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HomeMy WebLinkAbout5.3 Motion to Authorize Village Manager to execute Settlement Agreement - Zygmunt Wereda v. The Village of Mount Prospect 7/2/2019 BoardDocs®Pro v „u*r' s'z Agenda Item Details Meeting Jul 02, 2019 - REGULAR MEETING OF THE MOUNT PROSPECT VILLAGE BOARD - 7:00 p.m. Category 5. CONSENT AGENDA Subject 5.3 Motion to authorize the Village Manager to execute a settlement agreement in the case of Zygmunt Wereda v. the Village of Mount Prospect in the amount of $75,000. Access Public Type Action (Consent) Preferred Date Jul 02, 2019 Absolute Date Jul 02, 2019 Fiscal Impact Yes Dollar Amount 75,000.00 Budgeted No Budget Source Risk Management Fund Recommended Action Authorize the Village Manager to execute a settlement agreement in the case of Zygmunt Wereda v. Village of Mount Prospect in the amount of $75,000. Public Content Information At the Village Board Meeting on May 21, the Board, by a poll of the President and Trustees, agreed to offer up to $75,000 to settle the Wereda v. Village of Mount Prospect lawsuit pending in the Circuit Court of Cook County. After extensive negotiations, this matter was resolved through a settlement agreement. The basic terms of the agreement are that the plaintiff, Zygmunt Wereda ("Wereda") will dismiss his lawsuit against the Village with prejudice in consideration for the Village paying him $75,000. The settlement amount includes any and all attorney's fees and costs incurred by Wereda and the plaintiff releases forever any and all claims that he might make arising out of the May 21, 2016 sidewalk trip and fall incident when he suffered personal injuries. The settlement agreement explicitly states that the decision to enter the agreement does not represent and shall not be construed as an admission of any wrongdoing and liability by the Village. On May 21, 2016, Wereda tripped and fell on an uneven sidewalk panel located at 1903 East Yuma Lane. The sidewalk height differential over which Wereda tripped was approximately 2 inches. Wereda fell forward and suffered a dislocated shoulder and torn rotator cuff. The injury required surgery along with other medical treatment and physical therapy. Wereda incurred approximately $65,000 in medical expenses for the injuries suffered. He continues to experience limited range of motion with his shoulder that impedes him from doing a number of daily activities that he could do prior to his accident. The settlement agreement serves well the interest of the Village. The case was set for trial on June 17, 2019. The Village had defenses to Wereda's allegations for negligence in the maintenance and repair of the sidewalk over which the plaintiff tripped and fell. However, the evidence developed in the case did create definite liability exposure for the Village that a jury may have used to award the plaintiff a damages award well in excess of the settlement amount. The plaintiff initially demanded $220,000 to settle the case. As a result of the negotiations, he agreed to accept about a third of that amount. Alternatives https://go.boarddocs.com/il/vomp/Board.nsf/Private?open&login# 1/2 7/2/2019 BoardDocs®Pro 1. Authorize the Village Manager to execute a settlement agreement in the case of Zygmunt Wereda v. Village of Mount Prospect in the amount of $75,000. 2. Action at discretion of Village Board. Staff Recommendation Staff recommends that the Village authorize the Village Manager to execute a settlement agreement in the case of Zygmunt Wereda v. Village of Mount Prospect in the amount of $75,000. Wereda - Settlement Agreement and Release (002).pdf (32 KB) Administrative Content Executive Content All items under Consent Agenda are considered routine by the Village Board and will be enacted by one motion. There will be no separate discussion of those items unless a Board member or member from the audience so requests, in which the item will be removed from the Consent Agenda and considered in its sequence on the agenda. https://go.boarddocs.com/il/vomp/Board.nsf/Private?open&login# 2/2 IN THE CIRCUIT COURT OF COOK COUNTY, ILLINOIS COUNTY DEPARTMENT, LAW DIVISION ZYGMUNT WEREDA, ) Plaintiff, ) V. ) Case No. 2017 L 005194 VILLAGE OF MOUNT PROSPECT, ) Defendant. ) SETTLEMENT AGREEMENT AND GENERAL RELEASE This Settlement Agreement and General Release ("Agreement") is made and entered into this day of , 2019, by and between the following parties: Zygmunt Wereda ("Plaintiff') and Village of Mount Prospect("Village" or "Defendant"). PREAMBLE WHEREAS, Plaintiff filed a Complaint against Defendant, Village Of Mount Prospect, on May 22, 2017 and said case presently is pending in the Circuit Court of Cook County, Case No. 2017 L 005194 (the "Lawsuit"); and WHEREAS, Plaintiff asserted negligence claims against the Village, for an incident that he alleges occurred on May 21, 2016 (the "Incident"), as set forth more particularly in the pleadings in the Lawsuit, claims which the Village has denied and continues to deny; and WHEREAS, it is now the desire of the Plaintiff and the Village to fully and finally resolve and settle the Lawsuit, their respective claims, which exist between them and any and all other claims or matters which may exist or arguably existed between them, as of the date of this Agreement, and enter into a full and final compromise, settlement and mutual release. NOW, THEREFORE, in consideration of the foregoing, and for other good and valuable consideration, the sufficiency of which is hereby acknowledged: 419278 1 1 1. IncorToration of the Preamble. Each of the introductory statements contained in the preamble hereto are incorporated into Section 1 of this Agreement as material terms and provisions agreed to by Plaintiff and the Village. 2. Compromise and Settlement. This Agreement constitutes the compromise and settlement of disputed claims that is made to avoid further costs of litigation. Nothing contained herein, nor any actions taken by Plaintiff or the Village in connection herewith, shall constitute, be construed as or be deemed to be, an admission of fault, liability or wrongdoing whatsoever on the part of any party. 3. Settlement of All Claims. Plaintiff and the Village intend this Agreement to be a complete and total resolution and settlement of any and all claims of any kind, whether asserted or not asserted, known or unknown, that Plaintiff may have against the Village up to, and including the date of this Agreement. 4. Dismissal of the Lawsuit. Plaintiff will dismiss with prejudice his Lawsuit against the Village in its entirety within fourteen (14) days of receipt of the final settlement check. 5. Payment to Plaintiff. In return for Plaintiffs dismissal of all his claims and his lawsuit against the Village in its entirety, the Village of Mount Prospect agrees to pay Plaintiff the sum of$75,000.00, inclusive of attorney's fees and costs, to be paid within thirty (30) days of the date that this Agreement is approved by the corporate authorities of the Village of Mount Prospect. The money shall be tendered by a check issued by the Village of Mount Prospect in the names of the Plaintiff, Zygmunt Wereda and Marc J. Shuman&Associates, Ltd. 6. Plaintiffs Responsibility for Liens. Plaintiff agrees to assume responsibility for all outstanding liens, those known and unknown, including but not limited to medical liens and 419278_1 2 attorney liens, from the proceeds of this settlement. In the event that any liens are enforced which have been served upon Plaintiff's attorneys, Plaintiff agrees to hold harmless the Village, including but not limited to the Village and its elected officials, officers, administrators, employees, directors, agents, successors, executors, attorneys and/or personal representatives of any kind, insurers, and assigns for all said liens. Plaintiff also hereby agrees to defend the Village against the enforcement of said liens and to assume all costs, expenses, and attorney fees related to said defense. 7. General Release and Covenant Not To Sue. Plaintiff, on behalf of himself and his heirs, executors, administrators, successors and assigns, for and in consideration of the payment set forth herein, irrevocably and unconditionally releases and forever discharges and acquits the Village from any and all claims, charges, liabilities, debts, demands, grievances and causes of action of whatsoever kind, whether at law or in equity, whether accrued, contingent or inchoate, and whether known or unknown, suspected or unsuspected, or otherwise which Plaintiff has, had or may have against the Village arising from or relating to acts or omissions up to and including the date of the incident, or involving the future or continuing effects of any acts or omissions which occurred up to and including the date of the incident. The claims released and waived by this Agreement include, but are not limited to, claims relating to or arising out of the allegations and claims set forth in the pleadings in the Lawsuit, claims for pain and suffering, mental and emotional distress, and monetary damages, or other claims under any federal, state or local constitution, statute, regulation, order, common law or other authority having the force of law. Plaintiff acknowledges and agrees that the nature, materiality, extent and results of the claims compromised and released by this Agreement may not now all be known or anticipated 419278_1 3 by him. However, it is the intention of the parties hereto that this Agreement shall be effective as a bar to each and every claim, charge, liability, and/or cause of action that the Plaintiff may have against the Village and its elected officials, officers, administrators, employees, directors, agents, successors, executors, attorneys and/or personal representatives of any kind, insurers, and assigns. Plaintiff further acknowledges and agrees that he may hereafter discover facts different from or in addition to those now known, suspected or believed to be true with respect to such claims, demands or causes of action and agrees that this release will be and remain effective in all respects notwithstanding any such differences or additional facts. Plaintiff further covenants and agrees not to sue, to file a charge, to make a claim or demand, to commence or maintain, or assist or otherwise participate (except, as required by law, to give testimony), in any action or proceeding of any kind in any court, before any government agency or in any other forum or to accept any money, benefit, or other relief from any proceeding, which would be precluded by this release, whether brought directly by Plaintiff or brought by any other person, agency or entity which would provide relief or benefit to Plaintiff, and agrees to indemnify the Village against all liability, costs and expenses and attorney's fees in the event Plaintiff breaches this release and covenant not to sue. Plaintiff also assigns to the Village all his rights, titles, and interests in any relief from any proceeding that would be precluded by this release. 8. No Attorneys' Fees. Plaintiff waives his right, if any, to attorneys' fees. The Village will pay all expenses incurred by itself, and Plaintiff will bear all his incurred expenses for the Lawsuit and in the negotiation and preparation of this Agreement. 9. Choice of Law; Savings Provision. This Agreement will be governed by Illinois law. If any provisions of this Agreement shall be invalidated or refused enforcement by any 419278_1 4 court of competent jurisdiction, the provisions not invalidated or refused enforcement shall remain in full force and effect. 10. Entire Agreement. This Agreement represents the entire agreement between Plaintiff and the Village with respect to the matters set forth herein and supersedes all prior agreements or understandings, if any, between the parties. Plaintiff acknowledges that except for the explicit provisions of this Agreement, no promises or representations of any kind have been made to him by the Village or their attorneys, to induce him to enter into this Agreement. No modification of this Agreement can be made except in writing and signed by Plaintiff and an authorized representative of the Village. 11. For Settlement Only. This Agreement is entered into for settlement purposes only and represents the compromise of disputed claims, actual or potential, which Plaintiff has or may believe he has. Neither this Agreement, the decision to enter into this Agreement, nor anything done pursuant to this Agreement, shall be construed to be an admission or evidence of any wrongdoing or liability by Plaintiff or the Village, such wrongdoing and liability being expressly denied. Nor will this Agreement, its existence or its terms, be admissible in any proceeding other than a proceeding to enforce the terms of this Agreement. 12. Representations & Warranties By All Parties. All of the parties represent and warrant that (a) they have the capacity, full power and authority to enter into this Agreement; (b) the individuals signing on behalf of the Village are authorized to do so; (c) they have not assigned, encumbered or in any manner transferred all or any portion of the claims covered by this Agreement; (d) there are not other charges, complaints, suits, arbitrations or other claims or proceedings pending between the parties in any court, before any agency, or in any forum; and (e) no other person or party has any right, title or interest in any of the claims covered by this 419278_1 5 Agreement. 13. Successors & Assigns. This Agreement shall be binding upon and inure to the benefit of Plaintiff and the Village, and their elected officials, officers, administrators, employees, directors, agents, successors, heirs, executors, attorneys and/or personal representatives of any kind, insurers and assigns. 14. Knowing and Voluntary Sieg of Binding Contract. Plaintiff represents and warrants that he has read this Agreement and understands all of its terms and executes this Agreement voluntarily and without duress or undue influence, and with full knowledge of its significance, intending to be legally bound. Plaintiff acknowledges that by signing this Agreement, he is GIVING UP ALL CLAIMS AGAINST THE VILLAGE AND ITS ELECTED OFFICIALS, OFFICERS, ADMINISTRATORS, EMPLOYEES, DIRECTORS, AGENTS, SUCCESSORS, EXECUTORS, ATTORNEYS AND/OR PERSONAL REPRESENTATIVES OF ANY KIND, INSURERS, AND ASSIGNS WITH REGARD TO THE ALLEGED INCIDENT OF MAY 21, 2016. 15. Opportunity To Consult Advisors. Plaintiff and the Village have had reasonable opportunity to consult with attorneys or other advisors of their own choosing before executing this Agreement. 16. Counterparts. This Agreement may be executed in counterparts, each of which may be signed separately and may be enforceable as an original, but all of which together shall constitute but one agreement. IN WITNESS WHEREOF, the parties have executed this Agreement by affixing their signatures and the date of execution as indicated below. 419278_1 6 ZYGMUNT WEREDA VILLAGE OF MOUNT PROSPECT Dated: Dated: 419278_1 7