AGENDA MEMORANDUM

Meeting Date:           July 12, 2010

From:                          Fred A. Morrison, City Attorney

Subject:                      Resolution authorizing approval of a settlement agreement  - Neil Fischer v. City of Leesburg

Staff Recommendation:

Staff recommends approval of a settlement agreement between the City of Leesburg and Neil J. Fischer, Jr. to bring to an end litigation pending between the parties.

Analysis:

Neil J. Fischer, Jr. filed a lawsuit against the City of Leesburg alleging false arrest in connection with an incident at Leesburg International Airport in which Mr. Fischer was accused of attempting to run down an employee of the FBO with his aircraft, and stalking the same individual at his places of employment. The State Attorney was consulted by the Police Department prior to the arrest, and an arrest warrant was obtained from the Circuit Court before the arrest, but the State Attorney subsequently declined to prosecute, and Mr. Fischer filed suit. The City obtained a Summary Judgment in its favor, which brought an end to the proceedings at the trial level, but Mr. Fischer has appealed and the appeal remains pending.

At a recent closed litigation strategy session the City Commission authorized our firm to engage in negotiations to settle the litigation for payment of a sum of money which is roughly equal to the expected cost to defend the summary judgment on appeal. The rationale is that it would be better to spend this sum to resolve the litigation in its entirety than to defend a summary judgment which may be reversed on appeal and then spend more money to defend the proceedings upon remand to the trial court. The amount spent is the same either way but by settling the City can avoid any further expense or liability whatsoever.

The City admits no fault in the settlement, and the decision to settle is purely an economic one at this point. The amount paid under the settlement, besides being commensurate with the cost to defend the appeal, is far less than the potential liability of the City if the case is remanded and a jury decides in Mr. Fischer’s favor, and far less than what Mr. Fischer has demanded both at mediation and in negotiations with his counsel before and after mediation. It also provides for a complete release of the City, its officers and employees from any further liability to Mr. Fischer arising out of the incident in question.

Options:        

1. Approve the settlement agreement as proposed, or

2. Decline to approve the settlement and instead proceed with the appeal and any subsequent litigation which ensues.

Fiscal Impact: 

There is no direct fiscal impact to the City from payment of the settlement proceeds which will be funded by the City’s insurer. If the Commission declines to accept the settlement it may incur additional out of pocket expense in defending future litigation with Mr. Fischer.

Submission Date and Time:    7/9/10 11:51 AM____

Department:            City Attorney    Prepared by:            Fred Morrison Attachments:  Yes_X__   No ______ Advertised:   ____Not Required ______ Dates:   __________________________                      Newspapers: _________________________________                                                     _________________________________            Revised 6/10/04

Reviewed by: Dept. Head ________ Finance  Dept. __________________                                    Deputy C.M. ___________________                                          Submitted by: City Manager ___________________

Account No. _________________ Project No. ___________________ WF No. ______________________ Budget  ______________________ Available _____________________

RESOLUTION NO.

A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF LEESBURG, FLORIDA, AUTHORIZING AND DIRECTING THE MAYOR AND CITY CLERK TO EXECUTE A SETTLEMENT AGREEMENT BETWEEN THE CITY OF LEESBURG AND NEIL J. FISCHER, JR. FOR THE PURPOSE OF RESOLVING THE PENDING LITIGATION BETWEEN THE CITY AND MR. FISCHER PERTAINING TO HIS CLAIM OF FALSE ARREST IN CASE NO. 2008 – CA – 03199 IN THE CIRCUIT COURT OF THE FIFTH JUDICIAL CIRCUIT IN LAKE COUNTY, FLORIDA, AND THE PENDING APPEAL IN CASE NO. 5D10-1710 IN THE FIFTH DISTRICT COURT OF APPEALS, AND PROVIDING AN EFFECTIVE DATE.

BE IT RESOLVED BY THE CITY COMMISSION OF THE CITY OF LEESBURG, FLORIDA:

THAT the Mayor and City Clerk are hereby authorized and directed to execute a Settlement Agreement between the City of Leesburg and Neil J. Fischer, Jr., for the purpose of resolving the pending litigation between the City and Mr. Fischer pertaining to his claim of false arrest in Case No. 2008 – CA – 03199 in the Circuit Court of the Fifth Judicial Circuit in Lake County, Florida, and the pending appeal in Case No. 5D10-1710 in the Fifth District Court of Appeals.

THIS RESOLUTION shall take effect upon its passage and adoption according to law.

PASSED AND ADOPTED at the regular meeting of the City Commission of the City of Leesburg, Florida, held on the        12th   day of                         July                  , 2010.

                                                                                    THE CITY OF LEESBURG, FLORIDA

                                                                                    BY:

                                                                                                MAYOR

Attest:

            CITY CLERK