IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA
April 14, 2011
MARTHA ARROYO; HECTOR ARROYO, JR; TIFFANY GARCIA; RAYMOND RIVERA, JR., A MINOR, BY AND THROUGH HIS
GUARDIAN AD LITEM, RAYMOND RIVERA, COMPROMISE SETTLEMENT AND SR., AND STATE FARM MUTUAL DISMISSAL BETWEEN THE AUTOMOBILE INSURANCE COMPANY, "ARROYO PLAINTIFFS" AND THE UNITED STATES; THEREON PLAINTIFFS,
UNITED STATES OF AMERICA, DEFENDANT.
The opinion of the court was delivered by: Morrison C. England, JR United States District Judge
AMENDED STIPULATION FOR ORDER
It is hereby stipulated by and between plaintiffs Martha Arroyo, Hector Arroyo, Jr., Tiffany Garcia, and Raymond Rivera, Jr. (collectively, the "Arroyo Plaintiffs") and the United States of America ("United States") as follows:
1. The Arroyo Plaintiffs 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 Stipulation.
2. The United States agrees to pay to the Arroyo Plaintiffs the sum of $56,000, 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 action, including any future claims for wrongful death, for which the Arroyo 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. The Arroyo Plaintiffs and their guardians, heirs, executors, administrators or assigns hereby agree to accept the $56,000 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 which 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 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. The Arroyo 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 or the prosecution of claims arising from the subject matter of this action against any third party or against the United States, including claims for wrongful death.
4. The Arroyo Plaintiffs expressly waive any rights or benefits available pursuant to 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 or her favor at the time of executing the release, which if known by him or her must have materially affected his or her settlement with the debtor.
The parties understand and agree that this Stipulation shall act as a release of future claims that may arise from the subject matter of the above-captioned action, whether such claims are currently known, unknown, foreseen or unforeseen. The parties understand and acknowledge the significance and consequences of the specific waiver of section 1542 and hereby assume full responsibility for any injury, loss, damage or liability that may be incurred hereafter by reason of or related to the subject matter that gave rise to this action.
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, its agents, servants, or employees, and it is specifically denied that they are liable to the Arroyo Plaintiffs. This settlement is entered into by the Arroyo Plaintiffs and the United States for the purpose of compromising disputed claims under the Federal Tort Claims Act and avoiding the expenses and risks 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 the Arroyo Plaintiffs shall not exceed 25% of the settlement amount (28 U.S.C. § 2678) and 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 the Arroyo Plaintiffs.
7. Payment of the settlement amount from the United States will be made by Electronic Funds Transfer to the Arroyo Plaintiffs per the following terms: Name of Bank: Surf City Bank - a Division of South County Bank Street Address: 7755 Center Avenue, Suite 100, Huntington Beach, CA 92647 Routing No.: 122242982 Account Name: TIMOTHY J. RYAN & ASSOCIATES CLIENT TRUST ACCOUNT Account No: 46000295
8. The parties agree to execute and deliver such other and further documents as may be required to carry out the terms of this Stipulation.
9. Each person signing this Stipulation warrants and represents that he or she possesses full authority to bind the person[s] on whose behalf he or she is signing to the terms of the Stipulation. In the event any plaintiff is a minor or legally incompetent adult, the Arroyo Plaintiffs must obtain court approval of the settlement at their expense. The Arroyo Plaintiffs agree to obtain such approval in a timely manner, time being of the essence. The Arroyo 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 the Arroyo Plaintiffs fail to obtain such court approval, the entire Stipulation and the compromise settlement are null and void.
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. This Stipulation may be executed in counterparts. All such counterparts and signature pages, together, shall be deemed to be one document.
13. Upon approval by the Court as provided below, the Arroyo Plaintiffs' action against the United States is hereby DISMISSED WITH PREJUDICE in its entirety and the Clerk of the Court is requested to enter this dismissal and release in the official docket.
14. Notwithstanding the entry of a dismissal herein, the parties agree that that the Honorable Morrison C. England, Jr. shall retain jurisdiction to enforce the terms of this compromise settlement.
Respectfully submitted, DATED: April 13, 2011 BENJAMIN B. WAGNER United States Attorney By: Lynn Trinka Ernce LYNN TRINKA ERNCE Assistant United States Attorney DATED: April 13, 2011 LAW OFFICES OF TIMOTHY J. RYAN & ASSOCIATES By: /Timothy J. Ryan TIMOTHY J. RYAN Attorneys for Plaintiffs Martha Arroyo, Hector Arroyo, Jr., Tiffany Garcia, and Raymond Rivera, Jr. (collectively, the "Arroyo Plaintiffs") DATED: April 13, 2011 By: /s/ Martha Arroyo MARTHA ARROYO Plaintiff DATED: April 13, 2011 By: /s/ Hector Arroyo, Jr. HECTOR ARROYO, JR. Plaintiff DATED: April 13, 2011 By: /s/ Tiffany Garcia TIFFANY GARCIA Plaintiff DATED: April 13, 2011 By: /s/ Raymond Rivera, Sr. RAYMOND RIVERA, JR. Plaintiff
IT IS SO ORDERED. With respect to Minor Plaintiff Raymond Rivera, Jr., the appointed Guardian ad Litem, Raymond Rivera, Sr., must obtain the necessary minor's compromise as a precondition to this settlement. This case will not be closed until court approval of that settlement is obtained.
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