Water v. U.S. Department of Defense - Office of the Military Claims

Filing 27

ORDER APPROVING SETTLEMENT re 25 Stipulation filed by U.S. Department of Defense - Office of Military Claims. Signed by Judge James Larson on 6/17/09. (jlsec, COURT STAFF) (Filed on 6/17/2009)

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J OSEPH P. RUSSONIELLO, CSBN 44332 United States Attorney J OANN M. SWANSON, CSBN 88143 Chief, Civil Division EDWARD A. OLSEN, CSBN 214150 Assistant United States Attorney 1301 Clay Street, Suite 340S Oakland, California 94612 Telephone: [phone] FAX: [phone] e d w ar d . o l s e n @ u s d o j . go v Attorneys for Defendant

8 9 10 11 12 JANE STILLWATER, 13 Plaintiff , 14 v. 15 16 17 18 IT IS HEREBY STIPULATED by and between Plaintiff Jane Stillwater and Defendant United 19 States of America, as follows: 20 1. The parties do hereby agree to settle and compromise the above-entitled action under the 21 terms and conditions set forth herein. 22 2. Defendant United States of America agrees to pay to Plaintiff Jane Stillwater the sum of 23 One Thousand Three Hundred Sixty Two Dollars and fifteen cents ($1,362.15), which sum shall 24 be in full settlement and satisfaction of any and all claims, demands, rights, and causes of action of 25 whatsoever kind and nature, arising from, and by reason of any and all known and unknown, 26 foreseen and unforeseen bodily and personal injuries, damage to property and the consequences 27 thereof, resulting, and to result, from the same subject matter that gave rise to the above-captioned 28 STIPULATION AND [PROPOSED] ORDER APPROVING COMPROMISE SETTLEMENT C 08-5778-JL 1 U.S. DEPARTMENT OF DEFENSE ­ OFFICE OF MILITARY CLAIMS, D ef en d a n t . ) ) ) ) ) ) ) ) ) ) ) Case No. 08-5778-JL [PROPOSED] ORDER APPROVING COMPROMISE SETTLEMENT UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION

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lawsuit, for which Plaintiff or her heirs, executors, administrators, or assigns, and each of them, now have or may hereafter acquire against the United States of America, its agencies, agents, servants, and employees. 3. Plaintiff and her heirs, executors, administrators or assigns hereby agree to accept the sum listed in paragraph 2 in full settlement and satisfaction of any and all claims, demands, rights, and causes of action of whatsoever kind and nature, arising from, and by reason of any and all known and unknown, foreseen and unforeseen bodily and personal injuries, damage to property and the consequences thereof which she may have or hereafter acquire against the United States of America, its agencies, agents, servants and employees on account of the same subject matter that gave rise to the above-captioned lawsuit, including any future claim for wrongful death. Plaintiff and her heirs, executors, administrators or assigns further agree to reimburse, indemnify and hold harmless the United States of America, its agencies, agents, servants or employees from any and all such causes of action, claims, liens, rights, or subrogated or contribution interests incident to or resulting from further litigation or the prosecution of claims by Plaintiff or her heirs, executors, administrators or assigns against any third party or against the United States, including claims for wrongful death. 4. This stipulation for compromise settlement shall not constitute an admission of liability or fault on the part of the United States, its agencies, agents, servants, or employees, and is entered into by the parties for the purpose of compromising disputed claims and avoiding the expenses and risks of litigation. 5. This Agreement may be pled as a full and complete defense to any subsequent action or other proceeding involving any person or party which arises out of the claims released and discharged by the Agreement. 6. It is also agreed, by and among the parties, that the settlement amount of One Thousand Three Hundred Sixty Two Dollars and fifteen cents ($1,362.15) to Jane Stillwater represents the entire amount of the compromise settlement and that the respective parties will each bear their own costs, fees, and expenses and that any attorneys' fees owed by Plaintiff will be paid out of the STIPULATION AND [PROPOSED] ORDER APPROVING COMPROMISE SETTLEMENT C 08-5778-JL 2

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settlement amount and not in addition thereto. 7. It is also understood by and among the parties that, pursuant to Title 28, United States Code, Section 2678, attorneys' fees for services rendered in connection with this action shall not exceed 25 percent of the amount of the compromise settlement. 8. Payment of the settlement amount will be made by a check for One Thousand Three Hundred Sixty Two Dollars and fifteen cents ($1,362.15) and made payable to Jane Stillwater. 9. In consideration of this Agreement and the payment of the foregoing amount thereunder, Plaintiff agrees that upon notification that the settlement check is ready for delivery, she will deliver to Defendant's counsel a fully executed Notice of Dismissal with prejudice of Stillwater v. Department of Defense, C 08-5778-JL. Upon delivery of the Notice of Dismissal, Defendant's counsel will release the settlement check to Plaintiff. 10. Plaintiff has been informed that payment may take sixty days or more to process, but Defendant agrees to make good faith efforts to expeditiously process said payment. 11. The parties agree that should any dispute arise with respect to the implementation of the terms of this Agreement, Plaintiff shall not seek to rescind the Agreement and pursue her original causes of action. Plaintiff's sole remedy in such a dispute is an action to enforce the Agreement in district court. The parties agree that the district court will retain jurisdiction over this matter for the purposes of resolving any dispute alleging a breach of this Agreement. 12. Plaintiff hereby releases and forever discharges the United States and any and all of its past and present officials, employees, agencies, agents, attorneys, their successors and assigns, from any and all obligations, damages, liabilities, actions, causes of action, claims and demands of any kind and nature whatsoever, whether suspected or unsuspected, at law or in equity, known or unknown, arising out of the allegations set forth in Plaintiff's pleadings in this action. 13. The provisions of California Civil Code Section 1542 are set forth below: "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 the release, which if known by him must have materially affected his settlement with the debtor." STIPULATION AND [PROPOSED] ORDER APPROVING COMPROMISE SETTLEMENT C 08-5778-JL 3

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Plaintiff having been apprised of the statutory language of California Civil Code Section 1542 and fully understanding the same, nevertheless elects to waive the benefits of any and all rights she may have pursuant to the provision of that statute and any similar provision of federal law. Plaintiff understands that, if the facts concerning Plaintiff's injuries and the liability of the government for damages pertaining thereto are found hereinafter to be other than or different from the facts now believed by them to be true, the Agreement shall be and remain effective notwithstanding such material difference. 14. This instrument shall constitute the entire Agreement between the parties, and it is expressly understood and agreed that the Agreement has been freely and voluntarily entered into by the parties. The parties further acknowledge that no warranties or representations have been made on any subject other than as set forth in this Agreement. This Agreement may not be altered, modified or otherwise changed in any respect except by writing, duly executed by all of the parties or their authorized representatives.

Dated: June 15, 2009

/s/ J ANE STILLWATER Plaintiff

Dated: June 15, 2009 19 20 21 22 23 24 APPROVED AND SO ORDERED. 25 26 27 28
June 17, 2009 Dated: ___________________

J OSEPH P. RUSSONIELLO United States Attorney /s/ EDWARD A. OLSEN Assistant United States Attorney [PROPOSED] ORDER

______________________________________ J AMES LARSON United States Magistrate Judge

STIPULATION AND [PROPOSED] ORDER APPROVING COMPROMISE SETTLEMENT C 08-5778-JL 4