1991-073ORDINANCE NO 9 -023
AN ORDINANCE OF THE CITY OF DENTON, TEXAS, APPROVING A COMPROMISE
SETTLEMENT RELEASE AND DISMISSAL OF ALL PENDING AND FUTURE CLAIMS
FOR PENDING LITIGATION BETWEEN THE CITY OF DENTON AND JOHN KEVIN
KELSOE, ET AL, AND DECLARING AN EFFECTIVE DATE
THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS
SECTION I That the attached Compromise Settlement Release
and Dismissal with Prejudice of all Pending and Future Claims be-
tween the City of Denton and John Kevin Kelsoe, Individually and as
Next Friend of Kacy Fallin Kelsoe and Kylie Patricia Kelsoe, pro-
viding for the settlement and compromise of the litigation now
pending between the parties before the 211th Judicial District
Court of Denton County, Texas in Cause No 90-30302-211, is ap-
proved in accordance with its terms The City Manager is autho-
rized to execute the agreement and all other documents and make the
payments and take such action as is necessary to comply with the
terms of said Agreement
SECTION II That this ordinance shall become effective im-
mediately upon its passage and approval
PASSED AND APPROVED this the day of May, 1991
ATTFST
JENNIFER WALTERS, CITY SECRETARY
BY
APPROVED A TO LEGAL FORM
DEBRA A DRAYOVITCH, CITY ATTORNEY
BY
NO. 90-90302-211
JOHN KEVIN KELSOE, Individually,
as Next Friend of KACY FALLIN
KFLSOE and KYLIE PATRICIA
KELSOE, Minors, and as Personal
Representative of the DSTATE OF
JULIE GAY KELSOE, Deceased, and
KENNETH FALLIN and wife ROSEMARY
FALLIN
V
CITY OF DENTON, TEXAS, a
Home-Rule Municipality
C KNOW ALL MEN BY THESE PRESENTSi
* 1
IN THE DISTRICT COURT 0; 17
* DENTON COUNTY, TEXAS
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* 211th JUDICIAL DISTRICT
This Agreement is made between Plaintiffs, John Kevin Raises,
Individually and as Next Friend of Racy Fallin Kelso* and Kylie
Patricia Kelsoe, Minors, and as Personal Representative of the
Estate of Julie Gay Xelsoe, Deceased (JOHN KELSOE), KENNETH FALLIN
and wife, ROSEMARY FALLIN, Racy Fallin Kelsoe, acting by and
through her Guardian Ad Litem (RACY KELSOE) I and Kylis Patricia
Kelsoe, acting by and through her Guardian Ad Litem (KYLIE KELSOE) I
C (all of whom may be referred to collectively as the PLAINTIFFS) and
Defendant, the City of Denton, Texas, (the CITY), as follows.
On January 19, 19900 Julie Gay Xelsoe was Swept away at a low
water crossing over Corbin Road while driving a motor vehicle that
was so designed and manufactured that she was trapped inside and
could not escape, and which further was not provided with an
adequate warning as to the danger of such circumstances. As a
Lesult of this lack of warning and this negligent or defective
design or manufacture, Julie Gay Kelsoe lost her life
*a c 0 a AMW
The circumstances surrounding this tragic event are such that
the PLAINTIFFS hdve Causes of action against the party or parties
responsible rur the design, manufacture, distribution, and sale of
the vehicle and pousible causes of action against Denton County,
Texas, and perhaps other parties.
The PLAINTIFFS and the CITY are aware that PLAINTIFFS contend
that their damages are at least the sum of $2,0140000 00, based
upon PLAINTIFFS' collective 1086 of Julie Kelsoe as wife, mother,
and daughter respectively. The parties to this Agreement agree
that a jury of reasonable jurors would probably determine that
their damages are at least the sum of $2,014,000.00, as sat forth
in their pleadings
After an investigation of the facts surrounding this tragedy,
the parties to this Agreement now firmly believe that the party or
parties responsible for the design, manufacture, distribution, and
sale of the vehicle, and Denton County, Texas, and perhaps other
parties, are solely responsible for Julie Gay Kelsoe's death
The CITY has been anxious to resolve the potential cause of
C action the Plaintiffs may have against the CITY, even though there
is strong evidence that would entitle the CITY to obtain a judgment
whereby all of these in the chain of production and distribution of
the motor vehicle in question, and perhaps Denton County and other
parties would pay to Plaintiffs the entire amount of their damages,
and the CITY would be obligated to pay nothing. However, there is
always some risk a jury, unknowingly or out or bias or prejudice,
might make findings that would compel the Court to enter judgment
which would permit such other potential defendants to avoid what
ur
the parties to this Agreement believe to be their true
responsibility in this matter. Additionally, PLAINTIFFS recognize
that the CITY has asserted that the Texas Tort Claims Act sets a
limit of damages recoverable from the CITY of $250,00o 00, which
wuul;l not begin to adequately compensate PLAINTIFFS
The parties to this Agreement desire to remove certain
unc-ertaintlew attendant to this litigation and to reduce the
hardship to PLAINTIFFS that has been caused and prolonged by the
nuri-wattling parties. The purpose of this Agreement is to provide
needed and immediate relief to PLAINTIFFS, to ensure a minimum
recovery for PLAINTIFFS, to extinguish ady possible liability of
the City of Denton, and to bring the non-settlinq parties to
justice
The CITY, beany a aelr-insured municipality, seeks to protect
itself and the taxpayers of the city in such a way as will permit
Plaintifre to proceed to trial wherein they may seek full
compensation for their damages from those parties which bear the
true responsibility for the death of Julie Gay Kelsos. The parties
Lharerore agree to the following terms and conditions:
1. The CITY will, upon the entry of the judgment of the
court herein, pay to PLAINTIFFS the total sum of $lao,ooO 00. Said
amount shall be apportioned and paid as ordered by the Court
2 Additionally, in an effort to assist Plaintiffs to
recover full compensation and damages from those responsible for
this tragic event, the City will pay 50% of the court costs, such
as filing fees and service of citation, and 50% of the costs of
investigation by, and consultation with, expert witnesses, incurred
Twee „P
after the date of this Agreement in preparation for bringing suit
against those parties in the chain of production and distribution
ut Julie Kelsoe's motor vehicle, and Denton county, and other
putq::tially liable parties not released by this Agreement, up to a
LuL41 payme:lt by the City of $10,000 00 for such investigation
costs and court costs associated with filing suit such payments
shall be made as such costs are incurred It is the intent of this
Agreement that under no circumstances shall the CITY ever be
required to pay more than the $140,000 00 set out in Paragraph 1,
the $100000 00 not out in this paragraph, and the costs of court in
this present suit.
3 Out of any recovery from any claim, suit or settlement by
any one or more or PLAINTIFFS from any other party, PLAINTIFFS Will
make payment as follows and in the following order:
a. Cost of suit, and costs of expert witnesses up to a
maximum of $75,000.001 shall first be deducted from any
recovery, and the CITY shall recover the 504 share it paid, on
a pro-rata basis of the amount paid by the CITY to the total
C costs and expert fees paid up to a maximum of $500000.00,
until the full amount paid by the CITY, under Paragraph 2
herein, is repaidi
b Out of the remainder of any money recovered from any
other party, the CITY shall receive:
1. Twenty-five cents out of every dollar (254) of the
firar $3nn,nOn OO.
2. Thirty cents out of every dollar (304) of the next
$200,000.00: and
3 Fifty cents out of every dollar (5os) of all money
samaining from any recovery until all amounts paid by the
CITY under this Agreement, including court costs and
Guardian Ad Litem fees have been repaid to the CITY
4 PLAINTIFFS and their attorney agree that they will use
their best efforts and exercise due diligence, within the bounds of
the Rules of Pro"dure and the Code of Professional Responsibility,
in invuetigating and prosecuting any non-frivolous claims against
third parties not released by this Agreement,
5 In addatiunal consideration of the mutual covenants and
C the payments set out herein, the sufficiency of which is hereby
acknowledged, John Kevin Kelsoe, Individually and as Next Friend of
Kaa.y Callan Keluue end xylie Patricia Kelsoe, Minors, and as
Personal Representative of the Estate of Julie Gay Kelsoe,
OwL.odaed, Kenneth Fallin and wife, Rosemary Fallin, Kacy Fallin
Kulaue, acting by and through her Guardian Ad Litem, and Kylie
Patricia Kelsoe, acting by and through her Guardian Ad Litem, do
all jointly and severally hereby release, acquit, discharge, and
C quitclaim unto the CITY, its past, present, and future elected
officials, appointed officials, employees, agents, representatives,
and attorneys, all and each of them, of and from any and all
actions, causes of action, claims (including subrogation claims),
and demands, on account of or in any way growing out of any and all
negligence, conspiracies, intentional misconduct, wrongful claims
h4ndlirig, violation of constitutional and statutory rights, breach
of any duty of good faith and fair dealing, personal injuries,
damayu to reputation, pain and suffering, grief, bereavement, loss
Am me STIMAnw no MUOU"Wr
of consortium and companionship, damage to familial relationship,
mental anquiah, psychic injury, loss of earning capacity, loss of
household services, lose of wages profits and money, damage to and
taking of property, attorney's fees, pro and post judgment
interest, and all other causes of action and damages whether known
or unknown and whether heretofore asserted or not, connected with
or resulting from the death of Julie Gay Kelsoe, or the reporting
of, or discovery of, the death of Julie Gay Kelsoe which occurred
on or about January 19, 1990, all as more fully described in
Plaintiffs' pleadings on file herein, to which reference is made
for a more complete description, and do hereby agree to indemnify
and save harmless the said the CITY, its past, present, and future
elected officials, appointed officials, employees, agents,
representatives, and attorneys, all and each of then, of and from
all such past and future claims, including subrogation claims,
demands, costs, or expenses arising out of any injuries and damages
sustained by them as a result of the death of Julie Gay Kelsoe, or
the reporting of, or discovery of, the death of Julie Gay Kelsoe,
whether included in a claim for damages under the survival of
l actions statute, Tsx. Civ. Prac. i Rom. Code 171 021 or under the
wrongful death statutes, Tex. Civ Prao. a Rem. Code 971.001, etc
The undersigned understand and agree that the amount paid
under this agreement is a full satisfaction and accord of all
claims they may have against the CITY, its past, present, and
future elected officials, appointed officials, employees, agents,
representatives, and atterneys, all and each of them, arising on
account of the above described events and that they will receive no
tae Ale •
further sums at money from the CITY, its past, present, and future
elected vrricials, appointed officials, employees, agents,
representatives, and attorneys.
Further, PLAINTIFFS expressly warrant that either there are no
outstanding unpaid hospital liens, medical insurance subrogation
claims, or property damage subrogation claims and that PLAINTIFFS
jointly and severally will defend, indemnify, and hold harmless the
said the CITY, its past, present, and future elected officials,
appointed officials, employees, agents, representatives, and
attorneys, of and from the payment of such subrogation claims and
hospital liens (especially with reference to any liens under the
Texas Hospital Lien Law)
It in expressly warranted by the undersigned that no promise
or inducement has been offered except as herein set rorthi that
this Agreement is executed without reliance upon any statement or
Lepresentatson of any person or parties released or their
representatives, concerning the nature and extent of the injuries,
damages and/or legal liability thereforei that acceptance of the
C consideration set forth herein is a full accord and satisfaction of
disputed claims, concerning the possible liability of the City of
Denton, Texas, its past, present, and future elected officials,
appointed officials, employees, agents, representatives, and
attorneys, which is incapable of being exactly determined, and
shall not be construed as constituting an admission of liability on
the part of the CTTY.
The undersigned John Kevin Kelsoe, Individually and as Next
Friend of Kacy Fallin Kelsoe and Kylie Patricia Kelsoe, Minors, and
T Ale 7 1
as Personal Representative of the Estate of Julie Gay Kelso*,
Deceased, and Kenneth Fallin and wile, Rosemary Pallin, in further
6un4ideration of the payment herein made to them, state that they
are the sole surviving heirs of Julie Gay Kelsos, that no probate
uc uther legal proceeding is pending as to the Estate of Julie Gay
Kelsos, and that none will be forthcoming.
This Agreement and stipulation shall be and is respectfully
submitted to the court by all parties including John Kevin Kelso*
and the Guardians Ad Litem for Kacy Fallin Kelsoe and Kylis
Patricia Kelsoe, who are of the opinion and represent to the Court
that the proposed Agreement is to the advantage of Keay Fallin
Kelsoe and Kylie Patricia Kelsoe and is for their best interests
4111 All parties do further request approval of this Agreement by
the Court.
FOR THE SAME CONSIDERATION, it is agreed that the above-styled
suit will be dismissed as to the CITY, with prejudice to refiling
the same, and that costs of court to date will be taxed to the
CITY,
This document contains the entire agreement of the parties
hereto. THE PROVISIONS OF THIS RELEASE ARE CONTRACTUAL AND NOT
MERE RECITALS.
WITNESS OUR HANDS THIS In DAY OF n• ~
1991.
John Kevin Kelsoe, individually
and as Next Friend of Kacy Fallin
Kelso* and Kylie Patricia Kelsoe,
Minors, and AS Personal Representa-
tive of the Estate of Julie any
Kelsoe
AW T AM STIN" JUWWW . 4
C,
r~
Jerry Cobb -
Guardian Ad Litam for
Kylis Patpicia Kclace
Don ; n s
Guardian Ad Litem for
Kacy Fallin Kelsoe
CITY OF DENTON, TEXAS
i
Lloyd Harrell, City Manager
APPROVED:
v ~%1
.
chaei J.,
tten
Attorney to Plaintiffs
SON 21]920DO
Ronald H. C ar -
Attorney for Defendant
SON 04198100
STATE OF TEXAS
a
COUNTY OF DENTON +
This instrument was acknowledged before me on this =-tjday of
1991, by John Kevin Kelsoe.
ref
Notary Public - State of Texas
` eA MAUREEN E. HOWARD
• NOTARY PUBLIC. STATE OF TEIGS
MY Commission Eerres June lA 1993
STATE OF TEXAS a
COUNTY OF TARRANT Al
I ThiLinstrument was acknowledged before me on this _'day of
, 1991, by Kenneth rj lin. ,
+ •o -
MAUREEN E HOWARD Notary Fubl C State of Texas
• • NOTARY PUBLIC, STATE OE TEIGS
f^~ or s~ MY Commission Eeoues June l/ 1993
STATE OF TEXAS •
It
COUNTY OF TARRANT
This instrument was acknowledged before me on this ,'day of
, 1991, by Rosemary Fallin.
-
Notary it . 0
MAUREEN E. HOWARD Public - State Of TOXae
P • NOTARY PUBLIC, STATE OF TEXAS
'•4,E x M1Jwt Mr Commission EsMres June U 1993
STATE OF TEXAS IF
a
COUNTY OF DENTON a
n
This instrument was acknowledged before me On this, I
III , 1991, by Lloyd Harrell, City Manager for the City of
nantort/ Tawas
i /
JEN
NIFERK BIERS ? taryc - sta a of Texas
OSMIIMIM 1V,pi944
Oto
m P •1,0111 10
STATE OF TEXAS
COUNTY OF DENTON
This instrument was acknowledged before me on this ~ day of
19910 by Jerry Cobb, as Guardian Ad Litem for Kylie
Patricia Itelsoe
~ r
MAUREEN E. HOWARD
• NOTARY PUBLIC, STATE OF TWS
'1., c ytj My fammiamn Ermree June 11 1995
Notary Public - Stats of -Texas
STATE OF TEXAS
COUNTY OF DENTON
! This instrument was
C Faili Re-NU1 19910 by
•1~•e¢ MAUREEN E HOWARD
• • NOTARY PUIIIC, STATE OP TESA9
w~ MrCemmiuionEepnelunelA 1999
*
*
*
acknowledged before me on this 464 of
Don Windle, as guardian Ad Litem PKacy
Notary Public - State of Texas