California Capital Insurance Company v. U.S. Forest Service et al
Filing
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STIPULATION and ORDER 23 for Dismissal signed by Judge Morrison C. England, Jr. on 6/20/2011. This matter has been RESOLVED in its entirety and Clerk directed to CLOSE this file. (Marciel, M)
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BENJAMIN B. WAGNER
United States Attorney
LYNN TRINKA ERNCE
JASON EHRLINSPIEL
Assistant United States Attorneys
501 I Street, Suite 10-100
Sacramento, CA 95814
Telephone: (916) 554-2700
Facsimile: (916) 554-2900
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Attorneys for the United States
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IN THE UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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CALIFORNIA CAPITAL INSURANCE
COMPANY,
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Plaintiff,
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v.
Case No. 2:09-cv-00472 MCE-EFB
STIPULATION AND
ORDER OF DISMISSAL WITH
PREJUDICE
UNITED STATES OF AMERICA,
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Defendant.
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It is hereby stipulated by and between CALIFORNIA CAPITAL INSURANCE
COMPANY (“CALIFORNIA CAPITAL”) and the UNITED STATES OF AMERICA
(“UNITED STATES”) as follows:
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CALIFORNIA CAPITAL does 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.
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The UNITED STATES agrees to pay to CALIFORNIA CAPITAL the sum of
Eighty Five Thousand Dollars ($85,000.00), 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,
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SETTLEMENT STIPULATION; ORDER
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foreseen and unforeseen bodily and personal injuries, damage to property and the
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consequences thereof, resulting, and to result, from the subject matter of this action,
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including any future claims for wrongful death, for which CALIFORNIA CAPITAL and
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any parent, subsidiary, division, member, affiliated entities, or assigns, and each of them,
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now have or may hereafter acquire against the UNITED STATES, its agents, servants,
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and employees.1
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3.
CALIFORNIA CAPITAL and any parent, subsidiary, division, member,
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affiliated entities, or assigns, and any person or entity acting on behalf of any of the
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foregoing, agrees to accept the Eighty Five Thousand Dollars ($85,000.00) in full
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settlement and satisfaction of any and all claims, demands, rights, and causes of action of
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whatsoever kind and nature, including claims for wrongful death, arising from, and by
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reason of, any and all known and unknown, foreseen and unforeseen bodily and personal
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injuries, damage to property and the consequences thereof which they may have or
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hereafter acquire against the UNITED STATES, its agents, servants, and employees on
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account of the same subject matter that gave rise to the above-captioned action, including
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any future claim or lawsuit of any kind or type whatsoever, whether known or unknown,
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and whether for compensatory or exemplary damages. CALIFORNIA CAPITAL and any
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parent, subsidiary, division, member, affiliated entities, or assigns, and any person or
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entity acting on behalf of any of the foregoing, further agree to reimburse, indemnify and
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hold harmless the UNITED STATES and its agents, servants and employees from and
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against any and all causes of action, claims, liens, rights, or subrogated or contribution
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interests incident to or resulting from further litigation or the prosecution of claims
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arising from the subject matter of this action against any third party or against the
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UNITED STATES, including claims for wrongful death.
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For purposes of this Stipulation of Dismissal the term “subject matter” shall refer only to
the claims, causes of action and allegations made by California Capital in this action and
shall not include those made or to be made by nonparties to this action including but not
limited to Eric Prescott, Phyllis Solomon, Patricia Thiessen and Pacific Bell Telephone
Company.
SETTLEMENT STIPULATION; ORDER
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4.
CALIFORNIA CAPITAL expressly waives any rights or benefits available
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pursuant to Section 1542 of the Civil Code of the State of California, which provides as
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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.
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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.
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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
CALIFORNIA CAPITAL . This settlement is entered into by CALIFORNIA CAPITAL
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.
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The parties agree that they will each bear their own costs, fees, and
expenses; that any attorney’s fees owed by CALIFORNIA CAPITAL 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 CALIFORNIA CAPITAL .
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Payment of the settlement amount from the UNITED STATES will be made
by check drawn on the Treasury of the United States for Eighty Five Thousand Dollars
($85,000.00) and made payable to “CALIFORNIA CAPITAL INSURANCE COMPANY.”
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SETTLEMENT STIPULATION; ORDER
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Tax identification number 95-1332270. The check will be mailed to CALIFORNIA
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CAPITAL ’s attorney at the following address. Culbreth Schroeder, LLP, 2945 Ramco
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Street, Suite 180, West Sacramento, CA 95691.
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The parties agree to execute and deliver such other and further documents
as may be required to carry out the terms of this Stipulation.
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Each person signing this Stipulation warrants and represents that he or she
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possesses full authority to bind the person[s] on whose behalf he or she is signing to the
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terms of the Stipulation.
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Each person signing this Stipulation warrants and represents that no
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promises, inducements, or other agreements not expressly contained herein have been
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made; that this Stipulation contains the entire agreement between the parties; and that
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the terms of this Stipulation are contractual and not mere recitals. This Stipulation may
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not be altered, amended, modified, or otherwise changed in any respect, except by a
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writing duly executed by the party to be charged. All prior oral understandings,
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agreements, and writings are superseded by this Stipulation and are of no force or effect.
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Each person executing this Stipulation represents that he or she has read
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and understands its contents; that he or she executes this Stipulation voluntarily; that he
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or she has not been influenced by any person acting on behalf of any party.
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This Stipulation may be executed in counterparts. All such counterparts
and signature pages, together, shall be deemed to be one document.
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Upon approval by the Court as provided below, CALIFORNIA CAPITAL’s
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action against the UNITED STATES is hereby DISMISSED WITH PREJUDICE in its
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entirety and the Clerk of the Court is requested to enter this dismissal and release in the
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official docket and to close the case.
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SETTLEMENT STIPULATION; ORDER
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Notwithstanding the entry of a dismissal herein, the parties agree that that
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the Honorable Morrison C. England, Jr. shall retain jurisdiction to enforce the terms of
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this compromise settlement.
Respectfully submitted,
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DATED: June 2, 2011
BENJAMIN B. WAGNER
United States Attorney
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By:
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DATED: June 7, 2011
CULBRETH SCHROEDER, LLP
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By:
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/s/ Jason Ehrlinspiel
JASON EHRLINSPIEL
Assistant United States Attorney
DATED: June 6, 2011
/s/ Eric Schroeder
ERIC SCHROEDER
Attorneys for Plaintiff
CALIFORNIA CAPITAL INSURANCE
COMPANY
/s/ Ken Fletcher
By: Ken Fletcher
Its: HO Claim Examiner CCIC
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ORDER
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IT IS SO ORDERED. The matter having been resolved in its entirety, the Clerk of
Court is hereby directed to close the file.
Date: June 20, 2011
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__________________________________
MORRISON C. ENGLAND, JR
UNITED STATES DISTRICT JUDGE
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DEAC_Signature-END:
c4d6b0d3
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SETTLEMENT STIPULATION; ORDER
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