11-000121CB In Re: Senate Bill 342 (Maricelly Lopez) vs. * Status: Closed DOAH Final Order on Friday, February 18, 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

2/18/11 SM Fav/1 amendment

February 18, 2011

The Honorable Mike Haridopolos

President, The Florida Senate

Suite 409, The Capitol

Tallahassee, Florida 32399 - 1100

Re : SB 342 (2011) Î Senator Greg Evers

Relief of Maricelly Lopez, as Personal Representative of the E state of

Omar Mieles

SPECIAL MASTERÓS FINAL REPORT

THIS IS A CONTEST ED CLAIM FOR $1,611, 237 BASED

ON A JURY VERDICT AG AINST THE CITY OF NO RTH

MIAMI, IN WHICH THE JURY DETERMINED THAT THE

CITY OF NORTH MIAMI WAS 50 PERCENT

RESPONSIBLE FOR THE DEATH OF OMAR MI E LES DUE

TO THE NEGLIGENT OPE RATION OF A PATROL

VEHICLE BY ONE OF IT S OFFICERS.

FINDINGS OF FACT: The instant claim arises out of a traffic accident that occurred

in Miami on N ovember 11, 2007, at the intersection of

Northwest 7th Avenue and Northwest 46th Stre et.

Northwest 46th Street runs from east to west, and intersects

Northwest 7th Avenue (which runs from north to south) at a

right angle. At the time of the accident, the intersection was

controlled by four traffic signal s: two blinking red lights that

directed vehicles traveling east and west on Northwest 46th

Street to stop, and two blinking yellow lights for vehicles

proceeding north and south on Northwest 7th Avenue.

At approximately 4:10 a.m., 19 - year - old Omar Mi e les was

traveling east on Northwest 46th Street in a 2005 Ford

Focus, which was being driven by Madelayne Ibarra . T he

SPECIAL MASTERÓS FINAL REPORT Î SB 342 (2011)

February 18, 2011

Page 2

vehicle was owned by Ms. Ibarra's mothe r, who was not

present . Mr. Mi e les' girlfriend, Raiza Areas, was positioned

in the front pass enger's seat. Although Ms. Ibarra and Ms.

Areas were both wearing sea tbelts, Mr. Mi e les was lying

dow n unrestrained on the back seat, with his head behind

the front passenger's seat. Mr. Mi e les, Ms. Areas, and Ms.

Ibarra had spent the evening eating dinner in Coconut Grove

and socializing with friends in South Beach.

Although Ms. Ibarra was not under the influe nce of alcohol

or controlled substances, she was unfamiliar with the area

and fatigued due to the late ho ur. As a consequence, Ms.

Ibarra failed to come to a complete stop at the red traffic

signal prior to entering the Northwest 7th Avenue

intersection. At the same time, a City of North Miami police

cruiser traveling north on Northwest 7th Aven ue entered the

int ersection through the yellow caution light . Th e police

vehicle , which was on routine patrol and not operating in

emergency mode (i.e., the siren and emerge ncy lights were

not activated), was substantially exceeding the 30 MPH limit.

Tragic ally, the police cruiser , which was being operated by

Officer James Thompson, struck the right re ar passenger

door of Ms. Ibarra's Ford Focus. Mr. Mieles, who was

ejected through a rear window due to the force and location

of the impact, landed appr oximately 35 feet from the final

resting position of Ms. Ibarra's vehicle . Although Mr. Mieles

sustained catastrophic head injuries as a result of the

accident, n either Ms. Ibarra nor Ms. Areas was seriously

injured.

Officer Thompson, who likewise wa s not significantly injured

in the collision, immediately radioed for emergency

assistance. Paramedic s responded to the scene minutes

later and transported Mr. Mi e les to Jackson Memor ial

Hospital. Soon after his arrival at the hos pital, Mr. Mi e les

was pr onounced brain dead . On Nove mber 14, 2007 , with

the consent of Maricelly Lopez (Mr. Miles' mother and the

Claimant in this proceeding) , hospital staff harvested Mr.

Mi e les' heart, liver, and kidneys for donation , at which point

he expired.

Approximate ly 90 minutes after the collision, K. Andrews, a

detective employed with the City of Miami Police

Department, arrived at the scene of the crash and initiated

SPECIAL MASTERÓS FINAL REPORT Î SB 342 (2011)

February 18, 2011

Page 3

an accident investigation. During the investigation, Officer

Thompson advised Detective Andrews t hat Ms. Ibarra had

failed to stop at the red light and that he was unable to avoid

the accident. However, Officer Thompson failed to mention

that he was needlessly exceeding the speed limit at the time

of the crash. Based upon t he incomplete information in her

possession, Detective Andrews concluded that Ms. Ibarra

was solely at fault in the accident and issued her a citation

for running a red light.

During the e nsuing litigation between Mr. Mi e les' estate and

the City of North Miami, it was determined ( based upon data

from the patrol vehicle's "black box") that one second prior to

the crash, Officer Tho mpson was travel ing 61 MPH . As

noted above, the speed limit on Northwest 7th Street at the

accident location was 30 MPH .

A t t he time of his death, Mr. Mi e les had recently graduated

from high school and was working two jobs. In addition, he

had been accepted to Valencia Community College and was

scheduled to begin classes in January 2008. Mr. Mi e les,

who is survived by his moth er, stepfather, and two siblings,

was by all accounts a hard - working and well - liked young

man.

SPECIAL MASTERÓS FINAL REPORT Î SB 342 (2011)

February 18, 2011

Page 4

DIAGRAM:

LITIGATION HISTORY: On June 23, 2008, Maricelly Lopez, in her individual capacity

and as the personal representative of the estate of Omar

Mieles, filed a complaint for damages in Miami - Dade County

circuit court against the City of North Miami. The compl aint

alleged that Officer Thompson's operation o f his police

vehicle on November 11, 2007, was negligent, and that such

negligence was the di rect and proximate cause of Mr.

Mieles' death. In addition, the complaint allege d that Mr.

Mi e les ' estate sustained various damages, which included

medical and fu neral expenses, as well as lost earnings. The

complaint further asserted that Ms. Lopez sustained

damages in her individual capacity, such as the loss of past

and future support and services, past and future mental pain

and suffering, and loss of companio nship.

SPECIAL MASTERÓS FINAL REPORT Î SB 342 (2011)

February 18, 2011

Page 5

The matter subsequently proceeded to a jury trial, during

which the parties presented conflicting theories regarding the

cause of the accident. Specifically, the plaintiff contended

that Ms. Ibarra had properly stopped at the intersection and

that Officer Thompson was solely responsible for the

collision, while the City o f North Miami argued that Ms. Ibarra

had run the red light and was entirely at fault . In addition,

both sides presented conflicting expert testimony regarding

wh ether Mr. Mieles w ould have sus tained fatal injuries had

been wearing a seatbelt. In particular, the plaintiff's expert

opined that due to the location of the collision (the right rear

passenger's door of the Ford Focus) and its force, Mr. Mieles

would have been killed eve n if he had been properl y

restrained. In contrast , the City of Miami presented expert

testimony indicating that the use of a seatbelt would have

saved Mr. Mieles' life.

On March 19, 2010, the jury returned a verdict, in which it

determined that the C ity of North Miami and Ms. Ibarra were

negligent, and that each was 50 percent responsible for Mr.

Mi e les' death . The jury apportioned no fault to Mr. Mieles.

The jury further concluded that Mr. Mi e les' estate and Ms.

Lopez sustained the following damag es:

Damages to the Estate

$163, 950.15 for medical expenses.

$1,630 for funeral expenses.

Damages to Maricelly Lopez

$2,000 for loss of past support.

$40,000 for loss of future support.

$1,750,000 for past pain and suffering.

$1,750,000 for future pain and suffering.

Based on the jury's finding that the City of North Miami was

50 percent responsible, final judgment was entered ag ainst it

in the amount of $1,719 ,808.63 (this figure is comprised of

$1,688,195.10, which represents fifty percent of t he tota l

damages outlined above, minus various setoffs, plus costs of

$31,613.53).

No appeal of the final judgment was taken to the Third

District Court of Appeal.

SPECIAL MASTERÓS FINAL REPORT Î SB 342 (2011)

February 18, 2011

Page 6

The City of North Miami has tendered $108,571.30 against

the final judgment, leaving $1,611, 237.33 unpaid.

CLAIMANT'S POSITION : The City of North Miami is vicariously liable for the

negligence of Officer Thompson, which was the direct and

proximate cause of Omar Mi e les' death. The C laimant

further argues that Mr. Miles did nothing to contr ibute to his

death.

RESPONDENT'S POSITION: The City of North Miami objects to any payment to the

Claimant through a claim bill. The City of Miami also

contends that Mr. Mi e les' catastrophic head injuries would

have been avoided had he been pro perly restrained by a

seat belt, and that the jury should not have apportioned any

fault to Officer Thompson.

CONCLUSIONS OF LAW: Like any motorist, Officer Thompson had a duty to operate

his patrol vehicle with consideration for the safety of other

drivers. Pedigo v. Smith , 395 So. 2d 615, 616 (Fla. 5th DCA

1981). Specifically, Officer Thompson owed a duty to

observe the 30 MPH po sted speed limit and to use caution

(as directed by the yellow flashing light) as he entered the

intersection. See § 316.076 (1)(b), Fla. Stat. (2007) ("When

a yellow lens is illuminated with rapid intermittent flashes,

drivers of vehicles may proceed thro ugh the intersection or

past such signal only with caution."); § 316.183 (2) , Fla. Stat.

(2007) ( "On all streets or highways, the maximum speed

limits for all vehicles must be 30 miles per hour in business .

. . districts"). By entering the intersection at 61 MPH , Officer

Thompson breached his duty of care, which was a di rect and

proximate cause of Mr. Mi e les' death.

The City of North Miami, as Officer Thompson's employer, is

liable for his negligent act. Mercury Motors Express v.

Smith , 393 So. 2d 545, 549 (Fla. 1981) (holding that an

employer is vicariously liable for compensatory damages

resulting from the negligent acts of employees committed

within the scope of their employment); see also Aurbach v.

Gallina , 753 So. 2d 60, 62 (Fla. 2000) (holding th at the

dangerous instrumentality doctrine "imposes strict vicarious

liability upon the owner of a motor vehicle who voluntarily

entrusts that motor vehicle to an individual whose negligent

operat ion causes damage to another") .

SPECIAL MASTERÓS FINAL REPORT Î SB 342 (2011)

February 18, 2011

Page 7

As discussed above, the jury determined tha t Officer

Thompson and Ms. Ibarra , based upon the negligent

operation of their respective vehicles, were equ ally at fault in

this tragic event. Further, in apportioning no fault to Mr.

Mi e les, the jury presumably found that Mr. Mi e les would

have been killed in the collision even if he had been properly

restrained. These conclusions are reasonable and will not

be disturbed by the undersigned. The undersigned also

concludes that the damages awarded by the jury were

appropriate.

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

matter.

ATTORNEYS FEES: The Claimant's attorneys have agreed to limit their fees to 25

percent of any amount awarded by the Legislature in

compliance with section 768.28(8), Florida Statutes.

Lobbyist's fees are included with the attorney's fees.

FISCAL IMPACT : As the City of North Miami is self - insured, its general funds

would be used to satisfy the instant claim bill. At present,

the City of North Miami has $252,000 available i n a claims

payment account, as well as $538,000 in a risk management

reserve account.

COLLATERAL SOURCES : Prior to the litigation against the City of North Miami, the

Claimant recover ed the bod ily injury limits from Ms. Ibarra's

GEICO policy in the amount of $10,000, as well as $10,000

from the Claimant's underinsured motorist coverage.

SPECIAL ISSUES: As it is presently drafted, Senate Bill 342 erroneously

provides that a final judgment was entered against the City

of No rth Miami for $1,719,808, and that Respondent has

paid $108,571, leaving a balance of $1,611,237. The bill

should be amended to reflect that the correct amount of the

final judgment is $1,71 9.808.63, against which Respondent

has paid $ 108,571.30, leaving $1,611, 237.33 unpaid.

The undersigned further recommends that Senate Bill 342

be amended to clarify that the City of North Miami and Ms.

Ibarra were each apportioned 50 percent of the liability for

Mr. Mieles' death.

SPECIAL MASTERÓS FINAL REPORT Î SB 342 (2011)

February 18, 2011

Page 8

RECOMMENDATIONS : For the reasons set forth above, the undersigned

recommends that Senate Bill 342 (2011) be reported

FAVORABLY, as amended.

Respectfully submitted,

Edward T. Bauer

Senate Special Master

cc: Senator Greg Evers

R. Philip Twogood , Secretary of the Senate

Counsel o f Record

Attachment

Florida Senate - 2011 SPECIAL MASTER AMENDMENT

Bill No. SB 342

Ì921478HÎ 921478

LEGISLATIVE ACTION

Senate . House

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The Special Master on Claim Bills recommended the following:

1 Senate Amendment

2

3 In title, delete lines 42 - 46

4 and insert:

5 WHEREAS, the jury apportioned 50 percent of the

6 responsibility for the death of Omar Mieles to the City of North

7 Miami, and the remaining 50 percent to the driver of the vehicle

8 in which Omar Mieles was traveling as a passenger, and

9 WHEREAS, a final judgment was entered against the City of

10 North Miami for $1,719,808.63, against which the city has paid

11 $108,571.30, leaving a balance of $1,611,237.33 for which

12 Maricelly Lopez seeks satisfaction, NOW, THEREFORE,

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