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Diaz v. United States

IN THE UNITED STATES DISTRICT COURT IN AND FOR THE EASTERN DISTRICT OF CALIFORNIA


November 23, 2010

SABRINA DIAZ, A MINOR, AND ANGELINA DIAZ, A MINOR, BY AND THROUGH THEIR GUARDIAN AD LITEM, ARMIDA DIAZ, PLAINTIFFS,
v.
UNITED STATES OF AMERICA; AND UNITED STATES POSTAL SERVICE, INCLUSIVE, DEFENDANTS.

CONDITIONAL SETTLEMENT STIPULATION AND RELEASES BETWEEN PLAINTIFFS AND THE UNITED STATES PURSUANT TO 28 U.S.C. § 2677 (SETTLEMENT AGREEMENT); ORDER THEREON Complaint Filed: September 8, 2009 Trial Date: August 2, 2011

It is hereby stipulated by and between Plaintiffs SABRINA DIAZ, a minor, and ANGELINA DIAZ, a minor, by and through their Guardian ad Litem, ARMIDA DIAZ ("Plaintiffs") and Defendants the United States of America and the United States Postal Service (collectively, "the settling parties"), and their undersigned attorneys as follows:

1. The settling parties hereby agree upon satisfaction of the conditions set forth herein, 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 including, but not limited to, claims of personal injuries and damages arising from a motor vehicle accident on November 20, 2006, in Modesto, California and as alleged by Plaintiffs in their complaint, or as Plaintiffs may have or could have alleged in their complaint in this action.

2. Upon the Court's approval of a Petition for Minor's Compromise, the United States agrees to pay the sum of Eight Thousand Dollars ($8,000.00) to each Plaintiff for a total settlement of Sixteen Thousand Dollars ($16,000.00), 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 consequence thereof, resulting, and to result, from the subject matter of this action, including any claims for wrongful death, which plaintiffs or their guardians, heirs, executors, administrators, or assigns, and each of them, now have or may hereafter acquire against the United States, its agents, servants, and employees.

3. Plaintiffs and their guardians, heirs, executors, administrators or assigns hereby agree to accept the sum set forth in paragraph 2 in full settlement and satisfaction 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 that they may have or hereafter acquire against the United States, its agents, servants, and employees on account of the same subject matter that gave rise to this action, including any future claim or lawsuit of any kind or type whatsoever, whether known or unknown, and whether for compensatory or exemplary damages. Plaintiffs and their guardians, heirs, executors, administrators, or assigns further agree to reimburse, indemnify and hold harmless the United States and its agents, servants and employees from and against any and all causes of action, claims, liens, rights, or subrogated or contribution interests incident to or resulting from further litigation concerning Plaintiffs and their claims arising from the subject matter of this action.

4. Plaintiffs' undersigned attorney represents that he has explained, and plaintiffs and their guardian ad litem warrant and represent that they intend, that this Stipulation shall release all existing and future claims against the United States and its agents, servants, and employees, arising directly or indirectly from the acts or omissions that gave rise to the above-captioned action, including claims that are unknown and unforeseen, notwithstanding Section 1542 of the Civil Code of the State of California, which provides as follows:

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 [this] Release, which if known by him must have materially affected his settlement with the debtor.

5. This Stipulation 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 or its agents, servants, or employees, and it is specifically denied that they are liable to plaintiffs. 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 of further litigation.

6. The parties agree that they will each bear their own costs, fees, and expenses; that any attorney's fees owed by plaintiffs will be paid out of the settlement amount and not in addition thereto; and that all outstanding or future bills and liens will be the sole responsibility of plaintiffs. Pursuant to Title 28, United States Code, Section 2678, attorney's fees for services rendered in connection with this action shall not exceed 25 percent of the amount of the compromise settlement. **

7. Payment of the settlement amount will be made by two checks payable for $8,000 each to DREYER BABICH BUCCOLA & WOOD and Plaintiffs' Guardian ad Litem, Armida Diaz. Plaintiffs' attorney agrees to obtain a dismissal of the above-captioned action with prejudice, with each party bearing its own fees, costs and expenses.

8. The parties and their undersigned attorneys agree to execute and deliver such other and further documents as may be required to carry out the terms of this Agreement.

9. 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, Plaintiffs must obtain Court approval of the settlement at their expense. Plaintiffs agree to obtain such approval in a timely manner, time being of the essence. Plaintiffs further agree 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 Plaintiffs fails to obtain such Court approval, the entire Stipulation For Compromise Settlement And Release and the compromise settlement are null and void. ** The $16,000.00 can be paid pursuant to the terms specified in the Petition for Minor's Compromise.

10. Each person signing this Stipulation warrants and represents that no promises, inducements, or other agreements not expressly contained herein have been made; that this Stipulation contains the entire agreement between the parties; and that the terms of this Stipulation are contractual and not mere recitals. This Stipulation may not be altered, amended, modified, or otherwise changed in any respect, except by a writing duly executed by the party to be charged. All prior oral understandings, agreements, and writings are superseded by this Stipulation and are of no force or effect.

11. Each person executing this Stipulation represents that he or she has read and understands its contents; that he or she executes this Stipulation voluntarily; that he or she has not been influenced by any person acting on behalf of any party.

12. The parties to this agreement hereby stipulate to the dismissal with prejudice in its entirety upon approval by the Court of the petition for minor's compromise.

13. Notwithstanding the entry of a dismissal herein, the parties hereby stipulate that the Honorable Frank C. Damrell, Jr., District Judge, shall retain jurisdiction to enforce the terms of this compromise settlement.

14. It is contemplated that this Settlement Agreement 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.

ORDER

IT IS SO ORDERED.

20101123

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