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HomeMy WebLinkAboutTORRES-LARA, MIGUEL ANGEL vinesign Document IU: 4U'Ltit-I-E9-1'LU4-4ti4U-tS.1LU-lUI U/U9UUHil- N-2024-335 OCT 0 4 2014 SETTLEMENT AGREEMENT AND RELEASE 0 coo (o') 4e Ne6esen(KF This SETTLEMENT AGREEMENT AND RELEASE(hereinafter"Settlement Agreement" or "Release") is entered into by and between Plaintiff, MIGUEL ANGEL TORRES-LARA (hereinafter"Plaintiff'), and Defendants,UNITED PUMPING SERVICE,INC.,JOSE MANUEL PONCE VELAZQUEZ and CITY OF SANTA ANA, and any and all affiliates, related entities, agents, independent contractors, insurers, owners, partners and employees (hereinafter "Defendants"). RECITALS A. On or about September 8, 2022, Plaintiff filed a Complaint for Damages in the Superior Court of the State of California,County of Orange-Unlimited Jurisdiction,Case No. 30- 2022-01279737-CU-PA-CJC8 ("Civil Action"). The exact form and substance of Plaintiff's allegations in the subject Civil Action are set forth in the Complaint,which are denied by Defendants in its entirety. B. On or about July 15,2024,Plaintiff and Defendants reached a settlement of the Civil Action,the terms of which are set forth below. AGREEMENT In consideration of the settlement amount of a total of$2,400,000.00 (Two Million Four Hundred Thousand Dollars and No Cents),the releases referred to below,and the mutual waiver of court costs, Plaintiff and Defendants, agree to the following: 1. Payment Terms.Defendants will pay Plaintiff,MIGUEL ANGEL TORRES-LARA,a total of$2,400,000.00(Two Million Four Hundred Thousand Dollars and No Cents),in combination of cash payment and periodic payments to be funded, for full and final settlement of the above referenced matter as follows: • $2,100,000.00 payable to Banafshe Law Firm,Inc.Client Trust Account inclusive of cash, attorney fees, costs and medical liens; • $300,000.00 payable to Pacific Life & Annuity Services, Inc. to fund the future periodic payments outlined as follows: o $180,790.11 payable monthly, guaranteed for 2 months, beginning on 04/29/2029,with the last guaranteed payment paid on 05/29/2029("Periodic Payments"). All sums set forth herein constitute damages on account of personal physical injuries or sickness, within the meaning of Section 104(a)(2) of the Internal Revenue Code of 1986, as amended. 2. Payee's Rights to Payments. Plaintiff acknowledges that the Periodic Payments cannot be accelerated, deferred, increased or decreased by the Plaintiff or any payee; nor shall the 142855791.1 1 The signed document can be validated at https://app.vinesign.comNerify Plaintiff or any Payee have the power to sell, mortgage, encumber, or anticipate the Periodic Payments,or any part thereof, by assignment or otherwise. 3. Payee's Beneficiary.Any payments to be made after the death of any Payee pursuant to the terms of this Settlement Agreement shall be made to such person or entity as shall be designated in writing by Plaintiff to the Insurer's Assignee. If no person or entity is so designated by Plaintiff, or if the person designated is not living at the time of the Payee's death, such payments shall be made to the estate of the Payee. No such designation,nor any revocation thereof,shall be effective unless it is in writing and delivered to the Insurer's Assignee. The designation must be in a form acceptable to the Insurer's Assignee before such payments are made. 4. Consent to Qualified Assignment 4.1 Plaintiff acknowledges and agrees that the Defendant and/or the Insurer may make a"qualified assignment",within the meaning of Section 130(c)of the Internal Revenue Code of 1986,as amended,of the Defendant's and/or the Insurer's liability to make the Periodic Payments set forth in Section 1 to Pacific Life & Annuity Services, Inc. ("the Assignee"). The Assignee's obligation for payment of the Periodic Payments shall be no greater than that of Defendant and/or the Insurer (whether by judgment or agreement) immediately preceding the assignment of the Periodic Payments obligation. 4.2. Any such assignment,if made,shall be accepted by the Plaintiff without right of rejection and shall completely release and discharge the Defendant and the Insurer from the Periodic Payments obligation assigned to the Assignee. The Plaintiff recognizes that,in the event of such an assignment, the Assignee shall be the sole obligor with respect to the Periodic Payments obligation,and Plaintiff agrees that such assignment shall constitute a full release and discharge of all of Defendant's and Insurer's obligations relative to the Periodic Payments set forth above. 5. Right to Purchase an Annuity.The Defendant and/or the Insurer,itself or through the Assignee reserve the right to fund the liability to make the Periodic Payments in Section 1 through the purchase of an annuity policy from Pacific Life Insurance Company ("Annuity Issuer"). The Assignee shall be the sole owner of the annuity policy and shall have all rights of ownership. The Assignee may have Annuity Issuer mail payments directly to the Payee(s). The Plaintiff shall be responsible for maintaining a current mailing address for Payee(s)with Assignee.Periodic Payments to a Payee may be delayed if(i)such Payee fails to provide the Annuity Issuer with a current address or banking information, or(ii) if a Payee dies and the Annuity Issuer does not receive appropriate written direction for any remaining guaranteed payments. 6. Discharge of Obligation. The obligation of the Assignee to make each Periodic Payment shall be discharged upon the mailing of a valid check in the amount of such payment to the designated address of the Payee(s)named in Section 1 of this Settlement Agreement,or,if payment is made by electronic funds transfer, discharge will occur upon the transmission of same. If the Payee notifies the Assignee that any check or electronic funds transfer was not received by the due date, the Assignee shall direct the Annuity Issuer to initiate a stop payment action and, upon confirmation that such check was not previously negotiated or electronic funds transfer deposited, shall have the Annuity Issuer process a replacement payment. 142855791.1 2 7. Medical Bills/Liens.Any and all outstanding medical bills or liens currently(or in the future)with respect to Plaintiff's care and treatment will be the sole responsibility of Plaintiff. 8. Release of All Claims and Liabilities. Plaintiff hereby forever releases,acquits and discharges Defendants,its agents,attorneys,employees,insurers and independent contractors,from any and all liability, whether in contract, tort, or otherwise, that plaintiff now has or which may hereafter accrue,without limitation,claims or liability for or in any manner arising out of,related to or connected with any purported losses, or other purported damages alleged or referred to in the Complaint in the Civil Action. Plaintiff also agrees to hereby forever release, acquit, discharge, and agree to indemnify Defendants,its agents,attorneys,employees,insurers,and independent contractors from any and all claims,legal actions and suits,as well as any and all liens presently in existence(including,but not limited to, any and all medical liens from MediCare and/or MediCal, or other medical facilities, workers' compensation liens, EDD liens, child support liens, any liens from previous legal representation),and from all liens which may hereafter accrue in any manner arising out of,related to or connected with any purported losses, or other purported damages alleged or referred to in the Complaint in the Civil Action. It is further understood and agreed that all rights under Section 1542 of the Civil Code of California and any similar law of any state or territory of the United States are hereby EXPRESSLY WAIVED. SAID SECTION READS AS FOLLOWS: "1542. GENERAL RELEASE - CLAIMS EXTINGUISHED. A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS THAT THE CREDITOR OR RELEASING PARTY DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE,AND THAT,IF KNOWN BY HIM OR HER, WOULD HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR OR RELEASED PARTY." 9. All Claims Included. Plaintiff agree that this Release includes all claims of every kind and nature,past,present and future,known or unknown,suspected or unsuspected,arising out of, related to or connected with any actual or purported incidents, purported losses, or other purported damages alleged or referred to or that could have been alleged or referred to in the Complaint in the Civil Action,and all related claims that Plaintiff and Defendants may have against each other. 10. Costs. Plaintiff and Defendants understand and agree that each party will bear their own costs associated with this action. 11. Dismissal. Plaintiff's counsel shall file a Request for Dismissal no later than ten(10) days following receipt of the settlement funds. 12. Compromise of Disputed Claims. Plaintiff and Defendants understand and agree that this is a compromise settlement of disputed claims, and that this Release shall not be deemed or 142855791.1 3 construed to be an admission of any liability or of the existence of any obligation of any kind whatsoever by any party to this Release. 13. Successors and Assigns. Plaintiff and Defendants understand and agree that the agreements,undertakings,acts and other things done or to be done by them in this Release shall run to and be binding upon their heirs,successors, executors, administrators and assigns. 14. Attorneys' Fees. Should either party retain counsel for the purpose of enforcing or preventing the breach of any provision hereof including,but not limited to,instituting any action or proceeding(1)to enforce any provision hereof,(2)for damages by reason of any alleged breach of any provision hereof, (3)for a declaration of such party's rights or obligations hereunder,or(4)for any other judicial remedy, then, if such matter is resolved by judicial determination, including arbitration,the prevailing party shall be entitled to be reimbursed for all costs and expenses incurred thereby including, but not limited to, reasonable attorneys' and accountant's fees. 15. Entire Agreement. All agreements, covenants, representations and warranties, express and implied,oral and written,of the parties to this Release concerning its subject matter are contained herein. No other agreements,covenants,representations or warranties,express or implied, oral or written,have been made by any party to any other party concerning the subject matter of this Release. All prior and contemporaneous conversations, negotiations, possible and alleged agreements,representations,covenants and warranties concerning the subject matter of this Release are merged herein. This is an integrated Release. 16. Independent Advice of Counsel. Plaintiff and Defendants represent and declare that, in executing this Release,they relied solely upon their own judgment,belief and knowledge,and the advice and recommendations of their own independently selected counsel concerning the nature, extent and duration of their rights and claims. Plaintiff and Defendants further represent and agree that they have not been influenced by any representations or statements concerning any matters made by any other parties or by any person or attorney representing any other parties. 17. No Construction Against Drafter. Plaintiff and Defendants acknowledge that this Release has been reviewed and has been approved as to its form and content. Plaintiff and Defendants agree that this Release is to be construed and interpreted without regard to the identity of the party drafting this Release. 18. Assignment of Claims. Plaintiff and Defendants represent and warrant that no portion of any claim,demand,cause or causes of action that they have or might have arising out of,related to or connected with any purported losses, or other purported damages alleged or referred to in the Complaint in the Civil Action,and all related claims,nor any portion of any recovery or settlement to which they might be entitled, has been assigned or transferred to any other person, firm or corporation including, without limitation, any parent, subsidiary or affiliate of any party, in any manner, including by way of subrogation or operation of law or otherwise. 19. Confidentiality of Terms. Plaintiff and Defendants and all agents thereof,and each of them, agree that the terms and conditions of this Release, and the rights and duties of the parties hereby extinguished or created, are confidential and shall not be disclosed to any person or any publication, including but not limited to any media sources, print or electronic, periodicals,jury 142855791.1 4 sheets,(with or without case identification)nor with any other entity whatsoever without the prior written consent of the Releasees. The only exceptions to this agreement regarding total confidentiality are(1)plaintiff is allowed to advise any financial planner and or accountant regarding the settlement proceeds; (2) defendants may disclose the information regarding the settlement to those institutionally associated with defendants who reasonably need to know such information as part of normal business operations;and(3)defendants may disclose the information to MediCare or MediCal or any other governmental agency that so requires. Violation of these terms will be subject to all possible methods of litigation and is a material breach of this Release. The Parties agree that these confidentiality provisions are material provisions of this Agreement, and that any breach of them shall be a material breach of this Agreement,which would cause irreparable harm and damages which would be inherently uncertain or difficult to calculate, and thus necessitate the award of liquidated damages in the amount of$2,500. The parties stipulate that the agreed upon sum is not a penalty,but rather a reasonable measure of damages,based on the parties'experience and given the nature of the losses that may result from a breach of confidentiality. It is also hereby stipulated that the sum of$1,000.00 out of the total settlement funds was in consideration for the above confidentiality provision. 20. MediCare. This settlement is based upon a good faith determination of the parties to resolve a disputed claim. The parties have not shifted responsibility of medical treatment to Medicare in contravention of 42 U.S.C. Sec. 1395y(b). The parties resolved this matter in compliance with both state and federal law. The parties made every effort to adequately protect Medicare's interest and incorporate such into the settlement terms. Plaintiff represents he is not a Medicare beneficiary.The details of this settlement—including the identities of plaintiff,certain personal information about plaintiff,the amount of the settlement, the date of the settlement,and the injuries alleged—may be reported to the Centers for Medicare& Medicaid Services (CMS), as well as certain agent(s) necessary to facilitate reporting to CMS, pursuant to the responsible reporting entity's duty to comply with Section 111 of the Medicare, Medicaid& SCHIP Extension Act of 2007 (Section 111). Plaintiff acknowledges his duty to cooperate with Defendants in order to allow the Responsible Reporting Entity to fulfill the obligation to comply with Section 111. Plaintiff agrees to provide Defendants with any and all information necessary for Defendants to comply with Section 111 of the MMSEA. Plaintiff further agrees to waive any and all future actions against Defendants,including but not limited to any private cause of action for damages pursuant to 42 U.S.C.Section 1395y(b)(3)(A) et seq. 21. Authority to Sign.Each of the Parties to this Agreement covenants,agrees,represents and warrants that the persons executing this Agreement are authorized and empowered to enter into and execute this Agreement for and on behalf of the person or entity they represent. This Agreement is binding upon and shall inure to the benefit of the Parties' heirs, successors, and assigns. 22. Severability. If any paragraph or subparagraph of this Agreement is found to be unenforceable,the other paragraphs and subparagraphs shall remain fully valid and enforceable. 142855791.1 5 '.. 23. Miscellaneous. a, Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of California without reference to conflicts of law rules. b. Amendments. This Agreement may be amended only by written agreement signed by each of the Parties. c. Headings. Headings in this Agreement are for convenience of reference only and are not part of the substance hereof or thereof. d. Counterparts. This Agreement may be executed in any number of identical counterparts, any set of which signed by all Parties shall be deemed to constitute a complete, executed original for all purposes. IN WITNESS WHEREOF,the Parties have executed this Agreement as of the date set forth above. 09/19/2024 AA Dated. Plaintiff,MIGUEL ANGEL TORRES-LARA Approved as to Form and Content: 11 Dated: / f 2 y BANAFSHE LAW FIRM, PC hi BY: Get %cal 4-cr i..c , Esq. t Attorneys for Plaintiff, MIGUEL ANGEL TORRES-LARA E'• Dated: -! /16/2-1 CITY OF SANTA ANA, --d?,t. yideA4r>6;ale/f- Representative Dated: ;! JOSE MANUEL PONCE VELAZQUEZ Dated: UNITED PUMPING SERVICE,INC. Representative ATTEST: 142855791.1 6 v n Jennifer lb all City Cl- Approved as to Form and Content: Dated: 09/23/2024 LEWIS BRISBOIS BISGAARD& SMITH • BY: /' 1, ,&tom L,.0 Nicholas T. Koumoulis,Esq. Attorneys for defendants,UNITED PUMPING SERVICE,INC., JOSE MANUEL PONCE VELAZQUEZ and CITY OF SANTA ANA 142855791.1 7