Berry vs. City Of Dubuque & Schmalz Precast Concrete Manufacturing CompanyCity of Dubuque
City Council
CONSENT ITEMS # 20.
Copyrighted
December 15, 2025
ITEM TITLE: Berry vs. City Of Dubuque & Schmalz Precast Concrete
Manufacturing Company
SUMMARY: City Attorney recommending approval of the mutual release
with Schmalz Precast Concrete Manufacturing Company as
part of the mediation of Berry vs. City Of Dubuque & Schmalz
Precast Concrete Manufacturing Company.
SUGGUESTED Receive and File; Approve
DISPOSITION:
ATTACHMENTS:
1. Staff Memo
2. General Release
3. Mutual Release
4. Signed Mutual Release_Uploaded 12.15.25
Page 386 of 1019
THE CITY OF
DUB E
Masterpiece on the Mississippi
CRENNA M. BRUMWELL, ESQ.
CITY ATTORNEY
TO: MAYOR BRAD M. CAVANAGH AND MEMBERS OF THE CITY COUNCIL
DATE: DECEMBER 10, 2025
Dubuque
All•A�eNea 6Iq
1ml'o I
I I
2007-2012.2013
2017*2019
RE: BERRY VS. CITY OF DUBUQUE & SCHMALZ PRECAST CONCRETE
MANUFACTURING COMPANY
This is a lawsuit pending related to a fall involving a concrete slab covering a storm drain
on Graham Circle. Mr. Berry (Berry) was walking from the street to his son's house and
stepped onto the drain cover which collapsed. Berry sued the City and the City added
the manufacturer of the drain cover, Schmalz Precast Concrete Manufacturing Company
(Schmalz). Berry alleged very significant permanent injuries and claimed over $900,000
in damages.
The case was mediated on November 14, 2025. The case was settled at mediation
among all the parties. The City's insurer, ICAP, will pay Berry $90,000 for which the City
will be billed for its $20,000 deductible. The City Council is not required to approve the
settlement release between ICAP and Berry. Schmalz reached a similar settlement with
Berry.
As part of the mediation, the City and Schmalz agreed to a mutual release which needs
City Council approval. I respectfully request City Council approval of the mutual release
with Schmalz.
cc: Michael C. Van Milligen, City Manager
OFFICE OF THE CITY ATTORNEY DUBUQUE, IOWA
SUITE 330, HARBOR VIEW PLACE, 300 MAIN STREET DUBUQUE, IA 52001-6944
TELEPHONE (563) 589-4381 / FAx (563) 583-1040 / EMAIL cbrumwel@cityofdubuque.org
Page 387 of 1019
GLNERA1, RELEASE
The undersigned, ROBERT M. BERRY and DOR1S BERRY ("Claimants"'), state:
1. In consideration of the promises and performance set forth herein and for the
payment of Ninety Thousand Dollars ($90,0W.00), ROBERT M. Bl-,,RRY and DORIS BERRY
("Claimants") hereby release and forever discharge Cl'l'Y Of' DUBUQUE and CITY OF
DUBUQUE'S current and former elected and appointed officials, officers, employees, and agents,
the Iowa Communities Assurance Pool, Gallagher Bassett Services, Inc., RPA, Risk Program
Administrators, and its affiliates, and each of their officers, directors, employees, successors and
assigns ("Released Parties") from any and all demands, claims, causes of action, obligations,
agreements, promises, representations, damages, suits and liabilities whatsoever, of any kind or
nature in law or in equity, that exists as of the date this Agreement is executed, whether developed
or undeveloped, known or unknown, foreseen or unforeseen arising from any incident that
occurred on March 7, 2023 and which suit was filed in the Iowa District Court in and for Dubuque
County captioned as Robert Berry and Doris Berry v. City of Dubuque, Case No. LACV 115088.
This Release of liability includes all common law, statutory, and other causes of action, including
damage claims of any sort, attorney's fees, and costs which Claimants may have or claim to have
as of the date of this Release.
2. Claimants are solely responsible for any and all tax liability related to this payment
and will defend, indemnify, and hold harmless the Released Parties from any such tax liability.
3. Claimants recognize that the Released Parties will comply with the Iowa Open
Records Act.
4. Claimants agree any action or proceeding that has been initiated or filed related to
the incident will be immediately dismissed with prejudice.
Page 388 of 1019
5 This Release is ozautal ar+ it cx►mpr►►mir+e settlement of a disputed claim. The
Released Parties deny tint thtw havo done nnything Improper or illegal concorning the incident
describoel in this Reloare, and thin Relmse (loco not conatituto an admiraaion of liahility on the part
ot• tuiy heIsan or entity. No other pmmiaew have been tnadc by the Rcleaaul i'artiea, or by any
prr.►an or entity acting on their behalf. This Release covers all injuries and damages whether
hrrsrntly known or not.
6. Claimants rcliresetit that they do not know of any pers<►n or entity that has paid any
amount on their behalf that would entitle anyone to recover as a lienholder or subrogee of
Claimants against the Released Parties. if such lienholder, subrogee, or any person/entity with a
third party interest exists, Claimants agree to satisfy those third -party interests out of the settlement
proceeds and finther agree to defend, indemnify, and hold harmless the Released Parties for any
claims or interests that are asserted. Such indemnification shall include, without limitation, any
and all attorney fees, court costs, and any and all other costs and expenses. Claimants further
represent that they have not assigned their claim to any other person.
7. Claimants are executing this Release solely upon their own knowledge, belief, and
judgment and not upon any representation made by the Released Parties. Claimants acknowledge
that they have had the opportunity to consult with an attorney of their choice.
8. Claimants represent that they are not currently receiving Medicare benefits and that
Medicare has not made any conditional payments on their behalf related to their claims in this
matter. Claimants have not and will not apply for Social Security Disability benefits related to this
incident. Claimants do not anticipate any future Medicare -eligible expenses related to any injuries
for which they are making a claim. Because no future Medicare -eligible expenses are anticipated,
no part of the settlement is being set aside for Medicare. Claimants agree to defend, indemnify,
N
Page 389 of 1019
and hold harmless the Released Parties from any interest asserted by Medicare. Such
indemnification shall include, without limitation, any and all attorney fees, court costs, and any
and all other costs and expenses.
9. This Release constitutes the entire agreement between Claimants and the Released
Parties. It supersedes all prior Releases and understandings, whether oral or written, relating to
Claimants' alleged injuries and damages related to the incident described in this Release.
10, It is the intent of Claimmits quid the Released Parties to end any dispute between
them pertaining to the matters described in this Release. This Release should be broadly construed
to achieve this intent. The terms, provisions, representations, and remedies contained in this
Release shall be enforceable to the fullest extent permitted by law. If any term of this Release is
found to be invalid or unenforceable, then such term shall be construed in a manner permitting its
enforcement to the fullest extent allowed by the law. In any case, the remaining provisions of this
Release other than those which have been held invalid, illegal, or unenforceable, shall not be
affected or impaired and shall remain in full force and effect. This Release will not be construed
either in favor of one party or against one party, but rather pursuant to the fair and reasonable
interpretation of the language used.
CAUTION: THIS IS A RELEASE. READ BEFORE SIGNING.
i —
ROBERT M. BERRY, Claimant DORIS BERRY, Claimant
Date Claimants signed: `�
S�v,-aU1, Witness
Date Witness Signed:
3
Page 390 of 1019
P ),
MUTUAL RELEASE AND SETTLEMENT AGREEMENT
--- This Mutual -Release and Settlement Agreement (hereinafter "-Agreement") is made and
entered into effective as of the _Lj�, day of be_Ce mbe r , 2025 by and between SCHMALZ
PRECAST CONCRETE MANUFACTURING COMPANY ("Schmalz") and the CITY OF
DUBUQUE ("the City").
RECITALS
WHEREAS Schmalz is a Defendant in the case filed in the Iowa District Court in and for
Dubuque County captioned as ROBERT BERRY AND DORIS BERRY V. CITY OF DUBUQUE
and SCHMALZ PRECAST.' CONCRETE MANUFACTURING COMPANY, Case No.
LACVI15088; and
WHEREAS the City of is a Defendant in the case filed in the Iowa District Court in and
for Dubuque County captioned as ROBERT BERRY AND DORIS BERRY V. CITY OF
DUBUQUE and SCHMALZ PRECAST CONCRETE MANUFACTURING COMPANY, Case
No. LACVI15088; and
WHEREAS both Schmalz and the City have settled claims made against them by Robert
Berry and Doris Berry in the case filed in the Iowa District Court in and for Dubuque County
captioned as ROBERT BERRY AND DORIS BERRY V. CITY OF DUBUQUE, and SCHMALZ
PRECAST CONCRETE MANUFACTURING COMPANY, Case No. LACV 115088.
RELEASE
NOW THEREFORE, the undersigned, Schmalz and the City desire to mutually release
each other for any claims each may have against the other arising from the lawsuit in the case filed
in the Iowa District Court in and for Dubuque County captioned as ROBERT BERRY AND
DORIS BERRY V. CITY OF DUBUQUE, and SCHMALZ PRECAST CONCRETE
MANUFACTURING COMPANY, Case No. LACV115098 or any claims that could be made
against each other regarding an alleged injury to Robert Berry which occurred on March 7, 2023
in Dubuque, Iowa.
For good and adequate consideration, Schmalz hereby releases, acquits and forever
discharges the City and its employees, officers, representatives, agents and assigns from any and
all liability whatsoever, including all claims and demands and causes of action of every nature
affecting it, which it may have or ever claim to have by reason of the following:
(a) Any claim which was, or could have been, asserted in the lawsuit filed in the Iowa
District Court for Dubuque County captioned as ROBERT BERRY AND DORIS
BERRY V. CITY OF DUBUQUE and SCIIMALZ PRECAST CONCRETE
MANUFACTURING COMPANY, Case No. LACVI15088;
For good and adequate consideration, the City hereby releases, acquits, and forever
discharges Schmalz and its employees, officers, representatives, agents and assigns from, any and
Page 391 of 1019
all liability whatsoever, including all claims, demands and causes of action of every nature
affecting it which it may have or ever claim to have by reason of the following:
(a) Any claim which was, or could have been, asserted in the lawsuit filed in the Iowa
District Court for Dubuque County captioned as ROBERT BERRY AND DORIS
BERRY V. CITY OF DUBUQUE and SCHMALZ PRECAST CONCRETE
MANUFACTURING COMPANY, Case No. LACV 115088;
As further consideration of said releases, the undersigned hereby agree:
1. That this Agreement covers all injuries and damages whether known or not and
which may hereafter may appear or develop arising from the matters above referred to;
2. The intent of this Agreement is that each of the parties hereto shall release and
discharge the other from all potential claims whether in the past, present, or future for claims,
injuries or damages of any kind resulting from the lawsuit filed in the Iowa District Court for
Dubuque County by Robert and Dories Berry captioned as ROBERT BERRY AND DORIS
BERRY V. CITY OF DUBUQUE, and SCHMALZ PRECAST CONCRETE
MANUFACTURING COMPANY, Case No. LACV 115088.
3. This Agreement is executed as a compromise settlement of disputed claims, the
liability for which is expressly denied by the parties released, and the payment of the above sums
does not constitute an admission of liability on the part of any person or entity;
4. The mutual release of claims is all that the parties will ever receive for their claims
and no promise for any other or further consideration has been made by anyone with regard for
payment of damage;
5. The undersigned have consulted with their attorneys about the effect of this
Agreement and are accepting the settlement and executing this Mutual Release and Settlement
Agreement solely in reliance of their knowledge, belief and judgment, and not upon any
representation made by released parties or others on their behalf,
6. The parties agree that this Agreement may be signed in counterparts and that
signing the Agreement in counterparts shall be valid, binding, and enforceable upon all of the
parties. A signed facsimile, copy, or a copy scanned on computer shall have the same force and
effect if originally signed by the undersigned and shall be valid, binding, and enforceable upon the
undersigned.
7. The parties agree that this Agreement must be approved by the City Council of the
City of Dubuque.
8. This Agreement shall be binding upon subsequent purchasers, assignees, and/or
successors in interest of the parties hereto.
K
Page 392 of 1019
I HAVE READ THE FOREGOING RELEASE, AND UNDERSTAND ITS TERMS AND
FREELY AND VOLUNTARILY SIGN THE SAME.
Dated at Dubuque, Iowa, this _ j j day of , 2025.
CAUTION: THIS IS A RELEASE — READ BEFORE SIGNING!
CITY OF DUBUQUE, IOWA
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SCHMALZ PR ST CONCRETE MANUFACTURING COMPANY
By:�2&41
Its: President
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