Kovac v. USA et al

Filing 21

STIPULATION and ORDER of Dismissal signed by Magistrate Judge Edmund F. Brennan on 3/22/11. Civil Case Terminated. CASE CLOSED. (Matson, R)

Kovac v. USA et al

Doc. 21

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BENJAMIN B. WAGNER United States Attorney JASON EHRLINSPIEL Assistant U.S. Attorney 501 I Street, Suite 10-100 Sacramento, California 95814 Telephone: [phone] Facsimile: [phone] Attorneys for the United States of America

IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA HEATHER KOVAC, Plaintiff, v. UNITED STATES OF AMERICA, et al., Defendants. ) ) ) ) ) ) ) ) ) ) ) ) Case No. CIV S-10-0074-EFB STIPULATION AND ORDER OF DISMISSAL WITH PREJUDICE

STIPULATION OF DISMISSAL WITH PREJUDICE It is hereby stipulated by and between Plaintiff HEAHTER KOVAC ("Plaintiff") and Defendant, the United States of America1 (with Plaintiff, "the parties") as follows: 1. The parties hereby agree to settle and compromise each and every claim of any kind, whether known or unknown, arising directly or indirectly from the acts or omissions that gave rise to the above-captioned action, including but not limited to any and all claims arising out of Plaintiff's alleged fall on February 11, 2008 while at the United States Postal Service Facility located at the South Lake Tahoe Post Office, 950 Emerald Bay Road, South Lake Tahoe, California.

Stipulation and Order of Dismissal with Prejudice
Dockets.Justia.com

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2. The United States agrees to pay the sum of Eleven Thousand Dollars ($11,000.00) to Plaintiff, which sum shall be in full settlement and satisfaction of any and all claims, demands, rights, and causes of action of whatsoever kind and nature against the United States, arising from, and by reason of any and all known and unknown, foreseen and unforeseen bodily and personal injuries, loss of consortium, damage to property and the consequences thereof, resulting, and to result, from the subject matter of this action, including any claims for wrongful death, including but not limited to any and all claims arising out of the subject accident which Plaintiff or her spouse, guardians, heirs, executors, administrators, or assigns, and each of them, now have or may hereafter acquire against the United States, its agents, servants, and employees. 3. Plaintiff and her spouse, guardians, heirs, executors, administrators or assigns hereby agree to accept the sum set forth in Paragraph 2 in full settlement and satisfaction of any and all claims, demands, rights, and causes of action of whatsoever kind and nature, including claims for wrongful death, arising from, and by reason of, any and all known and unknown, foreseen and unforeseen bodily and personal injuries, loss of consortium, medical expenses, medical liens, lost wages, loss of wage earning capacity, damage to property and the consequences thereof, including but not limited to any and all claims arising out of the subject incident, which she may have or hereafter acquire against the United States, its agents, servants, and employees on account of the subject matter that gave rise to this action, including any future claim or lawsuit of any kind or type whatsoever, whether known or unknown, and whether for compensatory or exemplary damages. Plaintiff and her spouse, guardians, heirs, executors, administrators, or assigns further agree to reimburse, indemnify and hold harmless the United States, and its agents, Any and all references to the United States of America incorporates the United States Postal Service.

Stipulation and Order of Dismissal with Prejudice

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servants and employees from and against any and all causes of action, claims, liens, rights, or subrogated or contribution interests incident to or resulting from further litigation or the prosecution of claims arising from the subject matter of this action, including but not limited to any and all claims arising out of any medical treatment Plaintiff received as a result of or in connection with the subject incident. 4. Plaintiff warrants and represents that she intends that this Stipulation shall release all existing and future claims against the United States, and its agents, servants and employees arising directly or indirectly from the acts or omissions that gave rise to the above-captioned action, including claims that are unknown and unforeseen, including but not limited to any and all claims arising out of the subject accident, notwithstanding Section 1542 of the Civil Code of the State of California, which provides as follows: A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing [this] Release, which if known by him must have materially affected his settlement with the debtor. Plaintiff having been apprised of the statutory language of Section 1542 of the Civil Code of the State of California by her attorneys, and fully understanding the same, specifically elects to waive the benefits of any and all rights she may have pursuant to the provision of that statute and any similar provisions of federal law. Plaintiff understands that, if the facts concerning their injuries and the liability of the United States for damages pertaining thereto are found hereinafter to be other than or different from the facts now believed by them to be true, this agreement shall be and remain effective notwithstanding such material differences. 5. This Stipulation is not, is in no way intended to be, and should not be construed as, an admission of liability or fault on the part of the United States, or its agents, Stipulation and Order of Dismissal with Prejudice

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servants, or employees, and it is specifically denied that they are liable to Plaintiff. This settlement is entered into by all parties for the purpose of compromising disputed claims under the Federal Tort Claims Act and avoiding the expenses and risks of further litigation. 6. The parties agree that they will each bear their own costs, fees, and expenses; that any attorney's fees owed by Plaintiff will be paid out of the settlement amount and not in addition thereto; and that all outstanding or future bills and liens will be the sole responsibility of Plaintiff. 7. Payment of the settlement amount of $11,000.00 will be made by a draft made payable to "Heather Kovac and Kathleen Aberegg, her attorney." The check will be sent to Plaintiff's attorney. Plaintiff and her attorney are responsible for the payment of any taxes that may be due out of the settlement proceeds and the United States makes no representation as to any tax consequences or liabilities Plaintiff and her attorney may incur as a result of this settlement. 8. 9. Plaintiff's attorney agrees to distribute the settlement proceeds to Plaintiff. The parties agree that this Stipulation for Compromise Settlement and

Release, including all the terms and conditions of this compromise settlement and any additional agreements relating thereto, may be made public in their entirety and the plaintiff expressly consents to such release and disclosure pursuant to 5 U.S.C. Section 552a(b). 10. It is contemplated that this Stipulation may be executed in several counterparts, with plaintiff. 11. It is also understood by and among the parties that pursuant to Title 28,

United States Code, Section 2678, attorney's fees for services rendered in connection with Stipulation and Order of Dismissal with Prejudice

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this action shall not exceed 25 per cenlum of the amount of the compromise settlement. 12. The parties agree to execute and deliver such other and further documents as may be required to carry out the terms of this Agreement. 13. Each person signing this Stipulation warrants and represents that he or she possesses full authority to bind the person[s] on whose behalf he or she is signing to the terms of the Stipulation. 14. Each person signing this Stipulation warrants and represents that no promises, inducements, or other agreements not expressly contained herein have been made; that this Stipulation contains the entire agreement between the parties; and that the terms of this Stipulation are contractual and not mere recitals. This Stipulation may not be altered, amended, modified, or otherwise changed in any respect, except by a writing duly executed by the party to be charged. All prior oral understandings, agreements, and writings are superseded by this Stipulation and are of no force or effect. 15. Each person executing this Stipulation represents that he or she has read and understands its contents; that he or she executes this Stipulation voluntarily; that he or she has not been influenced by any person acting on behalf of any party. 16. The above-captioned action is hereby DISMISSED WITH PREJUDICE in its entirety 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. 17. Notwithstanding the entry of a dismissal herein, the parties hereby stipulate that Hon. Edmund F. Brennan, United States Magistrate Judge, shall retain jurisdiction to enforce the terms of this compromise settlement.

Stipulation and Order of Dismissal with Prejudice

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IT IS SO STIPULATED. signature on original HEATHER KOVAC, PLAINTIFF

DATED: MARCH __, 2011 By:

BENJAMIN B. WAGNER United States Attorney /s/ Jason Ehrlinspiel JASON EHRLINSPIEL Assistant United States Attorney Attorneys for the United States of America

DATED: MARCH __, 2011 By:

LAW OFFICES OF KATHLEEN ABEREGG signature on original KATHLEEN ABEREGG Attorney for Plaintiff

ORDER OF DISMISSAL IT IS HEREBY ORDERED THAT, pursuant to Rule 41(a)(1) of the Federal Rules of Civil Procedure and for good cause showing, this case is DISMISSED WITH PREJUDICE. Each party shall bear their own costs and fees. The clerk of the Court shall close the file. IT IS SO ORDERED. Dated: March 22, 2011 __________________ ___________ Honorable Edmund F. Brennan United States Magistrate Judge U.S. District Court for Eastern District of California

Stipulation and Order of Dismissal with Prejudice