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McGREGOR W. SCOTT

United States Attorney

DAVID T. SHELLEDY

Assistant U.S. Attorneys

501 I Street, Suite 10-100

Sacramento, California 95814

Telephone: (916) 554-2799

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF CALIFORNIA

EDWARD A. GLADDING 

individually and on behalf

of THE GLADDING FAMILY 1995

TRUST; EDWARD A. GLADDING,

AS ATTORNEY IN FACT ON BEHALF

OF EARL NELS ANDREASEN, JR.,

THOMAS PATRICK BERRY, EARL

H. BERRY, JR., DIANE E.

EUBANKS, TIMOTHY BERRY, AND

LORI BERRY-RATHSACK,

Plaintiffs,

v.

UNITED STATES OF AMERICA,

Defendant.

______________________________

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No. CIV. S-04-2605 FCD GGH

SETTLEMENT AGREEMENT,

STIPULATION, RELEASE,

DISMISSAL, AND ORDER

It is hereby stipulated and agreed by and between Edward A.

Gladding, the Gladding Family 1995 Trust, Earl Nels Andreasen,

Jr., Thomas Patrick Berry, Earl H. Berry, Jr., Diane E. Eubanks,

Timothy Berry, and Lori Berry-Rathsack (hereinafter "plaintiffs")

and the United States of America (collectively, "the parties")

and their undersigned attorneys as follows:

///

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1. The parties hereby agree to settle and compromise each

and every claim of any kind, whether known or unknown, arising

directly or indirectly from the acts or omissions that gave rise

to the above-captioned action under the terms and conditions set

forth in this Stipulation.

2. The United States agrees to pay the sum of thirty

thousand dollars ($30,000.00) to plaintiffs, which sum shall be

in full settlement and satisfaction of 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 consequence thereof, resulting, and to

result, from the subject matter of this action, including any

claims for wrongful death, which plaintiffs or their guardians,

heirs, executors, administrators, or assigns, and each of them,

now have or may hereafter acquire against the United States, its

agents, servants, and employees.

3. Plaintiffs and their guardians, heirs, executors,

administrators or assigns hereby agree to accept the sum set

forth in paragraph 2 in full settlement and satisfaction of any

and all claims, demands, rights, and causes of action of

whatsoever kind and nature, including claims for wrongful death,

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 which they may have or

hereafter acquire against the United States, its agents,

servants, and employees on account of the same subject matter

that gave rise to this action, including any future claim or

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lawsuit of any kind or type whatsoever, whether known or unknown,

and whether for compensatory or exemplary damages. Plaintiffs

and their guardians, heirs, executors, administrators, or assigns

further agree to reimburse, indemnify and hold harmless the

United States and its agents, servants and employees from and

against any and all causes of action, claims, liens, rights, or

subrogated or contribution interests incident to or resulting

from further litigation or the prosecution of claims arising from

the subject matter of this action.

4. Plaintiffs’ undersigned attorney represents that he has

explained, and plaintiffs warrant and represent that they intend,

that this Stipulation shall release all existing and future

claims arising directly or indirectly from the acts or omissions

that gave rise to the above-captioned action, including claims

that are unknown and unforeseen, notwithstanding Section 1542 of

the Civil Code of the State of California, which provides as

follows:

A general release does not extend to claims which the

creditor does not know or suspect to exist in his favor

at the time of executing [this] Release, which if known

by him must have materially affected his settlement

with the debtor.

5. This Stipulation is not, is in no way intended to be,

and should not be construed as, an admission of liability or

fault on the part of the United States or its agents, servants,

or employees, and it is specifically denied that they are liable

to plaintiffs. This settlement is entered into by all parties

for the purpose of compromising disputed claims under the Federal

Tort Claims Act and avoiding the expenses and risks of further

litigation.

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6. The parties agree that they will each bear their own

costs, fees, and expenses; that any attorney's fees owed by

plaintiffs will be paid out of the settlement amount and not in

addition thereto; and that all outstanding or future bills and

liens will be the sole responsibility of plaintiffs. Pursuant to

Title 28, United States Code, Section 2678, attorney's fees for

services rendered in connection with this action shall not exceed

25 percent of the amount of the compromise settlement.

7. Payment of the settlement amount will be made by check

payable to Edward A. Gladding and his attorney, Matthew P.

Donahue, Esq. Plaintiffs' attorney agrees to distribute the

settlement proceeds, and to obtain a dismissal of the abovecaptioned action with prejudice, with each party bearing its own

fees, costs and expenses.

8. The parties and their undersigned attorneys agree to

execute and deliver such other and further documents as may be

required to carry out the terms of this Agreement.

9. Each person signing this Stipulation warrants and

represents that he possesses full authority to bind the person[s]

on whose behalf he is signing to the terms of the Stipulation.

10. Plaintiffs warrant and represent that they jointly own

all rights, title and interests in the property referred to in

the complaint in this action, and that they jointly owned all

rights, title and interests in the property when it was damaged

by fire in June 2002.

11. Each person signing this Stipulation warrants and

represents that no promises, inducements, or other agreements not

expressly contained herein have been made; that this Stipulation

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contains the entire agreement between the parties; and that the

terms of this Stipulation are contractual and not mere recitals.

This Stipulation may not be altered, amended, modified, or

otherwise changed in any respect, except by a writing duly

executed by the party to be charged. All prior oral

understandings, agreements, and writings are superseded by this

Stipulation and are of no force or effect.

12. Each person executing this Stipulation represents that

he has read and understands its contents; that he executes this

Stipulation voluntarily; that he has not been influenced by any

person acting on behalf of any party.

13. The above-captioned action is hereby DISMISSED WITH

PREJUDICE in its entirety and, upon approval by the Court as

provided below, the Clerk of the Court is requested to enter this

dismissal and release in the official docket.

14. Notwithstanding the entry of a dismissal herein, the

parties hereby stipulate that Hon. Frank C. Damrell, Jr., shall

retain jurisdiction to enforce the terms of this compromise

settlement.

///

For Plaintiffs:

Date: October 26, 2005 /s/ Edward A. Gladding 

EDWARD A. GLADDING

for himself; and as Trustee on

behalf of the Gladding Family 1995

Trust; and as Attorney in Fact on

Behalf of Earl Nels Andreasen, Jr.,

Thomas Patrick Berry, Earl H.

Berry, Jr., Diane E. Eubanks,

Timothy Berry, and Lori

Berry-Rathsack

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CLAYEO C. ARNOLD, PLC

Date: October 13, 2005 /s/ Matthew P. Donahue 

MATTHEW P. DONAHUE

Attorneys for Plaintiffs

For the United States:

McGREGOR W. SCOTT

United States Attorney

Date: November 14, 2005 /s/ David T. Shelledy 

By: DAVID T. SHELLEDY

Assistant U.S. Attorney

Attorneys for the United States

ORDER

IT IS SO ORDERED.

Date: November 21, 2005 /s/ Frank C. Damrell Jr.

FRANK C. DAMRELL, JR.

District Judge

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