALL
LEGAL BILLS INCURRED BY THEM WITH ANY OTHER LAW FIRM OR ATTORNEY
WHO MAY BE OWED FEES RELATED TO THIS MATTER.
4. The release of claims contained herein is given with full knowledge of all parties
to the referenced suit that there is a dispute on the part of the City regarding whether or not it is
liable for any damages alleged in the above-entitled and numbered cause. It is also understood
and agreed that this settlement is in compromise of doubtful and disputed claims and that the
payment made hereunder is not to be construed as admission of liability on the part of the City of
Fort Worth, and, in fact, City denies liability for the above-described accident, if any, and
intends, by this settlement, merely to buy its peace.
COMPROMISE SETTLEMENT AGREEMENT AND RELEASE OF ALL CLAIMS-Roseberry Page 4 of 8
CAUSE NO.067-280451-15
5. Plaintiffs agree to dismiss the cause of action in the above-entitled and numbered
matter, with prejudice, and hereby authorize and direct their attorney, John C. Nohinek, to
prepare and file the appropriate Motion and Order of Dismissal, with prejudice, with respect to
their claims and causes of action in the above entitled and numbered case against the City. And,
in this connection, Plaintiffs and their attorney agree to expeditiously provide any information
the Court may require, and/or to attend any hearings the Court may require, in connection with
the dismissal of said lawsuit.
6. It is understood and agreed that all taxable court costs will be paid by the party
incurring same.
7. By his signature hereto, the undersigned, John C. Nohinek, attorney for Plaintiffs,
and his law firm, hereby release the City of Fort Worth to the same extent Plaintiffs have
released them, from any cause or causes of action which said attorney or his law firm may have
by virtue of assignment or otherwise arising out of the alleged incident made the basis of the
above-entitled and numbered suit.
8. This Compromise Settlement Agreement and Release of All Claims may be
executed in a number of identical counterparts, each of which shall be deemed an original for all
purposes.
9. Plaintiffs, Brittany Roseberry and Robert Roseberry, represent and acknowledge
that this Compromise Settlement Agreement and Release of All Claims has been read in its
entirety before signing and that it has been fully explained, in detail, to them by their attorney
and that it is fully understood.
10. By their signature hereto, Brittany Roseberry and Robert Roseberry, Plaintiffs,
represent and declare that they are more than eighteen (18) years of age and are fully competent
COMPROMISE SETTLEMENT AGREEMENT AND RELEASE OF ALL CLAIMS-Roseberry Page 5 of 8
CAUSE NO.067-280451-15
to enter into this Compromise Settlement Agreement and Release of All Claims, that the
representations, declarations and agreements herein are accurate, binding, and are contractual in
nature and that no representation or agreement not herein expressed has been made to them as
inducement to enter into this Compromise Settlement Agreement and Release of All Claims.
This agreement should be effective as of the date the last party signature is affixed hereto
as indicated by the dates set forth below.
Brittany Roseb r , Plaintiff
Date: %0 r W 11 CD
STATE OF TEXAS §
COUNTY OF TARRANT §
BEFORE ME, the undersigned authority, on this day personally appeared Brittany
Roseberry, known to me to be the person whose name is subscribed to the foregoing instrument,
and acknowledged to me that she executed the same as her free act and deed for purposes and
consideration therein expressed.
GIVEN UNDER MY HAND AND SEAL OF OFFICE this day of October, 2016.
YESEL VELAZQUEZ
Notary Public,
State oiiexos
2019
ji Comm.ExPlres 12�-65.36 Notary n for the S to of Texas
,,,, t�}, ID 1$0469036
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Notary
[ADDITIONAL SIGNATURES APPEAR ON THE FOLLOWING PAGE]
COMPROMISE SETTLEMENT AGREEMENT AND RELEASE OF ALL CLAIMS-Roseberry Page 6 of 8
CAUSE NO.067-280451-15
*1&eber;ry, P1aintiff
Date: 10 12.D f 1 Lj
STATE OF TEXAS §
COUNTY OF TARRANT §
BEFORE ME, the undersigned authority, on this day personally appeared Robert
Roseberry, known to me to be the person whose name is subscribed to the foregoing instrument,
and acknowledged to me that she executed the same as her free act and deed for purposes and
consideration therein expressed.
GIVEN UNDER MY HAND AND SEAL OF OFFICE this 2,0:day of October, 2016.
KM�4
YESEL VELAZQUEZy Public,State ofTexas.Expires 12-15-2019Notary Pu for the tate of exas
ary ID 130469036
APPROVED AS TO SUBSTANCE AND FO M:
Date:
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C. inek
my Witherite
Eberstein & Witherite, LL
500 E. 4th Street, Suite 200
Fort Worth, TX 76102
inohinek�em4mvyers.comcom
ATTORNEYS FOR PLAINTIFFS
[ADDITIONAL SIGNATURES APPEAR ON THE FOLLOWING PAGE]
COMPROMISE SETTLEMENT AGREEMENT AND RELEASE OF ALL CLAIMS-Roseberry Page 7 of 8
CAUSE NO.067-280451-15
CITY OF FORT WORTH:
APPROVED:
va ot r� Date:
Assistant City Manager-
CITY
ana rCITY OF FORT WORTH
APPROVED AS TO FORM:
� j _.... Date:
Benj min J. Sampract
Assistant City Attorney
ATTEST:
Date: �U�6
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COMPROMISE SETTLEMENT AGREEMENT AND RELEASE OF ALL CLAIMS-Roseberry Page 8 of 8
CAUSE NO.067-280451-15
M&C Review Page 1 of 2
Official site of the City of Fort Worth,Texas
CITY COUNCILNDA FORT WoRm
COUNCIL ACTION: Approved on 10/18/2016
REFERENCE ** 12ROSEBERRY
DATE: 10/18/2016 NO.: G-18850 LOG NAME: SETTLEMENT
CODE: G TYPE: CONSENT PUBLIC NO
HEARING:
SUBJECT: Approve Settlement of Lawsuit Entitled Brittany Roseberry and Robert Roseberry v. City
of Fort Worth, Cause No. 067-280451-15, in Tarrant County, Texas and Authorize
Payment in the Amount of$60,000.00 (ALL COUNCIL DISTRICTS)
RECOMMENDATION:
It is recommended that the City Council:
1. Approve the settlement of all claims arising from Brittany and Robert Roseberry's lawsuit against
the City of Fort Worth;
2. Authorize payment of$60,000 in settlement of the referenced suit payable to Brittany and Robert
Roseberry and their Attorneys Eberstein & Witherite, LLP; and
3. Authorize the appropriate City personnel to execute any release and agreement necessary to
complete the settlement.
DISCUSSION:
On January 24, 2014, Fort Worth Police Officer San Juan Leon was driving westbound on East
Vickery Boulevard at its intersection with Nashville Avenue, and in the process of making a left turn,
collided with a vehicle occupied by Brittany and Robert Roseberry. The Roseberrys have agreed,
subject to City Council approval, to settle their claims, including personal injuries, against the City for
a total payment of$60,000 made payable, in part, $30,000 to Brittany Roseberry and, in part,
$30,000 to Robert Roseberry and their attorneys, Eberstein &Witherite, LLP. Approval of this
settlement should not be construed as an admission of liability by the City of Fort Worth, any liability
being, in fact, expressly denied. This settlement is entered into only to avoid further time consuming
and costly litigation.
This M&C does not request approval of a contract with a business entity.
FISCAL INFORMATION/CERTIFICATION:
The Director of Finance certifies that funds are available in the current operating budget, as
appropriated, of the Risk Financing Fund.
TO
Fund Department Account Project Program Activity Budget Reference# Amount
ID ID Year Chartfield 2
FROM
Fund Department Account Project Program Activity Budget Reference# Amount
ID ID Year Chartfield 2
http://apps.cfwnet.org/council_packet/mc review.asp?ID=22942&councildate=10/18/2016 11/3/2016
M&C Review Page 2 of 2
Submitted for City Manager's Office by: Valerie Washington (6192)
Originating Department Head: Sarah Fullenwider(7606)
Additional Information Contact: Benjamin Sampract (7617)
Jim Wines (2426)
ATTACHMENTS
http://apps.cfwnet.org/council_packet/mc review.asp?ID=22942&councildate=10/18/2016 11/3/2016