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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, Page 2 of 4 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