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HomeMy WebLinkAbout08/20/2013 05M Marina Barajas Lawsuit SettlementBUSINESS OF THE CITY COUNCIL YAKIMA, WASHINGTON AGENDA STATEMENT Item No. 6-M For Meeting of: 8/20/2013 ITEM TITLE: Resolution authorizing consent to a settlement entered into by CIAW and Munich Reinsurance to resolve and settle the lawsuit brought by the Personal Representative of the Estate of Marina Barajas. SUBMITTED BY: Jeffrey R. Cutter, City Attorney Helen A. Harvey, Senior Assistant City Attorney SUMMARY EXPLANATION: This matter is on for consideration of a Resolution authorizing the City Manager to consent to a settlement entered into by Cities. Insurance Association of Washington ( "CIAW ") and reinsurer Munich Reinsurance to resolve and settle the lawsuit filed by the Personal Representative of the Estate of and the Mother of Marina Barajas in Yakima County Superior Court Case No. 11 -2- 04214-5 entitled Sergio Valencia, Administrator and Personal Representative of the Estate of Marina Barajas, and Maria Valencia, Mother of Marina Barajas v. the City of Yakima, and Shaun Kollman, which will settle all claims by the plaintiffs in this case. The claim against the City of Yakima was settled by CIAW and Munich Reinsurance through mediation with mediator David A. Thorner of Thorner, Kennedy & Gano P.S. in Yakima, subject to the presentation of the settlement before the Yakima City Council. The amount of the settlement is $400,000, which entire amount is to be paid by CIAW and reinsurer Munich Reinsurance. The City of Yakima is paying no money toward settlement of the case. Attached is a copy of Settlement and Release which has been agreed to by plaintiffs' attorney and which will be signed by plaintiffs. In the settlement agreement, liability for the claims is denied by the City and the entities being released. The background of the lawsuit is as follows: The damage claim filed by the plaintiffs on September 14, 2011 alleged in excess of $7,600,000 in damages, and plaintiffs' lawsuit was filed against the City of Yakima and codefendant Shaun Kollman on November 28, 2011. The case is set for trial in February 2014. The plaintiffs also filed a separate lawsuit which is pending in Thurston County Superior Court Case No. 13 -2- 01109 -1 on May 21, 2013 against the State of Washington involving allegations against the Washington Department of Corrections. The claim arose from a police pursuit of Shaun Kollman on June 20, 2010, in which a vehicle driven by Shaun Kollman collided with a vehicle in which Marina Barajas was a passenger at the intersection of North 16th Avenue and Englewood Avenue in Yakima. Marina Barajas and Pasqual Ayala, the driver of the vehicle that Ms. Barajas was in, died as a result of the collision involving the vehicle driven by Shaun Kollman. The Estate of Pasqual Ayala, represented by a different attorney, has filed a separate lawsuit in Case No. 11 -2- 02009 -5, which was not part of the mediation and is pending. Shaun Kollman, the driver of the stolen vehicle, pled guilty to eleven criminal counts. In the Felony Judgment and Sentence in the criminal case of State of Washington v. Shaun Christopher Kollman, Yakima County Superior Court Case No. 10 -1- 01028 -4, Shaun Kollman was sentenced by a Judge to a total term of confinement of 617 months, which equates to approximately 51.4 years. Resolution: X Other (Specify): Contract: Start Date: Item Budgeted: NA Funding Source /Fiscal Impact: Strategic Priority: Insurance Required? No Mail to: Phone: APPROVED FOR SUBMITTAL: RECOMMENDATION: Adopt Resolution. Ordinance: Contract Term: End Date: Amount: Public Trust and Accountability City Manager ATTACHMENTS: Nerve: Description: ❑ Resolution in Valencia v. City, et al. 8- 20- 2013.docx Resolution ❑ Settlement and Full Release in Valencia v. City, et al.pdf Settlement Agreement RESOLUTION NO. R -2013- A RESOLUTION authorizing the City Manager of the City of Yakima to consent to a settlement entered into by CIAW and Munich Reinsurance to resolve and settle the lawsuit brought by the Personal Representative of the Estate of Marina Barajas. WHEREAS, on November 28, 2011, a lawsuit was filed in Yakima County Superior Court No. 11 -2- 04214 -5 entitled Sergio Valencia, Administrator and Personal Representative of the Estate of Marina Barajas, and Maria Valencia, Mother of Marina Barajas v. the City of Yakima, and Shaun Kollman; and WHEREAS, through a mediation, a settlement was reached by Cities Insurance Association of Washington ( "CIAW ") and Munich Reinsurance that will resolve and conclude all claims in the matter regarding the City of Yakima, subject to the authorization of the Yakima City Council for the City Manager to consent to the settlement; and WHEREAS, in the settlement agreement, liability for all such claims is denied by the entities being released; and WHEREAS, the entire amount of the settlement is to be paid by CIAW and reinsurer Munich Reinsurance, and the City of Yakima is paying no money toward settlement of the case; and WHEREAS, the City Council of the City of Yakima deems it to be in the interest of the City to authorize the City Manager to consent to a settlement entered into by CIAW and Munich Reinsurance with the plaintiffs to resolve and conclude the lawsuit; now, therefore, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF YAKIMA: The City Manager of the City of Yakima is authorized to consent to the settlement entered into by CIAW and Munich Reinsurance to resolve and settle the lawsuit brought by the Personal Representative of the Estate of and the Mother of Marina Barajas, which settlement will be paid by CIAW and Munich Reinsurance. ADOPTED BY THE CITY COUNCIL this day of August, 2013. Micah Cawley, Mayor ATTEST: City Clerk WHEREAS, SERGIO VALENCIA, Administrator and Personal Representative of the Estate of Marina Barajas, and MARIA VALENCIA, Mother of Marina Barajas (hereafter referred to as Plaintiffs) brought claims against the CITY OF YAKIMA (hereafter referred to as Settling Defendant) in the matter filed in the Superior Court of the State of Washington for Yakima County, Cause No. 11 -2- 44214 -5; and WHEREAS, Settling Defendant appeared through counsel of record; and WHEREAS, Plaintiffs asserted monetary damages, personal injuries, and general damages in the above-referenced action arising out of the incident described in plaintiffs' Complaint For Damages For Wrongful Death, Survival and Injury and Death of Child filed in the Superior Court of the State of Washington for Yakima County, Cause No. 1 1 -204214-5; and WHEREAS, Settling Defendant vigorously denies that it did anything wrong or caused the damages claimed, and that by entering into this agreement does not concede it has any liability, and specifically denies any liability whatsoever for Plaintiffs' claims; and WHEREAS, Plaintiffs have authority to enter into this Settlement and Full Release with regard to all special damages, monetary damages, general damages, and all personal injuries or torts claimed, known or unknown, that can be claimed by them and/or the Estate of Marina Barajas and any and all existing subrogated interest-holders, all lienholders, including all liens of any insurer, and all medical care providers of any kind; and WHEREAS; the identified parties to this agreement desire to avoid the expense, burden and uncertainty of continued litigation; NOW, THEREFORE, IT IS HEREBY agreed as follows: I. In consideration of the total payment to Plaintiffs by the City of Yakima's insurers, Page I of 6 10024.1 gh132202 Cities Insurance of Washington ( 'CIAW") and Munich Reinsurance, in the amount of Four Hundred Thousand Dollars ($400,000.00), it is agreed that plaintiffs' claims, in their entirety, as asserted against CITY OF YAKIMA in Plaintiffs' Complaint For Damages For Wrongful Death, Survival and Injury and Death of Child filed in the Superior Court of the State of Washington for Yakima County, Cause No. 11-2-04214-5 shall be dismissed with prejudice and released without any ftuther cost to any party. Payment by Settling Defendant shall be made to "MacDonald Hoague & Bayless In Trust for SERGIO VALENCIA, Administrator and Personal Representative of the Estate of Marina Barajas, and MARIA VALENCIA" no later than August 30, 2013. Payment shall be held in trust pending approval of the Probate Court of this Settlement and Full Release and disbursement of the settlement funds. 2. Plaintiffs, their successors, assigns, representatives, agents, employees, attorneys, children, heirs, spouses, beneficiaries, insurers and any person or persons acting by, through or for them, hereby release, acquit and forever discharge Settling Defendant and any of its successors, assigns, former, present or future officials, officers, directors, representatives, agents, employees, attorneys, insurers, the Yakima Police Department, Cities Insurance Authority of Washington ("CIAW"), Munich Reinsurance, and any person or persons acting by, for or through it, from all liability, actual or potential, for all claims, damages or demands whatsoever in law or in equity which Plaintiffs have ever had, may have, or have claimed, or now claim arising fi-orn the allegations in the Complaint For Damages For Wrongful Death, Survival and Injury and Death of Child filed in the Superior Court of the State of Washington for Yakima County, Cause No. 11 -2- 04214-5. 3. This Settlement and Full Release is expressly intended to cover all damages, whether known or unknown, asserted or unasserted, that are claimed or could have been claimed by Page 2 of 6 10024.1 gh132202 Plaintiffs individually and on behalf of any marital communities and on behalf of the Estate of Marina Barajas (including, but not limited to, for any and all heirs, survivors, dependents or beneficiaries of Marina Barajas and/or the Estate of Marina Barajas) in the above-referenced action. The damages may be more severe or different than those known at this time. These damages include any and all personal injuries, general damages, economic and non-economic losses alleged by Plaintiffs and/or the Estate of Marina Barajas, and any and all property damage associated with the Complaint For Damages For Wrongful Death, Survival and Injury and Death of Child filed in the Superior Court of the State of Washington for Yakima County, Cause No, 11- 2- 44214-5. 4. This Settlement and Full Release is made and entered into as a free and voluntary act and has been done only after Plaintiffs consulted with their attorneys, Timothy K. Ford and Katherine C. Chamberlain. 5, This Settlement and Full Release, and the Mediated Settlement Agreement signed on August 5, 2013, contains the entire agreement between the parties, and the terms of this Release are contractual and not a mere recital. 6, Sergio Valencia, Administrator and Personal Representative of the Estate of Marina Barajas, shall promptly move the Probate Court for approval of this Settlement and Full Release, which he and his attorneys will recommend. 7. The parties agree that any and all actions necessary to secure dismissal with prejudice of Plaintiffs' claims in this lawsuit against the CITY OF YAKIMA shall be taken by the parties and that each party shall bear its own cost and expense incurred in connection with such claims and the dismissal thereof. 8. Plaintiffs agree to hold Settling Defendant CITY OF YAKIMA and its agents, employees, attorneys, insurers, or representatives thereof (hereinafter Indeninitees) free and 10024,1 ghl32202 harmless fi-om any and all claims relating to Plaintiffs' alleged injuries and damages that have been or may be asserted for tortfeasor medical liens, liens of any branch of the government, liens of any and all of Plaintiffs' and/or Marina Barajas' insurers, liens of any insurers who may be responsible for payment of Plaintiffs' and/or Marina Barajas' medical bills, liens for lost income, liens of any and all of Plaintiffs' attorneys, and liens for any and all claims for doctors, hospitals, or other medical bills, lost wages or any other service (including non-medical service) rendered to Plaintiffs and/or Marina Barajas arising out of the matters alleged in the Complaint For Damages For Wrongful Death, Survival and Injury and Death of Child filed in the Superior Court of the State of Washington for Yakima County, Cause No. 11-2-04214-5, whether such claims be based on contract, tort or any other theory of law. Plaintiffs are responsible for satisfying all liens and outstanding subrogation claims. 9. Plaintiffs also agree to pay Indemnitees any costs or attorneys' fees incurred to establish an Indemnitees' right of indemnity as set forth herein, including any costs or fees which may be incurred arising out of any lien with regard to Plaintiffs' and/or Marina Barajas' injuries or any prior attorneys retained by Plaintiffs as related to the incident described in plaintiff s Complaint referenced above. If the Settling Defendant is contacted by a lien holder or subrogation claimant, Settling Defendant will promptly provide written notice to Plaintiff and Plaintiffs counsel to avoid incurring unnecessary fees or costs. 10. It is specifically understood and agreed that this Settlement and Full Release is the compromise of a disputed claim and that the payment made herein is not to be construed as an admission of liability on the part of the CITY OF YAKIMA and/or its employees, and that the CITY OF YAKIMA denies liability therefor. This Settlement and Full Release is not intended to be admissible against any party or anyone else as an admission of any liability and/or fault in any Page 4 of 6 10024.1 gh132202 matter. Notwithstanding the immediately preceding sentence, this Settlement and Full Release, if otherwise admissible, may be introduced into evidence at any proceeding between or among the parties to enforce its terms. 10, Undersigned counsel for plaintiffs will see to the proper disbursement of all funds. DATED this day of 2013. _(name), _(title) CITY OF YAKIMA STATE OF WASHINGTON ) : ss. [CIRRIMM "t On this day of , 2013, before me, a Notary Public, personally appeared to me known to be the individual described herein, and who executed the foregoing instrument and to me acknowledged that he voluntarily executed the same, NOTARY PUBLIC in and for the State of Washington, residing at My Commission Expires: Page 5 of 6 10024 A gh132202 STATE OF WASHINGTON ) M1 *011JININW&SIN On this day of .. - -., 2013, before me, a Notary Public, personally appeared SERGIO VALENCIA to me known to be the individual described herein, and who executed the foregoing instrument and to me acknowledged that he voluntarily executed the same. NOTARY PUBLIC in and for the State of Washington, residing at My Commission Expires: MARIA VALENCIA, Mother of Marina Barajas STATE OF WASHINGTON ) : ss. COUNTY OF On this day of ) 2013, before me, a Notary Public, personally appeared MARIA VALENCIA to me known to be the individual described herein, and who executed the foregoing instrument and to me acknowledged that she voluntarily executed the same. of funds. NOTARY PUBLIC in and for the State of Washington, residing at My Commission Expires: The undersigned counsel of record for plaintiffs will see to the proper disbursement By TIMOTHY K. FORD, WSBA 45986 KATHERINE C. CHAMBERLAIN, WSBA #40014 Attorney for Plaintiffs Page 6 of 6 10024.1 gh132202