08-004316CB In Re: Senate Bill 52 (Brody) vs. * Status: Closed DOAH Final Order on Friday, May 8, 2009.

THE FLORIDA SENATE

SPECIAL MASTER ON CLAIM BILLS

Location

402 Senate Office Building

Mailing Address

404 South Monroe Street

Tallahassee, Florida 32399 - 1100

(850) 487 - 5237

DATE COMM ACTION

4 / 13 /09 SM Unfavorable

April 13 , 2009

The Ho norable Jeff Atwater

President, The Florida Senate

Suite 409, The Capitol

Tallahassee, Florida 32399 - 1100

Re: SB 52 (2009) Î Senator Ken Pruitt

HB 789 (2009) Î Representative Rachel V. Burgin

Relief of Eric Brody

SPECIAL MASTERÓS FINAL REPORT

THIS IS A CONTESTED CLAIM FOR $30,679,670.30

BASED ON A JURY AWAR D AGAINST THE BROWAR D

COUNTY SHERIFFÓS OFF ICE TO COMPENSATE

CLAIMANT ERIC BRODY FOR THE PERMANENT

INJURIES HE SUFFERED WHEN THE CAR HE WAS

DRIVING WAS STRUCK B Y A DEPUTY SHERIFFÓS

CRUISER.

FIND INGS OF FACT: On the evening of March 3, 1998, in Sunrise, Florida, 18 -

year - old Eric Brody was on his way home from his part - time

job. He was making a left turn from Oakland Park Boulevard

into his neighborhood when his AMC Concord was struck

near the pas senger door by a SheriffÓs Office cruiser driven

by Deputy Sheriff Christopher Thieman.

Deputy Thieman was on his way to mandatory roll call at the

SheriffÓs district station in Weston. He was exceeding the 45

mph posted speed limit. One estimate of his speed was 70

mph. Even the lowest credible estimate of his speed was in

excess of the speed limit. It is estimated that the cruiser,

after braking, struck EricÓs vehicle at about 53 mph. The

impact caused Eric to be violently thrown toward the

passenge r door, where he struck his head. He suffered

SPECIAL MASTERÓS FINAL REPORT Î SB 52 (2009)

April 13, 2009

Page 2

broken ribs and a skull fracture. Eric was airlifted to Broward

General Hospital where he underwent an emergency

craniotomy to reduce brain swelling. However, he suffered a

brain injury that left him with pe rmanent disabilities.

Eric was in the hospital intensive care unit for four weeks

and then was transferred to a rehabilitation center. He was

later transferred to a nursing home. He remained in a coma

for about six months. Eric had to learn to walk and talk

again. Eric is now 29 years old, but continues to live at

home with his parents. He still has difficulty walking and

usually uses a wheelchair or a walker. His balance is

diminished and he will often fall. Eric has some paralysis on

the left side of his body and has no control of his left hand.

He must be helped to do some simple personal tasks. He

tires easily. The extent of his cognitive disabilities is not

clear. His processing speed and short - term memory might

be impaired and his mother be lieves his judgment has been

affected.

At the time of the collision, Eric had been accepted at two

universities and was interested in pursuing a career in radio

broadcasting. However, his speech was substantially

affected by the injuries that he suffered and currently it is

difficult for anyone other than his mother to understand him.

One of the main issues in the trial was whether Eric was

co mparatively negligent. The SheriffÓs Office contends that

Eric was not wearing a seatbelt and that, if he ha d been

wearing his seatbelt, his injuries would have been

substantially reduced. Eric has no memory of the accident

because of his head injury, but testified at trial that he always

wore his seatbelt. Immediately after the collision, Deputy

Thieman got out of his cruiser to check on Eric, but he did

not recall whether EricÓs seatbelt was fastened. The

paramedics who arrived at the scene testified that EricÓs

seatbelt was not fastened. However, the photographs of the

vehicles show that the seatbelt was spooled out. There was

evidence presented that the seatbelt could have become

unfastened during the collision. Eric was a cautious driver

and had a perfect driving record. It is concluded from the

evidence presented that Eric was more likely than not

we aring his seat belt.

SPECIAL MASTERÓS FINAL REPORT Î SB 52 (2009)

April 13, 2009

Page 3

The jury saw a crash re - enactment that was conducted with

similar vehicles and using a belted test dummy. The results

of the reenactment supported the proposition that the

collision would have caused a belted driver to strike his o r

her head on the passenger door. The seatbelt shoulder

harness has little or no effect in stopping the movement of

the upper body in a side impact like the one involved in this

case. The head injury that Eric sustained is consistent with

injuries sustai ned by belted drivers in side impact collisions.

Therefore, EricÓs injury was not inconsistent with the claim

that he was wearing his seatbelt at the time of the collision.

Deputy ThiemanÓs account of the incident was conspicuously

lacking in deta il. Deputy Thieman did not recall how fast he

was going before the collision. He could not recall how close

he was to EricÓs vehicle when he first saw it. He could not

recall whether EricÓs turn signal was on.

There is a curious aspect of the incide nt that was not

clarified by the evidence. Deputy Thieman had been

traveling in the left lane of Oakland Park Boulevard, which

has three westbound lanes, but collided with EricÓs vehicle in

the far right lane. If Deputy Thieman had stayed in the left

lan e, the collision would not have occurred. Why Deputy

Thieman would swerve to the right to avoid the collision was

not adequately explained. It would seem that the natural

response in seeing a vehicle moving to the right would be to

try to escape to the l eft. At trial, Deputy Thieman testified

that he did not turn to the left because that was in the

direction of oncoming traffic. However, there was no

oncoming traffic at the time. It is difficult to understand how

Deputy Thieman could have perceived tha t turning to his

right was his best chance to avoid a collision. It is concluded

that the manner in which Deputy Thieman maneuvered his

vehicle was unreasonable under the circumstances and that

it was a contributing cause of the collision.

Eric has a n ormal life expectancy. One life care plan

developed for Eric estimated the cost of his care will be

$10,151,619. There was other evidence that the life plan

could be $5 to $7 million.

Eric received $10,000 from Personal Injury Protection

coverage on h is automobile insurance. He receives Social

Security disabilities payments of approximately $560 each

SPECIAL MASTERÓS FINAL REPORT Î SB 52 (2009)

April 13, 2009

Page 4

month. He also received some vocational rehabilitation

assistance which paid for a wheelchair ramp and some other

modifications at his home.

Deputy Thieman was fired by the Broward County SheriffÓs

Office in 2006 for official conduct not related to the collision

with Eric Brody.

LITIGATION HISTORY: In 2002, a negligence lawsuit was filed in the circuit court for

Broward County by Charles and Sharon Brody, as EricÓs

parents and guardians, against the Broward County SheriffÓs

Office. The jury found that Deputy Thieman was negligent

and that his negligence was the sole legal cause of EricÓs

damages. The jury found that Eric was not at fault. The ju ry

awarded damages of $30,609,298. The court entered a cost

judgment of $270,372.30. The sum of these two figures is

$30,879,670.30.

The Broward SheriffÓs Office recently paid the $200,000

sovereign immunity limit under s. 768.28, F.S. The amount

bein g requested through this claim bill is the balance of

$30,679,670.30.

CLAIMANTSÓ POSITION: The SheriffÓs Office is liable for the negligent operation of a

motor vehicle by its employee. Eric Brody had no

contributory negligence. The jury award is jus t and

reasonable under the circumstances.

SHERIFFÓS OFFICE POSITION: The jury award is unjustified because it failed to assign

co mparative negligence to Eric Brody.

CONCLUSIONS OF LAW: The claim bill hearing was a de novo proceeding for the

purpose of determining, based on the evidence presented to

the Special Master, whether the Broward County SheriffÓs

Office is liable in negligence for the injuries suffered by Eric

Brody and, if so, whether the amount of the claim is

reasonable.

Deputy Thieman had a duty to operate his vehicle in

conformance with the posted speed limit and with

reasonable care for the safety of other drivers. His speeding

and failure to operate his vehicle with reasonable care were

contributing causes to the collision and the injuri es that Eric

Brody sustained. T he Broward County SheriffÓs Office is

liable as Deputy Thieman Ós employer .

SPECIAL MASTERÓS FINAL REPORT Î SB 52 (2009)

April 13, 2009

Page 5

Although Eric Brody was required to yield before turning left,

the evidence does not show that a failure to yield was a

contributing cause of the col lision. Eric reasonably judged

that he could safely make the left turn. He was well past the

lane in which Deputy Thieman was traveling. The collision

appears to have been caused solely by Deputy ThiemanÓs

unreasonable actions in speeding and swerving t o the right.

LEGISLATIVE HISTORY: This is the first claim bill presented to the Senate in this

matter.

ATTORNEYÓS FEES AND At the time this report was prepared, Claimant Ós attorney had

LOBBYISTÓS FEES: not agree d that to limit attorneyÓs fees, cost s, and lobbying

fees to 25 percent of the claim paid , as required by the bill .

Claimant reports costs of $1,115,772.

OTHER ISSUES: ClaimantÓs counsel urged the Special Master to determine

that the liability insurer for the Broward County SheriffÓs

offic e acted in bad faith by failing to timely tender its $3

million coverage in this matter and that, under Florida law,

the insurer is liable for the entire judgment against the

SheriffÓs Office. However, because the insurer was not a

party to the Senate cla im bill proceeding, and because the

bad faith claim is not a proper subject for determination in a

claim bill hearing under the rules of the Senate, the Special

Master did not take evidence nor make a determination

regarding the bad faith claim.

The Browa rd County SheriffÓs Office contends that it cannot

pay this claim (beyond its $3 million insurance coverage)

without drastic reductions in governmental services. It

asserts that the claim is equivalent to 300 law enforcement

officers or five fire/rescue s tations. Sovereign immunity from

liability in tort effectively prevents the State and local

governments from being bankrupted by damage awards.

Despite the fact that Eric Brody deserves to be compensated

for his serious injuries caused by the negligence of Deputy

Thieman, I do not believe it is r easonable to waive sovereign

immunity to the full extent of the claim made in this case so

as to cause severe reductions in government services to the

citizens of Broward County .

Claimant recently offered to ent er into a forbearance

agreement with the SheriffÓs Office , whereby Claimant would

agree not to require payment of the claim (if the claim bill

SPECIAL MASTERÓS FINAL REPORT Î SB 52 (2009)

April 13, 2009

Page 6

were passed by the Legislature) unless the SheriffÓs Office

is unsuccessful in obtaining full payment from its i nsurance

company following a Ðbad faithÑ lawsuit against the insurance

company. I do not believe the Senate should pass t he claim

bill under these terms because the future actions of the

parties and of the court are beyond the SenateÓs evaluation

and cont rol , and if the SheriffÓs Office w ere unsuccessful in

its lawsuit against the insurer, it would have to pay the entire

claim.

U n less the Senate is presented with a method to make the

fiscal impact of this claim manageable for Broward County,

this claim sh ould not be paid in an amount greater than the

Sheriff OfficeÓs $3 million insurance coverage.

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

Bill 52 (2009) be reported UN FAVORABLY .

Respectfully submitted,

Bram D. E. Canter

Se nate Special Master

cc: Senator Ken Pruitt

Philip Twogood, Secretary of the Senate

Counsel of Record