RES 2014-1326 - Settle Estate of Alecia Rea v City of Omaha et al oMt,eA,N
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Omaha/Douglas Civic Center
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(402)444-5115
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City of Omaha CIT C t R K Paul D. Kratz
Jean Stothert,Mayor C M A H r , N C B R A S x A City Attorney
Honorable President
and Members of the City Council,
The attached Resolution is submitted by the Law Department. It authorizes settlement of the
pending lawsuit Robert Rea, Personal Representative of the Estate of Alicia Rea v. City of Omaha,
State of Nebraska Department of Roads, Kevin Y. Settles, and Mark Schartow, Douglas County
District Court Case No. CI 12-9707. If the Resolution is approved, the amount of$280,000 will be
paid by the City after a judgment is entered by the Court. The City would also agree to certain
policy changes as outlined in the attached Settlement Agreement and Consent Decree.
The lawsuit arises from a motor vehicle accident between Alicia Rea and a City of Omaha Public
Works Department street repair truck. The truck was parked in the left lane of westbound West
Maple Road west of 124th Street and conducting pothole repair, when Miss Rea's vehicle struck it
from the rear. Miss Rea was killed in the accident. Her estate alleges in the lawsuit that the City
was negligent in using insufficient safety and warning measures at the work site. The estate has
agreed to accept $280,000 to end the litigation. This settlement will use a method that leads to a
judgment being entered so the agreed-upon amount can be paid from the Judgment Fund.
Additional information about this case has been submitted in a confidential memorandum. The
details of this case can also be discussed in an executive session called to discuss this pending
litigation.
The Law Department recommends in favor of this proposed settlement. Your favorable
consideration of this Resolution is respectfully requested.
Respectfully submitted, Referred to City Council for Consideration,
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Alan M. Thelen Date Mayor's Office Date
Deputy City Attorney
Approved as to Funding: Approved:
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Stephe B. Curtiss D to Robert G. Stubbe, P.E. Date
Finance Director Public Works Director
P\LAW-CITY COUNCIL DOCUMENTS\2014130100dIm
SETTLEMENT AGREEMENT AND RELEASE
This Settlement Agreement and Release ("Agreement") is entered into by: Robert Rea,
Personal Representative of the Estate of Alicia Rea, and Robert Rea, Tammi Rea, and Anna Rea
in their individual capacities as the next of kin of Alicia Rea (all collectively referred to as
"Plaintiff'); the City of Omaha ("City"); Kevin Y. Settles ("Settles"); Mark Schartow
("Schartow"); and the State of Nebraska Department of Roads ("State")(collectively referred to
as "the Defendants"). This Agreement is intended to release the Defendants upon receipt of the
consideration by Plaintiff recited below.
WHEREAS, on October 20, 2010, vehicles driven by Settles and Alicia Rea were
involved in a motor vehicle accident at West Maple Road east of its intersection with 129th Street
in Omaha, Douglas County, Nebraska ("Accident"); and,
WHEREAS, the Plaintiff filed a lawsuit in the District Court of Douglas County,
Nebraska, in the case captioned Anna Rea, Personal Representative of the Estate of Alicia Rea,
Plaintiff v. City of Omaha, State of Nebraska Department of Roads, Kevin Y. Settles, and Mark
Schartow, Defendants, Case No. CI-12-9707 ("Lawsuit"); and,
WHEREAS, the Defendants have denied and continue to deny liability for the Accident
or any negligence on their respective parts; and,
WHEREAS, the Parties to this Agreement wish to reach a full and final settlement of the
Lawsuit and all claims and causes of action in any way relating to, arising out of, resulting from
or associated with the Accident.
NOW, THEREFORE, in consideration of the recitals, mutual covenants and releases, and
other agreements contained herein, and for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the Parties hereto, intending to be legally bound,
hereby stipulate, confirm and agree as follows:
1. Consideration Paid by City. City offers to confess judgment to be entered against City
and in favor of the Plaintiff in the Lawsuit, in the amount of Two Hundred Eighty
Thousand Dollars ($280,000). The Plaintiff accepts and assents to the said judgment.
The judgment shall be entered as part of the attached Consent Decree. Each Party shall
pay their own court costs and attorneys' fees. Upon entry of the judgment, City shall pay
the Plaintiff$280,000 as satisfaction of the judgment in the Lawsuit. Upon payment of
the said judgment amount, the Plaintiff will execute and provide to City an acceptable
Satisfaction of Judgment to be filed with the Court. The Parties agree that,
notwithstanding any judgment that may be entered in the action, it is the intent of the
Parties to this Agreement that City, its officers, employees, agents, or representatives,
shall not in any event be liable to the Plaintiff beyond the consideration expressed in this
Agreement by reason of any damages or injuries to the Plaintiff or the next of kin on
which judgment in this Lawsuit may be based.
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2. Consideration Paid by State. State shall pay Twenty Thousand Dollars ($20,000) to the
Plaintiff.
3. Release. In consideration of the payments stated above, the Plaintiff and the next of kin
do hereby release and forever discharge State, Settles, Schartow, and the current and
former successors, employees, assignees, insurers, reinsurers, attorneys, heirs, executors,
administrators, and predecessors of them and City, and any assignees of all those persons
and entities from any and all liability, obligations, actions, causes of action, suits, claims,
rights, demands, losses, damages, deficiencies,judgments, debts, interest, fees, including
attorneys' fees, costs, profits, expenses and/or compensation for personal injuries,
wrongful death, pre-death damages, claims for conscious pain and suffering, claims for
loss of services, society and companionship, medical expenses, funeral or burial
expenses, or property damage of any kind whatsoever claimed in law or in equity, in
contract or in tort or otherwise, whether known or unknown, absolute or contingent,
liquidated or unliquidated, disputed or undisputed, accrued or unaccrued, past or future,
joint or several, that the Plaintiff, the decedent Alicia Rea, or her next of kin ever had,
now have, or in the future may have, in any way relating to, arising out of, resulting from
or associated with the Accident and the Lawsuit. This Release is full and final and shall
cover and include all known claims relating to the Accident as well as any and all past,
present or future claims of any kind not now known to the Parties to this Agreement, but
that may later appear, develop or be discovered against a Party and/or its representatives
arising out of the Accident or the effects or consequences thereof and including all causes
therefor.
4. Disposition of Lawsuit. In further consideration of the payments stated above, the
Plaintiff shall take all necessary steps to dismiss with prejudice the Lawsuit as against
State, Settles, and Schartow, with each Party to pay its own costs and attorneys' fees. In
further consideration of the payments stated above, City and the Plaintiff shall agree to,
and present to the Court for approval, the Consent Decree attached as Exhibit A. The
attached Consent Decree provides for the entry of the $280,000 judgment against City as
provided above, and also certain non-monetary terms that also serve as consideration for
this settlement.
5. Liens and Subrogation Interests. The Plaintiff and the next of kin agree to pay, out of the
settlement proceeds or otherwise, any medical bills, medical liens, funeral or burial
expenses, or subrogation interests arising from the Accident, and they shall indemnify the
Defendants and hold them harmless from any and all such medical bills, liens, funeral or
burial expenses, or subrogation interests.
6. Costs. The Parties shall each be responsible for payment of their own attorneys' fees,
costs, and litigation expenses. The mediator's fees associated with the July 3, 2014,
mediation conference shall be paid one-third by the Plaintiff and/or its attorneys, one-
third by City and/or its attorneys, and one-third by State and/or its attorneys.
7. No Admission. All Defendants in this action have denied and continue to deny liability
for the Accident or any negligence on their respective parts. This Agreement evidences a
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compromise of disputed claims regarding the Accident, and nothing contained herein
shall be construed as an admission by any Party of any damages or responsibility of any
kind for any alleged damages.
8. Representations and Warranties. Each of the Parties to this Agreement acknowledges,
agrees, represents and warrants as follows:
a. The Party has the full right, power, authority and capacity to enter into this
Agreement, and each individual signing this Agreement on behalf of an entity
represents and warrants that he or she has the full right, power, authority and
capacity to sign this Agreement on behalf of the entity for which he or she has
signed this Agreement, and no consent, approval, filing or other action is required
as a condition to or in connection with the execution, delivery and performance of
this Agreement by him or her (that has not been obtained or taken). The Party has
no knowledge of any other individual or entity that has not been referred to in this
Agreement that has any interest in the claims referred to in this Agreement.
b. In particular, City states that this Agreement has received the requisite approval
from its City Council and Mayor; State states that it has received the requisite
approval for this Agreement from the District Court pursuant to NEB. REV. STAT.
§ 81-8,218; and the Plaintiff states that it has received the requisite approval for
this Agreement from the Douglas County Court.
c. The Party is executing this Agreement and compromising all claims voluntarily
and of the Party's free will without coercion or duress, and this Agreement
constitutes a legal, valid and binding agreement, enforceable against each of them
in accordance with its terms.
d. The Party has neither received nor relied upon any statements, representations or
promises made by any individual or entity, or any representatives of any such
individual or entity, other than those representations and promises that are
expressly set forth in this Agreement. •
e. The Party has had an opportunity to review this Agreement with legal counsel
regarding the meaning of this Agreement, the obligations imposed by this
Agreement, and the legal implications and effect of this Agreement, as well as the
advisability of entering into this Agreement.
9. Entire Agreement; Amendments. This Agreement and the attached Consent Decree
contains the entire agreement and understanding between the Parties pertaining to the
subject matter herein and supersedes any and all prior and/or contemporaneous oral or
written agreements and understandings, if any, of the Parties in connection therewith. No
change, alteration, modification, termination or amendment of this Agreement shall be
effective or binding unless set forth in a written instrument signed by all the Parties.
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10. Binding Nature. This Agreement shall be binding upon and shall inure to the benefit of
the Parties and their respective legal representatives, successors and assigns.
11. Governing Law; Severability. This Agreement is made and entered into in the State of
Nebraska and shall be governed by the laws of the State of Nebraska without regard to
choice of law or conflicts of law principles. If any term of this Agreement is held invalid
or unenforceable to any extent, then the remaining terms of this Agreement shall not be
affected thereby, but each term of this Agreement shall be valid and enforced to the
fullest extent permitted by law.
12. Counterparts. This Agreement may be executed in multiple counterparts and each such
fully executed counterpart shall constitute an original, all of which together shall
constitute one and the same written agreement, and be binding and effective as to all of
the Parties. The exchange of signature pages by facsimile or electronic transmission shall
constitute effective execution and delivery of this Agreement by the Parties.
13. Other Actions. The Parties agree to execute and deliver instruments and take such other
actions as may be reasonably requested by the Parties in order to effectuate and
implement the terms set forth in this Agreement.
14. Public Records Act. This document shall be publicly disclosed to the extent necessary to
comply with NEB. REV. STAT. § 84-713 (Cum.Supp. 2012).
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BY THE PARTIES:
Robert Rea, Date
Personal Representative of the Estate of Alicia
Rea
Robert Rea, Individually Date
Tammi Rea, Individually Date
Anna Rea, Individually Date
Approved as to form & content:
Brian E. Jorde Date
Attorney for Plaintiffs
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CITY OF OMAHA,
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Date
Attest:
Stothert, Mayor
Attest:
)Buster Brown Date
City Clerk
Approved as to form & content:
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Thomas O. Mumgaqd Date /
Deputy City Attorney„
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Alan M.M. Thelen Date
Deputy City Attorney
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STATE OF NEBRASKA, Defendant
BY: JON BRUNING, #20351
Attorney General
BY:
Matthew F. Gaffey Date
Assistant Attorney General
P. O. Box 94759
Lincoln,NE 68509-4759
402-479-4611
Attorneys for Defendant
Approved as to form & content:
Matthew F. Gaffey Date
Attorney for Defendant
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IN THE DISTRICT COURT OF DOUGLAS COUNTY, NEBRASKA
ROBERT REA, PERSONAL ) CASE NO. CI 12-9707
REPRESENTATIVE OF THE ESTATE )
OF ALICIA REA, )
)
Plaintiff, )
)
v. ) CONSENT DECREE
)
CITY OF OMAHA, STATE OF NEBRASKA )
DEPARTMENT OF ROADS, )
KEVIN Y. SETTLES, MARK SCHARTOW, )
)
Defendants. )
THIS MATTER came before the Court upon the Parties' notification of settlement and
the desire of the Plaintiff and the Defendants City of Omaha, Kevin Y. Settles, and Mark
Schartow to stipulate to a Consent Decree to be entered by the Court under the terms shown
below. The Court finds that this Consent Decree should be entered.
IT IS, THEREFORE, ORDERED, ADJUDGED, AND DECREED as follows:
1. It has been brought to the Court's attention that Robert Rea has been named as Successor
Personal Representative of the Estate of Alicia Rea. Accordingly, as requested by the
Parties, the pleadings are hereby amended to show that the named Plaintiff is Robert Rea,
Personal Representative of the Estate of Alicia Rea.
2. The Defendant City of Omaha has offered to confess judgment against it in favor of the
Plaintiff in the amount of Two Hundred Eighty Thousand Dollars ($280,000), and the
Plaintiff desires to accept such offer of judgment. Accordingly, judgment is hereby
entered in favor of the Plaintiff and against the Defendant City of Omaha in the amount
of$280,000, with each Party to pay its own costs.
3. The Defendant City of Omaha shall pay said amount to the Plaintiff as satisfaction of the
judgment within two weeks. Upon receipt of such payment, the Plaintiff shall file a
Satisfaction of Judgment with the Court as to such payment.
4. As a further condition and term of settlement, the City of Omaha agrees to conduct
annual training for all City workers involved in state highway maintenance regarding the
provisions of the Manual on Uniform Traffic Control Devices.
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5. As a further condition and term of settlement, the City of Omaha agrees that any new
truck that will be used for maintenance on arterial streets with speed limits of 45mph or
greater shall be equipped with high-intensity flashing lights.
6. As a further condition and term of settlement, the City of Omaha agrees that it will, at
City expense, retrofit high-intensity flashing lights on any truck already owned by the
City that will be used in mobile operation repair activities on arterial streets with speed
limits of 45mph or greater.
7. As a further condition and term of settlement, the City of Omaha agrees that it will
update its repair procedures for work on arterial streets with speed limits of 45mph or
greater as the entity determines is required or guided by the MUTCD.
8. As a further condition and term of settlement, the City of Omaha agrees to consult with
the State of Nebraska Department of Roads regarding operational procedures with respect
to state highway mobile operations maintenance.
9. The annual training identified in Section 4 above shall be known as:
Safe Drivers
Safe Riders
Safe Workers
The Alicia Marie Rea training program—zero accidents—zero deaths
10. The Court shall preserve its jurisdiction and ability to enforce the terms of this Consent
Decree for a period of five years from and after the date of this Consent Decree. The
City shall thereafter continue to train Street Maintenance Division workers as provided in
Section 4 above and to retrofit and equip trucks as provided in Sections 5 and 6 above.
11. Upon completion of all settlement payments, the Parties shall present to the Court a
proposed order for the dismissal of all remaining Defendants other than the City from this
action, with prejudice, with each Party to pay its own costs and attorney fees.
BY THE COURT:
W. MARK ASHFORD, District Court Judge
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Approved as to form & content:
Brian E. Jorde Date
DOMINA LAW GROUP
2425 South 144th Street
Omaha, NE 68144-3267
(402) 493-4100.
Attorney for Plaintiff
Matthew F. Gaffey Date
Assistant Attorney General
P.O. Box 94759
Lincoln, NE 68509-4759
(402) 479-4611
Attorney for Defendant State of Nebraska
Thomas O. Mumgaard Date
Deputy City Attorney
Alan M. Thelen
Deputy City Attorney
804 Omaha/Douglas Civic Center
1819 Farnam Street
Omaha, NE 68183
(402) 444-5115
Attorney for Defendants City of Omaha et al.
•
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C-25A
CITY OF OMAHA
LEGISLATIVE CHAMBER
Omaha, Nebraska
RESOLVED BY THE CITY COUNCIL OF THE CITY OF OMAHA:
WHEREAS,litigation is presently pending in the District Court for Douglas County,
Nebraska,entitled Robert Rea, Personal Representative of the Estate ofAlicia Rea v. City of Omaha,
et al., Case No. CI 12-9707, in which the Estate of Alicia Rea alleges the City of Omaha is liable for
the wrongful death of Alicia Rea as a result of a collision between a vehicle driven by Miss Rea and
a Public Works Department truck west of 124th and West Maple Road; and,
WHEREAS, the allegations and contentions against the City of Omaha and its
employees constitute disputed claims; and,
WHEREAS, the City Council determines it is in the best interests of the City of
Omaha and its residents to avoid the cost and uncertainty of trial and resolve this litigation by
settlement through an offer to confess judgment, through approval of the attached Settlement
Agreement and Release and Consent Decree.
NOW,THEREFORE,BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY
OF OMAHA:
THAT, the lawsuit pending in the District Court of Douglas County, Nebraska,
entitled Robert Rea, Personal Representative of the Estate ofAlicia Rea v. City of Omaha, et al.,
should be and hereby is settled,upon entry of judgment against the City and subsequent payment by
the City in the amount of$280,000, inclusive of all costs; that the attached Settlement Agreement
and Release and Consent Decree are hereby approved; and that the said$280,000 shall be paid from
the Judgment Fund, Fund 12111, Org. 121101, Account 46216.
APPROVED AS TO FORM:
Vs.,
DEPUTY CITY ATTORNEY DATE
P\LAW-CITY COUNCIL DOCUMENTS\2014\30101dlm
By
Council member
Adopted t 7�.
City Clerk /O/P,ilif
Approved(, �� p
Mayor
NO. 1,
Resolution by
Res. that the lawsuit pending in the District
Court of Douglas County, Nebraska, entitled
Robert Rea, Personal Representative of the
Estate of Alicia Rea v. City of Omaha, et al.,
should be and hereby is settled, upon entry of
judgment against the City and subsequent
payment by the City in the amount of$280,000,
inclusive of all costs; that the attached
Settlement Agreement and Release and Consent
Decree are hereby approved; and that the said
$280,000 shall be paid from the Judgment
Fund, Fund 12111, Org. 121101, Account
46216.
P\LAW-CITY COUNCIL DOCUMLNTS\2014\30101dIm
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Presented to City Council
OCT 2 12014
Adopted . 7-
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City Clerk