11-004074CB In Re: Senate Bill 4 (Eric Brody) vs. * Status: Closed Settled and/or Dismissed prior to entry of RO/FO on Wednesday, March 28, 2012.

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

11 /1/11 SM F av / 1 amendment

RC

November 1, 2011

The Honorable Mike Haridopolos

President, The Florida Senate

Suite 409, The Capitol

Tallahassee, Florida 32399 - 1100

Re : SB 4 (201 2 ) Î Senator Lizbeth Benacquisto

Relief of Eric Brody

SPECIAL MASTERÓS FINAL REPORT

THIS IS A CONTESTED EXCESS JUDGMENT CLAI M FOR

$ 15 , 575 , 021.30 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 Mar ch 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 c ruiser driven

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 o f the 45 MPH 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 frac ture. Eric was

airlifted to Broward General Hospital where he underwent an

SPECIAL MASTERÓS FINAL REPORT Î SB 4 (2012)

November 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 weeks

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 2 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 . Eric's mother believes his judgment has also 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 MASTERÓS FINAL REPORT Î SB 4 (2012)

November 1, 2011

Page 3

by belted drivers in side impact collisions. Therefore, EricÓs

injury is consistent with the claim that he was wearing his

seatbelt at th e 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 Oak land 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. 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

and , in any event, Thieman could have avoided the collision

by continuing strai g ht ahead . T he manner in which Deputy

Thieman maneuvered hi s vehicle was unreasonable under

the circumstances and that it was a contributing cause of the

collision.

Deputy Thieman 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 payments of approximately $560 each

month. He also received some vocational rehabilitation

assistance which paid for a wheelchair ramp a nd some other

modifications at his home.

Eric has a normal 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 his future care

would cost $5 to $7 million.

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

SPECIAL MASTERÓS FINAL REPORT Î SB 4 (2012)

November 1, 2011

Page 4

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

Thiema n was negligent and that his negligence was the sole

cause of EricÓs damages. The jury 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. Post - trial motions for new trial an d

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 ha ve not been deducted. E ric Brody has

received nothing to date.

CONCLUSIONS OF LAW: The claim bill 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 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

a nd 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 s how 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 D eputy ThiemanÓs

unreasonable actions in speeding and swerving to the right.

I believe the jury acted reasonably 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 , Ranger Insurance Company acted in bad faith by

failing to timely tender its $3 million coverage in this matter

and, therefore, the insurer is liable for the entire judgment

against the BCSO . However, because the insurer was not a

party to th e Senate claim bill proceeding, and because the

SPECIAL MASTERÓS FINAL REPORT Î SB 4 (2012)

November 1, 2011

Page 5

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.

Modification of the Claim

S B 42 (2011) , which passed the Senate, but not the House

of Representatives, require d the BCSO to pay the $3 1

million claim, but state d that, in lieu of payment, the BCSO

could assign its bad faith claim against its insurer to the

Brodys and, if it assign ed its claim, the BCSO was not

required to pay the $3 1 million. The BCSO and the Brodys

entered into an agreement in which the BSCO agree d to

assign its bad faith claim against its insurer to Brody in

exchange for the Brodys' release of liability against the

BCSO , but the Brodys have not yet executed the release of

liability .

This year , SB 4 reduces the claim amount to about $15. 6

m illion. The bill makes no mention of an option for the

BCSO to avoid payment of the $15.6 m ill ion by assigning its

bad faith claim to the Brodys, but that o ption app ears to be

presumed.

Ranger Insurance Company object s to SB 4, claiming that it

is "an unconstitutional bad faith litigation authorization bill"

masquerading as a claim bill . I do no t agree that SB 4

authoriz es the bad faith litigation. The authority for the bad

faith claim and for the assignment of the claim exists

independent of Senate action. There is no legal precedent

which assists in analyzing this issue. However, I do not see

a constitutional bar to the Senate's passage of a claim bill

that orders a respondent to pay a claim that might be (or is

even expected to be ) resolved by a release of the

respondent's liability by the claimant for valuable

consideration . If Ranger In surance Company is right , that

the BCSO cannot avoid paying the claim via its agreement

with th e Brodys , then Eric Brody will be paid by the BCSO as

provided by SB 4.

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 MASTERÓS FINAL REPORT Î SB 4 (2012)

November 1, 2011

Page 6

SPECIAL ISSUES : In my report for SB 42 (2011) , I urged the Senate to

consider the unusual size of th e claim bill ( about $31 million )

and the substantial fiscal burde n that would be associated

with the LegislatureÓs regular passage of $10, $20, and $30

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

local governments . I suggested tha t a balance should be

struck between the principle of sovereign immuni ty and the

principle of fair compensation , and recommended that the

a ward be reduced to $15 million. It is still my

recommendation that the award should not exceed $15

million, to avoid a precedent for the escalation of claims.

On page 5 of SB 4 is a whe reas clause setting forth

allegations related to the bad faith claim. Because the bad

faith claim was outside the scope of the claim bill hearing

and no findings of fact or conclusions of law were made

regarding that claim, SB 4 should be amended to delet e the

whereas clause.

Section 4 of SB 4 directs that half of the State's lien interests

will not be waived and that the Claimant's guardianship shall

reimburse the state for half of the expenses of Medicaid,

Medicare, or the Agency for Health Care Adminis tration.

The settlement of lien interests can be a complex matter and

is normally not addressed in a claim bill. The settlement of

lien interests is negotiable, but is subject to the requirements

of federal law. The outcome cannot be dictated by a state .

SB 4 should be amended to delete Section 4.

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

Bill 4 (201 2 ) be reported FAVORABLY , as amended .

Respectfully submitted,

Bram D. E. Canter

Senate Special Master

cc: Senator Lizbeth Benacquisto

Debbie Brown , Secretary of the Senate

Counsel of Record

Attachment

Florida Senate - 2012 SPECIAL MASTER AMENDMENT

Bill No. SB 4

Ì591722!Î 591722

LEGISLATIVE ACTION

Senate . House

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The Special Master on Claim Bills recommended the following:

1 Senate Amendment ( with title amendment )

2

3 Delete lines 178 - 180

4 and insert:

5 warrant payable to the Guardianship of Eric Brody in the sum of $ 15,000,000

6

7 Delete lines 191 - 199 .

8

9 ================= T I T L E A M E N D M E N T ================

10 And the title is amended as follows:

11

12 Delete lines 129 - 141 .

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Florida Senate - 2012 SPECIAL MASTER AMENDMENT

Bill No. SB 4

Ì591722!Î 591722

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