10-009581CB In Re: Senate Bill 42 (Eric Brody) vs. * Status: Closed DOAH Final Order on Friday, April 8, 2011.

THE FLORIDA SENATE

SPECIAL MASTER ON CLAIM BILLS

Location

40 2 Senate Office Building

Mailing Address

404 South Monroe Street

Tallahassee, Florida 32399 - 1100

(850) 487 - 5237

DATE COMM ACTION

2/1/11 SM Unfavorable

February 1, 2011

The Honorable Mike Haridopolos

President, The Florida Senate

Suite 409, The Capitol

Tallahassee, Florida 32399 - 1100

Re : SB 42 (2011) Î Senator Joe Negron

Relief of Eric Brody

SPECIAL MASTERÓS FINAL REPORT

THIS IS A CONTESTED EXCESS JUDGMENT CLAI M FOR

$30,760,670.30 OF LOCAL MONEY BASED ON A JURY

AWARD AGAINST THE BR OWARD COUNTY SHERIFF ÓS

OFFICE TO COMPENSATE CLAIMANT ERIC BRODY FOR

THE PERMANENT INJURI ES HE SUFFERED IN A

COLLISION WITH A DEP UTY SHERIFFÓS CRUISE R.

FINDINGS 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 passenger door by a SheriffÓs Office cruiser dri ven

by Deputy Sheriff Christopher Thieman.

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

the SheriffÓs district station in Weston. One estimate of his

speed was 70 MPH . Even the lowest credible estimate of

his speed was in excess of the 45 M PH 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 passenger door, where he struck his

head. He suffered broken ribs and a skull fracture. Eri c was

airlifted to Broward General Hospital where he underwent an

SPECIAL M ASTERÓS FINAL REPORT Î SB 42 (2011)

February 1, 2011

Page 2

emergency craniotomy to reduce brain swelling. However,

he suffered a severe brain injury that left him with permanent

disabilities.

Eric was in the hospital intensive care unit for four w eeks

and then was transferred to a rehabilitation center. He was

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

induced coma for about six months. After the coma, Eric

had to learn to walk and talk again. Eric is now 3 1 years old

and lives with his parents. He 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 are

impaired and his mother believes 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 his injuries and it is now difficult for anyone other

than his mother to understand him.

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

comparatively negligent. The Broward County SheriffÓs

Office (BCSO) contends that Eric was not wearing his

seatbelt and that, if he had been wearing his seatbelt, his

injuries wo uld 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. The

paramedics who arrived at the scene of the crash testified

that EricÓs seatbelt was not faste ned. However, the seatbelt

was spooled out and there was evidence presented that the

seatbelt could have become disconnected in the crash .

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

similar vehicles, 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 or 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 sustained

SPECIAL M ASTERÓS FINAL REPORT Î SB 42 (2011)

February 1, 2011

Page 3

by belted drivers in side impact collisions. Therefore, EricÓs

injury is not inconsistent with the claim that he was wearing

his seatbelt at the time of the collision. I conclude from the

evidence presented that Eric was more likely than not

wearing his seat belt.

Deputy ThiemanÓs account of the incident was conspicuously

lacking in detail. 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.

A curious aspect of the incident was that 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 lane, the collision would not have

occurred. Why Deputy Thieman swerved to the right was

not adeq uately explained. It would seem that the natural

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

try to escape to the left. At trial, Deputy Thieman testified

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

direction of oncoming tra ffic. However, there was no

oncoming traffic at the time. 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.

Deputy ThiemanÓs was fired by the Broward County SheriffÓs

Office in 2006 for misconduct not related to the collision with

Eric Brody.

Eric received $10,000 from Personal Injury Protection

coverage on his automobile insurance. He receives Social

Security disabilities paymen ts of approximately $560 each

month. He also received some vocational rehabilitation

assistance which paid for a wheelchair ramp and some other

modifications at his home.

Eric has a normal life expectancy. One life care plan

developed for Eric estim ated the cost of his care will be

$10,151,619. There was other evidence that his future care

would cost $5 to $7 million.

SPECIAL M ASTERÓS FINAL REPORT Î SB 42 (2011)

February 1, 2011

Page 4

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 BCSO. In December

2005, a fter a lengthy trial , t he jury found that Deputy

Thieman was negligent and that his negligence was the sole

cause of EricÓs damages. The jury awarded dam ages 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. Post - trial motions for new trial and

remittitur were denied. The verdict was upheld on appeal.

The BCSO paid the $200,000 sovereign immunity limit under

s. 768.28, F lorida Statutes . T h e payment was placed in a

trust account and none of it has been disbursed. Attorney's

fees and costs have not been deducted. E ric Brody has

received nothing to date.

CONCLUSIONS OF LAW: The claim bil l hearing was a de novo proceeding to

determine , based on the evidence presented to the Special

Master, whether the BCSO is liable in negligence for the

damages suffered by Eric Brody and, if so, whether the

amount of the claim is reasonable.

Deputy Thiem an 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

caused the collision and the injuries that Eric Brody

sustained. The BCSO is liable as Deputy ThiemanÓs

employer.

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 collision. 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 to the right.

I believe the jury acted r easonably in assigning no fault to

Eric.

At the claim bill hearing, ClaimantÓs counsel urged the

Special Master to determine that the liability insurer for the

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

million coverage in this matter and, therefore, the insurer is

SPECIAL M ASTERÓS FINAL REPORT Î SB 42 (2011)

February 1, 2011

Page 5

liable for the entire judgment against the BCSO . However,

because the insurer was not a party to the Senate claim 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, I did not take evidence nor make a

determination regarding the bad faith claim.

The BCSO objected to the provision of the 2010 claim bill

that provided for the BCSO's assignment of its bad faith

claim against its insurer to Eric Brody as prohibited by the

Florida Constitution and beyond the statutory authority of the

Senate . It may be unconstitutional for a local claim bill to

require the assignment of a legal claim , because Article III,

Section 11(a)(7) of the Florida Constitution prohibits special

laws or general laws of local application pertaining to

Ðconditions precedent to bringing any civil or criminal

proceedings.Ñ However, S enate Bill 42 does not require the

assignment of the BCSO's legal claim . The bill requires the

BCSO to pay the $30 million claim, but states that, in lieu of

payment, the BCSO "may" assign its legal claim against the

insurer to Eric Brody and, if it assigns its claim, the BCSO is

not requi red to pay the $30 million. In this form, I do not

believe that S enate Bill 42 violate s the constitutional

restriction on special laws or exceed s the Senate's authority .

ATTORNEYS FEES: In compliance with s. 768.28(8), Florida Statutes , the

Claimant's attorneys will limit their fees to 25 percent of any

amount awarded by the Legislature.

SPECIAL ISSUES : S enate Bill 42 incorrectly states that the jury awarded

damages of $30,690,000. The correct amount is

$30,609,298. The total excess judgment claim is incorrectly

stated as $30,760,372.30. The correct amount is

$30,679,670.30.

The positions of the parties regarding this claim bill are

uncertain. It is not clear why Br oward County opposes the

opportunity to avoid a $30 million claim bill by assignin g its

legal claim against its insurer to the Claimant. It is also

unclear why the Claimant would refuse the Legislature's

award and the settlement offers made by the County, which

would allow Eric Brody to begin to receive the care he

needs, and choose in stead to accept the risk and further

delay associated with commencing a bad faith claim against

the County's insurer.

SPECIAL M ASTERÓS FINAL REPORT Î SB 42 (2011)

February 1, 2011

Page 6

The Senate should also consider the unusual size of this

claim bill. Sovereign immunity from liability in tort effectively

prevents the State and local governments from being

bankrupted by damage awards. Claim bills in excess of $10

million are unusual. Claims bills in excess of $20 million are

rare. This claim bill for over $30 million is the largest ever

claim bill to my knowledge. In the past, the largest claim bills

have usually called for installment payments or other

mechanisms to make the fiscal impact manageable. The

BCSO contends that it cannot pay this claim w ithout drastic

reductions in governmental services. It asserts that the

claim is equivalent to 300 law enforcement officers or five

fire/rescue stations. Eric Brody deserves to be compensated

for his injuries caused by the negligence of Deputy Thieman,

b ut it would be unreasonable to waive sovereign immunity if

the result is to cause severe reductions in government

services to the citizens of Broward County.

The fiscal burden that would be associated with the

LegislatureÓs regular passage of $10, $20, an d $30 million

claim bills, especially for claims that will be paid by local

governments beyond their insurance coverage, indicates

that a balance must be struck between the principle of

sovereign immunity and the principle of fair compensation.

T he payment of a claim bill is a matter of legislative grace

and the Senate is free to deviate from a jury award. When

very large claim bills are filed, it is reasonable for the Senate

to consider , among other factors, whether the amount of a

claim deviate s substantially above or below the median jury

verdict for similar injuries. At the request of the Special

Master, the parties submitted jury verdict data for cases

involving permanent brain injuries. The information was

inadequate to allow a median awar d to be stated with

confidence, but it is under $20 million. As stated above, the

life care plans for Eric Brody ranged from $5 to $ 10 million.

If the Senate wishes to pay the claim, I believe the option to

assign the claim should be preserved in the bil l , but the

a ward should be reduced to $15 million and Broward County

should be allowed to pay the award in several installments.

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

Bill 42 (201 1 ) be reported UN FAVORABLY .

SPECIAL M ASTERÓS FINAL REPORT Î SB 42 (2011)

February 1, 2011

Page 7

Respectful ly submitted,

S

Bram D. E. Canter

Senate Special Master

cc: Senator Joe Negron

R. Philip Twogood , Secretary of the Senate

Counsel of Record