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HomeMy WebLinkAboutResolution - 2018-R0149 - Settlement Agreement - Jillian Standley - 04/26/2018Resolution No. 2018-RO149 Item No. 6.22 April 26, 2018 RESOLUTION BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF LUBBOCK: THAT the Mayor of the City of Lubbock, BE and is hereby authorized and directed to execute for and on behalf of the City of Lubbock, that certain Compromise Settlement Agreement and Release of All Claims (the "Settlement Agreement") by and between the City of Lubbock and Jillian Standley, related to Cause No. 2016-523,689, in the 72nd District Court, Lubbock County, Texas, said Settlement Agreement being attached hereto and incorporated herein as though set forth fully herein in detail, and any documents related thereto. Passed by the City Council this 26th day of April, 2018. t� Daniel M. Pope, Mayor ATTEST: GQ Reb ca Garza, City Secretar APP �ASTOTENT: Leisa Hutcheson, Director of Human Resources and Risk Management APPROVED AS FORM: P-�;3VT Garrett Ferguson, Electric Utilities Attorney RES.Compromise Settlement Agreement and Release of All Claims 04.18.2018 Resolution No. 2018-RO149 CAUSE NO.2016-523,689 JILLIAN STANDLEY § IN THE 72ND DISTRICT COURT V. § OF CITY OF LUBBOCK and LUBBOCK § POWER AND LIGHT § LUBBOCK COUNTY, TEXAS COMPROMISE SETTLEMENT AGREEMENT AND RELEASE OF ALL CLAIMS As used in this Settlement Agreement and Release of all Claims: PLAINTIFFS (also referred to as "we" herein) shall mean JILLLAN STANDLEY and each of his employees, assigns, representatives, undersigned attorneys for Plaintiffs herein, and other persons, parties, or entities in privity with the above -named PLAINTIFFS, or his successors, heirs, beneficiaries, assigns or representatives in interest. PLAINTIFFS' ATTORNEYS shall mean shall mean Mark L. Packard, PACKARD HOOD JOHNSON & BRADLEY, LLP, 301 S Polk, Suite 375, Lobby Box 34, Amarillo, TX 79101 and Mark Wilson, SMITH WILSON LAW FIRM PC, P.O. Box 212, Canyon, TX 79015. DEFENDANTS shall mean CITY OF LUBBOCK (identified by Plaintiffs as CITY OF LUBBOCK and LUBBOCK POWER AND LIGHT), and each of their respective officers, directors, shareholders, agents, employees, employers, predecessors, attorneys (including the undersigned firm), successors, parent or holding companies, affiliates, subsidiaries, divisions, assigns, heirs, beneficiaries, insurance carriers and any and all persons and entities of any nature whatsoever in privity with any of them, including, but not limited to their successors, assigns or representatives in interest. DEFENDANTS' ATTORNEYS shall mean, without limitation otherwise, Mark O. Blankenship, Arlene C. Matthews, and the law firm of CRENSHAW, DUPREE & MILAM, L.L.P., and their respective officers, directors, shareholders, agents, employees, predecessors, successors, affiliates, partners, associates, assigns, and any and all persons and entities of any nature whatsoever in privity with each of them. SUBJECT LITIGATION shall mean this lawsuit, styled as herein above, filed in Lubbock County, Texas, arising out of the OCCURRENCE. OCCURRENCE shall mean that motor vehicle accident happening on March 4, 2015, which accident is further memorialized in the Texas Peace Officer's Crash Report prepared by Lubbock Police Officer Todd Thomas Overholser and dated March 4, 2015, and which is more fully described in Plaintiffs' most recent pleadings on file herein. WHEREAS, PLAINTIFFS filed the SUBJECT LITIGATION, alleging and claiming damages as a result of the alleged actions and omissions of DEFENDANTS, and/or have alleged other theories of liability on the part of the DEFENDANTS, all of which are set forth more fully in the pleadings of the SUBJECT LITIGATION; WHEREAS, DEFENDANTS have fled an answer and have denied any liability to PLAINTIFFS arising out of the OCCURRENCE; and WHEREAS, to avoid further litigation, and in light of the disputed liability between the parties, PLAINTIFFS and DEFENDANTS desire to settle and compromise any and all claims against DEFENDANTS pursuant to, or arising by virtue of the SUBJECT LITIGATION, whether presently asserted or unasserted. RELEASE IN CONSIDERATION of the sum of ONE HUNDRED TWENTY THOUSAND AND NO/100S DOLLARS ($120,000.00), receipt of which is now acknowledged and confessed by PLAINTIFFS, payment having been made to PLAINTIFFS or for the benefit of PLAINTIFFS by or on behalf of DEFENDANTS, said payment to be made within seven (7) days of approval of this Compromise Settlement Agreement and Release of All Claims by the City Council, which sufficiency and full payment are acknowledged by the undersigned PLAINTIFFS; WE, the undersigned PLAINTIFFS do forever release and discharge the said DEFENDANTS from any and all actions, causes of action, claims, demands, and costs, and from all past and future damages for loss of wage earning capacity, medical care, physical pain and mental anguish, 2 disfigurement, physical impairment, property damages, exemplary damages, and damages of any and all kinds whatsoever, on account of or in any way growing out of or to grow out of the OCCURRENCE and/or SUBJECT LITIGATION. PLAINTIFFS agree that this settlement fully and forever settles all matters which are alleged in the SUBJECT LITIGATION, and all matters which could have been alleged in the SUBJECT LITIGATION, whether such matters are known or unknown at this time. It is PLAINTIFFS' intent that all of DEFENDANTS' obligations and liabilities released by the PLAINTIFFS under the terms of this release extend to and include, but are not limited to, all claims against DEFENDANTS founded on contract, tort, breach of warranty, gross negligence, malice, intentional torts, the Texas Deceptive Trade Practices Act, the Texas Business and Commerce Code, claims for breach of the duty of good faith and fair dealings ("bad faith"), claims under the Texas Insurance Code and related board orders, regulations and provisions of the Texas Administrative Code, and all claims founded in negligence, whether such negligence is alleged to be sole, joint, concurrent, active, passive and/or contractual comparative negligence. PLAINTIFFS, for the consideration recited herein, further waive all fraudulent inducement claims concerning this settlement or circumstances leading up to this settlement, and disclaim reliance on any and all representations made by DEFENDANTS or DEFENDANTS' ATTORNEYS. If any claims of any nature arise or have arisen in favor of PLAINTIFFS by reason of the OCCURRENCE and/or SUBJECT LITIGATION, whether actually asserted or not, and if such claims are not released or assigned by this agreement, then PLAINTIFFS shall not attempt to 3 transfer or assign such claims, nor shall PLAINTIFFS make or authorize any such claims (or any lawsuit based on such claims) to be brought against DEFENDANTS. PLAINTIFFS, for consideration recited herein, further agree to sign the Motion to Dismiss with prejudice and Order of Dismissal as provided by DEFENDANTS, and PLAINTIFFS agree that such Order of Dismissal shall be presented to the Court by DEFENDANTS to be entered and signed, and that such Motion and Order of Dismissal shall then be filed of record by DEFENDANTS. PLAINTIFFS, for consideration recited herein, further agree to never again file any further claims, suits or actions for injuries or damages arising out of the OCCURRENCE. TAX CONSEQUENCES PLAINTIFFS acknowledge that DEFENDANTS have made no representations to the PLAINTIFFS regarding the tax consequences of any monies received under this Agreement. The payments reflected herein above are Compensatory Damages received on account of personal injuries or physical sickness, within Section 104(a)(2) of the Internal Revenue Code, as amended. However, the parties agree that in the event any taxing authority determines that any settlement monies tendered as part of this Agreement are taxable, PLAINTIFFS shall be solely responsible for the payment of all taxes owed by it, and that DEFENDANTS have no duty to defend PLAINTIFFS against any such tax claim, penalty or assessment. PLAINTIFFS further agree to indemnify DEFENDANTS in the event any taxing authority seeks payment from DEFENDANTS of any taxes, interest, penalties or assessments owed by PLAINTIFFS, and to hold DEFENDANTS harmless to the fullest extent allowed by law. DEFENDANTS shall issue a 1099 Form to PLAINTIFFS' ATTORNEYS regarding the payments identified in this Agreement. 4 satisfy any claims based upon an assignment of medical benefits; and PLAINTIFFS and PLAINTIFFS' ATTORNEYS will hold harmless and fully indemnify the DEFENDANTS and DEFENDANTS' ATTORNEYS from any claims against them of any kind whatsoever, by any person or entity, for said expenses, claims or liens. PLAINTIFFS further agree to reserve and maintain in trust funds adequate to satisfy any hospital liens, Medicare/Medicaid liens, or other liens or subrogation rights or claims created as a result of the OCCURRENCE. BROAD AGREEMENT PLAINTIFFS intend this release to be as broad and comprehensive as possible, so that DEFENDANTS and DEFENDANTS' ATTORNEYS shall never be liable, directly or indirectly, to PLAINTIFFS for any claims, demands, actions, or causes of action arising out of the OCCURRENCE. READ AND UNDERSTOOD PLAINTIFFS do certify that before we signed this release, we fully read the entire document, and we fully understand the terms of this Settlement Agreement and Release of All Claims. ENABLING AGREEMENT The parties to this Settlement Agreement and Release of All claims agree to execute any and all documents reasonably necessary for the purpose of the effectuation of this Settlement, whether or not such documents are specifically referred to herein. ENTIRE AGREEMENT This settlement represents the complete settlement between PLAINTIFFS and DEFENDANTS, nothing else of value being promised, and represents the entire compromise of the bona fide dispute and controversy existing between the parties. This entire integrated agreement, entitled Settlement Agreement and Release of All Claims, shall be construed and interpreted in accordance with the laws of the State of Texas. In the event that any portion of this Settlement Agreement and Release of All Claims is subsequently determined by a Court to be null and void, then such specific void provision shall be deemed to be severed, and shall not affect the validity and enforceability of the remainder of this Settlement Agreement and Release of All Claims. IN WITNESS WHEREOF, witness our hands this 1K4hday of Yhau , A.D. 2018. JILLIAN STANDLEY, Plain "`'r` MARK L. PACK Texas Bar No. 15402550 mark car aackardlawfirm.com PACKARD HOOD JOHNSON & BRADLEY, LLP 301 S Polk, Suite 375 Lobby Box 34 Amarillo, TX 79101 (806) 374-3300 (806) 374-3381 (FAX) 9 MARK 6. BLANK6r Texas Bar No. 024325 ARLENE C. MATTHEWS Texas Bar No. 24026868 amatthews@cdmlaw.com CRENSHAW, DUPREE & MILAM, L.L.P. P.O. Box 64479 Lubbock, TX 79464 (806)762-5281 (806) 762-3510 (FAX) ATTORNEYS FOR DEFENDANT ATTEST: Re*cca Garza, City S MARK WILSON Texas Bar No. 21704450 markgsmithwilsonlaw.com SMITH WILSON LAW FIRM PC P.O. Box 212 Canyon, TX 79015 (806) 372-4120 (806) 372-4501 (FAX) ATTORNEYS FOR PLAINTIFF CITY OF LUBBOCK By: Daniel M. Pope, Mayor of the City of Lubbock CITY OF LUBBOCK, acting by and through Lubbock Power & Light c By David McCalla, Director of Electric Utilities APPROVED AS TO FORM ONLY: Garrett Ferguson, Clectric Utilities Attorney ml THE STATE OF TEXAS COUNTY OF Lw bock BEFORE ME, the undersigned authority, a Notary Public in and for said County and State, on this day personally appeared JILLIAN STANDLEY, known to me to be the person whose name is subscribed above, and after being by me duly sworn did, under oath, depose and say that she has read the entire compromise settlement agreement and release and agreement for judgment above and fully understands the same, and that the statements contained therein are true and correct, and that she has signed the same freely and voluntarily, relying only on the statements contained therein and none other, and that he executed the same for the purposes and consideration therein expressed and none other. GIVEN UNDER MY HAND AND SEAL OF OFFICE, this the _I t4k� day of DI" , 2018. NOTARY PU LIC, State of Texas Notary's seal, printed name and expiration of commission: 12 vANESSA DAWN STEWART •.�y�,�Nalary PubIIC. Stcte Ot Texot Comm. E>�les 02.07-2020 Notary ID It8876803 anuu�