chapter 27 releases and settlement agreements · ch. 27 releases & settlement agreements §...

Sample from Florida Legal Forms, Volume 9, Specialized Forms Copyright 1990, 2019 James W. Martin, Esq. All rights reserved. Provided for background information only, not legal advice.I www.jamesmartinpa.com

Sec.

CHAPTER 27

RELEASES AND SETTLEMENT AGREEMENTS

Table of Sections

A. INTRODUCTION

27.1 In General.

B. GENERAL RELEASES

27.10 General Release by Individual Claimant. 27.11 __ Another Form. 27.12 __ Another Form. 27.13 General Release by Joint Claimants. 27.14 General Release by Receiver on Behalf of Himself and Insolvent

Company. 27.15 Race Track Driver's Release. 27.16 Release. 27.17 General Release and Indemnification. 27.18 General Release-Lawsuit Settled. 27.19 __ Former Employee. 27.20 Receipt and Release by Beneficiary of Trust. 27.21 Satisfaction and Release of Claim in Probate. 27.22 Release and Hold Harmless Agreement. 27.23 General Release and Confidentiality Agreement-Employment. 27.24 Release-Prize.

C. MUTUAL RELEASES

27 .50 General Mutual Release. 27 .51 Mutual Release on Termination of Contract. 27.52 Mutual Release of Liability Under Building Contract. 27.53 Mutual Release on Termination of Lease. 27.54 Mutual General Release. 27.55 Mutual Release-Lawsuit.

D. RELEASE OF CONTRACT CLAIMS

27.80 Release of Claim Under Contract. 27.81 Release of Claim Evidenced by Note. 27.82 Release of Right of Action for Breach of Contract. 27.83 Release From Liability Under Title Policy. 27 .84 Release of Obligations Under Lease. 27.85 Release From Liability for Breach of Employment Contract.

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Ch. 27 RELEASES & SETrLEMENT AGREEMENTS

E. RELEASE OF TORT CLAIMS Sec. 27.100 Release of Claim for Personal Injury. 27.101 __ Short Form. 27.102 __ Another Form. 27.103 Release in Full. 27.104 Parents-Guardian Release and Indemnity Agreement. 27.105 Release by Minor and Guardian. 27.106 Release of All Claims Including Claim for Personal Injury. 27.107 __ Another Form. 27.108 Release of All Claims by Donor and Receipt in Request for Kidney

Transplant Operation. 27.109 Release of Railroad Company From Liability for Personal Injuries. 27.110 Release of Cab Company From Liability for Personal Injuries. 27.111 Release of Telephone Company From Liability for Damage to Property. 27.112 Release and Settlement of Suit for Personal Injuries. 27.113 Release of One Joint Tortfeasor From Liability for Personal Injuries. 27.114 __ Clause Reserving All Claims Except as Against Named Parties. 27 .115 Release of Settling Tortfeasors Providing for Satisfaction of Portion of

Cause of Action and Reserving Balance Against Nonsettling Tottfeasor With Indemnification Clause.

27.116 Release of Primary Insurer With Reservation of Rights Against Excess Insurer and Others.

27.117 Release by Insurer on Settlement of Claim Against Third Party.

F. COVENANTS NOT TO SUE

27.130 General Covenant Not to Sue. 27.131 Covenant of Parent and Guardian Not to Sue With Indemnity Agree-

ment. 27.132 Covenant Not to Sue With Loan Receipt Provision. 27.133 Covenant Not to Sue One of Two Joint Tortfeasors. 27.134 __ Including Agreement to Dismiss Pending Suit. 27.135 Covenant Not to Sue With Reservation of Right to Proceed Against

Others. 27.136 Covenant Not to Execute on Judgment in Pending Suit. 27.137 Covenant Not to Execute Combined With Covenant Not to Sue.

G. MISCELLANEOUS RELEASES

27.150 Release of Lost Bond. 27.151 Release of Lien. 27.152 Release of Judgment. 27.153 Release by One Partner. 27.154 Release of Guardian by Ward on Attaining Majority. 27.155 Release of Principal by Agent Who Has Received Payment in Satisfac

tion of Disputed Balance. 27.156 Release of Certain Marital Rights. 27.157 Release and Disclaimer-Trust.

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RELEASES & SETTLEMENT AGREEMENTS

H. SETTLEMENT AGREEMENTS Sec.

Ch. 27

27.200 Agreement of Settlement, Compromise, Waiver and Release-Commis-sion Dispute.

27.201 Settlement Stipulation, Dismissal and Mutual Release. 27.202 Stipulation for Dismissal With Prejudice. 27.203 __ Another Form. 27 .204 Stipulation for Abatement. 27 .205 Stipulation for Dismissal-Federal Court. 27.206 Structured Settlement Agreement.

Library References: C.J.S. Compromise and Settlement§ 16 et seq.; Release§§ 4-7, 44-51 et seq. West's Key No. Digests, Compromise and Settlement e::>5(1); Release e::>5, 6,

30-37. ,

A. INTRODUCTION

§ 27.1 In General This chapter covers forms of releases, covenants not to sue, and

settlement agreements. A release is the relinquishment or giving up of a right, claim or privilege by the person entitled thereto. 1 It may be general in nature, releasing all claims of every description, or it may release a specific claim or only a part of a specific claim. It is usually distinguished from a covenant not to sue. The latter is an agreement by the one executing it that he will not sue to enforce l;l right of action which he may have. 2 A covenant not to sue accordingly does not constitute an abandonment or discharge of the right or claim.

No particular form or set of words is necessary for either a release or a covenant not to sue.3 Such instruments are construed according to the rules governing the construction of contracts generally. Here as elsewhere clarity of language is highly important to show what is the intention of the parties. 4

At common law a seal was regarded as a requisite of a release. 15

The prevailing rule now is that a release is valid without a seal provided that it is supported by consideration. Similarly, a covenant not to sue should ordinarily have consideration, at least in the absence of statute.

§§ 27 .2-27 .9 are resened for supplementary material.

§ 27.1 3. C.J .$. Release § 5.

1. C.J.S. Release § 1. 4. C.J.S. Release § 38.

2. C.J.S. Release § 3. 5. C.J .S. Release § 7.

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Ch. 27 RELEASES & SETTLEMENT AGREEMENTS § 27.12

B. GENERAL RELEASES

§ 27.10 General Release by Individual Claimant Know All Men by These Presents, that I, __ _, of __ _, in

consideration of the sum of $ __ _, the receipt of which is hereby acknowledged, do hereby remise, release, and forever discharge ___ of ___ his heirs, executors, administrators and personal representatives, of and from all and all manner of actions, causes of action, suits, proceedings, debts, dues, contracts, judgments, damages, claims, and demands whatsoever in law or equity, which against the said ___ I ever had, now have, or which my heirs, executors, administrators or personal representatives hereafter can, shall, or may have for or by reason of any matter, cause, or thing whatsoever, from the beginning of the world to the date of these presents.

In Witness Whereof, I have hereunto set my hand and seal the ___ day of ___ 19_.

[Signature, Seal and Acknowledgment ]

§ 27.11 General Release by Individual Claimant-Another Form

Know All Men by These Presents, that ___ of ___ in consideration of the sum of ___ dollars ($ ___ ), to him in hand paid by ___ of __ _, the receipt of which is hereby acknowl-edged, has remised, released, and forever discharged, and by these presents does for his heirs, executors, administrators and personal representatives, remise, release, and forever discharge the said __ _ of and from any and all actions and causes of action, claims and demands whatsoever, whether known or unknown and whether or not well founded in fact or in law, and of and from any and all and all manner of suits, debts, dues, sums of money, accounts, reckonings, bonds, bills, specialties, covenants, controversies, agreements, promises, trespasses, damages, judgments, executions, claims and demands whatsoever in law or in equity which the undersigned has had or now has or which he or his heirs, executors, administrators and personal representatives hereafter can, shall or may have for, upon or by reason of any matter, cause or thing whatsoever, from the beginning of the world to the date of these presents.

In Witness Whereof, etc.

§ 27.12 General Release by Individual Claimant-Another Form

In consideration of one dollar ($1.00) and other valuable considera-tions to it paid by ___ of ___ the receipt whereof is hereby

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§ 27.12 RELEASES & SE'ITLEMENT AGREEMENTS Ch. 27

acknowledged, the undersigned hereby remises, releases and forever discharges the said ___ of and from all debts, demands, actions, suits, agreements, damages and any and all claims, demands and liabilities whatsoever of every name and nature, both in law and in equity, which, against the said ___ or its successors and assigns, the undersigned now has or ever had from the beginning of the world to this date.


§ 27 .1.3 General Release by Joint Claimants To All to Whom These Presents Shall Come or May Concern,

Greetings: Know Ye, that, we, ______ and ___ for and in

consideration of the sum of ___ dollars ($. ____ ) lawful money of the United States of America, to us in hand paid by ___ and ___ the receipt whereof is hereby acknowledged, have remised, released and forever discharged and by these presents do for ourselves, our heirs, executors, administrators, personal representatives, succes-sors and assigns, remise, release and forever discharge the said __ _ and ___ their heirs, executors, administrators and personal repre-sentatives, of and from all, and all manner of action and actions, cause and causes of action, suits, debts, dues, sums of money, accounts, reckoning, bonds, bills, specialties, covenants, contracts, controversies, agreements, promises, variances, trespasses, damages, judgments, extents, executions, claims and demands whatsoever, in law or in equity, which against them, we or any of us ever had, now have or which we, our heirs, executors, administrators or personal representatives, hereafter can, shall or may have for, upon or by reason of any matter, cause or thing whatsoever from the beginning of the world to the day of the date of these presents. ·

In Witness Whereof, we have hereunto set our hands and seals the ___ day of __ _, 19_,

_________ [Seal]

_________ [Seal]

Sealed and delivered in the presence of:

§ 27 .14 General Release by Receiver on Behalf of Himself and Insolvent Company

To All to Whom These Presents Shall Come or May Concern, Greetings:

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Ch. 27 RELEASES & SETTLEMENT AGREEMENTS § 27.14 Know Ye, that I, ___ as Receiver of Central ___ Insur-

ance Company (hereinafter called "Central") for and in consideration of the sum of ($ ___ ) dollars ___ lawful money of the United States of America to me in hand paid by ___ the receipt whereof is hereby acknowledged, have remised, released, and forever discharged and by these presents do for myself and Central, jointly and severally, and my and its respective successors and assigns, remise, release and forever discharge the said ___ and his heirs, executors, adminis-trators, personal representatives and assigns of and from all, and all manner of action and actions, cause and causes of action, suits, debts, dues, sums of money, accounts, reckoning, bonds, bills, specialties, covenants, contracts, controversies, agreements, promises, variances, trespasses, damages, judgments, extents, executions, claims and demands whatsoever, in law, in admiralty, or in equity, which against said __ _, I and Central, jointly and severally, ever had, now have or which I and Central, jointly and severally, and my and its respective successors and assigns hereafter can, shall or may have for, upon or by reason of any matter, cause or thing whatsoever (whether now known or unknown) from the beginning of the world to the day of the date of these presents, including, without limiting the generality of the foregoing, all claims asserted by me, as plaintiff, in the second amended complaint in the action now pending in the ___ Court, __ _ County, entitled "---" provided, however, that I do not release from liability but hereby expressly reserve to myself and Central, jointly and severally, and my and its respective successors and assigns all, and all manner of action and actions, cause and causes of action, suits, debts, dues, sums of money, accounts, reckoning, bonds, bills, specialties, covenants, contracts, controversies, agreements, promises, variances, ·trespasses, damages, judgments, extents, executions, claims and demands whatsoever, in law, in admiralty, or in equity, which I and Central, jointly and severally ever had, now have or which I and Central, jointly and severally, and my and its respective successors and assigns hereafter can, shall or may have for, upon or by reason of any matter, cause or thing whatsoever (whether now known or unknown) from the beginning of the world to the day of the date of these presents, against any person, firm or corporation other than said

Corporation, ___ and the firm of __ _, and their respective heirs, executors, administrators, personal representatives, successors, and assigns, including, without limitation of the foregoing, each and every debt, contract, agreement, demand, right, claim, cause of action, suit and proceeding which I and Central, jointly and severally, ever had, now have or which I and Central, jointly and severally, and my and its respective successors and assigns hereafter can, shall or may have against __ _, ___ and __ _, individually and as partners of ___ and ___ Company, and their respective heirs, executors, administrators, personal representatives, successors and assigns.

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§ 27.14 RELEASES & SETTLEMENT AGREEMENTS

This release may not be changed orally.

Ch. 27

In Witness Whereof, I have hereunto set my hand and seal the ___ day of __ _, 19_.

________ [L.S.]


§ 27.15 Race Track Driver's Release

Track __________ _ Date __________ _

In consideration of receiving perm1Ss1on from ___ to enter upon the premises of this speedway, the receipt of such perm1SS1on being hereby acknowledged, and in further consideration of receiving permission to participate, when qualified either as a driver, mechanic, owner, attendant, or in any other capacity, in any race held at these premises, the receipt of such permission being also hereby acknowledged, each of the undersigned hereby releases __ _, the licensed promoter, and its agents, officers, servants, and employees, of and from any and all liability, claims, demands, actions, and causes of action whatsoever, arising out of or related to any loss, damage, or injury, including death, that may be sustained by any or each of the undersigned, or any property of any or each of the undersigned, while in, on, or upon these premises, or any premises leased to, owned by, sanctioned by, or under the control or supervision of ___ or en route to or from these premises, or any other premises leased to or under the control or supervision of __ _

Each of the undersigned being duly aware of the risks and hazards inherent upon entering upon said premises and/or in participating in any races held at said premises, hereby elects voluntarily to enter upon said premises, knowing their present condition and knowing that said condition may become more hazardous and dangerous during the time that each of the undersigned is upon the said premises. Each of the undersigned hereby voluntarily assumes all risks of loss, damage, or injury, including death, that may be sustained by any or each of the undersigned, or any property of any or each of the undersigned while in, on or upon said premises.

This release shall be binding upon the distributees, heirs, next of kin, executors, administrators and personal representatives of each of the undersigned.

In signing the foregoing release, each of the undersigned hereby acknowledges and represents:

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(a) That he has read the foregoing release, understands it, and signs it voluntarily;

(b) That he is over 21 years of age and of sound mind; (c) That he is not an agent, servant, or employee of __ _, and/

or any of the agents, officers, servants, or employees of the promotor; (d) That he is an independent contractor and assumes and takes all

responsibility for all charges, premiums, and taxes, if any, payable on any funds he may receive as a result of his activities, including, without limiting the generality of the foregoing, social security taxes, unemployment insurance taxes, compensation insurance, income taxes and withholding taxes.

In Witness Whereof, each of the undersigned has hereunto set his hand and seal this ___ day of ___ , 19_,

[Signature] Pit Pass No.

§ 27 .16 Release This Release is executed this ___ day of ___ 19_, by

___ , hereinafter "Party A", in favor of ___ hereinafter "Party B".

WHEREAS disputes and differences have arisen between the par-ties with respect to __ _

WHEREAS the parties have agreed to amicably resolve, settle and compromise all disputes and differences they have or may have arising out of facts or occurrences existing as of this date, known or unknown, which are released below;

NOW THEREFORE in consideration of the mutual covenants con-tained herein, and the sum of ___ paid to Party A by Party B, the receipt and sufficiency of which is hereby acknowledged by Party A, Party A hereby remises, releases, acquits, satisfies, and forever discharges Party B and its heirs, personal representatives, successors, assigns, employees, agents and attorneys of and from all actions, suits, debts, dues, sums of money, accounts, reckonings, bonds, bills, specialties, covenants, attorneys fees, expenses, contracts, controversies, agreements, promises, variances, damages, judgments, executions, claims and demands whatsoever, in law or in equity, which Party A or its principals ever had, now has, or may have, or which any personal representative, successor, heir or assign of Party A hereafter can, shall or may have, against Party B or its heirs, personal representatives, successors, assigns, employees, agents or attorneys, for, upon or by reason of any matter, cause or thing whatsoever, from the beginning of the world to the date of this release.

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§ 27.16 RELEASES & SETl'LEMENT AGREEMENTS Ch. 27

IN WITNESS WHEREOF, Party A has executed this Release on the date above-first written.

Signed, sealed and delivered in the presence of:

Witnesses

STATE OF FLORIDA COUNTY OF __ _

PARTY A:

________ (Seal)

Title: _________ _

BEFORE ME personally appeared __ _, as ___ of __ _ to me well known, and known to me to be the person described in and who executed the foregoing instrument, and who after being first duly sworn, acknowledged to and before me that he executed said instrument for the purposes therein expressed.

WITNESS my hand and official seal this ___ day of __ _, 19_, in the aforesaid County and State.

NOTARY PUBLIC State of Florida at Large My commission expires:

(SEAL)

§ 27 .17 General Release and Indemnification KNOW ALL MEN BY THESE PRESENTS:

That we, __ _, jointly and severally, hereinafter collectively called "Claimants", for and in consideration of the total sum of __ _ and No/100 Dollars($. ___ .) and other valuable consideration paid by ___ ("Insuror"), receipt of which is hereby acknowledged by Claimants, do hereby remise, release, acquit, satisfy, and forever discharge

Insuror and ___ and all of their attorneys, employees, agents, insurers, and representatives, past and present, hereinafter collectively called "Claimees",

and each of them, of and from any and all actions, causes of action, suits, debts, dues, sums of money, accounts, reckonings, bonds, bills, rights, specialties, covenants, contracts, controversies, negligence, professional liability, wrongs, agreements, promises, variances, trespasses, damages, delays, judgments, executions, losses, attorneys fees, court costs, expenses, claims and demands whatsoever, in law or in equity, whether existing under the laws of any state or country, which Claimants, or any of them, or anyone claiming by, through or under them or

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Ch. 27 RELEASES & SETrLEMENT AGREEMENTS § 27.17 any of them, ever had, now has, or may at any time in the future have, or which any personal representative, successor, heir or assign of them or any of them hereafter can, shall or may have for, upon or by reason of any matter, cause, circumstance or thing whatsoever, from the beginning of the world through the date of this instrument.

It is the intent of the undersigned that this be a full, complete and general release of all such actions, causes of action, etc., including but not limited to such actions, causes of action, etc., that are discovered after the date of this instrument and which relate to any matter, cause, circumstance or thing existing on or prior to the date of this instrument.

Claimants further hereby covenant and agree not to sue or bring any action or proceeding against Claimees, or any of them, for any matter, cause or thing arising, existing, accruing or resulting from circumstances existing on or prior to the date of this instrument.

Claimants do hereby further covenant and agree to indemnify, defend and hold Claimees, and each of them, harmless of and from any and all claims, demands, losses, expenses, attorneys fees, causes of action, judgments, lawsuits, proceedings, damages, and liability which are brought or claimed by anyone and which relate in any way to, or arise in any way from, any thing done or performed on or prior to the date of this instrument by Claimees, or any of them, for or on behalf or for the benefit of any or all Claimants.

Claimants hereby represent and acknowledge that Claimants have obtained independent legal counsel before signing this instrument, that Claimants have been fully advised that this instrument is legally binding upon Claimants, that there are no representations or promises made to Claimants by Claimees or anyone on behalf of Claimees, that each of the undersigned is authorized to sign this instrument, and that all corporate action of the undersigned that are corporations has been taken to make this instrument fully legal and binding upon all of the undersigned.

IN WITNESS WHEREOF, we have hereunto set our hands and seals on this ___ day of __ _, 19_.

_________ (Seal)

Witnesses

Corporation:

By:

Title: __________ _ Witnesses (Corporate Seal)

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§ 27.17 RELEASES & SETILEMENT AGREEMENTS


Ch. 27

I HEREBY CERTIFY that on this day, before me, an officer duly authorized in the State aforesaid and in the County aforesaid to take acknowledgments, personally appeared __ _, to me known to be the person described in and who executed the foregoing instrument and who, after being first duly sworn, acknowledged before me that he executed the same.

WITNESS my hand and official seal in the County and State last aforesaid this ___ day of __ _, 19_,

NOTARY PUBLIC

§ 27.18 General Release-Lawsuit Settled

KNOW ALL MEN BY THESE PRESENTS: That we, __ _, ___ also known as __ _, ___ and

jointly and severally, hereinafter collectively called "---", for and in consideration of the sum of $. ___ (.---Dollars) and other valuable consideration, receipt of which is hereby acknowledged by __ _, do hereby remise, release, acquit, satisfy, and forever discharge __ _, __ _, __ _, ___ and __ _, and all of their attorneys, employees, agents and representatives, past and present, hereinafter collectively called "---", and each of them, of and from any and all actions, causes of action, suits, debts, dues, sums of money, accounts, reckonings, bonds, bills, rights, specialties, covenants, contracts, controversies, agreements, promises, variances, trespasses, damages, judgments, executions, losses, attorneys fees, court costs, expenses, claims and demands whatsoever, in law or in equity, whether existing under the laws of any state or country, which ______ also known as __ _, __ _, and __ _, or any of them, or anyone claiming by, through or under them or any of them, ever had, now has, or which any personal representative, successor, heir or assign of them or any of them hereafter can, shall or may have for, upon or by reason of any matter, cause or thing whatsoever, from the beginning of the world through the ___ day of ___ in the year one thousand ___ ( ___ _, 19_)_

It is the intent of the undersigned that this be a full, complete and general release. It is also the intent of the undersigned that this release includes, but is not limited to, a release of all matters claimed by ___ in that certain civil action in the United States District Court for the ___ District of __ _, ___ Division, Case No. __ _, captioned "--- Plaintiff vs. ___ Defendant".

hereby represents and acknowledges that ___ has obtained independent legal counsel before signing this instrument, that

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Ch. 27 RELEASES & SETrLEMENT AGREEMENTS § 27.19 --- has been fully advised that this instrument shall be legally binding upon __ _, that there are no representations or promises made to ___ which are not contained in this instrument, and that the only obligation of ___ shall be to pay ___ the said above-mentioned sum of $ __ _

IN WITNESS WHEREOF, we have hereunto set our hands and seals on this ___ day of __ _, 19_.

Witnesses

STATE OF ___ _ COUNTY OF __ _ }

I HEREBY CERTIFY that on this day, before me, an officer duly authorized in the State aforesaid and in the County aforesaid to take acknowledgments, personally appeared ___ to me known to be the person described in and who executed the foregoing instrument and who acknowledged before me that he executed the same.

WITNESS my hand and official seal in the County and State last aforesaid this ___ day of __ _, 19_.

NOTARY PUBLIC My commission expires:

(Seal)

§ 27.19 General Release-Former Employee

KNOW ALL MEN BY THESE PRESENTS: That I, __ _, of __ _, __ _, ___ first party, for and

in consideration of the sum of $. ___ and other valuable considera-tion received from ___ second party, do hereby remise, release, acquit, satisfy, and forever discharge __ _, and all of their employees, agents and representatives (past and present), of and from any and all actions, causes of action, suits, debts, dues, sums of money, accounts, reckonings, bonds, bills, specialties, covenants, contracts, controversies, agreements, promises, variances, trespasses, damages, judgments, executions, claims and demands whatsoever, in law or in equity, which said first party ever had, now has, or which any personal representative, successor, heir or assign of said first party, hereafter can, shall or may have, against said named persons and entities, for, upon or by reason of any matter, cause or

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§ 27.19 RELEASES & SE'ITLEMENT AGREEMENTS Ch. 27

thing whatsoever, from the beginning of the world to the date of this instrument.

It is the intent of the undersigned that this be a full, complete and general release. It is also the intent of the undersigned that this release all matters claimed by the undersigned in a certain letter to __ _, ___ dated __ _, 19_. It is also the intent of the undersigned that this release all claims, whether they arise under state law, federal law or otherwise.

The first party hereby represents and acknowledges that she has obtained independent legal counsel before signing this instrument, that she has been fully advised that this instrument shall be legally binding upon her, that there are no representations or promises made to her which are not contained in this instrument, and that the only obliga-tion of second party shall be to pay first party the said sum of $. __ _

IN WITNESS WHEREOF, I have hereunto set my hand and seal this ___ day of __ _, 19_.

Witnesses

STATE OF ___ _ COUNTY OF __ _ }

I HEREBY CERTIFY that on this day, before me, an officer duly authorized in the State aforesaid and in the County aforesaid to take acknowledgments, personally appeared ___ to me known to be the person described in and who executed the foregoing instrument and she acknowledged before me that she executed the same.

WITNESS my hand and official seal in the County and State last aforesaid this ___ day of ___ 19_.

NOTARY PUBLIC (SEAL)

§ 27 .20 Receipt and Release by Beneficiary of Trust The undersigned hereby acknowledges having received from

as Trustee of the ___ under trust agreement dated ___ 19_ as amended on ___ the following:

The undersigned further acknowledges receipt of complete distribu-tion from ___ as Trustee of the ___ TRUST of the under-

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Ch. 27 RELEAS~ & SETTLEMENT AGREEMENTS § 27.21 signed's entire share and interest in the ___ TRUST and in the probate estate of ___ also known as ___ to which the under-signed was or is entitled, and hereby releases and discharges __ _ from -any and all liability in connection with the above-referenced estate and trust.

Dated this ___ day of __ _, 19_.

BENEFICIARY:

________ (Seal)

Witnesses

STATE OF ___ _ COUNTY OF __ _

BEFORE ME personally appeared ___ to me well known, and known to me to be the person described in and who executed the foregoing instrument, and who after being first duly sworn, acknowledged to and before me that he executed said instrument for the purposes therein expressed.

WITNESS my hand and official seal this ___ day of __ _, 19_, in the aforesaid County and State.

NOTARY PUBLIC (Seal) My commission expires:

§ 27.21 Satisfaction and Release of Claim in Probate

IN RE:

IN THE CIRCUIT COURT FOR __ COUNTY, FLORIDA

PROBATE DIVISION FILE NUMBER:

__ ESTATE OF

DECEASED

SATISFACTION AND RELEASE OF CLAIM

CLAIMANT NAME: CLAIM WAS FILED ON OR ABOUT:

The undersigned has received full payment of the claim filed in this proceeding by the undersigned against the above estate, or has otherwise settled or compromised said claim, and this document is executed to acknowledge that the claim is satisfied and discharged and

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§ 27.21 RELEASES & SETTLEMENT AGREEMENTS Ch. 27

to release the estate and the Personal Representative of the estate from all further liability with respect to the claim.

Under penalties of perjury, I declare that I have read the foregoing and the facts alleged are true.

Dated this ___ day of ---Y 19_.

SIGNATURE OF CLAIMANT: TITLE OF PERSON SIGNING:

§ 27 .22 Release and Hold Harmless Agreement The undersigned acknowledges the educational purposes of the

___ Society. In consideration of the undersigned being allowed to participate in one or more wine or food functions or activities held by the Society and its chapters, including the __ _, the undersigned hereby agrees, on behalf of the undersigned and his or her heirs, legal representatives, guests and invitees, that: the undersigned hereby accepts and assumes any and all risks resulting from attendance and participation at such functions and activities; the undersigned hereby releases the Society, its chapters and its member hosts from any and all liability, fines, or other matters arising from such attendance or participation; the undersigned hereby agrees to indemnify, defend and hold harmless the ___ Society and its chapters, including the __ _ Chapter, and all of their members, officers and directors, from any and all claims, demands, expenses and liability, whether for personal injury, death, property damage, traffic violations, violations of law, or otherwise, which is caused by the undersigned and which in any way arises out of or relates to a Society function or activity.

DATE: ---, 19_ SIGNED

Print:

ACCEPTANCE

The ___ Society, through its ___ Chapter, hereby accepts the foregoing Release and Hold Harmless Agreement.

DATE: __ __, 19_

___ Food Society, __ _ Chapter

By:

Title:

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Ch. 27 RELEASES & SETrLEMENT AGREEMENTS § 27.23

§ 27 .23 General Release and Confidentiality Agreement-Employment

THIS AGREEMENT MADE this ___ day of __ _, __ _, by and between ___ hereinafter __ _, and hereinafter

WHEREAS ___ was employed by ___ for a period of time, but subsequently left the employ of __ _,

WHEREAS certain disputes and differences have arisen between the parties regarding the cause or reason for ___ leaving the employ of __ _,

WHEREAS the parties desire to amicably resolve their disputes and difference.

NOW THEREFORE AND IN CONSIDERATION OF ___ DOL-LARS ($. ___ ) in hand paid to ___ by __ _, and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree as follows:

1. ___ agrees not to dispute or otherwise interfere with the unemployment compensation claim filed by ___ which is currently pending, and with an effective date on or about __ _, 19_. In the event that said claim is granted by the Florida Department of Labor and Employment Compensation Security, ___ shall not appeal said determination. In the event said claim is denied, ___ shall not oppose any appeal filed or requested by ___ from the denial of said claim.

2. ___ shall not discuss with, disclose to or communicate with anyone, except ___ attorneys, accountants, or medical or psychiat-ric professional who shall hold any such communication confidential, the terms of this Agreement or the facts surrounding, causing, or resulting from ___ departure from the employ of ___ includ-ing any allegations of any wrong-doing, sexual harrassment, unauthorized contact, or improper remarks or statements.

3. ___ hereby releases, relinquishes, waives, discharges and quitclaims any claim, suit, action, demand, liability, damages, injury or loss whatsoever, that ___ may now or at any time in the future have against ______ successors, assigns or legal representa-tives, for, upon or by reason of any matter, cause or thing whatsoever, from the beginning of the world.

4. By the execution of this Agreement, neither party admits any liability to the other or the truth or falsity of any allegation, statement, communication or fact discussed, disclosed, or communicated in any manner, regarding any transaction, communication, contact, statement or action between the parties or in connection with this Agreement or ___ 's claim for unemployment compensation.

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5. The witnesses signing below are attorneys with or staff mem-bers of ___ and by their witnessing of this Agreement, the parties do not waive the confidentiality provisions of this Agreement.

IN WITNESS WHEREOF the parties have executed this Agreement on the date above-first written.

Witness

Witness

Witness

Witness

§ 27 .24 Release-Prize KNOW ALL MEN BY THESE PRESENTS, that ____ , of __

(print name) (print _______________ , in consideration of the

address) ' (phone number) (Social Security Number)

following-described prize:

given to him or her by __ _, a Florida corporation, (hereinafter sometimes called "Corporation"), the receipt of which is hereby acknowledged, has remised, released, and forever discharged, and by these presents does for himself, herself and his or her heirs, executors, administrators and personal representatives, remise, release, and forever discharge Corporation and its agents, officers, employees and attorneys of and from any and all actions and causes of action, claims and demands whatsoever, whether known or unknown and whether or not well founded in fact or in law, and of and from any and all manner of suits, debts, dues, sums of money, controversies, agreements, promises, trespasses, damages, warranties, representations, judgments, executions, claims and demands whatsoever in law or in equity which the undersigned has had or now has or which he or her or his or her heirs, executors, administrators and personal representatives hereafter can, shall or may have for, upon or by reason of any matter, cause or thing whatsoever, from the beginning of the world to the date of this instrument. The undersigned hereby acknowledges that the prize he or she is receiving is given on an "as is" basis; that the prize may deviate from descriptions of value and other descriptions of the prize given by employees of the Corporation or by ot:Qers, including but not limited to radio and television station employees; that the prize may contain

540

Ch. 27 RELEASES & SETTLEMENT AGREEMENTS § 27.50 imperfections, flaws, defects in workmanship or materials, and other types of defects; that the undersigned hereby accepts the prize in its present condition and understands and agrees that he or she hereby waives forever any and all rights to return or exchange the prize, and any and all other rights he may claim; and that the undersigned hereby authorizes Corporation to use the undersigned's name, likeness, and photographs of the undersigned in advertisements. The undersigned also acknowledges and agrees that the above general description of the prize is used for identification purposes only and may not be used as a basis for returning or exchanging the prize if the description of the prize deviates from the actual prize accepted by the undersigned, or for any other purposes. The undersigned also acknowledges and agrees that he or she is solely responsible for complying with any and all income tax and other tax reporting requirements arising from or related to his or her receipt of the above-described prize.

IN WITNESS WHEREOF, the undersigned has hereunto set his hand and seal this ___ day of ___ 19_.


________ (SEAL)

Witness (Signature)

COMMENT

IRS Forms W-9 and 1099 may be required. See IRS Publication 558: Tax Information For Sponsors of Contests and Sporting Events.

§§ 27.25-27.49 are resened for supplementary material.

C. MUTUAL RELEASES

§ 27 .50 General Mutual Release This agreement made this ___ day of ___ 19__, between

___ of ___ of the one part, and __ _, of __ _, of the other part, witnesseth that each of them, the said ___ and the said __ _, hereby releases the other of them from all sums of money, accounts, actions, suits, proceedings, claims, and demands whatsoever which either of them at any time had or has up to the date of these presents against the other for or by reason of or in respect of any act, cause, matter, or thing.

In Witness Whereof, the said parties have hereunto set their hands and seals the day and year first above written.

9 FlaLegal Forms-Spec!alized Forms-19

[Signatures, Seals, and Acknowledgments ]

541

§ 27.51 RELEASES & SETI'LEMENT AGREEMENTS Cb. 27

§ 27 .51 Mutual Release on Termination of Contract Agreement made this ___ day of ___ 19_, between

of ___ hereinafter called the Contractor, and United States of America, hereinafter called the Government.

Whereas, the Contractor and the Government entered into acer-tain contract dated ___ 19_, covering ___ (hereinafter called the Contract);

Whereas, the parties thereto desire to terminate the Contract; Whereas, the Contractor is willing to waive unconditionally any

claim against the Government by reason of such termination; and Whereas, such unconditional waiver by the Contractor will expe

dite settlement of the contract and will otherwise promote the objectives of the Contract Settlement Act of 1944 [41 U.S.C.A. § 101 et seq.].

Now, Therefore, the parties hereto agree as follows: The Contractor hereby unconditionally waives any claim against

the Government arising under the terminated portion of the Contract or by reason of its termination including, without limitation, all obligations of the Government to make further payments or to carry out other undertakings in connection with said terminated portion, and the Government hereby unconditionally releases the Contractor from any obligation to perform further work or services or to make further deliveries of articles or materials under the terminated portion of the Contract; provided however, that nothing herein contained shall impair or affect in any way any other covenants, terms, or conditions of the Contract.


§ 27.52 Mutual Release of Liability Under Building Contract Know All Men by These Presents, that for and in consideration of

the sum of ___ dollars ($. ____ ), cash in hand paid by __ _ Pharmacal Company, a corporation of __ _, to ___ Construc-tion Company, a co-partnership, consisting of ___ and __ _, receipt of which is hereby acknowledged, and in consideration of the representation of ___ Construction Company, a co-partnership as aforesaid, that all bills for material used and labor performed in the construction and completion of a concrete block building upon Lots ___ and ___ of Block ___ Addition to the City of __ _, ___ County, Florida, have been fully paid and discharged, it is hereby mutually agreed that ___ Pharmacal Company, a corpora-tion, does hereby accept said building in its present condition as being in full and complete compliance with that certain written building contract entered into between the parties under date of ___ 19_, wherein ___ Pharmacal Company was first party and __ _ Construction Company was second party, and each party thereto does hereby mutually remise, release and discharge the other party of and

542

Ch. 27 RELEASES & SETILEMENT AGREEMENTS § 27.53 from any other or further liability, claims or demands of every name or nature growing out of, concerning or affecting the said contract and the construction and completion of said building thereunder and all matters connected therewith, and that said written contract has been fully performed and completed to the satisfaction of both parties.

Executed in duplicate this ___ day of ___ 19_.

[Signatures]

§ 27 .53 Mutual Release on Termination of Lease Agreement executed __ _, 19_, between __ _, a __ _

corporation, as Lessor, and as Lessee,

Witnesseth:

In consideration of the payment to the Lessor of the sum of ___ dollars ($ ___ ), receipt of which hereby is acknowledged by the Lessor, and in consideration of the mutual agreements herein made and set forth, the parties agree as follows:

I

The lease heretofore executed between the Lessor and the Lessee and hereinafter more particularly described, hereby is terminated and cancelled and shall be of no further force or effect, and the Lessee releases and relinquishes and quitclaims to the Lessor any and all right, title, interest or demand possessed or claimed by the Lessee in or to the property covered by said lease; and each and all of the parties to this agreement and the agents, employees and representatives of each and all of them are released from any and all liability, ·past, present or future, of whatsoever kind or character, by reason of or growing out of or arising or existing in connection with the execution of said lease or any of the terms or provisions thereof, or by reason of the breach or alleged breach or conduct or activity resulting in the breach or alleged breach, of any of the terms or provisions of said lease; provided, however, the Lessor is and shall be entitled to keep and retain as its own the rental installment of ___ dollars($. ____ ) paid by the Lessee to the Lessor on the execution of said lease.

II

The lease referred to herein is that certain lease dated __ _, 19_, executed by and between the Lessor and the Lessee covering certain real property in the County of ___ State of Florida, identified therein as follows: The property generally known as the ___ property consisting of approximately ___ acres at the ___ corner of ___ Street and ___ Avenue, __ _


543


§ 27 .54 Mutual General Release

Ch. ?/1

This Mutual General Release is executed this ___ day of ___ 19_, by and between ___ hereinafter "Party A", and __ _, hereinafter "Party B".

WHEREAS disputes and differences have arisen between the parties with respect to __ _,

WHEREAS the parties have agreed to amicably resolve, settle and compromise all disputes and differences they have or may have arising out of facts or occurrences existing as of this date, known or unknown, which are released below;

NOW THEREFORE in consideration of the mutual covenants con-tained herein, and the sum of$ ___ paid to Party B by Party A, the receipt and sufficiency of which is hereby acknowledged by Party B, each party (the releasing party) hereby remises, releases, acquits, satisfies, and forever discharges the other party (the released party) and its heirs, personal representatives, successors, assigns, employees, agents and attorneys of and from all actions, suits, debts, dues, sums of money, accounts, reckonings, bonds, bills, specialties, covenants, attorneys fees, expenses, contracts, controversies, agreements, promises, variances, damages, judgments, executions, claims and demands whatsoever, in law or in equity, which the releasing party ever had, now has, or may have, or which any personal representative, successor, heir or assign of the releasing party, hereafter can, shall or may have, against the released party or its heirs, personal representatives, successors, assigns, employees, agents or attorneys, for, upon or by reason of any matter, cause or thing whatsoever, from the beginning of the world to the date of this release.

IN WITNESS WHEREOF, the parties have executed this Mutual General Release on the date above-first written.

PARTY A:

By: Witness

Title: Witness

PARTY B:

Witness

Witness

544


STATE OF FLORIDA COUNTY OF __ _ }

I HEREBY CERTIFY that on this day, before me, an officer duly authorized in the State aforesaid and in the County aforesaid to take acknowledgments, personally appeared ___ as ___ of __ _ to me known to be the person described in and who, after being first duly sworn, executed the foregoing instrument and he acknowledged before me that he executed the same.


Notary Public (Seal) My commission expires:


I HEREBY CERTIFY that on this day, before me, an officer duly authorized in the State aforesaid and in the County aforesaid to take acknowledgments, personally appeared __ _, to me known to be the person described in and who executed the foregoing instrument and, after being first duly sworn, acknowledged before me that he executed the same.

WITNESS my hand and official seal in the County and State last aforesaid this ___ day of ___ 19_.

Notary Public My commission expires:

§ 27 .55 Mutual Release-Lawsuit This Mutual Release is executed this ___ day of ___ 19_,

by and between ___ hereinafter and hereinafter

WHEREAS disputes and differences have arisen between the parties with respect to those certain business transactions and dealings referenced in that action styled:

WHEREAS the parties have agreed to amicably resolve, settle and compromise their disputes and differences as provided herein.

545

§ 27.55 RELEASES & SETl'LEMENT AGREEMENTS Cb. 27

NOW THEREFORE and in consideration of the mutual covenants contained herein, and the sum of$ __ _, paid to ___ by __ _ the receipt and sufficiency of which is hereby acknowledged, each party (the releasing party)

HEREBY remises, releases, acquits, satisfies, and forever discharges the other party (the released party), its heirs, personal representatives, successors, assigns, employees, agents and attorneys of and from all actions, suits, debts, dues, sums of money, accounts, reckonings, bonds, bills, specialties, covenants, contracts, controversies, agreements, promises, variances, damages, judgments, executions, claims and demands whatsoever, in law or in equity, which the releasing party ever had, now has, or which any personal representative, successor, heir or assign of the releasing party, hereafter can, shall or may have, against the released party, for, upon or by reason of any matter, cause or thing whatsoever, from the beginning of the world to the day of these presents.

IN WITNESS WHEREOF, the parties have executed this Mutual Release on the date above-first written.


Witness

Witness

Witness

Witness

STATE OF FLORIDA COUNTY OF }

By:

By:

I HEREBY CERTIFY that on this day, before me, an officer duly authorized in the State aforesaid and in the County aforesaid to take acknowledgments, personally appeared __ _, as ___ of __ _, to me known to be the person described in and who executed the foregoing instrument and acknowledged before me that he executed the same.

546

Ch. 27 RELEASES & SETTLEMENT AGREEMENTS § 27.81 WITNESS my hand and official seal in the County and State last

aforesaid this ___ day of __ _, 19_.



I HEREBY CERTIFY that on this day, before me, an officer duly authorized in the State aforesaid and in the County aforesaid to take acknowledgments, personally appeared __ _, as ___ of __ _, to me known to be the person described in and who executed the foregoing instrument and acknowledged before me that he executed the same.



§§ 27 .56-27. 79 are resened for supplementary material.

D. RELEASE OF CONTRACT CLAIMS

§ 27 .80 Release of Claim Under Contract Know All Men by These Presents, that ___ of ___ in

consideration of the sum of ___ dollars ($ ____ ) to him in hand paid, the receipt of which is by him acknowledged, does hereby, for himself and his heirs, executors, administrators and personal representatives, release and forever discharge __ _, his heirs, executors, administrators and personal representatives, from any and all manner of claims, demands, damages, causes of action or suits that he might now have or that might subsequently accrue to him by reason of any matter or thing whatsoever, and particularly growing out of or in anywise connected with, directly or indirectly, that certain contract entered into on or about __ _, 19_, covering [here describe subject of contract ].

Dated ___ 19_.

[Signatures]

§ 27.81 Release of Claim Evidenced by Note I, __ _, holding a note of ___ dollars ($ ____ ) dated

__ _, 19_, signed by the ___ Company, do hereby by agree-

547

§ 27.81 RELEAS~ & SETTLEMENT AGREEMENTS Ch. 27

ment destroy such evidence of liability of the ___ Company, and further agree that no liability or claim shall ever be made against said company by me.

Dated ___ 19_.

Witness

COMMENT

See Uniform Commercial Code § 3-601.

§ 27 .82 Release of Right of Action for Breach of Contract Whereas, an action has been begun by __ _, in the __ _

court of __ _, against __ _, for breach of contract to sell [or purchase] land in · and

Whereas, it has been agreed between them that ___ should pay to ___ the sum of $ ___ in full satisfaction of all damages and costs suffered and incurred by ___ on account of said breach of contract and in and about the prosecution of said action, and that upon payment of said sum of$--- said action and all further proceedings therein shall be wholly stayed and discontinued:

Now, therefore, in consideration of the sum of$. ___ so paid by ___ to ___ in full satisfaction as aforesaid, ___ hereby releases and discharges ___ from all actions, suits, causes of action, claims and demands whatsoever, which ___ now has, or at any time hereafter may have, or but for the execution of these presents could or might have had, against ___ for or by reason of or in respect of said breach of contract, or for or by reason of any matter or thing in anywise relating thereto, and ___ hereby agrees that all proceedings in said action shall forthwith be stayed, and that he will at the cost of ___ give all necessary consents to any application which may be made by ___ for that purpose.


§ 27 .83 Release From Liability Under Title Policy In consideration of the payment to me of $ ___ by __ _

Trust Company of __ _, the receipt of which is hereby acknowl-edged, I, the undersigned, ___ do hereby release said __ _ Trust Company from all liabilities, claims, and demands now existing or hereafter to accrue under their policy of title insurance No. __ _, insuring the title to [here describe property], and upon any policies hereafter to be issued on said premises or any portion thereof; but this release is expressly limited to such liabilities, claims, or demands as may arise under claim of unmarketability of the title to said premises or any portion thereof by reason of the existence of the judgment in the

548

Ch. 27 RELEASES & SETI'LEMENT AGREEMENTS § 27.85 ___ Court of ___ against __ __, doing business as __ _, in favor of ___ in the sum of $--- with interest and costs, which judgment was entered on the ___ day of __ _, 19_, in Docket ___ of the ___ Dockets of said Court on page __ _

Dated ___ 19_.

§ 27.84 Release of Obligations Under Lease This agreement, made and entered into this day of

___ 19_, by and between ___ and __ _, his wife, Lessors in that certain lease dated ___ 19_, and Lessee in said lease,

Witnesseth:

For and in consideration of the sum of $1.00 and other good and valuable consideration in hand paid to the Lessors by the Lessee, the receipt whereof is hereby acknowledged by the Lessors, that certain lease between the parties dated __ _, 19_, and covering the follow-ing described real estate situate in ___ County, Florida, to-wit:

[Description of property]

be and the same hereby is terminated, satisfied and released, and the Lessee has and by these presents does release to the Lessors said lease and the right of possession in and to said premises, and does agree that the Lessors shall be entitled to retake possession of said premises immediately upon the execution hereof, and does release and relieve the Lessors from further duties and obligations under said lease or any of the terms thereof.

It is understood and agreed that as of __ _, 19_, said lease is terminated for all purposes.


§ 27 .85 Release From Liability for Breach of Employment Contract

Know All Men by These Presents, that I, __ _, in consideration of the sum of ___ dollars ($ ___ ) to me in hand paid by ___ a ___ Company, having its principal place of business within ___ County, Florida, the receipt of which I hereby acknowl-edge, have remised, released and forever discharged and I do hereby for myself, my heirs, executors, administrators, personal representatives, successors and assigns remise, release and forever discharge __ _ Company, its successors and assigns of and from all debts, claims, demands, actions, causes of actions, suits, dues, sums of money, accounts, reckonings, covenants, contracts, controversies, agreements, promises and all liabilities of any kind or nature whatsoever, at law, in equity, or otherwise, against ___ Company, which I ever had, now have, or which I, my heirs, executors, administrators, personal repre-

549


sentatives, successors and assigns hereafter can, shall or may have, from the beginning of the world to the date of these presents, included in such release and discharge, but not by way of limitation thereof, in full payment and satisfaction of any and all damages suffered by me on account of the breach (as alleged by me but denied by ___ Compa-ny) of a certain contract of employment between us dated __ _ 19_, and on account of which an action was brought by me against ___ Company in the Court of ___ of ___ County, Florida, at Number ______ Term, 19_; also included, but not by way of limitation of the above, is the full and complete release and discharge from any and all right therein, or otherwise, given to me to be employed by ___ Company; the right therein, or otherwise, given to me to be elected an officer of said Company; the right therein, or otherwise, given to me to purchase certain shares of the capital stock of said Company at certain prices, terms, times and conditions; and the right therein, or otherwise, given to me to receive payment of certain cash or other sums for services as an employee or officer of said Company.


In Witness Whereof, the hand and seal of the contractor have been hereunto set this ___ day of ___ 19_.

[ Signature ]

§§ 27 .86-27 .99 are rese"ed for supplementary material.

E. RELEASE OF TORT CLAIMS

§ 27 .100 Release of Claim for Personal Injury

Know All Men by These Presents, that I, ___ residing at ___ being of lawful age, for the sole consideration of __ _ dollars ($, ___ ) to me in hand paid, receipt whereof is hereby acknowledged, have remised, released and forever discharged, and for my heirs, executors, administrators, personal representatives, successors, and assigns do hereby remise, release, and forever discharge

and his, her, their and its successors and assigns, heirs, executors, administrators, personal representatives, and all other persons, firms, and corporations, of and from any and all claims, demands, rights, and causes of action of whatsoever kind and nature, arising from, and by reason of any and all known and unknown, foreseen and unforeseen bodily and personal injuries, damage to property, and the consequences thereof, resulting, and to result, from a certain accident wJaich happened on or about the ___ day of ___ 19_, for which I have claimed the said ___ to be legally liable, which liability is hereby expressly denied.

550

Ch. 27 RELEASES & SETTLEMENT AGREEMENTS § 27.102 In Witness Whereof, I have hereunto set my hand and seal the

___ day of ___ 19_.


Witness ________ _

Address ________ _

Witness ________ _

Address ________ _


On this ___ day of __ _, 19_ before me personally ap-peared ___ to me known, and known to me to be the same person described in and who executed the above instrument and he (or she) acknowledged to me that he (or she) executed the same.

My commission expires __ _

§ 27.101 Release of Claim for Personal Injury-Short Form Know All Men by These Presents, that I, __ _, in consideration

of the payment of ___ dollars to me in hand paid by __ _, do hereby release and forever· discharge said ___ from any and all actions, causes of actions, claims and demands for, upon, or by reason of any damage, loss or injury, which heretofore has been or which hereaf-ter may be sustained by me in consequence of ___ It is under-stood that the payment of said ___ dollars is not to be construed as an admission on the part of said ___ of any liability whatever in consequence of said accident.

In Witness Whereof; etc.

§ 27 .102 Release of Claim for Personal Injury-Another Form

The undersigned, of full lawful age, hereby acknowledges receipt from ___ the sum of ___ dollars ($ ___ ) this date, which sum the undersigned acknowledges to be in full accord, satisfaction, and settlement of a disputed claim growing out of bodily injury and of property damage sustained by the undersigned as a result of an accident which occurred at or near ___ on or about the __ _ day of---. 19_, for which bodily injury and property damage the undersigned claimed the said ___ to be liable, which liability is expressly denied, and in consideration of the sum paid, the undersigned hereby releases and forever discharges the said __ _, his heirs, successors, administrators, personal representatives and assigns from

551


any and all actions, causes of actions, liability, claims and demands upon or by reason of any damage, loss, injury or suffering, known and unknown, which has been or may hereafter be sustained by the undersigned in consequence of such accident and injury.

The amount paid as herein recited is the sole consideration for this settlement, and it is expressly understood and agreed that in executing this release the undersigned does not rely upon any statement of any physician or any other person as to what the physical condition of the undersigned is or will be in the future, as a result of said injuries, and it is fully understood that the consideration recited in this release is in full settlement of all injuries and damages, known and unknown, suspected or unsuspected.

Dated ___ 19_.

Witnesses:

§ 27 .103 Release in Full File No. __ _

RELEASE IN FULL

(vs.)

(For the sole and only consideration oO

___ Dollars ($ ____ ) to me/us paid, receipt of which is hereby acknowledged, I/we hereby release and discharge ___ his or her successors and assigns, and all other persons, firms or corporations who are or might be liable, from all claims of any kind or character which I/we have or might have against him or them, and especially because of all damages, losses or injuries to person or property, or both, whether developed or undeveloped, resulting or to result from accident on or about ___ 19_ at ______ _

and I/we hereby acknowledge full settlement and satisfaction of all claims of whatever kind or character which I/we may have against him or them by reason of the above mentioned losses or injuries.

I/we have represented that the injuries sustained are permanent and progressive and that recovery therefrom is uncertain and indefinite, and in making this release and agreement, it is understood and agreed that I/we rely wholly upon my/ our own judgment, belief and knowledge of the nature, extent and duration of said injuries and that

552

Ch. 27 RELEASFB & SE'ITLEMENT AGREEMENTS § 27.104 no representations or statements regarding said injuries or regarding any other matters' made by persons, firms or corporations who are hereby released or any person or persons representing him or them or by any physician or surgeon by him or them employed has influenced me/us to any extent whatever in making this release.

It is further understood and agreed that the payment of said amount is not to be construed as an admission of liability upon the part of said persons, firms or corporations; liability being by him or them expressly denied.

All agreements and understandings between the parties hereto are embodied and expressed herein and the terms of this release are .contractual and not a mere recital. I/WE HA VE READ THE FOREGOING RELEASE AND FULLY UNDERSTAND IT.

Signed, sealed and delivered this ___ day of ___ 19_.

In the presence of (Claimants sign below)

_________ [Seal]

_________ [Seal]

_________ [Seal]

COMMENT

See Prosser and Keeton, Torts § 49 at 332 (5th ed. 1984).

§ 27 .104 Parents-Guardian Release and Indemnity Agreement

Know All Men by These Presents: Whereas, on or about the ___ day of ___ 19_, an accident occurred, resulting in bodily injuries to __ _, a minor, ___ years of age, herein referred to as the minor; and

Whereas, claims are made against ___ for money compensa-tion for such injuries by ___ for themselves and as parents, guardian, or next friend of the minor (the minor and the parents of the minor, for themselves and as guardian or next friend, being herein referred to as the claimants); and

Whereas, a dispute has arisen with respect to the legal liability for such injuries, said liability being expressly denied;

Now, therefore, the claimants, in full accord and satisfaction of such disputed claims, do hereby acknowledge the receipt of the sum of ___ dollars ($ ___ .) paid by the said ___ and, in considera-tion thereof, the clai;mants do hereby remise, release, and forever discharge the said ___ and his, her, their, or its successors and assigns, heirs, executors, administrators and personal representatives of

553


and from any and all claims, demands, rights, or causes of action of whatsoever kind or nature, arising from, or by reason of, any and all known or unknown, foreseen or unforeseen bodily or personal injuries, damage to property, and the consequences thereof, which heretofore have been, or which hereafter may be, sustained by the said minor or by the said claimants, or by any other person or persons having a legal interest therein in consequence of such accident or resulting injuries.

And, furthermore, ___ the said parents, guardian or next friend of the minor do hereby expressly stipulate and agree, in consideratio of the aforesaid payment, to indemnify and hold forever harmless the said ___ and his, her, their, or its successors and assigns, heirs, executors, administrators and personal representatives against loss from any and all further claims, demands or actions in law or in equity that may hereafter at any time be made or brought by the said minor or by anyone on behalf of said minor for the purpose of enforcing a further claim for damages on account of the injuries sustained in consequence of the aforesaid accident, and the parents, guardian or next friend hereby waive any and all rights of exemption, both as to real and personal property, to which they may be entitled under the laws of this or any other state as against such claim for reimbursement or indemnity.

In Witness Whereof, ___ have hereunto set ___ hand and seal this ___ day of 19_,


________ [L.S.]

Witness _________ _

_ _______ [L.B.]

Address _________ _

_ _______ [L.B.]

Witness _________ _

Address _________ _

[Reverse side]


Be it known, that on this ___ day of __ _, 19_, before me personally appeared ___ to me personally known to be the signer and sealer of the within instrument, and ___ freely acknowledged

554

Ch. 27 RELEASES & SE'ITLEMENT AGREEMENTS § 27.105 that ___ voluntarily executed the same for the uses and purposes therein set forth.

Notary Public

§ 27.105 Release by Minor and Guardian In consideration of ___ dollars, which has been paid on my

behalf to my parent and lawful guardian by __ _, I do hereby release and forever discharge for myself and for my heirs, executors, administrators, personal representatives and assigns the said __ _ of and from all claims, demands, damages, actions or causes of action now existing or which may hereafter arise on account of injuries sustained by me on or about the ___ day of ___ 19_, by reason of ___ and of and from all claims whatsoever in law or in equity, which I, myself, my heirs, executors, administrators, personal representatives, or assigns, have or may have by reason of any matter, cause or thing whatsoever prior to the date hereof.

In Witness Whereof, I have hereunto set my hand and seal this ___ day of __ _, 19_,

_________ [Seal]

Witnesses:

I, __ _, individually and also as parent and guardian of the above named minor of ___ years of age, for and in consideration of the above payment which has been made to me as parent and lawful guardian of said minor, and in further consideration of ___ dollars, which sum has been paid to me individually, do hereby release and forever discharge the said ___ and assigns of and from all claims, demands, damages, actions or causes of action on account of any and all injuries to said minor now existing or which may hereafter arise from above described accident to said minor.

I do further for said consideration hereby agree to protect the said __ _, his executors, administrators, personal representatives, and assigns against any actions, claims or demands by the said minor, or by any other person or persons on account of damages of any character resulting in any way from said accident to said minor, and I also hereby agree to reimburse and make good to said ___ any loss, damages or costs he may have to pay as the result of any such action, claim or demand.

Witness my hand and seal this ___ day of __ _, 19_.

__________ [Seal]

555


Witnesses:


Ch. 27

This is to certify that I have carefully read and explained the above instrument to __ _, to me known, who expressly acknowledged to me that he understands and knowingly executed same as a full and fmal release.

Notary Public

§ 27 .106 Release of All Claims Including Claim for Personal Injury

For the sole consideration of ___ dollars, received to my full satisfaction from __ _, and without any other representation, promise or agreement, written or oral, I hereby release and discharge the said __ _, and any and all other parties in interest from all claims, demands, grievances and causes of action of every kind whatsoever and including, but without limitation of the foregoing, all liability for damages of every kind, nature or description now existing or which may hereafter arise from or out of injuries and damages, known and unknown, permanent or otherwise, recieved by me at or near __ _ State of __ _, on or about the ___ day of __ _, 19_.

I have read and understand this release. [This sentence in plaintiffs handwriting.]

In Witness Whereof, I have hereunto set my hand and seal this ___ day of ___ 19_.

[Signature and Seal] This release was read and signed by the said ___ in our

presence at __ _, on the ___ day of __ _, 19_.

[Signatures ]

§ 27 .107 Release of All Claims Including Claim for Personal Injury-Another Form

I, ___ residing at __ _, in consideration of the payment to me at this time of the sum of ___ dollars ($ ), the receipt of which I hereby acknowledge, do hereby release, acquit, and forever discharge ___ his, her, their or its agents and servants, successors and assigns, heirs, executors, administrators, personal representatives, and all other persons, firms and corporations, of and from any and all

556

Ch. 27 RELEASES & SETTLEMENT AGREEMENTS § 27.107 actions, causes of action, claims, demands, damages, costs, loss of service, expenses and compensation, which I now have, or may hereafter have, on account of, or arising out of any matter or thing which has happened, developed, or occurred, before the signing of this release, and particularly, but not in limitation of any of the foregoing general terms, because of the accident, casualty, or event, which occurred on or about the ___ day of ___ 19_, at or near __ _

I hereby declare and represent that the injuries then sustained by me may be permanent and progressive, and that my recovery therefrom is uncertain and indefinite, and that all of my injuries, damages, and losses may not now be fully known to me, and may be more numerous or more serious than I now expect, and in making this release and agreement, it is understood and agreed that I rely wholly upon my own judgment of the future development, progress, and result of my said injuries known, and unknown, and that I have not been influenced to any extent whatever in making this release by any representations, or statements regarding my said injuries, or the legal liability therefor, or regarding any other matters made by the party or parties who are hereby released, or by any person or persons representing such party or parties or by any physician or surgeon employed by such party or parties, and that I accept the above mentioned sum in full settlement and satisfaction of all claims or demands whatsoever, for injuries known, and unknown.

I further understand and agree that this settlement is the compromise of a doubtful and disputed claim, and that the payment made is not to be construed as an admission of liability on the part of the party or parties hereby released by whom liaqility is expressly denied.

I further declare and represent that no promise or agreement not herein expressed has been made to me, and that this release contains the entire agreement between the parties hereto, and that the terms of this release are contractual, and not a mere recital.

I further state that I am over twenty-one years of age; that I have carefully read the foregoing release, and know the contents thereof, and that I sign it as my own free act.

In Witness Whereof, I have hereunto set my hand and seal on the ___ day of __ _, 19_.

Caution: This is a release-Read before signing

Witness _________ _ _ ________ [Seal]

557


Witness _________ _

[Reverse side]

Acknowledgment Before Notary Public or Commissioner of Deeds


Ch. 27

On the date of the execution of this Release before me personally came said Claimant known to me to be the individual described in and who executed this Release, and acknowledged that ____ fully

(he or she)

understands its contents and meaning and duly executed the same as ____ free act and deed and for the sole consideration therein

(his or her)

expressed.

Certificate of Witness

We, the undersigned, do hereby certify that this Release was executed in our presence and that said Claimant acknowledged that ____ fully understands its contents and meaning and executed the

(he or she)

same as ____ free act and deed and for the sole consideration (his or her)

therein expressed.

Witness our hands and seals on the day, month and year aforesaid.

[Seal] [Name] [Address]



Certificate of Interpreter

I hereby certify that this Release was executed in my presence by said Claimant and that I correctly and accurately translated this entire Release from the English language into the mother tongue of said Claimant and ____ acknowledged that ____ fully under-

(he or she) (he or she)

stands its contents and meaning and executed the same as ___ _ (his or her)

free act and deed and for the sole consideration therein expressed.

558


[Interpreter]

[Address]

§ 27.108 Release of All Claims by Donor and Recipient in Request for Kidney Transplant Operation

Whereas, ___ born on ___ 19_, and residing on __ _ has a serious kidney ailment and is in danger of losing ___ life unless an operation is performed on · and

Whereas, certain doctors connected with the ___ Hospital are willing to perform this operation upon the said in the hope of saving the life of the said · and

Whereas, the doctors who propose to perform said operation and the ___ Hospital and its staff of doctors and medical associates wish to be absolved from any and all liability, damages, law suits and causes of action as a result of the operation;

Now, therefore, in consideration of the operation to be performed and any further operations which may in the opinion of those doctors be necessary therewith, we, ___ and ___ the intended recipi-ent of the operation and the intended donor, fully realizing that the operation may be unsuccessful and may result in either losing __ _ life or in future physical incapacity, illness or illnesses directly or indirectly caused by said operation, nevertheless, both jointly and severally on behalf of ourselves, our heirs, administrators, executors, personal representatives, successors, and assigns do hereby request that said operation be performed upon ___ and hereby RELEASE AND FOREVER DISCHARGE the ___ Hospital, its director, and all persons on its medical or surgical staff who are in any way directly or indirectly connected with said operation or any other future operations resulting from them, for our post-operative care while in the __ _ Hospital, from all damages or causes of action, either at law or in equity, which we may have or acquire or which may accrue to us, our heirs, administrators, executors, personal representatives, successors or assigns as a result of these operations or medical care arising therefrom.

We intend this to be a complete RELEASE AND DISCHARGE of all persons as well as any corporate entity having anything to do with the operations and we intend hereby to RELEASE AND FOREVER DISCHARGE said persons from all liability whatsoever.

It is clearly understood by all parties to this instrument that no representations have been made to any of us regarding the success of the operations, and we fully understand that said operations are somewhat in the nature of an experiment and are being performed in the hope of saving the life of the said __ _

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We have read all the statements contained herein and we fully realize that we are signing a complete release and bar to any further claims which we may have resulting from these operations.

Donor

Parent

Date

Recipient

Parent

Witness

[Should recipient be a minor, the signature of both parents must be obtained ]

§ 27 .109 Release of Railroad Company From Liability for Personal Injuries

Know All Men by These Presents, that I, ___ (hereinafter called the Claimant), for and in consideration of the sum of $ __ _ lawful money to me paid by the ___ Railroad Company (hereinaf-ter called the Company) at the time of the sealing and delivery hereof, the receipt whereof is hereby acknowledged, have remised, released and forever quitclaimed and discharged, and by these presents do remise, release and forever quitclaim and discharge the Company and its successors all claims and demands which the Claimant, or any person or persons claiming by, through or under the Claimant, may have, or, may at any time hereafter have, against the Company or its successors, for, by reason of, or in any manner based upon or growing out of any matter, cause or thing whatsoever, now existing or heretofore occurring, and particularly by reason of personal injury received at or near

on or about the ___ day of ___ 19_. And the Claimant does hereby declare any and all such claims or demands to be, by the payment aforesaid, wholly and forever satisfied and extinguished; it being expressly understood and, agreed, however, that the Company in paying the said sum of money does so by way of compromise of the claims and demands aforesaid, and without prejudice or admitting any liability therefor by itself or its successors.

Witness the following signature and seal this ___ day of __ _, 19_,

_________ [Seal]

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§ 27 .110 Release of Cab Company From Liability for Personal Injuries

The undersigned, being of lawful age, for the sole consideration of ___ dollars ($ ____ ) to the undersigned in hand paid, receipt whereof is hereby acknowledged, do/does hereby and for my/our/its heirs, executors, administrators, personal representatives, successors and assigns, release, acquit and forever discharge ___ Cab Compa-ny, and his, her, their, or its agents, servants, successors, heirs, executors, administrators, personal representatives and all other persons, firms, corporations, associations or partnerships of and from any and all claims, actions, causes of action, demands, rights, damages, costs, loss of service, expenses and compensation whatsoever, which the undersigned now has/have or which may hereafter accrue on account of or in any way growing out of any and all known and unknown, foreseen and unforeseen bodily and personal injuries and property damage and the consequences thereof resulting or to result from the accident, casualty or event which occurred on or about the ___ day of __ _, 19_, at or near the intersection of ___ Street and ___ Ave. in __ _

It is understood and agreed that this settlement is the compromise of a doubtful and disputed claim, and that the payment made is not to be construed as an admission of liability on the part of the party or parties hereby released, and that said releasees deny liability therefor and intend merely to avoid litigation and buy their peace.

The undersigned hereby declare(s) and represent(s). that the injuries sustained are or may be permanent and progressive and that recovery therefrom is uncertain and indefinite and in making this Release it is understood and agreed that the undersigned rely(ies) wholly upon the undersigned's judgment, belief and knowledge of the nature, extent, effect and duration of said injuries and liability therefor and is made without reliance upon any statement or representation of the party or parties hereby released or their representatives or by any physician or surgeon by them employed.

The undersigned further declare(s) and represent(s) that no promise, inducement or agreement not herein expressed has been made to the undersigned, and that this Release contains the entire agreement between the parties hereto, and that the terms of this Release are contractual and not a mere recital.

The undersigned has read the foregoing release and fully understands it.

Signed, sealed and delivered this ___ day of ___ 19_.

Caution: Read before signing below 561


________ [L.S.]

Witness

________ [L.S.]

Witness

§ 27 .111 Release of Telephone Company From Liability for Damage to Property

Received of ___ Telephone Company ___ dollars ($ ___ )inconsideration of which the undersigned hereby releases said Company, its associated and allied companies, its and their respective lessees, agents and employees, from all claims and demands of whatsoever nature to date, including all damages to crops, live stock, trees, fences, bridges, culverts, tiles, drains, driveways and land

directly or indirectly ar1smg from or growing out of the location, construction, maintenance or removal of their communication lines and systems upon, across, over and under the property which the undersigned owns or in which the undersigned has any interest in ___ of ___ County of ___ and State of Florida.

Signed and sealed this ___ day of ___ 19_, at __ _

Witness:

_________ [Seal]

_________ [Seal]

§ 27 .112 Release and Settlement of Suit for Personal Injuries Received of the City of ___ the sum of ___ dollars

($ ___ ), lawful money, to me in hand paid, the receipt of which is hereby acknowledged, the same being in full payment, satisfaction and discharge of any and all claims, demands or causes of action, of whatsoever nature, which I or my heirs, executors, administrators, personal representatives, successors or assigns, may now or hereafter have against the City of __ _, its officers, agents or servants, its successors and assigns, for damages for or by all reason of all personal injuries, all pain and suffering, damage to property, all losses and expenses, of whatsoever character, sustained as a result of an accident which occurred to me on or about the ___ day of __ _, 19_, about ___ o'clock, _.m., at or near ___ Avenue, on which date and at which time and place I was injured when attempting to board bus, and especially from the cause or causes of action set forth in a petition filed by me in the Court of __ _, ___ County, __ _, in an action entitled "--- vs. City of __ _," Case No. __ _ on the docket of said Court, in which entry may be made "Settled and dismissed at defendant's costs. No record."

562

Ch. 27 RELEASES & SETTLEMENT AGREEMENTS § 27.113 I hereby certify that this release is fully understood by me and is

entirely satisfactory.


§ 27.113 Release of One Joint Tortfeasor From Liability for Personal Injuries

Whereas, on or about the ___ day of ___ 19_, the undersigned was a passenger in a bus owned by ___ Coach Compa-ny, a corporation of the State of Florida, and operated by its employee, __ _, on a regularly scheduled run on the ___ Turnpike near the community known as ___ in ___ County, and State of Florida, at a time when said bus had an accident with and collided with the locomotive of freight train No. _, owned by ___ Railroad Company, a corporation of the State of ___ and operated by its employee, ___ whereby the undersigned suffered various tempora-ry and permanent bodily injuries as well as damages to his personal property and was compelled to expend large sums of money for his medical care; and

Whereas, the undersigned brought suit in the Circuit Court of the State of Florida in and for ___ County against ___ Coach Company, ___ Railroad Company, ___ and ___ which suit is No. _ Civil Action · and

Whereas, the undersigned and the said ___ Coach Company and its employee, ___ have reached a settlement of all claims and demands which the undersigned has by reason of said accident against the ___ Coach Company and/ or ___ , including all claims and demands which have been or might have been asserted in said action, being No._ Civil Action __ _, as a term of which settlement the undersigned has agreed to dismiss with prejudice said action in so far as it applies to ___ Coach Company and/or __ _

Now, therefore, know all men by these presents, that I, ___ in consideration of the payment to me of the sum of ___ dollars ($. ___ ), lawful money of the United States of America, the receipt of which is hereby acknowledged, have remised, released and forever quitclaimed and discharged the said ___ Coach Company, a corpo-ration of the State of __ _, and the said __ _, and each of them, their and each of their respective heirs, executors, administrators, personal representatives, successors and assigns, of and from all actions, causes of action, claims and demands for, upon or by reason of any loss, damage, injury or expense which heretofore has been or hereafter may be sustained by me or by my heirs, executors, administrators, personal representatives, successors and assigns, for or by reason of any matter, cause or thing whatsoever from the beginning of the world to the date of these presents and particularly of and from all claims and demands arising out of or in any way connected with the

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loss, injuries, and damages sustained by me in said accident on the ___ day of __ _, 19_.

It is understood and agreed that this release shall reduce, to the extent of the pro rata share of ___ Coach Company and __ _ any damages recoverable by me against ___ Railroad Company or against any other person, firm or corporation by reason of said accident on ___ 19_; and to this end, in further consideration of the aforesaid payment to me I do hereby release and forever quitclaim and discharge the said ___ Railroad Company and all other persons, firms and corporations whatsoever and each of them, their and each of their respective heirs, executors, administrators, personal representatives, successors and assigns, of and from all actions, causes of action, claims and demands for, upon or by reason of the pro rata share caused by or attributable to the said ___ Coach Company and/or __ _ of any loss, damage, injury or expense suffered by me in connection with said accident on ___ 19_.

It is understood and agreed that the said payment is made in full settlement and satisfaction of any and all claims arising from the injuries and damages sustained by me as hereinabove set forth and shall not be construed as an admission of liability on the part of the said ___ Coach Company or on the part of the said __ _


COMMENT

See Uniform Contribution Among Tortfeasors Act (F.S.A. § 768.31).

§ 27.114 Release of One Joint Tortfeasor From Liability for Personal Injuries-Clause Reserving All Claims Except as Against Named Parties

It is, however, understood (a) that I do not release from liability but expressly hereby reserve unto myself, my heirs, legal representatives and assigns, any and every claim or cause of action that I now have or may hereafter have against any person, firm or corporation other than said ______ and ___ Insurance Company, or any of them, or their respective heirs, legal representatives or assigns, on account or in consequence of said accident or any bodily or other injury sustained by me as a result of said accident or on account or in consequence of any malpractice or improper treatment on the part of any physician or surgeon in or about or with respect to any such bodily injury; and (b) that any recovery by me, or my heirs, legal representatives or assigns, for, upon, or with respect to any such claim or cause of action so reserved by me shall be distributed in accordance with an agreement in writing made and entered into by and between the undersigned and said __ _, __ ____, and ___ Insurance Compa-ny on the ___ day of __ ____, 19_,

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§ 27.115 Release of Settling Tortfeasors Providing for Satisfaction of Portion of Cause of Action and Reserving Balance Against Nonsettling Tortfeasor With Indemnification Clause

[Recitals of circumstances relating to settlement agreement are omitted]

Now, therefore, I, the undersigned ___ for myself, my heirs, administrators, executors, personal representatives, successors and assigns, for and in consideration of the payment of the total amount of ___ dollars ($. ___ .) by [names of settling tortfeasors] to the undersigned, the receipt of which amount is hereby acknowledged, and other good and valuable consideration, do hereby release, remise and forever discharge the following named persons, corporations and firms, and their respective officers, agents, employees, successors, assigns, and insurers, and each of them, and only such persons, corporations and firms, to-wit: [names of settling tortfeasors ], of and from any and all claims, demands, rights or causes of action of whatsoever kind or nature which the undersigned has ever had or may now have or may hereafter have, whether now known or unknown, foreseen or unforeseen, arising from or by reason of or in any way connected with, any injuries, losses, damages, disability, suffering, property damage or loss, or the results thereof, which heretofore has been or hereafter may be sustained by the undersigned as a result of or in connection with or arising out of that certain fire and/ or explosion which occurred on or about ___ 19_ at the ___ plant at __ _

It has been represented by the undersigned that the injuries sustained and the suffering and damages resulting therefrom by the undersigned have persisted and that recovery therefrom is uncertain and indefinite, and in making this release and agreement it is understood and agreed that the undersigned relies on the undersigned's own beliefs and knowledge, and that of the physicians and attorneys of the undersigned, as to the nature, extent and duration of the symptoms and injuries.

The settlement and release made and effected hereby is a compromise settlement of the undersigned with [names of settling tortfeasors ] (hereinafter called the "settling parties") and neither this release nor the payments made pursuant thereto shall be construed as an admission of liability of any of said settling parties, the same being denied. The total damages and claims of the undersigned amount to more than the amount of the aforesaid consideration of$. ___ paid and credited to the undersigned herewith by the settling parties being released hereunder, and the undersigned, knowing that the settling parties released hereunder and herein are not paying the total of the undersigned's full amount of damages as would be paid if all defendants and interpleaded defendants in said pending action, including [name of nonsettling tortfeasor ], were settling said action and all claims for

565


damages of the undersigned therein, does hereby credit and satisfy that portion of the total amount of damages of the undersigned which the undersigned has suffered and will suffer because of the aforesaid fire and/or explosion which has been caused by the negligence, if any, of such of the settling parties hereto as may hereafter be determined to be the case in the further trial or other disposition of this or any other action, it being the act and intention of the undersigned to release and discharge, and he does hereby release and discharge that fraction and portion and percentage of his total causes of action and claim for damages against all parties in said case No. ___ pending in said Circuit Court of ___ County which shall hereafter, by the further trial or other disposition of this or any other action, be determined to be the sum of the portions or fractions or percentages of causal negligence for which any or all of the settling parties hereto are found to be liable and responsible in causing said fire and/ or explosion with respect to any finding of damages or recovery made by or for said [name of releasor ]; and the undersigned does hereby reserve, save, maintain and preserve against [name of nonsettling tortfeasor] the balance of the whole cause of action of the undersigned against the [name of nonsettling tortfeasor ], which balance of said cause of action is not released hereunder. Except as above specified, the undersigned does not release [name of nonsettling tortfeasor ], from any liability for damages and specifically reserves his rights, claims and causes of action, as aforesaid, against said [name of nonsettling tortfeasor ].

In further consideration of the aforesaid payment to the undersigned by the settling parties hereto for the damages, injuries and claims of the undersigned, the undersigned, for himself, his heirs, administrators, executors, personal representatives, successors and assigns, does hereby indemnify and agree to indemnify and save harmless said [names of settling tortfeasors ], their respective officers, agents, employees, successors, assigns and insurers, for any amount that they will or may be required to pay upon any judgment (exclusive of costs, if any) obtained against them by a joint tortfeasor or any party to said action or any other party for contribution in any way arising out of any damages of the undersigned herein resulting from said fire and/or explosion of __ ____, 19_, and all claims made by the undersigned with respect thereto, and to satisfy any such judgment against the settling parties, and does hereby further agree, and authorizes his attorneys to execute a stipulation thereto, to dismiss, on the merits and without costs to the undersigned or any of the settling parties, said actions No. ___ and No. ___ as against [names of settling tortfeasors ].

It is understood that the undersigned [name of releasor ], for himself, his heirs, executors, successors, administrators, personal representatives, successors and assigns, agrees to satisfy on behalf of the settling parties any amount of any judgment to which he may be found to be

566

Ch. 27 RELEASES & SETTLEMENT AGREEMENTS § 27.116 entitled against [name of nonsettling tortfeasor] up to the extent of the fraction of his cause of action hereinbefore defined and released hereunder.

The foregoing release and indemnification agreement has been read and understood by the undersigned before signing thereof.

In Witness Whereof, the undersigned has hereunto set his hand and seal this ___ day of ___ 19_,

_________ [Seal]

[Acknowledgment ]

§ 27.116 Release of Primary Insurer With Reservation of Rights Against Excess Insurer and Others

Whereas, ___ is unwilling to accept less than ___ dollars ($ ____ ) in complete settlement of her claims arising out of the death of her husband, · and

Whereas, c ___ Casualty Company desires to protect and to indemnify its name insured, ___ and its omnibus assured, __ _, in the full sum of ___ dollars ($ ___ ), in accordance with the terms and provisions of that certain insurance policy hereinafter described; and

Whereas, E Casualty Company, the excess liability insurer of the legal liability of ___ for all amounts in excess of __ _ dollars ($. ____ ) arising out of said hereinafter described accident, has denied that its policy of insurance covers said ___ for said hereinaf-ter described accident, and is unwilling to make any satisfactory payment in settlement of the claims of the undersigned, ---,

Now, therefore, in consideration of the payment to the under-signed, __ _, of the sum of ___ dollars ($. ____ ), together with other good and valuable. considerations, which said total considerations the said undersigned, __ _, declared to be worth to her the sum of ___ dollars ($ ___ ), but not in excess thereof, said payment being made by c ___ Casualty Company under that certain policy of liability insurance bearing No. ___ issued in favor of __ _, as the named insured, and covering the legal liability of the said __ _, and anyone operating her ___ automobile, therein insured, such as ___ within the terms and provisions of said insurance policy;

Now, therefore, the undersigned, ___ does hereby acknowl-edge the receipt of said ___ dollars ($ ___ ) of consideration paid by said c ____ Casualty Company and releases, acquits and forever discharges c ____ Casualty Company from any and all actions, claims, demands, damages and expenses arising out of or in any way connected with that certain accident, and death of ___ that oc-curred on ___ 19_, on ___ Highway ___ about one (1) mile South of _____ _, including her claims as asserted

567


against said c ___ Casualty Company in Civil Action ___ on the docket of the United States District Court for the ___ District of ___ entitled "--- v. c ___ Casualty Company and E Casualty Company", as said asserted claims are legally limit-ed and altered as to c ___ Casualty Company by virtue of the fact that under its policy of insurance, c ___ Casualty Company is the primary insurer only to the extent of ___ dollars ($ ___ ), and under its policy of insurance, E Casualty Company is liable only as excess insurer, and, accordingly, there would be no liability in so lido.

In further consideration of said payment and other valuable consid-erations, as above described, made by said C ___ Casualty Company, the undersigned, __ _, does further grant a credit to ___ and/or ___ of the sum of ___ dollars ($ ___ ,) to be first applied toward and in liquidation of any judgment that may be obtained against the said ___ and/ or __ _, arising out of said above described accident ·of __ _, 19_, and death of __ _, and does release her said claims up to the sum of ___ dollars ($, ___ ,), but no further, against the said ___ and/ or · and, as respects E Casualty Company, the excess liability insurer of __ _, ___ acknowledges that as to her rights to claim damages of every nature and kind whatever arising from said accident of __ _, 19_, and the death of __ __, same have been satisfied by virtue of the above payment and consideration up to the sum of ___ dollars ($ ___ ), but no further, being the limits of liability of C __ _ Casualty Company under the terms of its policy above described.

It is expressly understood and agreed that the undersigned, __ _, does hereby expressly and specifically reserve all of her rights of every nature and kind whatever arising from said accident and the death of __ _, if any, against any and all other individuals, persons, firms and/ or corporations who are legally liable unto her as a result thereof, except c ___ Casualty Company, and without limiting the generality hereof, particularly against · __ _, and/or his parents or parent, tutor or tutrix believed to be __ __, their insurers, if any. It is further expressly understood and agreed that the undersigned, __ _, expressly and specifically reserves all of her rights of every kind whatever in excess of ___ dollars ($ ___ ), against the said ___ and/or __ _, arising out of said accident of __ _, 19_, and the death of __ _, and, she does expressly and specifically reserve all of her rights, with respect thereto, as against E Casualty Company, the excess liability insurer of __ _

It is expressly understood and agreed that this payment by c ___ Casualty Company is made under its said contract of insur-ance and that this payment is not to be construed as an admission of liability on the part of anyone. This release contains the entire agreement between the parties hereto and the terms are contractual.

- The undersigned states that she has carefully read the foregoing

568

Ch. 27 RELEASES & SE1TLEMENT AGREEMENTS § 27.117 document, understands its contents, and has signed same as her own free act and deed upon the advices of her counsel, __ _, who signed same as a witness hereto.


§ 27 .117 Release by Insurer on Settlement of Claim Against Third Party


Whereas, heretofore, on the ___ day of ___ 19_, at about the hour of __ _, _.M., that certain duplex dwelling owned by ___ and wife, ___ located at ___ in the City of __ _, ___ County, Florida was damaged by fire; and

Whereas, at the time of said fire, said dwelling was insured under a policy of insurance issued to the said ___ and wife, ___ by ___ Insurance Company, said policy bearing number ___ with inception date of __ _, 19_, and expiration date of __ _, 19_; and

Whereas, under the terms of said policy of insurance, the said ___ Insurance Company became obligated to pay to the said ___ and wife, __ _, the sum of ___ dollars and did, on or about the ___ day of ___ , 19_, pay said sum to the said ___ and wife, __ _, in full and final discharge of its liability under said policy of insurance; and

Whereas, under the terms of said policy of insurance, the said ___ Insurance Company became subrogated to the rights of the said ___ and wife, ___ against any and all parties responsible for the damage to said duplex dwelling; and

Whereas, it is the contention of the ___ Insurance Company that the damage to said dwelling was caused by the negligence of ___ by virtue whereof, the said ___ Insurance Company under its subrogation rights afforded by said policy of insurance, has asserted a claim against ___ for payment of all loss and damage to said dwelling and· has demanded of the said ___ the sum of __ _ dollars in payment and satisfaction of its claim against the said ___ . and

Whereas, the said ___ disclaims any and all liability of any nature whatsoever for the damage to said dwelling and contends that the claimed loss and damage was not occasioned by any act or conduct on the part of ___ and denies that the said dwelling was, in fact, damaged or that the said ___ and wife, ___ suffered the loss and damages claimed to have been suffered by them and further denies that it is in any wise responsible to any person, firm or corporation to

569


any extent whatsoever in any sum whatsoever arising out of or occasioned by said fire of __ _, 19_; and

Whereas, __ _, without admitting liability but expressly deny-ing any and all liability, and ___ Insurance Company, both realiz-ing the expenses, burdens and uncertainties of litigation, are desirous of settling, adjusting and compromising all disputes existing between them by virtue of the premises, and accordingly, have agreed upon a full settlement and compromise of all loss or causes of action that the said ___ Insurance Company may have against the said __ _ because of said claimed damages, in order to settle such controversy;

Now, therefore, in consideration of ___ dollars to it in hand paid, the receipt of which is hereby acknowledged, the said __ _ Insurance Company does hereby release the said ___ of and from any and all claims, demands, causes of action, damages, suits or costs whatsoever by reason of said occurrence and any and all resulting loss or damage to the dwelling owned by ___ and wife, ___ on the date of said loss.

In Testimony Whereof, etc.

§§ 27.118-27.129 are reserved for supplementary material.

F. COVENANTS NOT TO SUE

§ 27.130 General Covenant Not to Sue

In consideration of the payment to me, __ _, of ___ dollars ($ ______ ), the receipt whereof is hereby acknowledged, I, being over 21 years of age, do hereby covenant and agree with __ _, his heirs, executors, administrators or personal representatives, that I will never institute any suit or action at law or otherwise against ___ nor institute, prosecute or in any way aid in the institution or prosecution of any claim, demand, action or cause of action for damages, costs, loss of service, expenses or compensation for or on account of any damage, loss or injury either to person or property, or both, whether developed or undeveloped, resulting or to result, known or unknown, which I ever had, now have or which I, my heirs, executors, administrators or personal representatives, hereafter can, shall or may have for, on or by reason of any matter, cause or thing whatsoever from the beginning of the world to the day of the date of this covenant.

It is further understood and agreed that the payment of the said sum is not to be construed as an admission on the part of ___ of any liability whatsoever.

The undersigned expressly reserves all rights of action, claims and demands against any and all other persons whomsoever not herein named.

570

Ch. 27 RELEASES & SETTLEMENT AGREEMENTS § 27.131 In Witness Whereof, I have hereunto set my hand and seal this

___ day of __ _, 19_.

Signed and sealed in presence of:

_________ [Seal]

COMMENT

For discussion of (1) effect of discharge on co-promisors and (2) effect of contract not to sue, see Restatement, Second, Contracts §§ 294 and 295 (1981). See also Prosser and Keeton, Torts § 49 (5th ed. 1984). Compare Uniform Commercial Code § 3-606.

§ 27.131 Covenant of Parent and Guardian Not to Sue With Indemnity Agreement

I, __ _, being over 21 years of age, parent and guardian of ___ a minor of ___ years of age, in consideration of the payment of the sum of ___ dollars ($. ___ .) to me individually and in behalf of said minor at my request, the receipt whereof is hereby acknowledged, do hereby covenant and agree with __ _, his heirs, executors, administrators or personal representatives, that neither said infant nor I, individually, or as parent and guardian of said minor, will ever institute any suit, action at law, or make any claim against ___ for or by reason of any damage, loss or injury either to person or property or both, whether developed or undeveloped, resulting or to result, known or unknown, which said minor or I, individually, or as parent and guardian of said minor, now have or which I, my or his heirs, executors, administrators or personal representatives, hereafter can, shall or may have for, on or by reason of any matter, cause or thing whatsoever from the beginning of the world to the day of the date of this covenant.

And in further consideration of said payment made to me, individually, and in behalf of said minor, I hereby agree to indemnify and save harmless ___ against any claim for damages, compensation or otherwise on the part of said minor or his heirs, executors, administrators or personal representatives, and to reimburse or make good any loss or damages or costs that ___ may have to pay if any litigation arises on account of any claims made by said minor or anyone in his behalf.

It is further understood and agreed, that the payment of said sum is not, and is not to be construed as an admission on the part of __ _ of any liability whatsoever and the undersigned, both individually and as parent and guardian of said minor, expressly reserves all rights of action, claims and demands against any and all other persons whosoever not herein named.

Dated __ _, 19_. [Signatures]

571


§ 27 .132 Covenant Not to Sue With Loan Receipt Provision Whereas, ___ of ___ County, ___ received injuries to

his person as a result of a collision occurring on or about the __ _ day of ___ 19_, on Highway ___ at a point about one mile east of ______ between a car owned by him and operated by his wife, a car owned and operated by ___ and a truck owned by ___ Trucking Company and operated by its employee, __ _ and

Whereas, the said ___ asserted claims against the said __ _ and ___ Trucking Company for the damages so sustained by him; and

Whereas, the ___ Trucking Company and ___ have denied liability upon said claim and have asserted that said injuries and damages were due to the carelessness and negligence of the said ___ in the operation of her car so as to crash into the rear of the ___ car and force it across the highway and into the path of the truck of the ___ Trucking Company; and

Whereas, the Underwriters at Lloyds, insurer of the liability of the ___ Trucking Company, if any, for the damages sustained by the said ___ as a result of said accident, has proposed to advance the sum hereinafter set forth to the said ___ as a loan, re-payable only upon the conditions hereinafter set forth, in consideration of the covenants of the said ___ not to sue the said ___ Trucking Company, any of its agents or employees, or ___ or any other person, firm, or corporation legally liable for any alleged negligence of the said ___ upon any claim or claims or cause of action which he now has or could now or hereafter assert for damages sustained to his person as a result of the said collision occurring on or about the ___ day of ___ 19_; and

Whereas, the said ___ is insured by the ___ Indemnity Company, of ___ which company is liable for the damage resulting from the negligence of the said · and

Whereas, the said ___ sustained damage largely in excess of the sum to be advanced as aforesaid and it is contemplated that the recovery which will be made from ___ and those legally liable for her negligence will be greatly in excess of the amount so advanced; and

Whereas, the said ___ is desirous of obtaining the advance of said funds upon said terms and conditions;

Now, therefore, in consideration of the sum of ___ dollars ($ ) this day received from Underwriters at Lloyds as a loan repayable without interest only in the event and to the extent of any net recovery the said ___ may obtain upon any claim or cause of action which he has for injuries and damages sustained to his person arising and growing out of said collision occurring on or about the ___ day of ___ 19_, against ___ or any other person,

572

Ch. 27 RELEASES & SETrLEMENT AGREEMENTS § 27.132 firm, or corporation except ___ Trucking Company, its agents or employees, __ _, or any person, firm, or corporation liable for the negligence of the said ___ or ___ Trucking Company.

In consideration of the loan and advance of said sum the said ___ hereby agrees:

1. That he will not institute or maintain any action or proceed-ings of any kind or character against the ___ Trucking Company, any of its agents or employees, ___ or any other person, firm, or corporation legally liable for any negligence of the said ___ Truck-ing Company or ___ for the recovery of any damages to his person sustained by him arising or growing out of the said collision occurring on or about the ___ day of ___ 19_, between the car owned by him and operated by his wife, a car owned and operated by the said __ _, and the truck owned by the said ___ Trucking Company and operat.ed by ___ In so agreeing not to sue the persons aforesaid the said ___ does expressly reserve and retain each and every claim and cause of action which he may have or which he could assert against the said ___ or any other person, firm, or corpora-tion except such as he has expressly herein covenanted not to sue.

2. That from any recovery which he may obtain upon any claim for personal injuries against any person, firm, or corporation with respect to whom rights are reserved under the terms hereof for damages received by him as a result of, or arising and growing out of, the said collision occurring on or about the ___ day of __ ____, 19_, the said ___ will, after first deducting any and all expenses in any way connected with the making of said claim, or the bringing or prosecuting of any action thereon, re-pay to the said Underwriters at Lloyds the amount so advanced and loaned. It is understood and agreed that the obligation of the said ___ to re-pay said sum of money is expressly limited to the net amounts of any sums recovered on said claim after first paying any and all expenses connected therewith and that under no circumstances or conditions is the said ___ to have any obligation to re-pay any sum whatsoever except from the net funds received by him upon his claims as aforesaid.

This is delivered on condition that check for $. ___ shall be delivered to me on or before __ ____, 19_.

Dated this ___ day of ___ 19_.

[Signature]

Witness:

9 Fla.Legal Forms-Specialized Fonns-20 573

§ 27.133 RELEASES & SETrLEMENT AGREEMENTS Cb. 27

§ 27.133 Covenant Not to Sue One of Two Joint Tortfeasors

Know All Men by These Presents, that we, the undersigned, ___ and __ _, husband and wife, in consideration of the sum of ___ dollars, to us in hand paid by __ _, have covenanted not to sue and do hereby for ourselves, our heirs, executors, administrators, personal representatives and assigns, covenant not to sue the said

individually, her heirs, executors, administrators, personal representatives, or assigns, on account of injuries sustained by us while riding in an automobile driven by ___ which was involved in a collision with vehicles driven by ___ and __ _, respectively, at the intersection of the ___ Railroad tracks with ___ Street, in the city of __ _, ___ County, State of Florida, on __ _, 19_.

It is agreed between the undersigned and ___ that the under-signed have no lawsuit pending against the said ___ at this time and by these presents and for the consideration above enumerated, they will not file or prosecute any suit, claim, demand, or cause of action against ___ and will never claim any further amount against her for any damages received in the accident out of which their claims arose.

The undersigned further state that they have agreed to accept the sum of ___ dollars, as a pro tanto or partial payment of the damages which they have sustained and will assert no further claim against ___ for their damages and will accept and do accept the amount paid as a pro tanto or partial payment, but specifically reserve their right to prosecute their claims against any other parties who might be responsible for their injuries.

The undersigned further, for the consideration of this covenant, say that in the event they should violate this covenant and should prosecute an action and recover any sum in addition to that herein paid from the person herein covenanted with, then and in that event, they do hereby and by these presents, sell, assign, transfer, and set over unto ___ any and all sums which they might recover and do hereby substitute here in their place and stead for any adjudicated claim which they may ever assert and obtain an adjudication thereon.

It is expressly understood that this covenant is not an assignment of the balance of the undersigned's claim, suit or cause of action against any other persons; and the right of the undersigned to prosecute their claims against any other persons and their right to collect and enjoy same is expressly reserved to the undersigned.

The terms and conditions of this covenant and agreement shall extend to and be binding upon the undersigned, their heirs: executors, administrators, personal representatives, and assigns forever.

Dated ___ 19_.

[Signatures]

574


§ 27.134 Covenant Not to Sue One of Two Joint Tortfeasors-Including Agreement to Dismiss Pending Suit

Whereas, A..._ __ B, __ _, as father, and next friend and guardian of C. ___ D ___ a minor, has heretofore instituted a suit against E F __ _, of __ _, on account of injuries arising out of [give date and place of the accident, identifying the two tortfeasors as E F ___ and Q ___ H ___ ];

Now, therefore, in consideration of the sum of ___ dollars ($. ___ ,) paid to A...._ __ B __ _, as father, next friend and guardian of c ___ D __ _, the receipt of which is hereby ac-knowledged, .A...._ __ B __ _, as father, next friend and guardian, expressly agrees and covenants with E F ___ to dismiss and not further prosecute any suit now pending in the Circuit Court of ___ County, Florida, and he further agrees to take a voluntary dismissal in the action now pending in said Court, entitled "---" being cause No. __ _, and not, in his capacity as above set forth, to reinstate said suit or prosecute any other suit against .... E._ __ F ___ by reason of the injuries hereinabove set forth.

This agreement, however, is not entered into nor in any wise intended to release any claim of c ___ n __ _, either by her father, her father as next friend, or as guardian, any claim or any cause of action which c,___ n___ may have against Q __ _ H , for the injuries that she may have received by virtue of the facts hereinabove set forth, and it is specifically a part of this agreement that this is not an agreement to dismiss any suit now pending against Q ___ H , except as to E F ___ and it is expressly agreed and understood that this agreement is in no wise to inure to the benefit of Q ___ H __ _

It is further clearly and distinctly understood that this instrument is merely a covenant not to sue E F ___ and not a release in any wise for the injuries to c ___ D ___ against Q __ _

H---In Witness Whereof, etc.

COMMENT

See West's F.S.A. § 768.31.

§ 27.135 Covenant Not to Sue With Reservation of Right to Proceed Against Others

Know All Men by These Presents, that the undersigned, __ _, for and in consideration of the sum of ___ dollars ($. ___ ) in hand paid by ___ and __ _, individually and as a partnership doing business as ___ and ___ Indemnity Company, the re-ceipt and sufficiency whereof being hereby acknowledged, does hereby

575

§ 27.135 RELEASES & SETTLEMENT,AGREEMENTS Ch. 27

now and forever covenant and agree not to sue ___ and __ _ individually and as a partnership doing business as ___ and ___ Indemnity Company, and to refrain forever from instituting, pressing, collecting or in any way aiding or proceeding upon any and all claims, judgments, debts, costs of action, suits and proceedings of any kind at law or in equity which the undersigned ever had, now has or may have against any of the aforementioned covenantees or their legal representatives, successors or assigns, arising out of a certain explosion which occurred on __ _, 19_ on the premises known as ___ in which explosion ___ was injured.

It is hereby expressly understood and agreed that the consideration of $, ___ has been received by the undersigned in full payment for this covenant not to sue, notwithstanding any injuries or damages sustained, whether known or unknown.

It is hereby expressly understood and agreed that this instrument is not intended as a release or discharge of nor as an accord or satisfaction with any person whomsoever, but only as a covenant not to sue and to the effect that each covenantee hereby purchases peace and is hereby given peace upon any and all claims and matters whatsoever which have been or may be made against covenantees by the undersigned; and that covenantees in making payment of said consideration for this covenant have done so solely to obtain such peace and do not thereby admit any liability on account of any of said claims or matters but expressly deny all of such liability whatsoever.

It is further expressly understood and agreed that the undersigned hereby expressly reserves the right to proceed against or sue any other person or persons against whom he may have or assert any claim on account of damages arising out of the above described explosion.

It is further expressly understood and agreed that nothing herein contained shall in any way tend to release or discharge or shall in any way be construed as releasing or discharging ___ and __ _, or any other person or persons, against whom the undersigned may have or assert any claim on account of damages arising out of the above described explosion.

The undersigned expressly reserves the right to proceed against ___ and __ _, and any other person or persons against whom he may have or assert any claim on account of damages arising out of the above described explosion.


§ 27.136 Covenant Not to Execute on Judgment in Pending Suit

This agreement, made and entered into this day of ___ 19_, by and between ___ rJ,laintiff], and __ _, [de-fendant ], witnesseth:

576

Ch. 27 RELEASES & SETTLEMENT AGREEMENTS § 27.137 Whereas, a certain suit being cause No. ___ of the __ _

Court of ___ has been on trial for the past ___ days and has now been submitted to the jury and the jury has not yet returned its verdict; and

Whereas, it has been agreed by and between the parties hereto that notwithstanding any judgment that may be rendered in said cause, the first party enters into the following covenants for the consideration hereinafter named;

That for and in consideration of the premises and payment to the [plaintiff] of ___ dollars ($, ___ ) by the [defendant], the receipt of which is hereby acknowledged, and the further payment of __ _ per cent of the costs accrued in said suit in the event that [plaintiff] shall be liable therefor, the [plaintiff] hereby covenants and agrees that he will not at any time nor shall anyone for him or on his behalf levy or sue out an execution or executions against the [defendant] on such judgment.

And the [plaintiff] hereby further covenants and agrees that he will indemnify and hold harmless the [defendant] against any and all such execution or executions, against any and all contribution by reason of such judgment, and against any and all liability for indemnity by reason of any such judgment.

It is the intent of this covenant that the [defendant ], its representatives and assigns, shall never at any time be liable, beyond the consideration expressed in this instrument, by reason of said aforementioned injuries or suit or judgment rendered therein, or any suit or suits filed by reason thereot

[Signatures ]

§ 27.137 Covenant Not to Execute Combined With Covenant Not to Sue

Whereas, William Barker of __ _, received injuries to his per-son as a result of a collision occurring on or about the ___ day of

19_, at ___ between a farm tractor which he was operating and a tractor and trailer owned by ___ Trucking, Inc. and ___ Motor Express, Inc. and operated by Charles Sumney of __ _,· and

Whereas, thereafter on the ___ day of ___ 19_, the said William Barker filed an action for damages against said Charles Sumney in the United States District Court for the ___ District of

Division, and therein alleged that said Charles Sumney at the time of said collision was the agent, servant and employee of said ___ Trucking, Inc., and said ___ Motor Express, Inc.; and

Whereas, ___ Casualty Company had issued a policy of insur-ance to said Trucking, Inc., covering the said tractor and

577


trailer, which tractor the said Charles Sumney was driving at the time of the accident aforesaid; and

Whereas, ___ Surety Company had issued a policy of insurance to said ___ Motor Express, Inc., which policy was numbered __ _,· and

Whereas, the said William Barker and said ___ Surety Compa-ny and ___ Motor Express, Inc., desire to set at rest the differences between them in the premises without in any manner prejudicing the right of said William Barker to proceed against said ___ Trucking, Inc., or ___ Casualty Company; and

Whereas, the said William Barker has demanded and now demands a sum greatly in excess of that hereinafter mentioned as being paid by said ___ Surety Company and ___ Motor Express, Inc., to said William Barker.

Now, therefore, in consideration of the sum of ___ dollars ($ ___ ) paid to the said William Barker by the said ___ Surety Company and ___ Motor Express, Inc., the receipt of which is hereby acknowledged, the said William Barker, for himself, his heirs, administrators, executors, personal representatives and assigns, agrees:

1. That he will never sue or bring any action of any kind or character whatsoever, or take any action directly or indirectly against said ___ Surety Company and ___ Motor Express, Inc., or either of them, their successors or assigns, or in any manner, demand, take, accept or receive directly or indirectly any monies or other assets of any kind from said ___ Motor Express, Inc., and ___ Surety Company other than the said sum of ___ dollars, ($ ____ ) for any injuries or damages, either to person or property sustained in said accident and he further agrees that he will never cause or permit any suit to be brought against said ___ Motor Express, Inc., and ___ Surety Company, or either of them, their successors or assigns, for the collection of any judgment which he may hereafter obtain against said ___ Trucking, Inc., or Charles Sumney, for injuries or damages arising out of said accident and collision.

2. That he will never cause any execution to issue against said Charles Sumney on any judgment which he may obtain against said Charles Sumney in the action aforesaid or attempt to collect said judgment from said Charles Sumney provided that nothing herein contained shall in any manner prevent him from proceeding against said ___ Casualty Company to collect any judgment that may be obtained by him against said Charles Sumney or ___ Trucking, Inc.

Dated ___ 19_.

[Signature]

§§ 27 .138-27 .149 are reserved for supplementary material.

578

Ch. 27 RELEASES & SETILEMENT AGREEMENTS § 27.152

G. MISCELLANEOUS RELEASES

27 .150 Release of Lost Bond Whereas, __ _, as principal, and ___ and ___ as

sureties, by their bond or obligation dated the ___ day of __ _ 19_, bound themselves to me, the undersigned, for payment to me of the sum of $ · and whereas, the sum of $, ___ mentioned in the said bond, with all interest for the same due thereon, has been paid to me in full discharge of the said bond; and whereas, the said bond or obligation has been lost or mislaid, and cannot be delivered up to the said obligors:

Now, therefore, I, ___ for the consideration aforesaid, hereby release and discharge the said _____ _, and ___ and each of them, and their respective heirs, executors, administrators and personal representatives, from the obligation of the said bond and from all such sums of money as are therein mentioned to be due and payable unto me, the said ___ my executors, administrators, personal representatives, or assigns, and also from all actions, proceedings, claims, and demands whatsoever for or on account of or in respect of the said bond or obligation or the moneys therein mentioned or any part thereof.

Dated ___ 19_.

[Signature ]

§ 27 .151 Release of Lien does hereby certify that a certain lien, in favor of the

undersigned and against __ _, dated the ___ day of __ _ 19_, and upon the following described property situated in the county of __ _, and state of Florida, to wit: [description ], and the verified statement and claim for said lien being recorded in the office of the clerk of court in and for said county in O.R. ___ Book ___ of __ _, page ___ on the ___ day of ___ 19_, is fully satisfied, released and discharged, the claim secured thereby having been paid in full, and the Clerk of said county is hereby authorized and directed to discharge the same upon the record thereof, according to the statute in such case made and provided.


§ 27.152 Release of Judgment [Title of Action]

The judgment entered and docketed herein on the ___ day of ___ 19_, in favor of ___ the plaintiff and against __ _ the defendant and recorded at O.R. Book ___ Page ___ Public Records of ___ County, Florida, for the sum of dollars is

579


hereby acknowledged to be paid and satisfied in full and is hereby discharged and released, and the clerk is hereby authorized to satisfy said judgment of record.

[Signature and Acknowledgment]

§ 27.153 Release by One Partner In consideration of the sum of one dollar to me in hand paid by

__ _, of __ _, I do, on behalf of the firm of ___ Co., of hereby release, quitclaim and forever discharge the said

___ of and from all his debts, dues, claims and demands which the said firm of ___ Co. have against the said __ _

[Date] [Signature and Seal]

§ 27.154 Release of Guardian by Ward on Attaining Majority Whereas, by order of the circuit court of the County of __ _,

and State of Florida, duly made and entered the ___ day of 19_, A.._____ B,___ was appointed guardian of the

property of c ___ D ___ during his minority; and Whereas, A ___ B, ___ has duly accounted as such guardian

with c ___ D __ _, and has paid over and transferred to him all the property and estate remaining in the hands of A..___ __ B __ _ as such guardian.

Now, therefore, c ___ D ___ hereby releases and forever discharges .A ____ B·--- from all actions, proceedings, claims, demands, or accounts whatsoever for or on account of the property and estate of c ___ D ___ or the guardianship thereof, or the sale, disposition, investment, and application thereof, or for or on account of the rents, profits, or income thereof, or for or on account of any act or thing at any time done or omitted or neglected by A ___ B __ _ in relation to the premises.

Dated ___ 19_. [Signature]

§ 27.155 Release of Principal by Agent Who Has Received Payment in Satisfaction of Disputed Balance

Indenture made the ___ day of __ _, 19_, between ___ of __ _, Agent and __ _, of __ _, Principal.

Whereas, a contract in writing dated the ___ day of __ _, 19_, was made and entered into between the said parties hereto, whereby Principal appointed Agent his agent for the sale of automobiles, and agreed to pay to Agent commissions upon sales effected by Agent as therein provided;

Whereas, Agent has made claim that there is due him from Principal as and for such commissions a large sum of money, and the

580

Ch. 27 RELEASES & SETTLEMENT AGREEMENTS § 27.156 amount of the balance due from Principal to Agent is in dispute between them; and

Whereas, it has been agreed between the parties hereto that Principal should pay Agent the sum of $ ___ in full satisfaction and discharge of all claims and demands whatsoever, and that Agent should execute the release hereinafter contained:

Now, therefore, in pursuance of the said agreement and in consid-eration of the sum of $. ___ paid by Principal to Agent, the receipt whereof is hereby acknowledged, Agent hereby releases and forever discharges Principal, his heirs, executors, administrators and personal representatives, from all sums of money, commissions, accounts, actions, proceedings, claims and demands which Agent had or has up to the date of these presents against Principal for or by reason or in respect of any act, cause, matter, or thing.


§ 27.156 Release of Certain Marital Rights

AGREEMENT

AGREEMENT made this ___ day of ___ 19_, betw~n ___ herein called "Wife", and ___ herein called "Husband", both of __ _, __ _, Florida, for the purpose of clarifying and establishing their respective property interests.

WHEREAS: (A) A marriage has been duly had and solemnized between the

parties, such marriage having taken place on __ _, 19_, in the City of ___ County of ___ State of __ _

(B) Both parties are adults;

(C) Each party warrants that he or she has made a full and fair disclosure of his or her separate assets to the other party;

(D) Each party hereby stipulates that he or she has been fully advised in the premises of the following agreement by legal counsel of his or her own selection or has been advised to obtain his or her own legal counsel; and

(E) Each of the parties desires to accord to the other the absolute and unrestricted privilege and power to dispose of any and all property on death which may belong to him or to her at such time;

NOW, THEREFORE, in consideration of their mutual promises herein made, Husband and Wife agree as follows:

1. Each party does hereby waive all of his or her rights, title and interest which may be vested in him or her by virtue of the marriage in and to any real property or personal property which is now owned by, or title in the name of, the other party or which the other party shall hereafter own or acquire title to. Each party shall continue to own,

581


possess and enjoy their own property as separate property free of any interest in the other party.

2. Each of the parties forever waives, releases, and relinquishes any right or claim of any kind, character, or nature whatsoever, which either may have or shall have in and to the estate, property, assets, or other effects of the other under any present or future law of the State of Florida or any other state or of the United States, and each of the parties forever waives, releases, and relinquishes any right or claim which he or she now has or may have, pursuant to the provisions of Section 732.201 of the Probate Code of the State of Florida, as such section now exists or may hereafter be amended, or pursuant to any present or future law of any state or of the United States to elect to take in contravention of the terms of any last will or trust of the other, including any such instrument now executed or which may be executed hereafter, or any disposition of property made by the other during his or her lifetime or otherwise. Each of the parties shall refrain from any action or proceeding which may tend to avoid or nullify to any extent or in any particular the terms of any such instrument of the other.

3. Each of the parties waives the right to letters of administration in the other's estate, and also waives all statutory allowances of any kind under the Probate Code of the State of Florida, as such law now exists or may hereafter be amended, or any similar or subsequently enacted statute of the State of Florida or of any other state or of the United States.

IN WITNESS WHEREOF, the parties hereto have executed this agreement the day and year first above written.


Witnesses

Witnesses

WIFE

________ (SEAL)

HUSBAND

________ (SEAL)

§ 27 .157 Release and Disclaimer-Trust TO: ___ Trustee of THE ___ TRUST UNDER TRUST

AGREEMENT DATED ___ 19_ AND ALL OTHERS WHOM IT MAY CONCERN

You are hereby notified that the undersigned is one of the benefi-ciaries of the ___ Trust, under trust agreement dated __ _

582

Ch. 27 RELEASES & SETTLEMENT AGREEMENTS § 27.157 19_, and is the person, under said Trust, who is entitled to receive a total distribution of ___ Dollars ($ ___ ).

The undersigned acknowledges, represents and certifies as follows: 1. That she is not now insolvent and was not insolvent at the date of death of the deceased ( , 19_);

2. That she has not made any voluntary assignment, transfer, contract to assign or transfer, encumbrance, sale or other disposition of any interest in the right being disclaimed; 3. That she has not accepted any part of the property being disclaimed, or any of its benefits, and irrevocably and unqualifiedly disclaims and refuses to accept such property and each and every interest which she has in the property described. This disclaimer was effective on __ _, 19_,

Under penalties of perjury I declare that I have read the foregoing, and the facts alleged are true to the best of my knowledge and belief.

IN WITNESS WHEREOF, the undersigned has set her hand and seal this ___ day of ___ 19_.

Witnesses:


BEFORE ME personally appeared ___ to me well known, and known to me to be the person described in and who executed the foregoing instrument, and who after being first duly sworn, acknowledged to and before me that she executed said instrument for the purposes therein expressed.

WITNESS my hand and official seal this ___ day of __ _ 19_, in the aforesaid County and State.

NOTARY PUBLIC State of Florida at Large My commission expires:

(SEAL)

RECEIPT BY TRUSTEE

The undersigned acknowledges receipt of this disclaimer on the ___ day of ___ 19_.

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§ 27.157 RELEASES & SETrLEMENT AGREEMENTS Ch. 27

__ AS TRUSTEE OF THE __ TRUST UNDER TRUST AGREEMENT

Dated __ _, 19_

§§ 27.158-27.199 are reserved for supplementary material.

H. SETTLEMENT AGREEMENTS

§ 27.200 Agreement of Settlement, Compromise, Waiver and Release-Commission Dispute

AGREEMENT made the ___ day of __ _, 19_, between __ _, hereinafter called "Claimant", __ _, ___ and __ _, hereinafter called "Sellers", __ _, hereinafter called "---", and ___ and __ _, hereinafter called "---". This Agreement is made by these parties on behalf of themselves and on behalf of all of their employees, agents and representatives.

WHEREAS, Claimant claims entitlement to be paid by Sellers a real estate commission on the sale of certain real property from Sellers to __ _, which sale was closed on or about __ _, 19_; and

WHEREAS, Claimant also claims entitlement to damages from ___ and ___ 's Brokers for tortious interference with Claim-ant's business relationship with Seller; and

WHEREAS, the parties desire to fully and amicably resolve, compromise and settle their differences by entering into this Agreement; and

WHEREAS, Bayfront and ___ 's Brokers do not admit or agree with the claims of Claimant by entering into this Agreement, but are settling this as a matter of compromise;

NOW THEREFORE, in consideration of their mutual promises set forth herein, the parties hereby agree as follows:

1. Recitals. The parties hereby acknowledge, represent and agree that the above recitals are true and correct.

. 2. Claimant's Covenants. In consideration of the covenants made by the other parties, and in consideration of the sum of money to be paid by ___ to Claimant as set forth herein, Claimant hereby fully waives, releases, renounces, discharges and relinquishes any and all claims, demands, and causes of action he has or may have against __ _, __ _, __ _, __ _, and __ _, or any of them, relating to the sale of property from Sellers to ___ or relating to any other matter, cause or thing prior to the date of this Agreement. It is the intent of all parties that this be a general release, waiver, renunciation, and discharge of all rights Claimant may have to claim against the other parties.

584

Ch. 27 RELEASES & SETTLEMENT AGREEMENTS § 27.200 3. ---'s Covenants. In consideration of the covenants, re

lease, waiver, renunciation and discharge made by Claimant and the other parties herein, ___ hereby agrees to the following:

(a) ___ shall immediately pay to Claimant the cash sum of ___ Dollars ($, ____ ).

(b) ___ hereby fully waives, releases, renounces, dis-charges and relinquishes any and all claims, demands, and causes of action it has or may have against ___ and ___ or any of them, relating to the sale of property from Sellers to ___ or relating to any other matter, cause or thing prior to the date of this Agreement. It is the intent of all parties that this be a general release, waiver, renunciation, and discharge of all rights __ _ may have to claim against the other parties.

4. Seller's Covenants. In consideration of the covenants, release, waiver, renunciation and discharge made by Claimant and the other parties herein, Sellers hereby fully waive, release, renounce, discharge and relinquish any and all claims, demands, and causes of action they have or may have against _____ _, and __ _ or any of them, relating to the sale of property from Sellers to __ _ or relating to any other matter, cause or thing prior to the date of this Agreement. It is the intent of all parties that this be a general release, waiver, renunciation, and discharge of all rights Sellers may have to claim against the other parties.

5. ---'s Brokers' Covenants. In consideration of the covenants, release, waiver, renunciation and discharge made by Claimant and the other parties herein, ___ 's Brokers hereby fully waive, release, renounce, discharge and relinquish any and all claims, de-mands, and causes of action they have or may have against __ _ and ___ or any of them, relating to the sale of property from Sellers to ___ or relating to any other matter, cause or thing prior to the date of this Agreement. It is the intent of all parties that this be a general release, waiver, renunciation, and discharge of all rights ___ 's Brokers may have to claim against the other parties.

6. Miscellaneous. (a) Time is of the essence of this Agreement.

(b) The covenants, representations and agreements made herein shall survive the execution and performance of this Agreement.

(c) This Agreement shall be binding upon the respective parties and their heirs, personal representatives, successors, assigns, employees, agents and representatives.

(d) Each of the undersigned parties represents and warrants that it is authorized to sign this Agreement.

(e) This Agreement shall be signed in more than one counterpart, and each counterpart shall constitute an original.

585

0


(f) This Agreement shall not become binding upon any party until it is signed by all parties.

IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year first above written.

§ 27.201 Settlement Stipulation, Dismissal and Mutual Release

IN THE CIRCUIT COURT FOR __ COUNTY, FLORIDA CIVIL DIVISION

CASE NO. __ _

a Florida corporation, Plaintiff,

v.

Defendant

SETTLEMENT STIPULATION, DISMISSAL AND MUTUAL RELEASE

AGREEMENT and stipulation made this ___ day of __ _ 19_, between __ _, a Florida corporation, (" "), and Defen-dant ___ also known as ___ (" "), joined in by __ _, INC., a Florida corporation, (" ___ ").

WHEREAS, Plaintiff, Defendant and ___ desire to finally compromise and settle their differences by entering into this stipulation;

NOW THEREFORE, in consideration of their mutual covenants set forth herein, Plaintiff, Defendant and ___ hereby agree as follows:

1. Payment. ___ and ___ shall pay ___ the total cash sum of ___ Dollars ($ ___ ), simultaneously with the sign-ing of this stipulation on this day, in full payment of all claims and demands of all parties.

2. ___ _ __ has given to ___ and ___ on this day a certain ___ without charge to ___ or and without any warranty or representation of any kind by __ _.

3. General Release by ___ _ __ in its own behalf and on behalf of its successors and assigns, hereby releases and forever discharges ___ and ___ and their employees, agents, officers, directors and attorneys, from any and all actions, causes of action, suits, debts, dues, sums of money, accounts, bills, invoices, covenants, contracts, controversies, agreements, promises, damages, costs, attorneys fees, interest, warranties, representations, claims and demands whatso-ever, in law or in equity, which ___ or anyone claiming by, through or under ___ ever had or now has against ___ and ___ or

586

0

Ch. 27 RELEASES & SETTLEMENT AGREEMENTS § 27.201 either of them by reason of any matter, cause or thing whatsoever from the beginning of the world to the date of this instrument. The undersigned hereby agree that the effect of this general release includes, but is not limited to, the elimination of any all further liability on the part of ___ and ___ with respect to the purchase of the goods by Defendants from Plaintiff as set forth in the Complaint.

4. General Release by ___ and ___ ___ and ___ jointly and severally, in their own behalf and on behalf of their heirs, personal representatives, successors and assigns, hereby release and forever discharge ___ and its employees, agents, of-ficers, directors, and attorneys, from any and all actions, causes of action, suits, debts, dues, sums of money, accounts, bills, invoices, covenants, contracts, controversies, agreements, promises, damages, costs, attorneys fees, interest, warranties, representations, claims and demands whatsoever, in law or in equity, which ___ and __ _ or either of them, or anyone claiming by, through or under either of them, ever had or now has against ___ or its employees, agents, officers, directors or attorneys, or any of them by reason of any matter, cause or thing whatsoever from the beginning of the world to the date of this instrument. The undersigned hereby agree that the effect of this general release includes, but is not limited to, the elimination of any and all liability on the part of ___ with respect to any and all express or implied warranties or representations arising out of the sale of the goods to · or ___ by ___ as set forth in the Complaint. ___ and ___ shall not make any demands upon Plaintiff in case any repair or replacement to the goods is necessary, even if the same relates to the ___ being given on this day to ___ and ___ by __ _

5. Dismissal. The parties hereby agree and stipulate that this case is voluntarily dismissed with prejudice.

6. Costs and Attorneys Fees. Each party to this instrument shall pay its own attorneys fees and costs.

IN WITNESS WHEREOF, the parties hereto have executed this stipulation as of the day and year first above written.

Attorney for Plaintiff

---. INC. By· _________ _

Title._· _________ _

__ _, INC.

By~·------------ President

Attorney for Defendant

587

§ 27.201 RELEASES & SETI'LEMENT AGREEMENTS Ch. 27

IN THE CIRCUIT COURT FOR ___ COUNTY, FLORIDA CIVIL DIVISION

CASE NO. __

a Florida corporation, Plaintiff,

v.

Defendant

ORDER DISMISSING ACTION

This cause came ex parte before the Court upon the Settlement Stipulation, Dismissal and Release filed by the parties herein, and the Court being duly advised, it is hereby

ORDERED that the foregoing stipulation is hereby approved and this action is hereby dismissed with prejudice.

DONE AND ORDERED in Chambers in __ _, ___ County, Florida, on this ___ day of __ _,, 19_,

Circuit Judge

Copies furnished to:

§ 27.202 Stipulation for Dismissal With Prejudice

IN THE CffiCUIT COURT FOR __ COUNTY, FLORIDA CIVIL DMSION

CASE NO. __

Plaintiff/Counterdefendant, vs.

Defendant/Counterclaimant

STIPULATION FOR DISMISSAL WITH PREJUDICE AGREEMENT and stipulation made this ___ day of __ _

19_, between Plaintiff/Counterdefendant ___ and Defendant/ Counterclaimant, ___ by and through their undersigned counsel.

588

Ch. 27 RELEASES & SETrLEMENT AGREEMENTS § 27.202 WHEREAS, Plaintiff/Counterdefendant and Defendant/Counter

claimant desire to finally compromise and settle this lawsuit by entering into this stipulation;

NOW THEREFORE, in consideration of their mutual covenants set forth herein, the parties hereto hereby agree as follows:

1. Dismissal With Prejudice. This action, and all claims and counterclaims therein, shall be dismissed with prejudice upon this Stipulation being signed by both counsel.

2. Costs and Attorneys Fees. Each party shall pay its own attorneys fees and costs relating to this action.

3. Cancellation of Motions and Hearings. All pending motions and hearings are hereby withdrawn and cancelled.

IN WITNESS WHEREOF, the undersigned have executed this stipulation as of the day and year first above written.

Attorney for __ _ Attorney for __ _

IN THE cmCUIT COURT FOR -- COUNTY, FLORIDA CIVIL DIVISION

CASE NO. __

Plaintiff /Counterdefendant, vs.

Defendant/Counterclaimant

ORDER APPROVING STIPULATION FOR DISMISSAL WITH PREJUDICE

This cause having come before the Court ex parte upon the Stipulation For Dismissal With Prejudice which was signed by counsel for both parties, and the Court being duly advised in the premises, it is hereby

ORDERED that the Stipulation for Dismissal with Prejudice is hereby ratified, approved and adopted by the Court, and this action, and all claims and counterclaims therein, is hereby dismissed with prejudice, and each party shall pay its own attorneys fees and costs relating to this action.

DONE AND ORDERED in Chambers in __ _, Florida on this ___ day of ___ 19__.

___ CIRCUIT JUDGE

589



Ch. 27

§ 27 .203 Stipulation for Dismissal With Prejudice-Another Form

COMES NOW the Plaintiff ___ and the Defendant __ _, who stipulate and agree as follows:

WHEREAS, the parties have settled all issues in this litigation between themselves and have agreed to dismissal of this action with prejudice; and

WHEREAS, by entering into this stipulation and related releases, neither party admits any of the allegations made by the other party in this action;

NOW THEREFORE, in consideration of their mutual promises made herein, in consideration of the execution and delivery of a general release by Defendant and his wife to Plaintiff and its officers, agents and attorneys, and in consideration of the execution and delivery of a general release by Plaintiff to Defendant and his wife and their attorneys, the parties hereby agree as follows:

1. Plaintiff and Defendant hereby stipulate and agree that this action is hereby voluntarily dismissed with prejudice.

2. Plaintiff and Defendant hereby request that the Court enter the following Order of Dismissal confirming this voluntary dismissal with prejudice.

3. Defendant and his wife have executed and delivered to Plaintiff a separate release on this date as part of this settlement.

4. Plaintiff has executed and delivered to Defendant and his wife a separate release on this date as part of this settlement.

5. Each party shall pay its own attorneys fees and costs relating to this action. Costs shall not be taxed against either party.

Dated this ___ day of __ _, 19_.

___ Defendant By __ _, President

Attorney for Defendant Attorney for Plaintiff

ORDER OF DISMISSAL

Upon the foregoing stipulation of Plaintiff and Defendant, it is ORDERED, ADJUDGED AND DECREED that this action be, and

it hereby is, dismissed with prejudice; and it is further

590

Ch. 27 RELEASES & SETrLEMENT AGREEMENTS § 27.204 ORDERED, ADJUDGED AND DECREED that each party shall

pay its own attorneys fees and costs and that costs shall not be taxed against either party.

DONE AND ORDERED in Chambers in ______ County, Florida, on this ___ day of __ _, 19_.

COUNTY JUDGE


§ 27 .204 Stipulation for Abatement

IN THE CIRCUIT COURT FOR __ COUNTY, FLORIDA CIVIL DIVISION

CASENQ. __

Plaintiff, vs.

Husband and Wife, Defendants

STIPULATION

Plaintiff and Defendants, by and through their undersigned counsel, hereby stipulate and agree that this action is abated per the attached Modification of Note and Mortgage and that this action and its notice of lis pendens shall be dismissed with prejudice and discharged upon final payment of the note and mortgage as modified.

Dated this ___ day of ___ , 19_.

Attorney for Defendants Attorney for Plaintiff

591

§ 27.205 RELEASES & SETrLEMENT AGREEMENTS Ch. 27

§ 27.205 Stipulation for Dismissal-Federal Court

IN THE UNITED STATES DISTRICT COURT FOR THE ___ DISTRICT OF __ _

__ DMSION

Plaintiff, v.

_________ _, etc.,

Defendant and Third-Party Plaintiff,

v. _________ _, INC.,

Third-Party Defendant

CASE NO. __ (Hon. ___ ) STIPULATION BETWEEN __ AND __ RE-GARDING DISMISSAL

COMES NOW the Defendant ___ (" ___ ") and Third-Party Defendant ___ (" ___ "), by and through their undersigned counsel, who stipulate and agree as follows:

WHEREAS, the parties have amicably settled all issues in this litigation between themselves and have agreed to dismissal of this action with prejudice; and

WHEREAS, by order filed on __ _, 19_, the Court has previ-ously dismissed with prejudice the claims of Plaintiff ___ against Defendant ___ and the counterclaims of ___ against Plaintiff __ _, leaving no further issues in this action; and

WHER~AS, by entering into this stipulation and related settlement documents, neither party admits any of the allegations made by the other party in this action;

NOW THEREFORE, 1. ___ and ___ hereby stipulate and agree that this

action is hereby voluntarily dismissed with prejudice pursuant to Rule 41, Federal Rules of Civil Procedure.

2. ___ and ___ hereby request that the Court enter the attached form of Order of Dismissal confirming this voluntary dismissal with prejudice.

3. ___ has executed and delivered to ___ a separate Release and a separate Indemnification Agreement on this date as part of this settlement and compromise.

4. ___ has executed and delivered to ___ a separate Release on this date as part of this settlement and compromise.

5. Each party shall pay its own attorneys fees and costs relating to this action. Costs shall not be taxed against either party.

By ___________ _

592

Ch. 27 RELEASES & SETTLEMENT AGREEMENTS § 27.205 TRIAL ATTORNEY FOR THIRD-PARTY DEFENDANT,

By __________ _

TRIAL ATTORNEY FOR DEFENDANT, __

CERTIFICATE OF SERVICE

The undersigned hereby certifies that a true copy of the foregoing was furnished to ______ by hand delivery and ordinary U.S. Mail, this ___ day of ___ 19_,

IN THE UNITED STATES DISTRICT COURT FOR THE ___ DISTRICT OF __ _

__ DIVISION

Plaintiff, v.

---------- etc., CASE NO. __ _ Defendant and Third-Party

Plaintiff, (Hon. ___ ) v.

Third-Party Defendant

ORDER OF DISMISSAL

Upon the stipulation of Third-Party Plaintiff ___ (" ___ ") and Third-Party Defendant ___ (" ___ "), that all issues in-volved in this litigation have been settled; it is

ORDERED, ADJUDGED AND DECREED that this action be, and it hereby is, dismissed with prejudice; and it is further

ORDERED, ADJUDGED AND DECREED that each party shall pay its own attorneys fees and costs and that costs shall not be taxed against either party.

IT IS SO ORDERED.

United States District Judge Dated: ___ 19_,

593

§ 27 .206 RELEASES & SETTLEMENT AGREEMENTS

§ 27.206 Structured Settlement Agreement

Ch. 27

IN THE CIRCUIT COURT FOR ___ COUNTY, FLORIDA CIRCUIT CIVIL NO. __ _

JOHN SMITH, as Personal Rep-resentative of the Estate of MA-RY SMITH, Deceased,

Plaintiff, vs.

ABC, INC., DEF, INC., GHI, INC., and XYZ INSURANCE COMPANY,

Defendants

SETTLEMENT AGREEMENT

THIS AGREEMENT, made and entered into this ___ day of 19-,-, by and between JOHN SMITH, individually and as

Personal Representative of the Estate of MARY SMITH, and JOHN SMITH, as Guardian of HARRY SMITH, a minor, of LARRY SMITH, a minor, and of BARRY SMITH, a minor, all of the foregoing being hereinafter sometimes called the "SMITHS", and ABC, INC., a Florida corporation, hereinafter called "ABC", DEF, INC., a subsidiary corporation of ABC, hereinafter called "DEF", GHI, INC., a subsidiary corporation of DEF, hereinafter called "GHI", and XYZ INSURANCE COMPANY hereinafter called "XYZ", the latter four (ABC, DEF, GHI, AND XYZ) being sometimes hereinafter called "OBLIGORS".

WHEREAS, the SMITHS and the OBLIGORS have agreed to settle, on the terms set forth herein, the claims of the SMITHS as set forth in the action filed in the Circuit Court for ___ County, Florida, Circuit Civil No. __ _, in which ABC's subsidiary corporations, DEF and GHI, are Defendants, and in which XYZ, the insuror of DEF, and GHI, is also a Defendant.

NOW, THEREFORE, the parties to this agreement hereby agree as follows:

1. Effective Date. The terms of this Settlement Agreement shall become binding and effective on each party as of the date shown above.

2. Payments. The OBLIGORS, jointly and severally, shall make each of the following payments in the following manner:

A. Husband-Damages to Date. The OBLIGORS, jointly and sev-erally, shall pay JOHN SMITH, individually, the lump sum of __ _ Dollars ($ ___ ) upon execution of this Agreement as settlement for damages for the loss of companionship and consortium of his wife, MARY SMITH, and for the mental pain and suffering which he has suffered, from her death up to the date of this Settlement Agreement.

594

Ch. 27 RELEASES & SETTLEMENT AGREEMENTS § 27.206 B. Husband-Future Damages. The OBLIGORS, jointly and sev

erally, shall pay to JOHN SMITH, individually, as settlement for future damages to him arising from the death of MARY SMITH, the following amounts in the following manner:

(1) The sum of ___ Dollars ($ ) a month every month for the life of JOHN SMITH, or for ___ ( ___ ) months, whichever is longer; with the first monthly payment being due and payable on the effective date of this Agreement and successive payments being due on the same day of each month thereafter; provided however, that the monthly payment amount shall increase each year by an amount equal to ___ percent ( ___ %) of the monthly payment amount for the immediately preceding year, the first such increase to be effective one year after the effective date of this Agreement and successive increases to be effective on the same date in each succeeding year. The Schedule of First ___ Monthly Payments attached hereto as Schedule "A", which is specifically incorporated herein by reference, lists the due date and amount of each monthly payment for the first ___ ( ____ ) monthly payments, which is the minimum num-ber of monthly payments due hereunder. Schedule "A" has been prepared by following the payment terms described above and accurately sets forth the payment dates and amounts for those payments. Schedules of Monthly Payments for monthly payments due and payable hereunder subsequent to those listed on Schedule "A" shall be prepared later by following the payment terms described above. If JOHN SMITH dies before receiving the mini-mum ___ ( ) payments, then the remaining payments of the minimum ___ ( ____ ) payments shall be made to the estate of __ _

(2) The lump sum of ___ Dollars ($ ___ ), which is due and payable on the date which is ___ years after the effective date of this Agreement. This payment is in addition to all other payments under this Agreement. If JOHN SMITH dies before receiving this payment, then this payment shall be made to the estate of JOHN SMITH.

(3) JOHN SMITH has no right to elect to receive the discounted present value of the payments hereunder in lieu of those payments, and he has no right to control the investment of that amount.

C. Children. OBLIGORS, jointly and severally, shall pay the benefits set forth in this subparagraph to each of the following children of JOHN SMITH and MARY SMITH as settlement for past and future damages to them arising from the death of MARY SMITH: HARRY SMITH, a minor, born ___ 19_; LARRY SMITH, a minor, born

19_; and BARRY SMITH, a minor, born ___ 19_. Each child's benefits shall be paid to the child's guardian as long as the

595

§ 27 .206 RELEASES & SETrLEMENT AGREEMENTS Ch. 27

child is a minor or otherwise incompetent and shall be paid to the child directly when the child is no longer a minor and is not incompetent. JOHN SMITH is the Guardian of each child at this time and a copy of his letters of guardianship have been filed in this civil action file. The benefits which the OBLIGORS shall provide each child are set forth as follows, and these benefits shall apply in full to each child separately, not jointly:

(1) The sum of ___ Dollars ($. ___ ) every month to each child until such child reaches the age of eighteen (18) years; with the first monthly payment being due and payable on the effective date of this Agreement and successive payments being due on the same day of each month thereafter; provided however, that the monthly payment amount shall increase each year by an amount equal to ___ percent ( . %) of the monthly payment amount for the immediately preceding year, the first such increase to be effective one year after the effective date of this Agreement and successive increases to be effective on the same date in each succeeding year.

(2) The monthly payments to each child shall increase to the sum of ___ Dollars ($. ___ .) a month every month to such child when such child reaches the age of eighteen (18) years and shall continue every month until such child reaches the age of

<---.) years; provided however, that the monthly payment amount shall increase each year by an amount equal to ___ percent ( %) of the monthly payment amount for the immediately preceding year, the first such increase as to monthly payments under this sub-subparagraph (2) to be effective one year after such child reaches the age of eighteen (18) years and successive increases to be effective on the same date in each succeeding year.

(3) The lump sum of ___ Dollars ($ ___ .) to each child when such child reaches the age of ___ (,__ __ ) years. This payment to each child is in addition to all other payments under this Agreement.

(4) The lump sum of ___ Dollars ($ __ ~) to each child when such child reaches the age of ___ (.---.) years. This payment to each child is also in addition to all other payments under this Agreement.

(5) The Schedules of Monthly Payments attached hereto as Schedules "B", "C" and "D", which are specifically incorporated herein by reference, list the due date and amount of each monthly payment due under sub-subparagraphs (1) and (2) of this subparagraph C for the respective child named on each Schedule. Each Schedule has been prepared by following the payment terms described in sub-subparagraphs (1) and (2) and accurately sets forth the payment dates and amounts for those payments.

596

Ch. 27 RELEASES & SETTLEMENT AGREEMENTS § 27.206 (6) No child has the right to elect to receive the discounted

present value of the monthly payments in lieu of the monthly payments, and no child has the right to control the investment of that amount.

(7) If any child dies before reaching the age of <.---> years, then all of such child's benefits, including monthly payments and lump sum payments, which would have been paid to him under this Agreement if he had survived past the age of ___ ( ___ ) years shall be paid to the estate of such child.

D. Attorneys Fees. The OBLIGORS, jointly and severally, shall partially pay the SMITHS' attorneys fees by paying ___ Dollars ($ ____ ) in a lump sum upon execution of this Agreement to the law firm of __ _, which amount represents attorneys fees for the month-ly payments and future lump sum payments to be made to the __ _ under this Agreement, but which amount does not include attorneys fees for the $--- lump sum payment due to JOHN SMITH upon execution of this Agreement.

E. General Provisions as to Payments. All lump sum payments to be made by the OBLIGORS pursuant to this Agreement shall be made by local(.--- County, Florida) cashier's check. All other payments to be made by the OBLIGORS pursuant to this Agreement shall be made by check or draft directly to the proper person as specified above. Each payment shall be made to the proper person at the place of residence of such person or at such other place as such person directs in writing. If any such proper person so directs in writing, payments to such proper person shall be made by direct deposit to the account of such proper person in a bank, savings and loan association or other financial institution. If any payment due hereunder is not paid within ten (10) days after it is due, but if such payment is paid prior to default as hereinafter defined, then the OBLIGORS shall pay to the person who is due the payment a late payment fee equal to ten percent (10%) of the amount of the payment due, which fee shall be paid simultaneously with the late payment.

3. Annuities. The OBLIGORS shall, immediately upon the execution of this Agreement, purchase single premium annuities from the LIFE INSURANCE CO., hereinafter called ccISSUER", with each of the SMITHS designated as a ccmeasuring life" under at least one of such annuities. ABC shall be the sole owner of each such annuity and payments under each annuity shall be made by ISSUER directly to ABC or to such other person as ABC, as owner, directs. Each annuity shall include a payment schedule which shall provide for payments to ABC in amounts sufficient for ABC to fund all amounts due hereunder to each of the ___ and which shall correspond with the respective payment terms set forth in Paragraph 2 above and in Schedules uA", ccB", "C" and ccn" attached hereto. The SMITHS shall have no security interest or other interest in the annuities, and shall only be entitled to

597


receive payments as provided under this Settlement Agreement. However, the annuities are required to provide additional assurance that the future payments due to the SMITHS will be paid by ABC. The OBLIGORS shall furnish to the SMITHS' attorneys prior to execution of this Agreement the last Annual Report of ISSUER and the most recent A.M. Best & Co. report on the rating of ISSUER. The OBLIGORS shall furnish to the SMITHS' attorneys within thirty (30) days after the effective date of this Agreement, for their approval, a certified true and correct copy of each annuity contract with the provisions required by this Agreement and evidence that each annuity contract has been fully paid for and is being held by ABC as owner.

4. Joint and Several Liability. Each of the OBLIGORS, that is, ABC, DEF and GHI, is jointly and severally liable for all payments and other obligations of the OBLIGORS provided for in this Agreement. Even though ABC was not a Defendant in the civil action, by executing this Settlement Agreement, ABC fully guarantees and joins in all provisions of this Agreement as a party to it and as an OBLIGOR. Each of the OBLIGORS acknowledges that the SMITHS have relied on this joint and several nature of the liability of the OBLIGORS under this Agreement as an inducement to acceptance of this settlement by the SMITHS. Each OBLIGOR waives any and all notice of maturity, payment or default of any payment or other obligation provided for in this Agreement. The liability of each OBLIGOR is binding upon each OBLIGOR and its successors. In the event that any payment is made by an OBLIGOR but is later required by law to be paid back to the OBLIGOR or its trustee, receiver or any other person because of bankruptcy of the OBLIGOR or any other reason, then the amount which is so required to be paid back shall be deemed unpaid as if it never were paid and shall be immediately due and payable by the OBLIGORS, jointly and severally.

5. Default. Wherever used in this Agreement, the term udefault" shall mean that any one or more of the following then applies:

A. Payment of any amount due under any provision of this Agreement has not been made within fifteen (15) days after the date it was due, as to a lump sum payment, and within twenty (20) days after the date it was due, as to a monthly payment; or

B. Any obligation to be performed by an OBLIGOR under this Agreement has not been timely and properly performed.

6. Effect of Default. In case of default as defined above, the SMITHS, and each of the SMITHS (whether or not the default affected the specific benefits of each of the SMITHS), shall have the following rights in addition to all other rights and remedies provided by law, and all such rights shall be cumulative and concurrent, and may be pursued singularly, successively or together at the sole discretion of the SMITHS or each of the SMITHS:

598

Ch. 27 RELEASES & SETTLEMENT AGREEMENTS § 27.206 A. All remaining payments due under this Agreement shall be

come immediately due and payable in a lump sum. The accelerated amount due shall be the total of all remaining payments provided for in this Agreement, including those under Paragraph 2, Schedules "A", "B", "C" and "D" and elsewhere in this Agreement, and shall not be limited to the discounted value of those remaining payments. As to monthly payments due to JOHN SMITH which are to be paid for his lifetime, the number of such remaining payments shall be actuarially estimated and that number of payments shall be included in the accelerated amount due, and the OBLIGORS shall still be liable to him for the monthly payments due in accordance with the provisions of this Agreement if JOHN SMITH subsequently outlives the estimated number of remaining payments.

B. The SMITHS, and each of the SMITHS, shall be entitled to immediate entry of a judgment without notice by the Circuit Court for ___ County, Florida, against the OBLIGORS, jointly and severally, for the total of all amounts due from the OBLIGORS under this Agreement, whether by acceleration or otherwise.

C. All amounts due from the OBLIGORS shall bear interest from the date of default until paid at the maximum legal contract rate of interest permitted by law to be collected in such a case.

D. As to payments or obligations due to JOHN SMITH, individually, these rights shall be exercised by JOHN SMITH or his estate. As to payments or obligations due to any minor child, these rights shall be exercised by JOHN SMITH, or his successor, as Guardian of such minor child. As to payments or obligations due to any child who has died, these rights shall be exercised by his estate. These rights may be exercised by any or all of the foregoing independently or together, it not being necessary that they all join in the exercise of any right.

7. Further Litigation. In case of default as above defined, or in case any or all of the SMITHS file or defend any legal action or other proceeding relating to the enforcement, interpretation or effect of this Agreement, whether for tax purposes or otherwise, then in such event the OBLIGORS shall pay the reasonable attorneys fees and costs of the SMITHS' attorneys in such matter before, during and after suit, trial, proceedings and appeals, as well as appearances in and connected with any bankruptcy, receivers or similar proceedings. This provision for attorneys fees is in addition to the provision set forth in Paragraph 2.

8. Miscellaneous.

A. Time is of the essence of this Agreement. A payment due hereunder shall be deemed paid only when it is actually received by the person or institution to whom it is to be paid pursuant to this Agreement.

599


B. A waiver or release of any right of any or all of the SMITHS hereunder shall not be construed as continuing, as a bar to, or as a waiver or release of any other or subsequent right, remedy or recourse.

C. All of the parties acknowledge that it is the intent of this Agreement to provide payments to the SMITHS as settlement for their damages caused by the wrongful death of MARY SMITH and that all of such payments are to be free of federal income tax to the SMITHS due to their being excluded from gross income for federal income tax purposes. The OBLIGORS, jointly and severally, agree that they have reviewed the provisions of this Agreement and are satisfied that such payments will have this intended treatment and agree that they will assist and defend the SMITHS if the Internal Revenue Service disallows such exclusion.

D. All captions and headings in this Agreement are for convenience only and are not to be considered a substantive part of this Agreement.

E. This Agreement is entered into in the State of Florida, and this Agreement and the rights and obligations of the parties to it shall be governed by Florida law.

F. Each party to this Agreement has read this Settlement Agreement and has freely and voluntarily executed it.

IN WITNESS WHEREOF the parties hereto have executed this Agreement the day and year first above written.

[Signatures and Notaries ]

SCHEDULE "A"

ATTACHED TO AND INCORPORATED IN SETTLEMENT AGREEMENT BETWEEN THE ___ AND _____ _

AND __

SCHEDULE OF FIRST __ MONTHLY PAYMENTS TO

___ Under Sub-subparagraph (1) of Subparagraph B of Paragraph 2 of the

Settlement Agreement

Monthly Payment Number

Date Monthly Payment is

Due and Payable

600

Amount of Monthly Payment

chapter 27 releases and settlement agreements · ch. 27 releases & settlement agreements §...

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