11-004096CB In Re: Senate Bill 38 (Donald Brown) 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

12 /0 2 /11 SM Fav / 1 amendment

December 2, 2011

The Honorable Mike Haridopolos

President, The Florida Senate

Suite 409, The Capitol

Tallahassee, Florida 32399 - 1100

Re : SB 38 (2012) Î Senator Rene Garcia

Relief of Donald Brown

SPECIAL MASTERÓS FINAL REPORT

THIS IS A CONTESTED EXCESS JUDGMENT CLAIM FOR

$2,551,375.83 OF LOC AL MONEY BASED ON A JURY

AWARD FOR DONALD BRO WN AGAINST THE SUMTE R

COUNTY SCHOOL BOARD TO COMPENSATE CLAIMA NT

FOR PERMANENT INJURI ES HE SUF FERED IN A

COLLISION WITH A SCH OOL BUS OWNED AND

OPERATED BY THE SUMT ER COUNTY SCHOOL

BOARD.

FINDINGS OF FACT: In the early morning of October 18, 2 004, Donald Brown was

driving his motorcycle to work, traveling east on County

Road 470. He had his head light on, and was not speeding.

Directly in front of him was a Lincoln Town C ar. As the y

approached the intersection with County Road 475, the

Lincoln Town C ar turned right, onto County Road 475. Mr.

Brown next saw a school bus, driven by Patsy Foxworth , pull

out in front of him. Ms. Foxworth had been stopped at a stop

sign on County Road 475 , preparing to turn left onto County

Road 470. When she pulled the bus out onto County Road

470, Mr. Brown had just enough time to lay his motorcycle

down, and slide into the front of the school bus. He suffered

a traumatic , below - the - knee amputation of his right l eg.

SPECIAL MASTERÓS FINAL REPORT Î SB 38 (2012)

December 2, 2011

Page 2

In order to save Mr. Brown's knee, tend to his injury, perform

skin grafts, and treat ulcers, the doctors operated multiple

times on Mr. Brown . One such procedure transplanted

muscle from Mr. B rownÓs back to his right leg , in order to

provide skin c overage for the prosthetic leg he had to learn

to use.

After the jury trial, Mr. Brown underwent two more surgeries,

ultimately resulting in an above - the - knee amputation. He will

continue to need constant medical monitoring, as well as

adjustment and rep lacement of his prosthe sis . At the time of

the trial, the jury was presented with evidence as to the cost

of a prosthetic leg for a below - the - knee amputation , but his

prosthetic device is now more expensive, as it involves an

above the knee amputation .

At the time of the collision, Mr. Brown was 38 years old, and

employed a s a federal correct ions officer, earning $40,788

annually. As a result of his injury, he was awarded federal

retirement disability benefits and health insurance . He

received 60 percent of his income for the first year, and will

receive 40 percent of his income until he reaches retirement

age . Mr. Brown is currently 45 years old. Since the collision,

Mr. Brown has been employed as a marketing

representative, landscaper, a clerk a t Wal - Mart, and a

fingerprint analyst for the State of Kentucky. His current

earnings, combined with his federal disability benefits, are

higher than his pre - injury earnings.

All of Mr. BrownÓs medical bills have been paid by his federal

health insuran ce , through Blue Cross and Blue Shield. His

yearly deductible is $5,000 . He will continue to receive this

health insurance benefit until he reaches retirement age, at

which point he will be eligible for Medicare.

LITIGATION HISTORY: In 2005, Mr. Brow n brought a lawsuit against the Sumter

County School Board. In November, 2008, after a trial, the

jury found the School Board liable for Mr. BrownÓs injuries

and awarded him damages in the amount of $2,941,240.60.

The jury found that the School Board was 100 percent

negligent in causing Mr. BrownÓs injuries, and awarded the

following in damages:

SPECIAL MASTERÓS FINAL REPORT Î SB 38 (2012)

December 2, 2011

Page 3

Pas t medical expenses: $421,963

Past lost earnings: $92,690

Futur e medical expenses: $972,730

Future lost earnings : $554,000

Past pain and suffering: $630, 00

Future pain and suffering: $270,000

The jury was unaware of Mr. BrownÓs health insurance, and

of his federal disability benefits. The circuit judge entered a

final judgment reducing the final verdict to $2,651,375.83

(offsetting the amount of medical bills that had been paid by

the time of the trial, $229,613.77 , and the federal disability

benefits that had been paid at the time of trial, $60,251.00)

plus taxable costs of $31,674.12. The School Board

appealed the fi nal judgment in March 2009. The Fifth

District Court of Appeal affirmed the judgment in February

2011. In August 2011, the School Board paid Mr. Brown

$100,000 .

CLAIMANTÓS POSITION: Ms. Foxworth was 100 percent negligent in failing to yield to

oncoming traffic. The School Board is vicariously liable for

the negligence of its employee. At the claim bill hearing, Mr.

BrownÓs attorneys reduced the amount they are seeking

through this claim bill to $2,000,000 .

S CHOOL BOARD 'S POSITION: Mr. Brown failed to exercise due care for his own safety by

riding his motorcycle too closely to the rear of the Lincoln

Town Car, and therefore contributed to the collision and to

his injury. The School Board is opposed to this cl aim bill.

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, whethe r the Sumter County School

Board was liable in neglig ence for the injuries suffered by

Mr. Brown, and, if so, whether the amount of the claim is

reasonable.

Ms. Foxworth had a duty to operate the bus at all times with

consideration for the safety of pedestrians and other drivers.

Pedigo v. Smith , 395 So. 2d 615, 616 (Fla. 5th DCA 1981) .

Specifically, it was Ms. Foxworth 's duty to observe and y ield

to Mr. Brown Ós motorcycle as it approached the intersection.

See § 316.123(2)(a), Fla. Stat. (2004 ) ("[E]very driver of a

vehicle approaching a stop intersection indicated by a stop

sign s hall stop at a clearly marked stop line. After having

SPECIAL MASTERÓS FINAL REPORT Î SB 38 (2012)

December 2, 2011

Page 4

stopped, the driver shall yield the right - of - way to any vehicle

which has entered the intersection from another highway").

Ms. Foxworth breached this duty of care, and the breach

was the proximate caus e of Mr. BrownÓ s injuries.

The Sumter County School Board , as Ms. FoxworthÓs

employer, is liable for her negligent act. Hollis v. Sch. Bd. of

Leon Cnty. , 384 So. 2d 661, 665 (Fla. 1st DCA 1980)

(holding that a school board is liable for any negligent ac t

committed by a public school bus driver whom it employs,

provided the act is within the scope of the driver's

employment); see also Aurbach v. Gallina , 753 So. 2d 60, 62

(Fla. 2000) (holding that the dangerous instrumentality

doctrine "imposes strict vic arious liability upon the owner of a

motor vehicle who voluntarily entrusts that motor vehicle to

an individual whose negligent operat i on causes damage to

another").

The juryÓs allocation of 100 percent liability to the School

Board is a reasonable allocation and should not be

disturbed. However, the payment of a claim bill is a matter

of legislative grace. Since Mr. BrownÓs m edical bills have all

been paid , and will continue to be paid through his fed eral

health insurance , it is unreasonable for the Legislature to

compensate Mr. Brown for any medical costs. The evidence

also establishes Mr. BrownÓs employability, and his

entitlement, until retirement age, to federal disability benefits.

His current i ncome is more than his pre - injury income.

Accordingly, it is unreasonable for the Legislature to

compensate Mr. Brown for future lost wages.

Given the traumatic nature of the injury, and the change to

his lifestyle, Mr. Brown has endured significant pain and

suffering. The juryÓs award of past and future pain and

suffering is reasonable and fair. Adding the amount of past

lost wages, which is $32,439 , to the amounts awarded for

past and future pain and su ffering, which total $900,000 ,

results i n a figur e of $932,439 . Reducing this amount by the

$100,000 already paid to Mr. Brown, woul d leave a balance

of $832,439 . This is the amount that I recommend be paid. I

also recommend that the claim bill be amended to reflect

that the amount paid to Mr. Brown is to compensate him only

for lost wages and for pain and suffering .

SPECIAL MASTERÓS FINAL REPORT Î SB 38 (2012)

December 2, 2011

Page 5

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

matter.

ATTORNEYS FEES AND The ClaimantÓs attorneys have agreed to limit their fees and

LOBBYIST FEES : and lobbyist fees to 25 percent of any amount awarded by

the Legislature in compliance with s. 768.28(8), Florida

Statutes.

SOURCE OF FUNDS: If Senate Bill 38 is approved, the Sumter County School

Board will pay the claim from local funds. Sumter County

School Boa rd is a member of Preferred Governmental

Insurance Trust, a governmental self - insured trust.

SPECIAL ISSUES: Senate Bill 38 (2012) is no longer accurate, as it states that

the School Board has not paid $100,000 pursuant to

sovereign immunity limits set forth in s. 768.28, Florida

Statutes. The School Board has paid that amount to Mr.

Brown.

RECOMMENDATIONS: For the reasons set forth above, the undersigne d

recommends that Senate Bill 38 (2012) be reported

FAVORABLY , as amended.

Respectfully submitted,

Jessica Enciso Varn

Senate Special Master

cc: Senator Rene Garcia

Debbie Brown , Interim Secretary of the Senate

Counsel of Record

Attachment

Florida Senate - 2012 SPECIAL MASTER AMENDMENT

Bill No. SB 38

Ì101392ÉÎ 101392

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 line 104

4 and insert:

5 to Donald Brown , in the amount of $ 2,551,375.83, plus the

6

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

8 And the title is amended as follows:

9 Delete lines 33 - 41

10 and insert:

11 WHEREAS, Donald Brown seeks to recover damages for his

12 bodily injury , including a permanent injury to the

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Florida Senate - 2012 SPECIAL MASTER AMENDMENT

Bill No. SB 38

Ì101392ÉÎ 101392

13 body as a whole, past and future pain and suffering of

14 both a physical and mental nature, disability,

15 physical impairment, disfigurement, mental angui sh,

16 inconvenience, loss of capacity for the enjoyment of

17 life, loss of earnings, and loss of ability to lead

18 and enjoy a normal life, and

19

20 Delete lines 91 - 95

21 and insert:

22 WHEREAS, the District School Board of Sumter County

23 has paid $100,00 0 pursuant to the statutory limits of

24 liabi lity set forth in s. 768.28 , Florida Statutes ,

25 andWHEREAS, the $2, 5 51,375.83 judgment is sought

26 through the submission of a claim bill to the

27 Legislature , NOW, THEREFORE,

28

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