HomeMy WebLinkAboutR-2014-020 Lawsuit Settlement; Estate of Pascual Ayala RESOLUTION NO. R- 2014 -020
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 Special Administrator and Personal
Representative of the Estate of Pascual Ayala.
WHEREAS, on June 8, 2011, a lawsuit was filed in Yakima County Superior Court No.
11 -2- 02009 -5 entitled Irene Duenas, Special Administrator and Personal Representative of the
Estate of Pasqual Ayala v. City of Yakima, et al., and Shaun C. 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 plaintiff 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
Special Administrator and Personal Representative of the Estate of Pascual Ayala, which
settlement will be paid by CIAW and Munich Reinsurance.
ADOPTED BY THE CITY COUNCIL this 4 day of February, 2014.
9 4 Micah Cawley Mayor
TEST:
e't Clerk
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SETTLEMENT AND FULL RELEASE
WHEREAS, IRENE DUENAS, Administrator and Personal Representative of the Estate of
Pascual Ayala, (hereafter referred to as Plaintiff) 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. 11-2-02009-5; and
WHEREAS, Settling Defendant appeared through counsel of record; and
WHEREAS, Plaintiff asserted monetary damages, personal injuries, and general damages in
the above-referenced action arising out of the incident described in plaintiff's Amended Complaint
for Wrongful Death filed in the Superior Court of the State of Washington for Yakima County,
Cause No. 11-2-02009-5; 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 Plaintiff s claims; and
WHEREAS, Plaintiff has 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 Pascual Ayala 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:
1. In consideration of the total payment to Plaintiff by the City of Yakima's insurers,
Cities Insurance of Washington ("CIAW) and Munich Reinsurance, in the amount of Two
Page 1 of 5
Hundred and Fifty Thousand Dollars ($250,000.00), it is agreed that plaintiff's claims, in their
entirety, as asserted against City Of Yakima in Plaintiff's Amended Complaint For Wrongful Death
filed in the Superior Court of the State of Washington for Yakima County, Cause No. 11-2-02009-5
shall be dismissed with prejudice and released without any further cost to any party.
2. Plaintiff, the Estate of Pascual Ayala and their and its 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, founer, present or future officials, officers,
directors, representatives, agents, employees, attorneys, insurers, the Yakima Police Department,
Cities Insurance Authority of Washington ("CIAW"), Munich Reinsurance, Police Officer Elaine
Gonzalez, Police Officer Kerrick Ward, Police Officer Phil Posada, Police Sergeant Timothy
Bardwell, 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 Plaintiff and/or the Estate
of Pascual Ayala have ever had, may have, or have claimed, or now claim arising from the
allegations in the Amended Complaint For Wrongful Death, filed in the Superior Court of the State
of Washington for Yakima County, Cause No. 11-2-02009-5.
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
Plaintiff individually and on behalf of any marital communities and on behalf of the Estate of
Pascual Ayala (including, but not limited to, for any and all heirs, survivors, dependents or
beneficiaries of Pascual Ayala and/or the Estate of Pascual Ayala) 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
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by Plaintiff and/or the Estate of Pascual Ayala, and any and all property damage associated with the
Amended Complaint For Wrongful Death, filed in the Superior Court of the State of Washington
for Yakima County, Cause No. 11-2-02009-5.
4. This Settlement and Full Release is made and entered into as a free and voluntary act
and has been done only after Plaintiff consulted with her attorney, Mariano Morales.
5. This Settlement and Full Release contains the entire agreement between the parties,
and the terms of this Release are contractual and not a mere recital.
6. The undersigned has full authority to enter into this Settlement and Full Release.
7. The parties agree that any and all actions necessary to secure dismissal with
prejudice of PlaintifPs 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. Plaintiff agrees to hold Settling Defendant City Of Yakima and its elected or
appointed officials, employees, attorneys, insurers, agents or representatives thereof (hereinafter
Indemnitees) free and harmless from any and all claims relating to Plaintiff's alleged injuries and
damages that have been or may be asserted for tortfeasor medical liens, liens of any branch of the
government, including but not limited to the State of Washington, liens of any and all of Plaintiff's
and/or Pascual Ayala's insurers, liens of any insurers who may be responsible for payment of
Plaintiff's and/or Pascual Ayala's medical bills, liens for lost income, liens for UIM or PIP
payments, liens of any and all of Plaintiff's 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 Plaintiff and/or Pascual Ayala arising out of the matters alleged in the Amended
Complaint For Wrongful Death filed in the Superior Court of the State of Washington for Yakima
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County, Cause No. 11-2-02009-5, whether such claims be based on contract, tort or any other
theory °flaw.
9. Plaintiff also agrees 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 Plaintiff's and/or Pascual Ayala's injuries or
any prior attorneys retained by Plaintiff as related to the incident described in plaintiff's Amended
Complaint referenced above.
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 and its employees deny 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
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.
DATED this 2 - day of January, 2014.
IRENE DUENA , dministr.. : . d Personal
Representative of the Estate of Pascual Ayala
STATE OF WASHINGTON )
: ss.
COUNTY OF ia j )
On this - Z. 2 — day of January, 2014, before me, a Notary Public, personally
appeared IRENE DUENAS 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.
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MEDIATED SETTLEMENT AGREEMENT
Date: January 16, 2014
We, the undersigned parties, hereby enter into this binding CR 2(A) agreement to settle
any and all claims of Irene Duenas as Special Administrator and Personal Representative for the
Estate of Pascual Ayala, "Releasor ", against the City of Yakima, their affiliates, agents and
employees, CIAW, and Munich Reinsurance Company, only, "Releasees ", for injuries and /or all
damages arising out of an incident occurring in Yakima, Yakima County, Washington on June
20, 2010, for the total sum of Two Hundred and Fifty Thousand Dollars ($250,000.00). Payment
by CIAW shall be made to the Mariano Morales, Jr., Law Firm Trust Account not later than
February 12, 2014, if approved by the Yakima City Council. The proposed settlement will be
presented to the Yakima City Council on February 4, 2014 with a recommendation from the
City's defense counsel herein that the settlement be approved.
Releasors and attorney agree to be responsible to satisfy all liens and any outstanding
subrogation claims, to execute an appropriate Full and Final Release and Settlement of All
Claims, and confirming documents, and to enter an Order of Dismissal of All Claims With
Prejudice against the City of Yakima only and Without Cost in Yakima County Superior Court
No. 11 -2- 02009 -5. Mr. Christie shall prepare the final documents to be approved by Mr.
Morales. Any disputes as to or arising from this Agreement or the above - referenced final
documents shall be resolved by David A. Thorner, as the final binding arbitrator.
Irene Du . s • P sonal R for Frank Andrus for CIAW
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riano Moral., ' for 'lbert L. Christie, Attorney for
Ms. Duenas e City of Yakima
d t6
J Ayala Helen Harvey, Assists
City Attorney
Antonia Ayala
Releasors' Law Firm Tax ID Number: 91- 1879017
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BUSINESS OF THE CITY COUNCIL
YAKIMA, WASHINGTON
AGENDA STATEMENT
Item No. J
For Meeting of: 2/4/2014
•
ITEM TITLE: Resolution authorizing the City Manager 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 Pascual Ayala.
SUBMITTED BY: 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 Pascual Ayala in Yakima County Superior Court Case No. 11 -2- 02009 -5 entitled Irene
Duenas, Special Administrator and Personal Representative of the Estate of Pasqua! Ayala v.
City of Yakima and Shaun C. Kollman, which will settle all claims by the plaintiff in this case
against the City of Yakima.
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 $250,000, 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 the Settlement and Full Release which has been agreed to by plaintiffs
attorney and which has been signed by plaintiff. 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 plaintiff on
December 2, 2010 alleged $20,000,000 in damages. Plaintiffs lawsuit was filed on June 8,
2011. Plaintiff also named four officers in the lawsuit who subsequently were dismissed with
prejudice by Stipulations and Orders of Dismissal on August 15, 2012 and November 26, 2013.
The case is set for trial in May 2014. Plaintiff also filed a separate lawsuit which is pending in
Thurston County Superior Court Case No. 13 -2- 01644 -1 on August 1, 2013 against the State of
Washington involving allegations against the Washington Department of Corrections with regard •
to Shaun Kollman.
The claim arose from a police pursuit of Shaun Kollman on June 20, 2010, in which a stolen
vehicle driven by Shaun Kollman collided with a vehicle at the intersection of North 16th Avenue
and Englewood Avenue in Yakima which was driven by Pascual Ayala. Marina Barajas was a
passenger in the vehicle Pascual Ayala was driving. Both Marina Barajas and Pascual Ayala
died as a result of the collision involving the vehicle driven by Shaun Kollman. The Estate of
Marina Barajas, represented by a different attorney, filed a separate lawsuit in Case No. 11 -2-
04214-5, which was settled at mediation on August 5, 2013. By Resolution No. R- 2013 -113
adopted on August 20, 2013, the City Council authorized the City Manager to consent to that
prior settlement for $400,000 which was entered into by CIAW and Munich Reinsurance in the
lawsuit by the Estate of Marina Barajas.
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 Ordinance:
Other (Specify):
Contract: Contract Term:
Start Date: End Date:
Item Budgeted: NA Amount:
Funding Source /Fiscal
Impact:
Strategic Priority: Public Trust and Accountability
Insurance Required? No
Mail to:
Phone:
APPROVED FOR
SUBMITTAL: City Manager
RECOMMENDATION:
Adopt Resolution.
ATTACHMENTS:
Description Upload Date Type
0 Resolution 1/22/2014 Resolution
0 Settlement and Full Release 1/23/2014 Backup Material
0 Mediated Settlement Agreement 1/21/2014 Backup Material