Gerald Hingtgen et al. vs. City of Dubuque et al. Release and DismissalTHE CITY OF
DUB
Masterpiece on the Mis sippi
BARRY LINDA
CITY ATTORNE
MEMORANDUM
To: Mayor Foy D. Buol and
Members of the City Council
DATE: March 25, 2014
RE: Gerald Hingtgen et al. vs. City of Dubuque et al.
This lawsuit is against the City of Dubuque and a part-time bus driver, Tim Mauer, for an
accident that occurred on March 25, 2010. Judy Hingtgen was being transported in a
City bus from Tri-State Dialysis to Manor Care. She was in a wheelchair, properly
secured by Mr. Mauer. During the drive, a car pulled out in front of the bus,
unexpectedly, and Mauer had to brake to avoid a collision. Hingtgen slid out of her
wheelchair during the stop. Hingtgen and her husband claimed damages for injuries
alleged to have resulted from the accident.
The case was set for trial commencing April 8, 2014, in Dubuque County. The case
settled on March 6, 2014 for $2,500 for all claims against the City of Dubuque and Tim
Mauer.
Attached are the proposed release and dismissal.
I recommend approval of the release and dismissal.
BAL:tls
Attachments
cc: Michael C. Van Milligen, City Manager
Candace Eudaley, Transit Manager
Les Reddick, Esq.
F:\USERS\tsteckle\Lindahl\Hingtgen et al. vs. City & Manor Care\MayorCouncil_ProposedRelease&Dismissal_032514.doc
OFFICE OF THE CITY ATTORNEY DUBUQUE, IOWA
SUITE 330, HARBOR VIEW PLACE, 300 MAIN STREET DUBUQUE, IA 52001-6944
TELEPHONE (563) 583-4113 / FAx (563) 583-1040 / EMAIL balesq@cityofdubuque.org
FULL AND FINAL RELEASE OF ALL CLAIMS
The undersigned, GERALD HINGTGEN, Individually, and as Executor of the ESTATE OF
JUDY HINGTGEN, and KAREN MARTIN, and on behalf of their heirs, executors, administrators,
successors, assigns, subrogees, personal representatives, attorneys, and anyone claiming by or
through them (collectively referred herein to as the "Releasors"), for and in consideration of the
payment of the sum of Twenty -Five Hundred Dollars ($2,500.00), the receipt and sufficiency of
which is hereby acknowledged, do hereby irrevocably and unconditionally waive, release, acquit, and
forever discharge THE CITY OF DUBUQUE, IOWA, (including its elected and appointed officials
in their individual and official capacities), TIM MAUER, the Iowa Communities Assurance Pool,
American Risk Pooling Consultants, Inc., and Public Entity Risk Services of Iowa, LLC, together
with their employees, volunteers, employers, principals, agents, insurers, attorneys, officers,
directors, predecessors, subsidiaries, affiliates, successors and assigns (collectively referred to herein
as the "Releasees"), of and from any and all liability, claims, demands, charges, complaints,
controversies, actions, causes of action, and suits at law or in equity, of any kind or nature
whatsoever, known or unknown, asserted or unasserted, suspected or unsuspected, including without
limitation any claim which was or could have been raised by Releasors in a court of law or any other
forum, and any claim under any local, state or federal statute, and any claim under any other
statutory, administrative, constitutional, contractual, tort, common law or other legal or equitable
theory whatsoever, which Releasors may have or claim to have regarding, or in any manner
incidental, to the petition filed in the Iowa District Court for Dubuque County, Case No. 01311
LACV057491 claiming damage arising from a bus incident in which Judy Hingtgen was a passenger
occurring on March 25, 2010 (hereinafter collectively referred to as "claim" or "claims").
This Release by Releasors includes the complete and total satisfaction of any claim Releasors
may have had against Releasees including without limitation claims for personal injuries, emotional
distress, medical expenses, wage loss, lost benefits, loss of income, loss of services, loss of
consortium, loss of property, damage to property, mental anguish, prejudgment interest, post-
settlement interest, general damages, liquidated damages, exemplary damages, compensatory
damages, punitive damages, infringement of civil/constitutional rights, unreasonable search, arrest
without probable cause, false arrest, false imprisonment, assault and battery, unlawful arrest,
malicious prosecution, use of excessive force, failure to properly investigate, failure to train,
acquiescence in unconstitutional conduct, maintenance of an unconstitutional custom, policy or
practice, failure to discipline, and expenses including but not limited to attorney fees and costs,
together with any and all other loss, damage, and claim of every kind, nature, and description,
resulting from or hereinafter resulting from the acts and omissions of the Releasees.
As further consideration for the payment of the aforesaid sum, Releasors shall immediately
dismiss the Petition filed in the Iowa District Court for Dubuque County, Case No. 01311
LACV057491 with prejudice. Releasors shall pay at its sole cost and expense all bills and expenses
incurred by Releasors as a result of the claims and Releasees shall have no liability for same.
Releasors further agree to reimburse any person, insurance company, or other government or private
entity that has paid, on behalf of the Releasors, any bills or expenses incurred in connection with the
Page 1 of 4
claims and Releasees shall have no liability for same.
Releasors do hereby agree to indemnify, defend and hold the Releasees harmless from and
against any and all liability, claims, demands, actions, causes of action and suits at law or in equity,
for injuries, expenses, and damages known or unknown, made against or sustained by the Releasees,
as a result of any amounts sought, claimed, or recovered by any insurer, person, governmental agency
or other entity subrogated to the rights of Releasors, against the Releasees, or by any hospital,
physician, medical provider or provider of services of whatever kind which provided medical,
hospital, or services of any kind to the Releasors. Such indemnification shall include without
limitation any and all attorney fees, court costs and any and all other costs and expenses. Releasors
do hereby agree to indemnify, defend and hold Releasees harmless from and against any and all
liability, claims, demands, actions, causes of action and suits at law or in equity, for injuries,
expenses, and damages known or unknown, made against or sustained by Releasees as a result of
any amounts sought, claimed, or recovered by any person who may now have or may assert in the
future a claim for loss of any services or consortium as a result of the occurrence identified above.
Such indemnification shall include without limitation any and all attorney fees, court costs and any
and all other costs and expenses.
Releasors acknowledge that the Releasees deny liability and responsibility for any and all
claims, and Releasors further acknowledge that the payment of the foregoing sum shall not be
construed as an admission of liability and is solely paid to preclude any additional litigation
expenses. Releasors represent and warrant that they have not assigned all or any portion of the
rights, titles, and/or interests in or with respect to the matters released hereunder, and that no trustee
in bankruptcy or assignee for the benefit of creditors has any right to the Releasors' claims hereby
released. Releasors also agree that the Releasees may use this Release against Releasors, Releasors'
successors, or any other person, in court or elsewhere, to show that no person is entitled to any
additional consideration should they ever attempt to assert any other claim for any reason whatsoever
against the Releasees as a result of the occurrence.
Releasors further agree that they will be responsible for payment of any and all taxes,
including but not limited to federal, state, and local taxes, as a result of the payment and receipt of
the foregoing sum. Releasors further acknowledge that they fully understands the terms of the
settlement and that they voluntarily accept said sum for the purpose of making full and final
compromise, adjustment, and settlement of any losses and damages. Releasors agree that this
Release shall in all respects be interpreted, enforced, and governed by the laws of Iowa. The
language of all parts of this Release shall in all cases be construed as a whole, according to its fair
meaning. If, after the date hereof, any provision of this Release is held to be illegal, invalid or
unenforceable under present or future laws effective during the term of this Release, such provision
shall be fully severable. In lieu thereof, there shall be added a provision as similar in terms to such
illegal, invalid or unenforceable provision as may be possible, and be legal, valid and enforceable.
This Release may be executed in multiple counterparts, and all counterparts executed by the parties,
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whether or not such counterparts shall bear the execution of each of the parties, shall be deemed to
be, and shall be construed as one in the same agreement.
THE UNDERSIGNED HAS READ THE FOREGOING FULL AND FINAL RELEASE OF ALL
CLAIMS AND FULLY UNDERSTANDS IT.
RELEASORS:
GERALD HINGTGEN, Individually, and as Executor
of the ESTATE OF JUDY HINGTGEN
COUNTY OF )
SS: STATE OF IOWA )
Sworn to before me and subscribed by the said GERALD HINGTGEN, Individually, and as
Executor of the ESTATE OF JUDY HINGTGEN who signed the foregoing Release and
acknowledged to me that it was voluntarily signed this day of , 2014.
Notary Public
Page 3 of 4
KAREN MARTIN
COUNTY OF )
SS: STATE OF IOWA )
Swornto before me and subscribed by the said KAREN MARTIN, who signed the foregoing Release
and acknowledged to me that it was voluntarily signed this day of ,
2014.
Notary Public
Page 4 of 4
1N THE IOWA DISTRICT COURT FOR DUBUQUE COUNTY
GERALD HINGTGEN, Individually, )
and as Executor of the ESTATE OF )
JUDY HINGTGEN, and KAREN )
MARTIN, )
) NO. 01311 LACV057491
Plaintiffs, )
)
vs. )
)
MANOR CARE OF DUBUQUE, IA LLC, )
d/b/a MANOR CARE 'HEALTH SERVICES)
THE CITY OF DUBUQUE, IOWA, )
(42-6004596W) and TIM MAUER, )
)
Defendants. )
DISMISSAL WITH PREJUDICE
COME NOW, Plaintiffs, GERALD HINGTGEN, Individually, and as Executor of the
ESTATE OF JUDY HINGTGEN, and KAREN MARTIN and hereby dismiss this matter with
prejudice.
GERALD HINGTGEN, Individually, and as
Executor of the ESTATE OF JUDY
HINGTGEN, and KAREN MARTIN
By
Christopher C. Fry
O'Connor & Thomas, P.C.
Roshek Building
700 Locust Street Suite 200
Dubuque, Iowa 52001
ATTORNEY FOR PLAINTIFFS
CERTIFICATE OF SERVICE
The undersigned certifies that a copy of the foregoing
instrument was served upon all parties to the above
cause or to their attorneys of record by enclosing the
same in an envelope addressed to said parties or their
attorneys whose names and addresses appear below this
Certificate and delivering a copy to said parties or their
attorneys or by mailing the same with postage prepaid,
and by depositing said envelope in a United States Post
Office Mailbox in Dubuque, Iowa on the day
of , 2014.
Signature
Copy to:
Les V. Reddick
Kane, Norby & Reddick, P.C.
2100 Asbury Road Ste 2
Dubuque, Iowa 52001
Ralph W. Heninger
Heninger and Heninger, P.C.
101 W 2nd Street
Suite 501
Davenport, Iowa 52801-1815