HomeMy WebLinkAboutR-2022-058 Resolution authorizing a contingent settlement agreement by Cities Insurance Association of Washington, Munich Reinsurance, and the City of Yakima to resolve and settle the claim brought by Mario Garcia, Sr., et al.A RESOLUTION
RESOLUTION NO. R-2022-058
approving the conditional settlement agreement entered into by Cities
Insurance Association of Washington ("CIAW"), Munich Reinsurance
("Munich"), and the City of Yakima to settle the claim brought against the
City of Yakima by Mario Garcia, Sr., et al.
WHEREAS, on October 29, 2018, a lawsuit was filed in Yakima County Superior Court
Case No. 18-2-03001-39 entitled Mario Garcia, et al. v. City of Yakima, et aL; and,
WHEREAS, through a mediation, settlement with plaintiffs, Mario Garcia, Sr. and Daisy
Garcia, as Co -Litigation Guardians ad Litem for Mario Garcia, Jr. and Richard L. Mathieu as
Litigation Guardian ad Litem for Sophie L. Garcia, individually, in the amount of $3,000,000 was
reached between CIAW, Munich, and the City of Yakima to resolve and conclude plaintiffs' claim
in the matter; and,
WHEREAS, plaintiffs agreed to execute a Release agreement upon approval of the
proposed settlement by the Yakima City Council; and,
WHEREAS, the entire amount of the City of Yakima's portion of the settlement is to be
paid by CIAW and Munich, and the City of Yakima is paying no money toward settlement of the
plaintiffs' claim; 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, Munich, the City
of Yakima, and the plaintiffs to resolve and conclude plaintiffs' claim, now, therefore,
BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF YAKIMA:
The City of Yakima approves the settlement entered into by CIAW, Munich, and the City
of Yakima to resolve and settle the claims brought by the above -named plaintiffs, which will be
paid by CIAW and Munich. The City Manager and/or the City's legal counsel are hereby
authorized to execute all documents necessary to conclude settlement as consistent with this
Resolution.
ADOPTED BY THE CITY COUNCIL this 7th day of June, 2022.
Janice Deceto, Mayor
ATTEST:
Sonya Claar Tee, City Clerk
On May 3, 2022, the parties engaged mediation settlement discussions in tile matter A4(irio Garciu
et. u/xCity oj'Yakinno.e/al, YakimaCounty Superior Court, Cause No. 18'2'03001'39`wi/h
mediator Teresa Wokono. Discussions continued May 4, 2022. Under the uAroomoni reached, the
parties agree as follows:
The City of Yakima, dhn/uub its insurers, Cities Insurance Association of Washington
(YCb\\Y`)und Munich Reinsurance ("Munich"), ugxcy N pay Plaintiffs Mario Garcia, Sr.
and Daisy Garcia, as Co -Litigation Guardians ad Ljtenn for Mario Garcia, Jr. and Richard
L. K4udhicm as Litigation (}nurdiou ad Ljb:m for Suohic L. Garcia, individually, (heron
^^9|uIntl ff's), o total of S 3/)00.000,00(ThrecMillion Dollars) exchange for `Plaintiffs'
execution of full release of all past, current, future, o, potential c|ubn* in law or oquity,
including all claims for aUorncy'ofees and costs, that have been orcould have been asserted
with respect to the September 10, 2015 automobile accident involving Mario Uupciu. Jr.
and &4i\ohoU Ficdor ("Accident"), as described in thc Amended Complaint O\cd by
Plaintiffs inYakima County Superior Couo,CouwcNn. 18-2'03001-39,
Z. 111 exchange for said payment, Plaintiffs agree to execute a Settlement and Full Release of
all c|uinna asserted against the City o[Yakima (^^Dc<endant")and any and all o[its past,
Current, orfuture agents, officers, and employees that includes all indemnification and hold
honn|oou no|cosinA the City of Yakima and its Past, cuncn\, or Fu(un: ugcuiy, oDlccm,
cmpkxrox, and inyorus, including by not limited toCl&W and Munich, from ally and all
liens that may be asserted as a result of the Accident described in the Amended Complaint
filed hyPlaintiffs in l'ukinnoCoun[y Superior Court, Cause No. 18'2-03001'34. 9|oinh[@
further uQrcc to enter u stipulated order dismissing all claims with prejudice in the
aforementioned cause u[action, with each party bearing their own costs. The Settlement
and Full Release will o:Oco/ that this io a full and final settlement of all duimno that are,
[lave been, Could have been, or may be asserted arising out of the Accident;
3. This settlement ixcontingent oil approval by the Yakima City Council, which is expected
to convene on this matter on or about June 7, 2022;
4. This settlement is also contingent upon court approval for the minor settlement entered into
on behalf ofSophia Garcia and court approval of the settlement entered into oil behalf o[
Mario Garcia, Jr., who is incapacitated and has a litigation guardian uJ |itcrn, Plaintiff's
will pay the uthorncy'u fees and costs for settlement guardian ad htem(N reviewing and
seeking court approval of the settlements on behalf of Sophia Garcia and Mario Garcia, Jr.
5. Plaintiffs mhaU pay and satisfy any and all \iens, claims for rcimburSemerx, orsohroguhon
claims for medical expenses, tirne loss benefits paid, attorneys fees, guardian ad litem fees,
or otherwise, rc\unud to or uhxinD out of their injuricy or c|xirnx which are valid under
current Washington law, including but not limited to liens and/or claims for reirribursernent
GvMedicaid, Medicare, Labor & Industries, orany health innunzr. Settlement ixcontingent
on hnn a| Medicare approval for Mario Gu,ziu Jr. and closing doounnmnto from Medicare
will be needed before the claim iyconsidered officially concluded, `
6. Each party shall bear its own costs for the mediation with Teresa Wakeen; and
7. The parties a. ee that any disputes regarding the Settlement and Full Release and/or any
other matters pe ining to this settlement will be submitted to mediator Teresa Wakeen
for binding resolution.
Signed this 5th day of ay, 2022.
,Ar
Bryan Smith
Counsel for Plaintiffs
CITY CONTRACT NO:
RESOLUTION NO '06?)
6 95
Megan M. Coluccio
Counsel for Defendant City of Yakima
RELEASE OF ALL CLAIMS
AND HOLD HARMLESS AGREEMENT
RELEASE
Mario Garcia, Sr. and Daisy Garcia, as Co -Litigation Guardians ad Litem for MARIO GARCIA,
JR., JOHN KAPUZA, as Settlement Guardian ad Litem for SOPHIE L. GARCIA, individually,
and WILLIAM PICKETT, as Settlement Guardian ad Litem for Mario Garcia, Jr., individually
(hereinafter referred to as the "Releasing Parties"), in exchange for full and final combined
payment of Three Million Dollars ($3,000,000.00), to be paid in cash and future Periodic
Payments, to be paid within three weeks of execution herein and confirmation of Court approval
of the minors' settlements and subject to the Court's instructions regarding payment of the minor
settlements and any structured settlements, hereby release, acquit, and forever discharge the CITY
OF YAKIMA its administrators, agents and assigns, and their related or successor corporations or
companies, subsidiaries, affiliates, divisions, subdivisions, assigns, controlling persona, insurers,
owners, members, partners, shareholders, officers, directors, agents, heirs, lawyers, servants, and
employees; CITIES INSURANCE ASSOCIATION OF WASHINGTON ("CIAW"), and each of
their respective agents, assigns, attorneys, officers, directors, representatives, employees,
members, stockholders, owners, principals, insurers, reinsurers, claim representatives, franchisors,
franchisees, parent companies, subsidiary companies, related companies, affiliated companies, and
predecessors and successors -in -interest; MUNICH REINSURANCE COMPANY, and their
administrators, agents and assigns, and their related or successor corporations or companies,
subsidiaries, affiliates, divisions, subdivisions, assigns, controlling persona, insurers, owners,
members, partners, shareholders, officers, directors, agents, heirs, lawyers, servants, and
employees; (hereinafter collectively referred to as the "Released Parties"), from any and all
actions, causes of actions, claims, and demands for, upon or by reason of any direct or indirect
damage, loss, or injury which heretofore has been or which hereafter may be sustained by
Releasing Parties in consequence of the incident which occurred on or about September 10, 2015,
in Yakima County, Washington and the lawsuit entitled, MARIO GARCIA SR. AND DAISY
GARCIA, AS CO -LITIGATION GUARDIANS AD LITEM FOR MARIO GARCIA, JR., AND
RICHARD L. MATFIIEW AS LITIGATION GUARDIAN AD LITEM FOR SOPHIE L.
GARCIA, V. THE CITY OF YAKIMA AND MITCHELL FIEDOR, Yakima County Superior
Court Case No. 18-2-03001-39 (hereinafter referred to as "the Injury.")
Page 1 of 9
Releasing Parties agree that this Release constitutes the entire agreement between them and the
Released Parties, subject to and inclusive of any orders from the Yakima County Superior Court
regarding approval of the minor settlement in this matter. Releasing Parties understand and agree
that nothing in this Release or in the payment of the amounts outlined above is to be construed as
an admission of liability by the Released Parties or an admission by the Released Parties that they
acted wrongfully.
This Release extends and applies to, covers, and includes, all unknown, unforeseen, unanticipated,
and unsuspected injuries, damages, loss, and liability, and the consequences thereof, as well as
those now disclosed and known to exist. The provisions of any state, federal, local or territorial
law or statute providing in substance that releases shall not extend to claims, demands, injuries, or
damages which are unknown or unsuspected to exist at the time, are hereby expressly waived. It
is intended that this Release shall forever terminate the rights of Releasing Parties to proceed
against Released Parties for any injuries and/or losses suffered by Releasing Parties as a result of
the Injury.
HOLD HARMLESS
Releasing Parties shall pay and satisfy any and all liens, claims for reimbursement, or subrogation
claims for medical expenses, time loss benefits paid, attorney fees, guardian ad litem fees, or
otherwise, related to or arising out of their injuries or claims which are valid under current
Washington law, including but not limited to liens and/or claims for reimbursement by Medicaid,
Medicare, Labor & Industries, or any health insurer. Releasing Parties shall defend and hold
harmless the Released Parties and their attorneys from any and all claims for liens or
reimbursement which may be asserted against them, or any of them, and shall defend and hold
harmless the Released Parties and their attorneys from any and all subrogation claims, whether or
not such liens, claims for reimbursement or subrogation claims are valid under current Washington
law. The duty to defend and hold harmless shall include payment of legal fees and costs but shall
not arise until the Released Parties provide Releasing Parties with notice of assertion of the lien,
claim for reimbursement, or subrogation claim.
///
///
Page 2 of 9
MEDICARE
Releasing Parties Medicare Information
Releasing Parties acknowledge and warrant as true and correct that Releasing Party Mario Garcia Jr.
is a Medicare beneficiary, as described under Section 1862(b) of the Social Security Act, and are
further identified by the following information:
Name:
Date of Birth:
SSN/MBI/HICN:
For purposes related to 42 U.S.C. §1395y(b) (Medicare Secondary Payer Act), the injuries related
to the Incident being alleged, claimed, and/or released as it relates to Releasing Party Mario Garcia
Jr. are:
Mario Garcia Jr.
11/06/1993
ICD-10 Code 1CD-10 Code Description
1CD -10:K9420 Intracranial injury of other and unspecified
nature/cardioverter-defibrillator
1CD -10:K9423 Intracranial injury of other and unspecified
nature/Gastrostomy malfunction
1CD -10:K9423, Iniracranial injury of other and unspecified
R1310 S062X9D nature/ Diffuse traumatic brain intot
ICD -10:R0989, R05. Intracranial injury of other and unspecified
R062 R5081 nature/Circulator and resJ2LL7i
1CD -10:R0989, Intracranial injury of other and unspecified nature/ Chronic
bronchitis
II. Medicare Conditional Payments
Releasing Party Mario Garcia Jr. may have received medical items and services related to the
Incident that were paid or may have been paid by Medicare. Releasing Parties agree to obtain the
BCRC Final Demand Letter, Medicaid Final Demand Letter, and Premera Blue Cross Final Lien
Letter and provide copies of the Final Demand and Final Lien Letters, along with proof that the Iiens
have been paid, to Released Parties.
Page 3 of 9
Releasing Parties are not aware of and has not identified any Part C Medicare Advantage Plan and/or
Part D Drug Coverage Plan to whom reimbursement is owed or claims to hold a lien against Released
Parties or any of the settlement funds identified herein. Should a Medicare Part C or Part D lien arise
in the future, Releasing Parties agree to pay the lien immediately out of the settlement proceeds and
hold Released Parties harmless for any claim or action brought by a Medicare Part C or Part D Plan.
III. Distribution of Settlement Amount and Exhaustion
Upon receipt of this executed Agreement, Released Parties shall pay the settlement amount agreed
to Releasing Parties and their attorney. It is understood and agreed by Releasing Parties that their
attorney shall deposit the entire settlement amount into their attorney client trust account and not
take any distribution until the Medicare Benefits Coordination & Recovery Center (BCRC), Final
Demand, Medicaid Final Lien, and the Private Insurance Carrier Final Lien letters have issued. At
that time, Releasing Parties understand their attorney shall directly repay the lien amounts listed
from each entity from the settlement.
It is understood and agreed by Releasing Parties that payment of the settlement proceeds in
accordance with the terms of this Addendum will have exhausted the benefits that relate to the
Incident and that any third -party claims such as may be presented by Medicare for reimbursement
for conditional payments, other governmental bodies, Medicaid, Medicare Advantage Plan,
Medicare Prescription Drug Plan, or private third -party lien claims, are to be satisfied out of the
settlement amount.
IV. Protecting IVIedieare's Interest
It is expressly understood and acknowledged by Releasing Parties that by entering into this
Agreement, Released Parties do not intend to shift responsibility to the Medicare Trust Fund for
medical items or services which may be related to the Incident. No portion of the settlement amount
is being specifically allocated for future medical treatment and Releasing Parties has been informed,
advised, and afforded the opportunity to seek legal counsel regarding the Centers for Medicare &
Medicaid Services (CMS) Memoranda on future medical information, dated September 29, 2011
(CMS Memo), and has elected to receive the settlement amount without the benefit of a formal
allocation to be set aside to pay for future medical benefits related to the Incident. Released Parties
have encouraged Releasing Parties to prepare the necessary allocation, in absence of a treating
Page 4 of 9
physician's certification that treatment has concluded, and no further treatment is expected for injuries
related to the Incident; and thereby have exhausted the ability to consider Medicare's interest further
without Releasing Parties' consent. Releasing Parties further understand and acknowledge it is
Releasing Parties' responsibility to pay for any necessary future medical treatment that may be related
to the Incident out of the proceeds of the settlement. Absent further guidance by CMS, through
Regulations, Rules or Memoranda, no legal basis remains to withhold the lump sum distribution and
Released Parties have completed the obligation to consider Medicare's interest with this payment that
forecloses any reimbursement claim(s) for items and services related to the claim made after the date
of this Agreement.
V. Notice to Medicare
Released Parties are legally obligated to notify Medicare through their Coordination of Benefits
Contractor about this settlement pursuant to 42 C.F.R.§411.25, which information shall include the
personal Medicare information about Releasing Parties, contact information of Releasing Parties'
attorneys, type of claim involved, injuries related to the claim, and other primary plan information,
Released Parties have no control over how, or in what manner, Medicare will use such information
and therefore cannot, will not, and do not offer any representations, opinions, statements, warranties
(implied or express), or comments on the impact this information will have on Releasing Parties'
Medicare benefits as a result of entering into this Agreement and, therefore, Releasing Parties have
freely entered into this Agreement without any inducement whatsoever.
VI. Indemnification
The undersigned does hereby covenant to defend, indemnity, and hold harmless Released Parties
from and against any and all liens, claims, subrogation, or reimbursement claims by Medicare,
Medicare Part C/D, Medicaid, any health insurance plan, or any state or federal governmental entity,
including all costs and attorney fees incurred in the defense of any such claims, arising out of the
settlement of the Incident, whether arising in tort, contract, or under state or federal law. Where
Releasing Parties have agreed to defend, Released Parties shall retain the right to monitor the defense
of any such claim or action.
Page 5 of 9
VII. Waiver of Rights
Releasing Parties acknowledge 42 U.S.C. §1395y(b)(3)(A) and agree to waive the private cause of
action that has accrued or may accrue against Released Parties for medical items and services related
to the Incident incurred before or after the date of this Agreement.
NON -DISPARAGEMENT
Releasing Parties further agree not to defame nor disparage the business reputation, practices, or
conduct of the Released Parties in connection with this matter.
MISCELLANEOUS PROVISIONS
Releasing Parties recognize that the full extent of their alleged injuries and/or damages may not be
fully known at this point, that they may later learn that their injuries and/or damages are more
extensive or different than they now believe them to be, and that their alleged injuries may in the
future become worse and/or the alleged damages may in the future be greater. Releasing Parties
agree to bear these risks as a part of the consideration given in exchange for the settlement
proceeds.
In the event a suit is brought to enforce the terms of this Release, the prevailing party shall be
entitled to its reasonable costs, litigating expenses, and attorney's fees, including upon any appeal,
from the non -prevailing party.
Releasing Parties have had full access to legal counsel and medical consultants of their choosing.
Releasing Parties have had the opportunity to read and review the terms of this Release with legal
counsel.
Releasing Parties acknowledge that they have received satisfactory translation services pursuant
to RCW 2.43 et seq and/or assistance in reading this Release and that they understand its contents.
Releasing Parties further acknowledge that they have had adequate time to consider this Release,
are legally competent to execute it, and voluntarily accept full and final settlement of all claims
related to or arising out of the Injury as against Released Parties.
A digitally stored, photocopy, or facsimile of the executed Release of All Claims and Hold
Harmless Agreement shall be deemed valid and have the same legal force and effect as the original.
Page 6 of 9
CONSTRUCTION BY STATE LAW
This Settlement Agreement is entered into in the State of Washington and shall be construed and
interpreted in accordance with its laws.
DATED this day of , 2022,
/7/721' 0 :-P114- 1-(2-C-1-
1
MARIO GARCIA, SR.
In his capacity as Co -Litigation Guardian ad Litem
of and for MARIO GARCIA, SR.
DAISY GA •A
In her cupa y as Co -Litigation Guardian ad Litem
of and for MARIO GARCIA, SR.
1/4.A s
William Pickett
alcioe(t,
In his capacity as Setterent Guardian ad Litem of
andfor • llE/.1CfA
I his capacity as Settlement Guardian ad Litem for
ado Garcia, Jr.
[remainder ofpage intentionally left blank]
Page 7 of 9
COUNTY OF
STATE OF WASHINGTON )
ss.
hol)
1,1
On this day of it , 2022, before me, a Notary Public, personally
appeared MARIO GARCIA S o me known to be the individual described herein, and who
executed the foregoing instillment and to me acknowledged that he voluntarily executed the same.
11
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0 .....rAcettf
1401
PUBO
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ittO
aiOn.
STATE OF WASHINGTON )
ss.
COUNTY OF
N "I` RY PUBLIC in and r the State of
Washington, residing at
My Commission Expires: /.2-
Printed Name: ,(1,r4 be -A A G (41_111ith
On thiscV#( day of , 2022, before me, a Notary Public, personally
appeared DAISY GARCIA to me Wnown to be the individual described herein, and who executed
the foregoing instrument and to me acknowledged that he voluntarily executed the same.
NO1 '.!V PUBLIC in and for t le State of
Washing -ton, residing at „fp ,
My CommissionE -,xp2 z. ires: („2 -80 - .
dij.,
Printed Name: .zieej-k, 4 .0 ti.x..hja,,,-1
[remainder of page intentionally left blank]
Page 8 of 9
COUNTY OF
STATE OF WASHINGTON )
ss.
COUNTY OF AA.Ck.- )
On this 2.°1411\day of 2022, before me, a Notary Public, personally
appeared JOHN KAPUZA 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.
STATE OF VIA, 11 )
ss.
)
N TARY PUBLIC in and for the State of
Washington, residing at
My Commission Expires: 2
Printed Name: SLCL
On thi day of " ----:, 2022, before me, a Notary Public, personally
appeared WILLIA PICKETT to e kb( n to be the individual described herein, and who executed
the foregoing instrument and to me acknowledged that he voluntarily executed the same,
)rAIZY PURLIC in and tioithe State o
Washington, residing at atl
My C(nnmission Expires: 5 19 - 1:615
Printed Name:
The undersigned counsel ofrecord for Plaintiffs will see to the proper disbursement of funds.
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By
I3RYAN G. SMITH, WSBA 446958
Attorney for Plaintiffs
Page 9 of 9
1
BUSINESS OF THE CITY COUNCIL
YAKIMA, WASHINGTON
AGENDA STATEM ENT
Item No. 6.F.
For Meeting of: June 7, 2022
ITEM TITLE: Resolution authorizing a contingent settlement agreement by Cities
Insurance Association of Washington, Munich Reinsurance, and
the City of Yakima to resolve and settle the claim brought by Mario
Garcia, Sr., et al.
SUBMITTED BY: Ryan Bleek, Senior Assistant City Attorney
SUMMARY EXPLANATION:
This matter is on for consideration of a resolution consenting to a contingent settlement entered
into by Cities Insurance Association of Washington ("CIAW"), Munich Reinsurance ("Munich"),
and the City of Yakima to resolve and settle the claim brought by Mario Garcia, Sr., et al.
Settlement is contingent on Court approval of settlement entered into by settlement guardians ad
litem on behalf of plaintiffs. The plaintiffs filed their lawsuit on October 29, 2018, Yakima County
Superior Court Case No. 18-2-03001-39 entitled Mario Garcia, Sr., et al v. City of Yakima, et al.
The claim of the above -named plaintiffs against the City of Yakima was settled by CIAW, Munich,
and the City of Yakima through a mediation held on May 3, 2022, with discussions continuing into
May 4, 2022, subject to Yakima City Council's approval. A copy of the agreement is included.
The amount to be paid on behalf of the City of Yakima towards settlement of plaintiffs' claim is
$3,000,000, all of which shall be paid by the City's insurance through CIAW and Munich. The
City of Yakima has already paid its deductible for this claim and is paying no money toward
settlement of plaintiffs' claim.
ITEM BUDGETED: NA
STRATEGIC PRIORITY: Public Trust and Accountability
APPROVED FOR SUBMITTAL BY THE CITY MANAGER
RECOMMENDATION:
Adopt resolution.
ATTACHMENTS:
2
Description Upload Date Type
D Res -Settlement Agreement 5/24/2022 Resolution
D agreement 5/25/2022 Cotter Memo