07-004279CB In Re: Senate Bill 26 (Stacie Wagner) vs. * Status: Closed DOAH Final Order on Friday, May 2, 2008.

Summary: Contested claim bill for $800,880 based upon jury verdict. Recommend favorably, with amendment to reduce amount to $652,080.

SPECIAL MASTER’S FINAL REPORT – SB 26 (2008) T

February 5, 2008

Page 2

SR 436 is a major, six-lane t horoughfare. The speed limit in

the vicinityof the accident is 50 MPH. There is a raised

concrete median in the center of the road.

A ngelica was attempting to cross SR 436 in the middle of a

block rather than at a cross- walk. The apartment complex

where Angelica lived was on the west side of SR 436.

A ngelica sometimes crossed SR 436 at that location to visit

friends who lived at an apartment complex on the other side of the road.

A ngelica was running from the median towards he r

apartment complex when she wa s hit. She was hit by an

Orange County Fire Department van driven by Marc Klein.

The van was traveling in the lane closest to the median, and

Mr. Klein testified that he never saw Angelica before he hit

her. The van had its headlight s on at the time of the

accident.

There is conflicting evidence as to the speed at which

Mr. Klein was traveling at the time of the accident. The

claimant’s experts opined th at Mr. Klein was traveling

between 60 and 63 MPH. The County’s expert opined that

Mr. Klein was traveling betwe en 45 and 50 MPH, which is consistent with the eye-witness testimony of the driver and

passenger of a vehicle that was traveling slightly behind and

in the lane to the right of Mr. Klein’s van. In my view, the

more persuasive evidence establ ishes that Mr. Klein was not

speeding at the time of the accident.

The driver and passenger of t he car traveling behind and to

the right of Mr. Klein’s van te stified that th ey saw Angelica

running out in front of the van just before she was hit. The

fact that they were able to see Angelica running in front o f

the van but Mr. Klein did not see her until after he hit he r

strongly suggests that he was di stracted or not paying full

attention to the road in front of him at the time of the

accident.

On this issue, there is c onflicting evidence as towhethe r

Mr. Klein was distracted by a cellular phone call at or just

before the time of the accident. Mr. Klein testified that he

was not using his cellular phone while he was driving, but he

testified that he received a call from his wife shortly after the

accident.

SPECIAL MASTER’S FINAL REPORT – SB 26 (2008) T

February 5, 2008

Page 3

Mr. Klein’s cellular phone records show that he received calls at 8:47 p.m. and 9:02 p.m. on the night of the accident.

He testified that the 8:47 p.m. phone call was from his wife.

He was unable to account for the 9:02 p.m. ca ll because he

testified that after he received the call from his wife, he left

the phone in the van and did not use it again that night.

There are a number of inconsis tencies and incongruities in

Mr. Klein’s timeline of events on the night of the accident,

which call into question his test imony. With respect to the

cellular phone call, for example, Mr. Klein te stified in his first

deposition (less than 9months a fter the accident) that his

wife was calling him because he should have been off o f

work at that point, which is consistent with the call coming in after 9:00 p.m. It was not until his second deposition (3

years later and after copies of his cellular phone records were obtained) that Mr. Klein testified that he received the

call from his wife at 8:47 p.m. ashe was running back and forth across three lanes of traffic between his van and Angelica’s body.

In my view, the testimony of Mr. Klein’s wife (in conjunction

with the emergency dispatch reco rds) is the most reliable

source regarding the timeline of events and, specifically, the

timing of the cellular phone calls to Mr. Klein’s phone on the

night of the incident. Mrs. Klein testified that she called

Mr. Klein around the time that he was scheduled to get of f

work, which was 9:00 p.m. She thought she ca lled him prio r

to 9:00 p.m., but she acknowl edged that it could have been a

minute or two after 9:00 p.m. She further testified that

immediately after she spoke to Mr. Klein and learned that he

was in an accident, she left the house and drove to the scene. On the way, she attempt ed to call Mr. Klein’s cellula

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phone but the calls just went to voicemail. Mrs. Klein’s

cellular phone records corrobor ate her testimony and are

consistent with a timeline that starts with the cellular phone

call being made at 9:02 p.m. rather than 8:47 p.m.

In sum, I find that it is more likely than not that the 9:02 p.m. call reflected on Mr. Klein’s cellular phone records is the call

that he received from his wife. As a result, the 8:47 p.m.

phone call is unaccounted for, which calls into question Mr. Klein’s credibility and his ve rsion of the events leading

up to the accident. The Kleins did not appear at the Special

Master hearing to clarify the inconsistencies in their prio

r

SPECIAL MASTER’S FINAL REPORT – SB 26 (2008) T

February 5, 2008

Page 4

testimony, and based upon the to tality of the evidence o f

record and the reasonable inferences that can be drawn

therefrom, I find that it is mo re likely than not that Mr. Klein

received the 8:47 p.m. call from someone other than his wife at or just before the time of the accident, which may have

distracted him and contributed to his failure to see Angelica.

In making the foregoing finding, I did not overlook the

emergency dispatch records, which reflect that the accident

was first reported by Mr. Klei n at 8:46:46 p.m., which means

that the accident occurred shor tly before that time, perhaps

as early as 8:45 p.m. Howe ver, the evidence establishes

that the cellular phone times ar e calibrated with the atomic

clock, whereas the times on the dispatch records are not similarly calibrated. This does not mean that one set o

f

times is right and the other set is wrong, but it means that a

comparison of the times shown on the cellular phone records

and the times shown on the dispatch records are not “apples to apples.” Indeed, it can be inferred from the totalityof the

evidence of record that the times on the emergency dispatch

records are several minutes behind the atomic clock time.

For example, Mr. Klein testifi ed that his wife arrived on the

scene as the helicopter was leaving with Angelica’s body,

which was9:16:37 p.m. accordi ng to the dispatch records,

but Mrs. Klein’s cellular phone re cords reflect that between

9:13 and 9:17 p.m. she waso n her cellular phone with

Lt.

A gans and, according to her deposition testimony, she

was still on the Gr eenway/SR 417 and se veral minutes from

the scene at the time. As a result, it is more likely than not

that Ms. Klein did not arrive on the scene until around 9:20

p.m. atomic clock time, whic h equates to the 9:16:37 p.m.

time shown on the dispatch records. This means that the 8:46:46 p.m. time shown on the dispatch records is likely

closer to 8:49 p.m. atomic cl ock time, which in turn means that the 8:47 p.m. phone call came in just prior to the

accident, not after the acci dent as Mr. Klein contends.

Angelica was not bein g supervised by an adult at the time o f

the accident or for the several hours leading up to the

accident. According to Ange lica’s mother, Stacie Wagne r

(the claimant), Angelica had gone outside to play that

afternoon and was not expected back until her“curfew” o f

9:00 p.m. Ms. Wagner was reco vering from the birth of a

child at the time and she took pain medication and dozed of f

at approximately 8:00 p.m.

SPECIAL MASTER’S FINAL REPORT – SB 26 (2008) T

February 5, 2008

Page 5

Ms. Wagner testified that Angelica was very mature and responsible for her age, and Angelica’s school records

reflect that she was a good studen t. Nevertheless, I find that

Ms. Wagner acted irresponsibly and unreasonably by

allowing an 11-year-old child to go unsupervised until 9:00

p.m., particularly since Ms. Wagner knew that despite he

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prior admonitions, Angelica often crossed SR 436 to visit

friends. Indeed, Ms. Wagner test ified that on several prio r

occasions, she had to call t he police when she was unable to locate Angelica and/or she failed to return home by he

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curfew. Ms. Wagner’s failur e to supervise Angelica o r

arrange proper supervision on the day of the accident was,

in my view, a material contributing cause to Angelica’s death. As such, Ido not share the view of Ms. Wagner (and

the jury) that she bears no responsibility for her daughter’s death.

A t the time of Angelica’s death, Ms. Wagner had four othe r

children. (She has since had a nother child.) None of the

other children lived with Ms. W agner at the time of the

accident. They lived with vari ous family members in New

York. Ms. Wagner and Angelica were living with

Ms. Wagner’s boyfriend, Richi e Garcia, at the time.

Ms. Wagner’s twin sister, Traci Santos, testified in deposition

that Ms. Wagner and Mr. Garc ia were drinking and doing

drugs (marijuana) and neglecting Angelica. Ms.Wagne r

adamantly denies past or present alcohol abuse or drug use.

In the year leading up to Ange lica’s death, the Department o f

Children and Families (DCF) w ent to Ms. Wagner’s home on

several occasions to investi gate claims that her children

were beingneglected and/or not being properly supervised.

In an April 2001 report, DCF found “some indicators” o f

inadequate supervision by Ms. Wagner.

Ms. Wagner attributes her sister’s deposition testimony to her anger about Angelica’s de ath. She attributed

A ngelica’s

less than ideal living conditions at the time to her alcoholic

ex-husband who took everything (including two of he r

children) when he left her in mid to late 2000. Ms. Wagne r

and her sister have reconciled, and they are living togethe r

in New York with four of Ms. Wagner’s remaining five children.

SPECIAL MASTER’S FINAL REPORT – SB 26 (2008) T

February 5, 2008

Page 6

Ms. Wagner was living in New York at the time of the Special

Master hearing, but she testif ied at the hearing that she

intends toreturn to Flori da with her children in the nea r

future. She further testified t hat Mr. Garcia has proposed to

her and that they intend to marry when she returns to

Florida.

A ngelica is buried in New York. Her funeral expenses,

$8,000, were paid by Angelica’s uncle. Ms. Wagner has no legal obligation to repay those expenses , but she feels a

moral obligation to do so.

Ms. Wagner received only $10,0 00 of the $100,000 paid by

the County under the sovereign i mmunity cap. The balance

of the funds went to at torney’s fees and costs.

Ms. Wagner testified at last year’s Special Master hearing

that if the claim bill is approved, she intends to use the

proceeds to purchase a house. Of the remaining proceeds,

she testified that she intends to donate 10 percentto the

church that helped her get th rough Angelica’s death and the

remainder to a charity that helps children in need.

The County is self-insured up to $1 million. It has already

incurred fees and costs related to this claim of approximately

$267,000, which means that if th e claim bill is approved, the

County will have to pay approx imately $733,000 before its

excess insurer’s obligation is triggered. The excess insure r

is in receivership, which means that there is no guarantee

that it will be able to pay any excess claim (approximately

$70,000 under the bill, as filed) and the County would look to

a state guarantee fund for payment if its excess insurer is unable to pay.

A ny payments by the County would be made from a risk

management trust fund. The C ounty’s contingent liability

related to this claim has been “budgeted for” in the trust fund

already. Payment of the claim will not have a direct

operational impact on the County Fire Department or the

County as a whole.

Since the time of the accident, an elevated bike path/walkway has been constructed over SR 436 just to the

south of the area where Angelica was killed.

SPECIAL MASTER’S FINAL REPORT – SB 26 (2008) T

February 5, 2008

Page 7

No disciplinary action was taken against Mr. Klein related to the accident. He retired from the County Fire Department in

October 2006 because of a lingering back condition unrelated to the accident that killed Angelica.

LITIGATION HISTORY: In June 2002, Ms. Wagner (then k nown as Stacie Reyes), as

personal representative of Angelica’s estate, filed suit

against Orange County. After extensive discovery and

unsuccessful mediation, a 4-day jury trial was heldin March

2005.

The jury found the County negl igent and awarded $8,000 in

economic damages (funeral exp enses) and $1.4 million non-

economic damages. The jury allocated 61 percentof the negligence to the County, 39 per cent to Angelica, and 0

percent to Ms. Wagner. The ju ry specifically found that Ms.

Wagner was not negligent.

In June 2005, the court entered a final judgment in favor o f

Ms. Wagner for $858,880, which reflects the County’s 61 percentshare of the jury verdict, plus costs of $42,000.

Thus, the total judgment entered against the County was

$900,880. The County did not appeal the judgment.

In July 2005, the County paid $100,000 in partial satisfaction

of the judgment in accordanc e with s. 768.28, F.S. The

Satisfaction of Judgment includes a reservation of the claimant’s right to seek a claim bill for the remaining

$800,880 of the judgment.

The claimant unsuccessfully attempted to obtain copies o f

the County’s litigation reco rds pursuant to the Public

Records Act. An appellate co urt recently held that such

records remain exempt from disclosure while a claim bill is

pending. See Wagner v. Orange County , 960 So.2d 785

(Fla. 5th DCA 2007).

CLAIMANT’S POSITION: The jury verdict is entitled to deference and should be

given full effect.

Mr. Klein was negligent in his operation of the van in that

he was speeding, distracted, and/or otherwise not

exercising reasonable care under the circumstances.

SPECIAL MASTER’S FINAL REPORT – SB 26 (2008) T

February 5, 2008

Page 8

A ngelica was admittedly negli gent in that she was

attempting to cross SR 436 in the middle of a block rathe r

than in a cross-walk, but she was only 11 years old at the

time and the primary caus e of the accident was

Mr. Klein’s careless driving.

Ms. Wagner was not negligent in her failure to supervise

Angelica on the day of the a ccident becaus e she was on

bed rest at the time and s he had no reason to believe

that Angelica was going to leave the apartment complex

and go across SR 436.

COUNTY’S POSITION: The County bears no responsibility for Angelica’s death

because Mr. Klein was not speeding, distracted, o r

otherwise negligent in his ope ration of the van, and

Angelica darted out in front of him.

A ngelica and Ms. Wagner are solely responsible fo r

A ngelica’s death in th at Angelica was attempting to cross

SR 436 outside of a cross-walk in violation of Florida law

and Ms. Wagner acted irresponsibility by allowing he r

11 -year-old daughter to go unsupervised until 9:00 p.m.

even though she knew that Angelica often crossed

SR 436 to visit friends.

CONCLUSIONS OF LAW: Mr. Klein had a duty to operate t he van he was driving on the

day of the accident with reasonable care. See

ss. 316.183(1), 316.1925(1), F.S. Mr. Klein breached that

duty when he was distracted by a cellular phone call at o r

around the time of the accidentor otherwise not paying full attention to the road at the time of the accident. Mr. Klein’s

negligent operation of the van was a prox imate cause of the

accident that resulted in Angelica’s death.

Mr. Klein was acting within the course and scope of his

employment at the time of t he accident. Therefore, the

County is responsible for Mr. Klein’s negligence.

Angelica violated s. 316.130(10) and/or (11), F.S., when she

attempted to run across SR 436 in the middle of the block

rather than at a cross-walk and, as a result, Angelica’s own

negligence contributed to her deat h. The percentage of fault

SPECIAL MASTER’S FINAL REPORT – SB 26 (2008) T

February 5, 2008

Page 9

allocated to Angelica by th e jury -- 39 percent --is

reasonable under the circumstances.

Ms. Wagner’s failure to supervise Angelica on the night o f

the accident was, in my view, irresponsible and unreasonable. Ms. Wagner knew or should have known that

A ngelica might cross SR 436 based upon prior instances o f

her crossing the road without permission. Furthermore, it is

irresponsible and unreasonable for Ms. Wagner to allow an

11-year-old childto be unsuper vised and to stay out on he r

own until 9:00 p.m., which wa s after dark. Ms. Wagner’s

negligent supervision of Ange lica contributed to her death

because if she had been supervised she would not have gone across SR 436 in the first place. Thus, notwithstanding

the jury verdict on this issue, I find that a portion of the fault for Angelica’s death should be apportioned to Ms. Wagne

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and, in my view, a figure of 10 percent is reasonable.

In summary, I conclude that liability for Angelica’s death should be apportioned as follows: 51 percent to the County;

39 percent to Angelica; and 10 percent to Ms. Wagner.

As to the damages, I find the amounts awarded by the jury -- $8,000 in funeral expenses and $1. 4 million in non-economic

damages -- to be reasonable.

The amount of the claim bill should be reduced to reflect a set-off of the $8,000 received by Ms. Wagner from anothe

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source ( i.e. , Angelica’s uncle) to pay the funeral expenses

and to reflect the allocation of a portion of the fault to

Ms. Wagner. As adjusted, the claim bill should be fo r

$652,080, which is calculat ed as follows: $1,408,000

(verdict) x 51% (County’s revised share of liability) =

$718,080 $42,000 (tax able costs) - $100,000 (partial

satisfaction by County) - $8,000 (set-off for funeral expenses

paid by uncle).

ATTORNEY’S FEES The claimant’s attorney provided an affidavit stating that that

AND LOBBYIST’S FEES: attorney’s fees will be capped at 25 percent in accordance

with s. 768.28(8), F.S. The a ttorney’s fees will be $163,020

if the bill is approved at the amount recommended.

The lobbyist’s fees are in excess of the 25 percentattorney’s fee, and according to the cont ract between the claimant’s

attorney and the lobbying firm, t he lobbyist’s fees will be an

SPECIAL MASTER’S FINAL REPORT – SB 26 (2008) T

February 5, 2008

Page 10

additional 5 percent of the final claim. Thus, the lobbyist’s

fees will be approximately $32,6 04 if the bill is approved at

the amount recommended.

The bill, as filed, provides that payment of attorney’s fees, costs, and lobbyist’s fees are limited to 25 percent of the

final claim. If that language re mains in the bill and the claim

is paid in the amount re commended, the claimant will

receive $489,060 and the bala nce of $163,020 will go

towards attorney’s fees, costs, and lobbyist’s fees. If that

language was not in the bill, th e claimant would receive only

$456,456.

LEGISLATIVE HISTORY: This is the second year that th is claim has b een presented to the Legislature. Last year’s bill, SB 62 (2007), was not

referred to committee.

RECOMMENDATIONS: For the reasons set forth above, I recommend that Senate

Bill 26 (2008) be report ed FAVORABLY, as amended.

Respectfully submitted,

T. Kent Wetherell

Senate Special Master

cc: Senator Gary Siplin

Faye Blanton, Secr etary of the Senate

House Committee on Constitution and Civil Law

Counsel of Record