WIMER et al v. United States of America, et al.

Filing 48

STIPULATION and ORDER 47 Settlement, Releases, and Dismissal signed by Senior Judge Lawrence K. Karlton on 1/23/09. The US is to pay pltf $35,000 in full settlement. This case is DISMISSED with prejudice. (Kastilahn, A)

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M c G R E G O R W. SCOTT U n ite d States Attorney K E L L I L. TAYLOR A s s is ta n t U.S. Attorney 5 0 1 I Street, Suite 10-100 S a c ra m e n to , California 95814 (9 1 6 ) 554-2741 (9 1 6 ) 554-2900 fax A tto rn e ys for Federal Defendants

6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 It is hereby stipulated by and between Plaintiff Garen Wimer ("Plaintiff") and all named F e d e ra l Defendants, collectively referred to as the United States of America (with plaintiff, " th e parties"), as follows: 1 . The parties hereby agree to settle and compromise each and every claim of any kind, w h e th e r known or unknown, arising directly or indirectly from the acts or omissions that gave ris e to the above-captioned action under the terms and conditions set forth in this Stipulation. 2 . The United States agrees to pay the sum of thirty-five thousand dollars ($35,000.00) to Plaintiff, which is the amount Plaintiff represents and warrants is the actual costs he incurred in this litigation, and the thirty-five thousand dollar sum shall be in full settlement and 1 v. U N IT E D STATES OF AMERICA; DANIEL D . EISZELLE, an individual; and STATE OF C A L IF O R N IA DEPARTMENT OF T R A N S P O R T A T IO N D e f e n d a n ts . G A R E N WIMER, P l a in tif f , S E T T L E M E N T STIPULATION; R E L E A S E S ; DISMISSAL; ORDER N o . 2:08-cv-00055-LKK-EFB IN THE UNITED STATES DISTRICT COURT F O R THE EASTERN DISTRICT OF CALIFORNIA

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s a tis f a ctio n of any and all claims, demands, rights, and causes of action of whatsoever kind and n a tu re , arising from, and by reason of any and all known and unknown, foreseen and u n f o re se e n bodily and personal injuries; mental, emotional, psychological, or other alleged in ju rie s; damage to property and the consequence thereof, resulting, and to result, from the su b jec t matter of this action, including any claims for wrongful death, which plaintiff or his g u a rd ia n s, heirs, executors, administrators, or assigns, and each of them, now have or may h e re a f te r acquire against the United States, its agents, servants, and employees. 3. Plaintiff and his guardians, heirs, executors, administrators or assigns hereby agree to a c c e p t the sum set forth in paragraph 2 in full settlement and satisfaction of any and all claims, d e m a n d s , rights, and causes of action of whatsoever kind and nature, including claims for w ro n g f u l death, arising from, and by reason of, any and all known and unknown, foreseen and u n f o re se e n bodily and personal injuries, damage to property and the consequences thereof that th e y may have or hereafter acquire against the United States, its agents, servants, and e m p lo ye e s on account of the same subject matter that gave rise to this action, including any f u tu re claim or lawsuit of any kind or type whatsoever, whether known or unknown, and w h e t h e r for compensatory or exemplary damages. Plaintiff and his guardians, heirs, executors, a d m in is tra to rs , or assigns further agree to reimburse, indemnify and hold harmless the United S ta te s and its agents, servants and employees from and against any and all causes of action, c la im s , liens, rights, or subrogated or contribution interests incident to or resulting from the u n d e rlyin g incident, this action, further litigation or the prosecution of claims arising from the su b jec t matter of this action or for debts allegedly owed from this settlement. 4 . Plaintiff confirms that he has been represented by counsel of his choosing in this la w s u it. Plaintiff confirms that this agreement has been explained to him and he understands its terms and conditions. Plaintiff warrants and represents that he intends and understands that th is Stipulation shall release all existing and future claims arising directly or indirectly from the ac ts or omissions that gave rise to the above-captioned action, including claims that are u n k n o w n and unforeseen, notwithstanding Section 1542 of the Civil Code of the State of C a lif o r n ia , which provides as follows: 2

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A general release does not extend to claims which the creditor does n o t know or suspect to exist in his favor at the time of executing [ th is] Release, which if known by him must have materially af fe cted his settlement with the debtor. 5 . This Stipulation is not, is in no way intended to be, and should not be construed as, a n admission of liability or fault on the part of the United States or its agents, servants, or e m p lo ye e s, and it is specifically denied that they are liable to plaintiff. The federal defendants d e n y such liability and this settlement is entered into by them for the purpose of resolving d is p u te d claims and avoiding the expenses of further litigation. 6 . The parties agree that they will each bear their own costs, fees, and expenses; that a n y attorney's fees owed by plaintiff will be paid out of the settlement amount and not in a d d itio n thereto; and that all outstanding or future bills and liens will be the sole responsibility o f plaintiff. 7. Payment of the settlement amount will be made by check payable to plaintiff and his a tto rn e ys McCarthy & Rubright LLP. Plaintiff agrees to provide a dismissal of the abovec a p t io n e d action with prejudice, with each party bearing its own fees, costs and expenses. 8 . The parties agree to execute and deliver such other and further documents as may be re q u ire d to carry out the terms of this Agreement. 9 . Each person signing this Stipulation warrants and represents that he or she possesses f u ll authority to bind the person[s] on whose behalf he or she is signing to the terms of the S tip u la tio n and that no assignment of rights has occurred. 1 0 . Each person signing this Stipulation warrants and represents that no promises, in d u c e m e n ts, or other agreements not expressly contained herein have been made; that this S tip u latio n contains the entire agreement between the parties; and that the terms of this S tip u la tio n are contractual and not mere recitals. This Stipulation may not be altered, a m e n d e d , modified, or otherwise changed in any respect, except by a writing duly executed by th e party to be charged. All prior oral understandings, agreements, and writings are superseded b y this Stipulation and are of no force or effect. 3

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1 1 . Each person executing this Stipulation represents that he or she has read and u n d e rs ta n d s its contents; that he or she executes this Stipulation voluntarily; that he or she has n o t been influenced by any person acting on behalf of any party. 1 2 . The above-captioned action is hereby DISMISSED WITH PREJUDICE in its e n tire ty and, upon approval by the Court as provided below, the Clerk of the Court is requested to enter this dismissal and release in the official docket. 1 3 . Notwithstanding the entry of a dismissal herein, the parties hereby stipulate that H o n . Lawrence Karlton, District Judge, shall retain jurisdiction to enforce the terms of this c o m p ro m ise settlement. R e sp e c tf u lly submitted,

11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4 D A T E D : January 13, 2009 B Y : /s/ Scott Rubright SCOTT RUBRIGHT M c C A R T H Y & RUBRIGHT LLP A tto rn e ys for Plaintiff Garen Wimer A P P R O V E D AS TO FORM ONLY D A T E D : January 13, 2009 /s/ Garen Wimer GAREN WIMER P l a in tif f D A T E D : January 16, 2009 B y: /s/ Kelli L. Taylor KELLI L. TAYLOR A s s is ta n t United States Attorney f o r Federal Defendants/United States M c G R E G O R W. SCOTT U n ite d States Attorney

1 2 3 D a te : January 23, 2009. 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 IT IS SO ORDERED.

ORDER

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