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This Settlement and Release Agreement (“Agreement”) is made and entered into as of this ____ Day of March, 2011, by and between Richard and Jane Rush (“the Rushs”) and Appleby Smith.(“AS”).
WHEREAS, the Rushs have instituted an action in the Circuit Court for Baltimore City, Maryland against AS, captioned Rush v. Appleby Smith Case No. 24-C-08-036677-OT (“the Lawsuit”) asserting various claims against AS, including but not limited to, claims to recover money damages for personal injuries (“Injuries”) allegedly suffered as a result of a boiler explosion based on theories of strict liability, negligent design, respondeat superior and loss of consortium, and all claims asserted or which could have been asserted in the Lawsuit, which claims AS denies; and
WHEREAS, the parties wish to resolve and settle all of their past, present and any future claims, disputes and controversies, including but not limited to those relating to the subject matter of the Lawsuit;
NOW, THEREFORE, in consideration of the mutual promises set forth in this Agreement and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:
1. Recitals. The foregoing Recitals are incorporated into and constitute a part of this Agreement.
2. No Admission of Liability. This Agreement is entered into as an expedient and cost-effective alternative to costly litigation. The parties make no admission of liability, express or implied, by entering into this Agreement.
3. AS’s Payment to the Rushs. AS, in exchange for the releases set forth below, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, agree to pay the Rushs the total amount of Seven Hundred Thousand Dollars ($700,000.00) payable within 21 days from the execution of this Agreement by the Parties.
4.1. The Rushs’ Release of AS. For and in consideration of the foregoing and other good and valuable consideration, the receipt and sufficiency of which if hereby acknowledged, and upon the full execution of this Agreement, Richard Rush on behalf of himself, his agents, heirs, administrators, attorneys, successors and assigns, and Jane Rush on behalf of herself, her agents, heirs, administrators, attorneys, successors and assigns, do hereby dismiss, release and hold harmless AS, its stockholders, officers, directors, employees, agents, insurers, attorneys, predecessors, successors and assigns, of any from any and all matters, debts, dues, sums of money, covenants, controversies, agreements, promises, trespasses, damages, losses, expenses, costs, liabilities, obligations, claims, demands, grievances, suits, causes of action, complaints, judgments, decrees, executions of whatever kind, in law or in equity, absolute, contingent, likely or unlikely, known or unknown, which have existed from the beginning of time to the date of this Agreement, including but not limited to all claims asserted or which could have been asserted in the Lawsuit and any and all claims arising out of the Injuries, the boiler explosion and/or the Lawsuit.
4.2. Extent of Release. The release set forth in this Section 4 is intended to have the broadest possible application and includes, but is not limited to, any tort, contract, common law, constitutional or other statutory claims arising out of any federal, state or local laws. The release set forth herein shall apply to the present and future officers, directors, stockholders, attorneys, agents, insurers, servants, members, representatives, employees, subsidiaries, subcontractors, contractors, affiliates, partners, family members, predecessors, and successors in interest and assigns of the parties.
5. Costs and Expenses. The parties shall be responsible for their respective attorneys’ fees and costs and expenses incurred in this matter.
6. Controlling Law. This Agreement shall be governed by, and construed and enforced in accordance with, the laws of the State of Maryland. The parties hereby irrevocably consent to personal jurisdiction and venue in the Circuit Court for Baltimore City, Maryland, for any and all Claims arising out of this Agreement over which that court has subject matter jurisdiction.
7. Amendments. This Agreement cannot be altered or otherwise amended except by written instrument signed by all of the parties hereto.
8. Entire Agreement. The parties acknowledge and agree that this Agreement constitutes the full, complete, and entire agreement or the parties and that there are no other representations, covenants, warranties, or other agreements binding of the parties that are not expressly set forth herein.
9. Rule of Construction. The parties acknowledge and agree that they have each had the opportunity to have this Agreement reviewed by counsel of their choosing. Therefore, the normal rule that ambiguities are construed against the drafter shall not apply in connection with the interpretation and construction of this Agreement.
10. Validity of Agreement. The parties represent and agree that the person executing this Agreement on behalf of AS has the full and complete permission and authority of the entity for which he is executing this Agreement, and have the full right and authority to commit and fully bind themselves, their representatives, agents, principals, predecessors, successors, and privies according to the provisions hereof. This Agreement is a legally valid, binding and enforceable obligation of the parties in accordance with its terms.
11. Counterpart Signatures. This Agreement may be executed in one or more counterparts, including by facsimile, each of which shall be deemed an original and all of which together shall constitute one and the same instrument.
WITNESS our hands and seals as of the date set forth below.
Date Richard Rush
Date Jane Rush
Date David Appleby (for Appleby Smith)
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