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BERNARDINO
300 NORTH "0" STREET. SAN BERNAROINO. CALIFORNIA 9241B
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JAMES F. PENMAN
CITY ATTORNEY
(7141384-6355
March 13, 1989
Mr. Chris Freiling
5423 Mayfield Avenue
San Bernardino, CA 92404
Re: Release of Claims
Dear Mr. Freiling:
This is in response to your letter dated March 13, 1989. It is
apparent, from your letter, that we still have not been able to
communicate to you the importance and purpose of signing the
Claims Release form. I indicated to you in my March 2, 1989
letter (see attached) that the claims release form was standard
procedure. The City, in good faith, took care of your sewer
backup problem, now it is your turn to act in good faith. The
delay was actually caused by you refusing to sign the release.
It is unfortunate that problems do occur, but when they occur
there are expeditious ways, short of going to court, to handle
these problems. That is the purpose of settling claims.
However, if you insist on going to court, that certainly is your
right.
As I am sure your attorney is fully aware, there are no punitive
damages available against municipalities. With respect to the
withholding of payment, as far as I am concerned the continued
refusal on your part to sign the release constitutes a breach of
an agreement by you. You cannot unilaterally decide to cross out
what you do not want to sign. That is tantamount to someone
settling a case and then suddenly deciding later that they don't
like the settlement, abrogating the settlement, then
unilaterally making the decision of what they want to do, and
then expecting the other party to the lawsuit to go along with
it. What you are asking us to do is not in the best interest of
the City as a whole.
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Mr. Chris Freiling
March 13, 1989
Page Two
If you have any other future problems, as with any other
resident, I am sure that the City will respond to your needs as
quickly and courteously as we possibly can. The position you
are taking is putting us in the position of having to defend the
rights of other residents against you and your demand that we
give you additional money or you will not sign the release. As
an attorney for the City is it my obligation not to allow you or
anyone else to do anything that is not in the best interest of
the City as a whole.
While I am empathetic to any problems that you may have suffered
by sewage in your home, certainly anyone would be empathetic to
you; however, that does not provide me, or any other attorney,
with a basis for abrogating my responsibility as an attorney for
this City.
Our basic policy is to try to settle lawsuits wherever possible
and practical, but if it is necessary to go to court to defend
our client, we will vigorously do so. I would certainly hope
that in this particular case that it is not necessary to go to
court. Every battle does not have to be fought in court. While
we as attorneys are licensed to go to court, that is not reason
to spend the time, energy and effort going to court on any and
all such claims where reasonable minds and level heads can come
to an amenable end to a difficult problem.
Sin/lrelY yours, ./7
A!/.b~ r- t:L-
DENICE E. BRUE
Assistant City Attorney
DEB:ms
Attachments
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BERNARDINO
300 NORTH "0" STREET. SAN BERNARDINO. CALIFORNIA 9241B
JAMES F. PENMAN
CITY ATTORNEY
(7141384-&358
March 2, 1989
Mr. Chris Freiling
5423 Mayfield Avenue
San Bernardino, CA 92404
Re: Release of Claims
Dear Mr. Freiling:
Per our conversation of Friday, February 24, 1989, I am returning
to you your signed copy of the release of claims in which you
scratched out certain items, and a blank copy of the release of
claims on which we need your signature. Pursuant to our
conversation I checked with the Acting Risk Manager, Tom Cain,
and he indicated to me that the payment of the claim for
$28,096.34 was the settlement of all property damage, including
your tile floor. This payment of the claim is a consideration
for you signing the release of claims for any present and future
claims that you may have arising out of this particular sewer
backup problem.
It is standard procedure to require claims release forms to be
signed in settlement of all claims. The City, in good faith,
took care of a sewage backup problem on your behalf.
The settlement of this claim does not admit fault on the part of
the City or any other party. Settlement of a claim is an
expeditious way of attempting to handle disputes without court
intervention. It is not, however, in the interest of the City or
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Mr. Chris Freiling
March 2, 1989
Page Two
its residents to settle claims without requiring signed releases
for any present or future claims arising out of the incident or
to allow a claimant to unilaterally cross out or add to the
release whatever he or she pleases.
If you have any further questions, please do not hesitate to give
me a call at (714)384-5355.
yours,
~
BRUE
Assistant City Attorney
DEB:ms
Attachment
cc: Tom Cain
Acting Risk Manager
.
Q.OPERTY DAMAGE RElQ",E
CITY OF SAN BERNARDINO
RISK MANAGEMENT
I
I~OW ALL MEN BY THESE PRESENTS;
FILE NO. 88B.I21
Tllal lhe Undeni;ned. being of lawful t;e. for 101. considel'llion
of TWENTY EIGHT THOUSAND NINETY SIX AND 34/100 0011111 IS 28.0'8.34 l
:0 be paid 10 MR. a MRS. CHRIS FREILING .
dO/do. heretly and for my/ourflu hei~. '''ICUIOII.ldministI'lIOll. auc:ason '/ld lSIigns r.I....lCQuit IIld forever dilC/latge
THE CITY OF SAN BERNARDINO. ITS COUNCIL'MEMBERS. INDIVIDUALLY AND AS A
COUNCIL. ITS OFFICERS. AND ELECTED OFFICIALS.
0lIld hia. her. thlit. or iu .genll. II/'IIInll. IU~. haill. '''ICUIOII.adminimaIOll and.lI other~. firma, ~
tiON. associations or pannenllips of IIld from .ny .nd an d.i"". actions. ClUSCI of action. dalTllllds. rigllu. damages. COItl. Lf"
loss of servicef. .,,~,.. and com~Nllion fWllauoev..IWlliclllhe ~~,now ~ ~~f'~2 n_, I___IRI UL_ q
on accounl 0 or ,n eny _y grow~nU1t a~~ and al known I J _ Ln~.~: oraeln. -. p"Operty damaga.nd
th. consequences thereof rllllllin ' , from th. ocCurr.nce on or aboUI the 25TH day of
OCTOBER . 18ll.11 or nur 5 423 MAYF I ELD AVENUE. '
:;AN DERNARD I N.O. CAL I FOR!"I, A
II is undemood and .gr. IIIaI Ihis 11111.menl is the compromise of a doublfuland disPUI.d claim. and thaI III.
payment mad. is not 10 be CONU'Ued IS an .clmission of liability on the pert of the perty or perti. hereby releued. and tl\ll
Slid rele_ deny liability therefor and inl.nd merely 10 avoid litigation and buy their puc:L
The unde~igned further declar,ls} .nd represenlls} tflat no promise. inducement or ._merlt not herein ",pressed
lias been rr.ada to tl,. ur.dalligned. end IIIat this Ilel.... contains the entire agreement be_ tha penies herltc. and to"':
\llt terms of tlIis RelllSll are con\l'lctUlI and not a mer. recital.
THE UNDERSIGNED HAS READ THE FOREGOING RELEASE AND FULLY UNOERSTANOS IT.
Signed. IUled and dali"':ed this /.;) 3
day of
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CAUTION: READ BEFORE SIGNING BELOW
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CHRIS FREI ING ( ~
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day of
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. 19_ belore me Pll'$Onally appeared -
STATE OF
COUNTY OF
to ~~ to be the Pll'$On\ named herein and ~hO CSet:Uled the' fo'evoi~Rel,~-"
to me tllal \. VOlunl!,ily e..t'CUtcd the ~n~ ' \ ,
My term ..pires . ~. ,
_....,/ NOTARY PUBLIC
acknowledged
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