Penrose v. United States of America

Filing 42

STIPULATION FOR COMPROMISE SETTLEMENT AND RELEASE OF FEDERAL TORT CLAIMS ACT & ORDER DISMISSING CASE. Signed by Judge David N. Hurd on 2/29/2016. (jmb)

I UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF NEW YORK

JONAS J. PENROSE,
Plaintiff,
v.
UNITED STATES OF AMERICA,
Defendant.

)
)
)
)
)
)
)
)
)

Civil Action No.
13-CV-1060 (DNH/DJS)

STIPULATION FOR COMPROMISE SETTLEMENT AND RELEASE OF
FEDERAL TORT CLAIMS ACT CLAIMS PURSUANT TO 28 U.S.C. § 2677

Defendant, United States of America, having made an Offer of Judgment in the amount
of Three Hundred Seventy-Five Thousand Dollars ($375,000.00), pursuant to Rule 68 of the
Federal Rules of Civil Procedure, and Plaintiff having agreed to accept that offer, the parties now
agree to this Stipulation of Dismissal.

It is hereby stipulated by and between the undersigned

plaintiff (meaning any person, other than the defendant and the attorneys, signing this agreement,
whether or not a party to this civil action), and the United States of America, by and through
their respective attorneys, as follows:
1.

The parties do 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 under the terms and conditions set forth in this
Settlement Agreement.
(2011 Edition)

2.

The United States of America agrees to pay the sum of Three Hundred Seventy-Five

Thousand Dollars ($375,000.00), 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, 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, resulting, and to result, from the
subject matter of this settlement, including any claims for wrongful death, for which plaintiff or
his guardians, heirs, executors, administrators, or assigns, and each of them, now have or may
hereafter acquire against the United States of America, its agents, servants, and employees.
3.

Plaintiff and his guardians, heirs, executors, administrators or assigns hereby agree to

accept the sums set forth in this Stipulation of Compromise Settlement in full settlement,
satisfaction, and release 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, damage
to property and the consequences thereof which they may have or hereafter acquire against the
United States of America, its agents, servants and employees on account of the same subject
matter that gave rise to the above-captioned 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 his guardians, heirs, executors, administrators or assigns

further agree to reimburse, indemnify and hold harmless the United States of America, its agents,
servants, and employees from and against any and all such causes of action, claims, liens, rights,
or subrogated or contribution interests incident to or resulting from further litigation or the

(2011 Edition)

2

prosecution of claims by plaintiff or his guardians, 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 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, its
agents, servants, or employees, and it is specifically denied that they are liable to the 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.
5.

It is also agreed, by and among the parties, that the respective parties will each bear

their own costs, fees, and expenses and that any attorney's fees owed by the plaintiff will be paid
out of the settlement amount and not in addition thereto.
6.

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 this action shall not
exceed 25 per centum of the amount of the compromise settlement.
7.

The persons signing this Settlement Agreement warrant and represent that they

possess full authority to bind the persons on whose behalf they are signing to the terms of the
settlement.

In the event any plaintiff is a minor or a legally incompetent adult, the plaintiff

must obtain Court approval of the settlement at their expense.
approval in a timely manner: time being of the essence.

Plaintiff agrees to obtain such

Plaintiff further agrees that the United

States may void this settlement at its option in the event such approval is not obtained in a timely
manner.

In the event plaintiff fails to obtain such Court approval, the entire Stipulation For

Compromise Settlement and Release and the compromise settlement are null and void.

(2011 Edition)

3

8.

Payment of the settlement amount of Three Hundred Seventy-Five Thousand Dollars

($375,000.00) will be made by electronic funds transfer to the account of Brewster S. Rawls, Esq.,
Rawls McNelis & Mitchell, attorneys for the plaintiff. Plaintiffs attorney agrees to distribute the
settlement proceeds among the plaintiff, and to obtain a dismissal of the above-captioned action
with prejudice, with each party bearing its own fees, costs, and expenses.
9. 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. § 552a(b).
10.

It is contemplated that this Stipulation may be executed in several counterparts,

with a separate signature page for each party.

All such counterparts and signature pages,

together, shall be deemed to be one document.
11.

The parties each represent and warrant that no party hereto is an infant or an

incompetent.
day

Executed this _

Brews er S. Rawls, Esq.
Coreen A. Siiverman, Esq.
Rawls McNelis & Mitchell
Attorneys for Plaintiff

(2011 Edition)

By:

4

day

February 29, 2016