00-003917MA Evelyn Barlow, As Personal Representative Of The Estate Of Samuel Edward Barlow vs. North Okaloosa Medical Center, Inc. Status: Closed Settled and/or Dismissed prior to entry of RO/FO on Monday, August 30, 2004.

Summary: Award included economic damages for lost services and funeral expenses, but not loss of earning capacity or loss of Social Security benefits, totaled $102,365.50. Non-economic damages of $240,000; interest of $1,683.72; attorney`s fees of $51,607.38.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

EVELYN BARLOW, as Personal )

Representative of the Estate of )

SAMUEL EDWARD BARLOW and EVELYN )

BARLOW, individually , )

)

Claimants , )

)

vs. ) Case No. 00-3917MA

)

NORTH OKALOOSA MEDICAL CENTER , )

)

Defendant. )

____________________________________)

ARBITRATION AWARD

The final arbitration hearing in this case was held before

William J. Kendrick, Chief Arbitrator; Brian T. Hayes,

Arbitrator; and Charles L. Cetti, Arbitrator; on February 20 and

21, 2001, in Shalimar, Florida.

APPEARANCES

For Claimants : Stanley Bruce Powell, Esquire

David R. Swanick, III, Esquire

Lacey Clark, Esquire

Powell and Swanick , P.A.

Post Office Box 400

Niceville, Florida 32588-0400

For Defendant : Pamela K. Frazier, Esquire

Lozier , Thames & Frazier, P.A.

24 West Chase Street, Suite 224

Pensacola, Florida 32501

PRELIMINARY STATEMENT

At the conclusion of the arbitration hearing, the following

award was agreed to by all three arbitrators and announced on the

record:

Non-economic damages: $240,000.00

Economic damages: $ 85,000.00

Claimant's attorney's fees

and costs: $ 48,750.00

$373,750.00

It was further the agreement of the arbitrators that the

amount awarded as economic damages was inclusive of interest and

that the amount awarded as economic damages represented the

present monetary value of the award. The arbitrators further

agreed that the arbitration award be paid to Evelyn Barlow,

individually.

Following the announcement of the award, but before it had

been formalized, the Claimants filed a Motion for Clarification

and Request for Entry of an Order Containing Sufficient

Information for Appellate Review. Upon consideration of the

motion, it was the arbitrators' view that the Claimants' motion

was meritorious in part, and they resolved to restate the award

with particularity so that the parties might have a more clear

understanding of the award and to facilitate appellate review

should any party so elect. 1

In undertaking to restate the award, it became apparent to

the arbitrators that an error had occurred in calculating the

amount of economic damages in two particulars. The first error

occurred when calculating the replacement value for loss of

services. With regard to that award, the arbitrators were of the

opinion that such award should be calculated at $9.00 per hour,

20 hours per week, 52 weeks per year, for a 10-year period. That

calculation produced a figure of $93,600.00; however, in

rendering the award it was erroneously reduced to 80 percent

($74,880.00). The second error was a failure to allow sufficient

interest on the funeral expense (an award of $1,354.50, as

opposed to $1,683.72). Finally, since damages were understated,

the award for Claimants' attorneys' fees and costs was also

understated. Consequently, the arbitrators resolved to correct

such errors when the award was restated. In all other respects

the award was confirmed.

AWARD

The following award was agreed to by all three arbitrators:

Economic damages,

Section 766.207(7)(a), Florida Statutes :

1. Loss of earning capacity 2 :

a. Past: $ 0.00

b. Future: $ 0.00

2. Replacement value of lost

services, at present value 3 :

a. Past: $ 18,541.00

b. Future: $ 75,059.00

3. Funeral expenses: $ 8,765.50

4. Loss of Social Security

benefits 4 :

a. Past: $ 0.00

b. Future: $ 0.00

Gross Economic Damages: $102,365.50

Less Collateral Source Payments: $ 0.00

NET ECONOMIC DAMAGES: $102,365.50

Noneconomic Damages Section

766.207(7)(b), Florida Statutes :

TOTAL NONECONOMIC DAMAGES: $240,000.00

Interest, Section 766.207(7)(e),

Florida Statutes : (assessed on

Funeral expenses 5 ): $ 1,683.72

TOTAL DAMAGES: $344,049.22

Attorney's Fees and Costs,

Section 766.207(7)(f), Florida

Statutes : (15% of award reduced

to present value): $ 51,607.38

TOTAL AWARD: $395,656.60

It was further the agreement of the arbitrators that the

award be paid to Evelyn Barlow, individually, and that the

Defendant, consistent with the provisions of law, pay all the

costs of the arbitration proceeding, including the fees of all of

the arbitrators other than the administrative law judge, and the

cost of the court reporter.

DONE AND ENTERED this 8th day of March, 2001, in

Tallahassee, Leon County, Florida.

______________________________ _______

WILLIAM J. KENDRICK, Chief Arbitrator

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(8 50) 488- 9675 SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 8th day of March, 2001.

ENDNOTES

1/ Except to the extent herein addressed, the Claimants' motion

was denied.

2/ Here, the evidence demonstrated that because of the

debilitating consequences of the cranial bleed the decedent

suffered, prior to the act or omission on which the subject claim

was based, it was unlikely he would have been able to return to

gainful employment. Consequently, the proof failed to support an

award for loss of earning capacity.

3/ Notwithstanding his inability to return to the workforce, it

was resolved that the decedent, but for his death, would still

have been able to contribute some services to the household.

Those services were agreed to be valued at $9.00 per hour, with

the expectation that the decedent might be expected to contribute

up to 20 hours of services per week, 52 weeks each year, for 10

years. The award for loss of past services was calculated from

March 1, 1999, through February 21, 2001 (723 days, at $25.6438

per diem) and the award for loss of future services was

calculated from February 22, 2001, through February 28, 2009

(2,927 days, at $25.6438 per diem).

The present value calculation for future loss of services is

actually a straight line calculation which, given the

circumstances of this case, it was resolved fairly represented

present money value. That conclusion was reached due to the de

minimus annual difference (.36% or .0036) between the household

services earnings growth rate (4.79%, as stated by Dr. Turner)

and the discount rate (5.15%).

Future damages are stated in lump sum because it was the

arbitrators' understanding that was the parties' desire. If not,

the award for future damages ($75,059.00) would be payable to

Evelyn Barlow, in 10 equal installments, over a 10-year period,

with the first installment due 20 days from the date of this

award and an equal sum each year thereafter, together with an

annual growth rate of 4.79%.

4/ No award was made for lost social security benefits to the

estate since the Claimants failed to establish that there would

exist any net accumulation after consumption. Stated

differently, Claimants failed to demonstrate that the social

security benefits did not fairly represent the monies that would

have been required to maintain the decedent. Notably, Section

766.207(7)(a), Florida Statutes, calls for an award of "net

economic damages," and there is no apparent reason to conclude

that established principles used to calculate net economic

damages should not apply to this case.

5/ Interest on the funeral expense was calculated at 10% per

annum from April 3, 1999, through December 31, 2000 (639 days, at

.000274 daily), and at 11% per annum from January 1, 2001 through

February 21, 2001 (51 days, at .0003333 daily). April 3, 1999,

was selected as the date the expense was incurred since, there

being no other date of record, it was presumed that Mrs Barlow

paid by the date (April 3, 1999) specified in her agreement with

the funeral services provider.

COPIES FURNISHED:

Pamela K. Frazier, Esquire

William K. Thames, II, Esquire

Lozier, Thames & Frazier

125 West Romana Street, Suite 224

Pensacola, Florida 32501

Stanley Bruce Powell, Esquire

David R. Swanick, III, Esquire

Powell and Swanick, P.A.

Post Office Box 400

Niceville, Florida 32588-0400

Charles L. Cetti, Esquire

817 North Palafox Street

Pensacola, Florida 32501

Brian Thomas Hayes, Esquire

245 East Washington Street

Monticello, Florida 32344-1951

RIGHT TO JUDICIAL REVIEW

A ny party who is adversely affected by this arbitration award is

entitled to judicial review pursuant to S ections 120.68 and

766.212, F lorida S tatutes. R eview proceedings are governed by

the F lorida R ules of A ppellate P rocedure. S uch proceedings are

commenced by filing one copy of a N otice of A ppeal with the C lerk

of the D ivision of A dministrative H earings and a second copy,

accompanied by filing fees prescribed by law, with the D istrict

C ourt of A ppeal for the district in which the arbitration took

place. T he N otice of A ppeal must be filed within 30 days of

rendition of the arbitration award to be reviewed.