Opinion
No. C 02-0267 EDL.
March 11, 2003
KEVIN V. RYAN, United States Attorney, JOCELYN BURTON, Chief, Civil Division, PATRICIA J. KENNEY, Assistant United States Attorney, San Francisco, California; Attorneys for United States of America.
Richard Vaught, Law Offices of Arnold Laub, P.C., San Francisco, CA; Attorneys for Plaintiffs.
SETTLEMENT AGREEMENT
The parties stipulate and agree as follows:
1. Plaintiffs are Hector Thierry and Eloisa Thierry. Defendant is the United States of America ("United States"). Plaintiffs and defendant are hereinafter referred to as the "parties" in this document which is hereinafter referred to as the "Settlement Agreement" or "Agreement."
2. After full and open discussion, the parties agree to resolve any and all claims against defendant as well as against any and all past and present officials, employees and agents of the United States, including the United States Postal Service, which claims were brought or could have been brought in the Complaint filed in this lawsuit, No. C 02-0267 EDL.
3. The parties agree that the resolution of the lawsuit is based solely on the terms stated in this Settlement Agreement. It is expressly understood that this Agreement has been freely and voluntarily entered into by the parties. The parties further agree that there are no express or implied terms or conditions of settlement, whether oral or written, other than those set forth in this Agreement. This Agreement shall not be modified or supplemented. The parties have entered into this Agreement in lieu of continued protracted litigation and District Court adjudication.
4. This Settlement Agreement is expressly understood by the parties not to be an adjudication of the merits of any factual or legal issue underlying this lawsuit nor is it an adjudication of the merits of any factual or legal issue in those claims which were brought or could have been brought as described in paragraph 2 above. As such, the parties agree that the Settlement Agreement does not constitute an admission that defendant or any past or present official, employee or agent of the United States, including the United States Postal Service, have in any way violated any law, including any statute or regulation.
5. The parties further agree that this Settlement Agreement does not constitute precedent on any legal issue for any purpose whatsoever, including all administrative proceedings and any lawsuits.
6. The parties agree that plaintiff's release and discharge the United States, as well as any past and present officials, employees, agents, attorneys, their successors and assigns, from any and all obligations, damages, liabilities and demands of any kind and nature whatsoever, whether suspected or unsuspected, at law or in equity, known or unknown, arising out of the allegations set forth in plaintiffs' Complaint in this action, C 02-0267 EDL, or arising out of claims covered under paragraph 2 above.
7. Plaintiffs specifically agree, as additional consideration for this Settlement Agreement, that this Settlement Agreement shall apply to all unknown or unanticipated injuries and damages resulting from the incident giving rise to this lawsuit as well as to those which are now known.
8. Plaintiffs specifically agree, as additional consideration for this Settlement Agreement, to waive the provisions of Section 1542 of the Civil Code of the State of California, and plaintiffs understand that said section provides:
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 the release, which, if known by him must have materially affected his settlement with the debtor.
9. Plaintiffs have been fully advised and understand that the injuries sustained in the incident giving rise to this lawsuit are of such character that the full extent and type of injuries are not known as of the date plaintiffs sign this Agreement, and it is further understood that said injuries, whether known or unknown as of the date plaintiffs sign the Agreement, might possibly become progressively worse as a result of which plaintiffs may sustain further damages. Nevertheless, plaintiffs in signing this Agreement fully releases and discharges defendant as well as all past and present officials, employees and agents of defendant forever. In signing this agreement, plaintiffs understand that plaintiffs cannot assert any further claims and that each and all of the terms of this Agreement are contractual and not merely a recital.
10. Plaintiffs will hold defendant harmless from any claim by any other party, including but not limited to private compensation carriers, medical insurance carriers and retirement boards, who have an interest in or have any claim arising out of the incidents herein, and will hold harmless, defend and indemnify defendant against any such claims, if any such exist.
11. The parties agree that the United States of America will pay plaintiff's eighty thousand dollars ($80,000.00) by a check made out to plaintiffs Hector Thierry (SSN xxx-xx-xxx) and Eloisa Thierry (SSN xxx-xx-xxxx) and their attorney, Richard Vaught, Law Office of Arnold Loeb (TIN 94-2953158), by a check made out to plaintiffs Hector Thierry and Eloisa Thierry and their attorney, Richard Vaught. The United States will provide a check within 60 days from the date of the Court's entry of this Settlement Agreement and Order dismissing the case. Each party is to bear their own costs and attorneys' fees.
12. Under 28 U.S.C. § 2678, plaintiffs cannot be required to pay more than 25% of the settlement amount to their attorney in attorney's fees.
13. The parties agree that should any dispute arise with respect to the implementation of the terms of this Settlement Agreement that plaintiffs shall not seek to rescind the agreement and pursue their original causes of action, but can apply to the Court, if necessary, for enforcement.
14. Based on the foregoing, the parties agree that the instant action be dismissed.
IT IS SO STIPULATED:
IT IS SO ORDERED PURSUANT TO THE FOREGOING STIPULATION.