CONTRACT 4863 Settlement AgreementAgreement No. 4863
SETTLEMENT AND RELEASE AGREEMENT
(Costigan v City of El Segundo et al, LASC Case No. BC523072)
This Settlement and Release Agreement ( "the Agreement ") is entered into by and
between the following parties hereto (collectively, "the Parties "):
(a) Sheri Costigan and Michael P. Costigan ( "Plaintiffs" or "The Undersigned "),
and their heirs, executors, administrators, successors, and assignees; and
(b) City of El Segundo ( "City ", "Defendant" or "Releasee "), and its partners,
officers, directors, employees, related affiliates or entities or predecessors
or successors, assigns, representatives, accountants, agents, insurers,
adjusters and attorneys;
RECITALS
A. WHEREAS, Plaintiffs allege that on or about February 18, 2013, at or
about 303 West Maple Avenue in El Segundo, California, plaintiff Sheri Costigan tripped
and fell over a raised portion of a sidewalk (the "Incident "); and
B. WHEREAS, Defendant disputes the validity of Plaintiffs' claims; and
C. WHEREAS, on or about September 30, 2013, Plaintiffs filed the operative
Complaint ( "Complaint ") against the City, in the Superior Court of California, County of
Los Angeles, entitled "Sheri Costigan and Michael P. Costigan v. City of El Segundo et
al ", Case No. BC523072 ( "the Action "), asserting causes of action for (1) Negligence,
(2) Willful Failure to Warn, (3) Premises Liability /Dangerous Condition of Public
Property, and (3) Loss of Consortium and seeking damages for such alleged injuries,
including physical injuries, emotional injuries, loss of earnings and loss of earning
capacity; and
D. WHEREAS, on or about December 2, 2013, the City filed an Answer
denying any and all liability for the claims raised by Plaintiffs in the Complaint in the
present Action.
E. WHEREAS, the parties by this Agreement now wish to resolve and settle
the Action, all disputes encompassed within and that could have been raised in the
Action, and all attendant and potential litigation arising therefrom.
NOW THEREFORE, IN CONSIDERATION OF THE PROVISIONS
HEREINBEFORE AND HEREINAFTER SET OUT, THE PARTIES AGREE AS
FOLLOWS:
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TERMS AND CONDITIONS
1. Recitals Incorporation.
The Recitals as set forth above are incorporated herein by this reference and are
made a part hereof as though set forth in full.
2. Consideration.
2.1 Payment.
City shall pay to Plaintiffs the sum of EIGHTY THOUSAND DOLLARS AND
ZERO CENTS ($80,000.00) by check made payable to "Sheri and Michael Costigan and
Law Offices of Joseph R. Manning, Jr., APC," Taxpayer Identification No. 83- 0502205.
(jointly the "Payments "). This check shall be sent to:
Phil Nghiem
The Manning Law Office
4667 MacArthur Boulevard, Suite 150
Newport Beach, California 92660
The Payments set forth above must be made by Defendant within thirty (30) days
after Plaintiffs provide Defendant with a signed copy of the final version of this
Agreement, a legible, properly- executed W -9 Form as to the recipients of said Payment,
and a signed Request for Dismissal as set forth below.
2.2 Dismissal.
Simultaneous with the execution of this Agreement, Plaintiffs will provide
Defendant with a Request for Dismissal, with prejudice, of the Complaint and all causes
of action therein as to Defendant ( "Dismissal "). Defendant will hold the Request for
Dismissal in trust until seven (7) days after Plaintiffs'/Plaintiffs' counsel's receipt of the
Payments, at which point Defendant will file the Request for Dismissal. However, should
Plaintiffs fail to deliver a legible, properly executed W -9 Form as to the recipients of the
Payments within 21 days of signing this Agreement, Defendant may file the Request for
Dismissal immediately. Plaintiffs will make no further attempt to recover any judgment,
arbitrator's award, or monetary penalty or award from Defendant with respect to matters
related to or contained in the Complaint in this Action.
2.3 No Admission of Liability.
It is understood and agreed that this settlement is the compromise of a disputed
and doubtful claim, and that the payment made is not to be construed as an admission of
liability on the part the Releasee and that the Releasee denies liability therefore and
intends merely to avoid litigation and to buy its peace.
2.4 Liens.
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Plaintiffs hereby agree that Plaintiffs will be fully responsible for the satisfaction
of any and all liens asserted as a result of the Incident and this Action, including any and
all workers compensation carrier's claims or liens, and any and all liens claimed by
Plaintiffs' medical providers including but not limited to Coast Surgery Center, Dr.
William Mealer, Dr. Roy Simon, The Pain and Rehabilitation Medical Group, Blue Cross
of California, Beach Cities Orthopedics and Sports Medicine, United Health Care,
Southern California IBEW NECA Health Plan, Dr. Tiffany Rogers, Torrance Memorial
Medical Center and Laboratory, Bio Dynamics Physical Therapy, Anthem Blue Cross,
Providence Little Company of Mary Medical Center Torrance, Torrance Memorial
Radiology Medical Group, Rad Alliance, Inc., Michael Banffy, Zachary D. Pevnick,
Providence Health and Services, Blue Cross Prudent Buyer, Dr. Joel Levine, Dr. Chong
Kim, Torrance Memorial Physician Network, Dr. Robert Swift, Dr. Tehmina Kahn, Dr.
Elaine Jones, Body Dynamics, Meridian Resource Company, LLC, Westchester
Advanced Imaging Center, Manhattan Physical Therapy, Inc., Ambulatory Anesthesia,
Rennie Maeda, South Bay Anesthesia Medical Group, and Dr. John Stratton. If
Defendant, and any of its partners, officers, directors, employees, related affiliates or
entities or predecessors or successors, assigns, representatives, accountants, agents,
insurers, adjustors and attorneys, are sued by any lien holders or insurance companies for
any claim related to this lawsuit/Action, Plaintiffs hereby agree and promise to fully
defend and indemnify Defendant and /or any of their officers, directors, employees,
related affiliates or entities or predecessors or successors, assigns, representatives, heirs,
accountants, agents, insurers, adjusters and attorneys, and any of them, and to hold them
harmless from any claims, lawsuits, causes of action, and expenses, including court costs
and attorneys' fees on behalf of Defendant against whom said claim is made. Further, if
any person or entity makes a claim under an alleged assignment or transfer, Plaintiffs
hereby agree and promise to fully defend and indemnify Defendant, including their
officers, directors, employees, shareholders, subsidiaries, related affiliates or entities or
predecessors or successors, assigns, representatives, accountants, agents, insurers,
adjusters and attorneys, and any of them, and to hold them harmless from any claims,
lawsuits, causes of action, and expenses, including court costs and attorneys' fees on
behalf of Defendant against whom said claim is made.
3. Medicare.
3.1 Plaintiffs hereby represent and warrant that none of the medical treatment
that they have received for the injuries related to the Incident was paid for by Medicare
and /or Medical.
3.2 In reaching this Agreement, the Parties have paid considerable attention to
Plaintiffs' entitlement to Social Security disability benefits pursuant to 42 U.S.C. Section
423, and receipt of Medicare or Medicaid benefits under 42 U.S. C. Section 1395y, as
well as the entitlement of the Centers for Medicare and Medicaid Services to subrogation
and intervention, pursuant to 42 U.S.C. Section 1395y (b) (2), to recover any
overpayment made by Medicare.
3.3 It is not the purpose of this settlement agreement to shift to Medicare or
Medicaid the responsibility for payment of medical expenses for the treatment of injury
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related conditions. Instead, this settlement agreement is expressly intended to provide
Plaintiffs with a lump sum which will foreclose the responsibility of Defendant for future
payments of all injury related medical expenses.
3.4 Plaintiffs hereby acknowledge that any decision regarding entitlement to
Social Security Medicare or Medicare /Medicaid benefits including the amount and
duration of payments and offset reimbursement for prior payments is exclusively within
the jurisdiction of the Social Security Administration, the United States Government, and
the United States Federal courts and is determined by Federal Law and Regulations. As
such, the United States Government is not bound by any of the terms of this Settlement
Agreement.
3.5 Plaintiffs (including heirs, executors and trustees) further agree to
indemnify, defend and hold the Defendant harmless from any cause of action, including,
but not limited to, an action to recover or recoup Medicare benefits or loss of Medicare
benefits, if Centers for Medicare and Medicaid Services determines that the money set
aside was spent inappropriately or for any recovery sought by Medicare, including past,
present, and future conditional payments.
3.6 Plaintiffs expressly represent herein that any medical payments made by
Medicare to date, if any, arising out of the Incident have been paid or will be paid from
the lump sum of this settlement agreement and not from any Medicare Set - Aside.
Plaintiffs shall be responsible for and agree to indemnify, defend and hold Defendant
harmless from any cause of action, including, but not limited to an action for conditional
payments made by Medicare, including past, present and future benefits.
4. Release.
4.1 General Release.
Aside from the executory provisions of this Agreement, Plaintiffs, and their
predecessors and successors in interest, hereby release Defendant City (and its officers,
employees, agents, representatives, insurers and attorneys) of and from any and all
manner of liabilities, demands, obligations, costs, expenses, sums of money,
controversies, damages, reckonings, and liens of every kind or nature whatsoever,
whether known or unknown, based on, arising out of, relating to or in connection with the
Action, the operative Complaint, or any matter, cause or thing whatsoever occurred,
done, omitted or suffered to be done, up to and including the date of execution of this
Agreement, including but not limited to, any of the above arising out of, based on,
connected with or related to the Action, and all claims that have been and could have
been made by Plaintiffs in relation to the facts discussed in the operative Complaint
against the City, including, but not limited to, any claims for malicious prosecution
and /or abuse of process.
4.2 Civil Code Section 1542 Waiver.
The Releases set forth in this Agreement are specifically intended as full and
complete releases against Defendant City as specified herein, arising from the Incident,
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the Action and the Complaint of any nature whatsoever, for all damage, injury, loss,
expense, including any consequential expense, loss or damage, whether the same be
known or unknown, suspected or unsuspected or have appeared or developed and all
rights under California Civil Code Section 1542, which provides as follows:
"A GENERAL RELEASE DOES NOT EXTEND TO
CLAIMS WHICH THE CREDITOR DOES NOT KNOW
OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT
THE TIME OF EXECUTING THE RELEASE, WHICH
IF KNOWN BY HIM OR HER MUST HAVE
MATERIALLY AFFECTED HIS OR HER
SETTLEMENT WITH THE DEBTOR."
Plaintiffs waive and relinquish any rights and benefits which they have or may
have under Civil Code §1542 to the full extent that they may lawfully do so pertaining to
the subject matter of this Agreement.
5. Warranties and Indemnity.
Plaintiffs respond and warrant that they have not previously assigned or
transferred, or purported to assign or transfer, to any person or entity, any claim, demand,
damage, debt, liability, obligation, account, reckoning, costs, expense, lien, action or
cause of action, or any portion thereof, that is released in this Agreement.
Plaintiffs agree to indemnify, defend and hold harmless Defendant and any of its
partners, officers, directors, employees, related affiliates or entities or predecessors or
successors, assigns, representatives, accountants, agents, insurers, adjustors and
attorneys, if they are sued by any lien holders, medical care providers and /or medical
insurance companies against any claim, demand, debt, liability, account, reckoning,
obligation, cost, damage, expense, lien, action or actions (including the payment of
attorneys' fees and costs actually incurred, whether or not litigation is commenced), based
on or arising out of or in connection with any transfer or assignment or purported or
claimed transfer or assignment of any claim, demand, damage, debt, liability, obligation,
account, reckoning, cost, expense, lien, action or cause of action, or any portion thereof,
released in this Agreement.
6. Successors.
The provisions of this Agreement shall be deemed to obligate, extend to and inure
to the benefit of the legal successors, assigns, transferees, grantees and heirs of the
respective Parties.
7. Preparation of Agreement.
7.1 Opportunity to Consult with Counsel.
The Parties acknowledge and agree that they have been given the opportunity to
consult with independent counsel of their choice as to the terms of this Agreement prior
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Agreement No. 4863
is required to defend any action or proceeding the defense to which is any provision of
this Agreement, the unsuccessful Party agrees to pay the successful Party all recoverable
attorneys' fees and costs allowed under Code of Civil Procedure Section 1033.5 which are
incurred by the successful Party or Parties in any such action or proceeding.
8.4 Severability.
Should any provision of this Agreement be declared or determined by the
aforementioned Court to be illegal or invalid, the validity of the remaining parts, terms or
provisions shall not be affected thereby and said illegal or invalid part, term or provision
shall not be deemed to a part of this Agreement.
9. Execution.
9.1 Counterparts.
This Agreement can be executed in duplicate/ multiple counterparts, each of
which shall constitute an original of this Agreement once each Party hereto has signed
and delivered at least one such counterpart to all other Parties. This Agreement will be
deemed fully executed and effective when it has been duly signed by all of the Parties
named herein. Signatures may be sent by facsimile or electronic mail.
9.2 Authority to Execute.
Each of the individuals executing this Agreement warrants and represents that the
individual has full authority to do so on behalf of the Party for whom that individual has
signed.
BY SIGNING THIS AGREEMENT, THE PARTIES CERTIFY THAT THEY
HAVE READ IT, THAT THEY HAVE CONSULTED WITH THEIR OWN LEGAL
COUNSEL ABOUT ITS EFFECT, AND THAT THEY FULLY UNDERSTAND IT.
Dated: /' ,5- , 2015 PLAINTIFF, SHERI COSTIGAN
,rerri. Costigan
Dated �� , 2015 PLAINTIFF, MICHAEL COSTIGAN
" ry
µ
.......................
Michael P. Costigan
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Dated: 2015
Dated: , 2015
Agreement No. 4863
DA'N", CITY OF EL SEGUNDO
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Agreement No. 4863
APPROVED AS TO FORM AND CONTENT ONLY
Dated: , 2015 LAW OFFICES OF JOSEPH R. MANNING, JR. APC
n
By: w
Jose, i R ing, r, , �
Attc s for Plaintiffs, Sheri and Michael
Costigan
Dated: , 2015 JENKINS & HOGIN, LLP
By:
Twosr Rusi ,
Attorneys f Defeodsnt, City of El Segundo
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