Bill Text: FL S0042 | 2011 | Regular Session | Introduced

NOTE: There are more recent revisions of this legislation. Read Latest Draft

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Bill Title: Relief/Eric Brody/Broward County Sheriff's Office

Spectrum: Slight Partisan Bill (Republican 2-1)

Status: (Engrossed - Dead) 2011-05-07 - Indefinitely postponed and withdrawn from consideration [S0042 Detail]

Download: Florida-2011-S0042-Introduced.html

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       Florida Senate - 2011                              (NP)    SB 42
       
       
       
       By Senator Negron
       
       
       
       
       28-00017A-11                                            201142__
    1                        A bill to be entitled                      
    2         An act for the relief of Eric Brody by the Broward
    3         County Sheriff’s Office; providing for an
    4         appropriation to compensate Eric Brody for injuries
    5         sustained as a result of the negligence of the Broward
    6         County Sheriff’s Office; authorizing the Sheriff of
    7         Broward County, in lieu of payment, to execute to Eric
    8         Brody and his legal guardians an assignment of all
    9         claims that the Broward County Sheriff’s Office has
   10         against its insurer arising out of the insurer’s
   11         handling of the claim against the sheriff’s office;
   12         clarifying that such assignment does not impair the
   13         ability or right of the assignees to pursue the final
   14         judgment and cost judgment against the insurer;
   15         providing a limitation on the payment of fees and
   16         costs related to the claim against the Broward County
   17         Sheriff’s Office and an exception to that limitation
   18         as to any assigned claims brought against the insurer;
   19         providing an effective date.
   20  
   21         WHEREAS, on the evening of March 3, 1998, 18-year-old Eric
   22  Brody, a college-bound high school senior, was returning home
   23  from his part-time job at the Sawgrass Mills Sports Authority.
   24  Eric was driving his 1982 AMC Concord eastbound on Oakland Park
   25  Boulevard in Sunrise, Florida, and
   26         WHEREAS, that same evening, Broward County Sheriff’s Deputy
   27  Christopher Thieman, who had been visiting his girlfriend and
   28  was running late for duty, was driving his Broward County
   29  Sheriff’s Office cruiser westbound on Oakland Park Boulevard. At
   30  the time he left his girlfriend’s house, Deputy Thieman had less
   31  than 15 minutes to travel 11 miles to make roll call on time,
   32  which was mandatory pursuant to sheriff’s office policy and
   33  procedure, and
   34         WHEREAS, at approximately 10:36 p.m., Eric Brody began to
   35  make a left-hand turn into his neighborhood at the intersection
   36  of N.W. 117th Avenue and Oakland Park Boulevard. Deputy Thieman,
   37  who was driving in excess of the 45-mile-per-hour posted speed
   38  limit and traveling in the opposite direction, was not within
   39  the intersection and was more than 430 feet away from Eric
   40  Brody’s car when Eric Brody began the turn. Eric Brody’s car
   41  cleared two of the three westbound lanes on Oakland Park
   42  Boulevard, and
   43         WHEREAS, Deputy Thieman, who was traveling in the inside
   44  westbound lane closest to the median, suddenly and inexplicably
   45  steered his vehicle to the right, across the center lane and
   46  into the outside lane, where the front end of his car struck the
   47  passenger side of Eric’s car with great force, just behind the
   48  right front wheel and near the passenger door, and
   49         WHEREAS, Deputy Thieman testified at trial that although he
   50  knew that the posted speed limit was 45 miles per hour, he
   51  refused to provide an estimate as to how fast he was traveling
   52  before the crash, and
   53         WHEREAS, despite the appearance of a conflict of interest,
   54  the Broward County Sheriff’s Office chose to conduct the
   55  official crash investigation instead of deferring to the City of
   56  Sunrise Police Department, which also had jurisdiction, or the
   57  Florida Highway Patrol (FHP), which often investigates motor
   58  vehicle collisions involving non-FHP law enforcement officers so
   59  as to avoid any possible conflict of interest, and
   60         WHEREAS, in the course of the investigation, the Broward
   61  County Sheriff’s Office lost key evidence from the crashed
   62  vehicles and did not report any witnesses even though the first
   63  responders to the crash scene were police officers from the City
   64  of Sunrise, and
   65         WHEREAS, the Broward County detective who led the crash
   66  investigation entered inaccurate data into a computerized
   67  accident reconstruction program which skewed the speed that
   68  Deputy Thieman was driving, but, nevertheless, determined that
   69  he was still traveling well over the speed limit, and
   70         WHEREAS, accident reconstruction experts called by both
   71  parties testified that Deputy Thieman was driving at least 60 to
   72  more than 70 miles per hour when his vehicle slammed into the
   73  passenger side of Eric Brody’s car, and
   74         WHEREAS, Eric Brody was found unconscious 6 minutes later
   75  by paramedics, his head and upper torso leaning upright and
   76  toward the passenger-side door. Although he was out of his
   77  shoulder harness and seat belt by the time paramedics arrived,
   78  the Brody’s attorney proved that Eric was wearing his seat belt
   79  and that the 16-year-old seat belt buckle failed during the
   80  crash. Photographs taken at the scene by the sheriff’s office
   81  investigators showed the belt to be fully spooled out because
   82  the retractor was jammed, with the belt dangling outside the
   83  vehicle from the driver-side door, providing proof that Eric
   84  Brody was wearing his seat belt and shoulder harness during the
   85  crash, and
   86         WHEREAS, accident reconstruction and human factor experts
   87  called by both the plaintiff and the defendant agreed that if
   88  Deputy Thieman been driving at the speed limit, Eric Brody would
   89  have easily completed his turn, and
   90         WHEREAS, the experts also agreed that if Deputy Thieman
   91  simply remained within his lane of travel, regardless of his
   92  speed, there would not have been a collision, and
   93         WHEREAS, in order to investigate the seat-belt defense,
   94  experts for Eric Brody recreated the accident using an exact
   95  car-to-car crash test that was conducted by a nationally
   96  recognized crash test facility. The crash test involved vehicles
   97  identical to the Brody and Thieman vehicles, a fully
   98  instrumented hybrid III dummy, and high-speed action cameras,
   99  and
  100         WHEREAS, the crash test proved that Eric Brody was wearing
  101  his restraint system during the crash because the seat-belted
  102  test dummy struck its head on the passenger door within inches
  103  of where Eric Brody’s head actually struck the passenger door,
  104  and
  105         WHEREAS, when Eric Brody’s head struck the passenger door
  106  of his vehicle, the door crushed inward from the force of the
  107  impact with the police cruiser while at the same time his upper
  108  torso was moving toward the point of impact and the passenger
  109  door. The impact resulted in skull fractures and massive brain
  110  sheering, bleeding, bruising, and swelling, and
  111         WHEREAS, Eric Brody was airlifted by helicopter to Broward
  112  General Hospital where he was placed on a ventilator and
  113  underwent an emergency craniotomy and neurosurgery. He began to
  114  recover from a deep coma more than 7 months after his injury and
  115  underwent extensive rehabilitation, having to relearn how to
  116  walk, talk, feed himself, and perform other basic functions, and
  117         WHEREAS, Eric Brody, who is now 30 years old, has been left
  118  profoundly brain-injured, lives with his parents, and is mostly
  119  isolated from his former friends and other young people his age.
  120  His speech is barely intelligible and he has significant
  121  cognitive dysfunction, judgment impairment, memory loss, and
  122  neuro-visual disabilities. Eric Brody also has impaired fine and
  123  gross motor skills and very poor balance. Although Eric is able
  124  to use a walker for short distances, he mostly uses a wheelchair
  125  to get around. The entire left side of his body is partially
  126  paralyzed and spastic, and he needs help with many of his daily
  127  functions. Eric Brody is permanently and totally disabled;
  128  however, he has a normal life expectancy, and
  129         WHEREAS, the cost of Eric Brody’s life care plan is nearly
  130  $10 million, and he has been left totally dependent on public
  131  health programs and taxpayer assistance since 1998, and
  132         WHEREAS, the Broward County Sheriff’s Office was insured
  133  for this claim through Ranger Insurance Company and paid more
  134  than $400,000 for liability coverage that has a policy limit of
  135  $3 million, and
  136         WHEREAS, Ranger Insurance Company ignored seven demand
  137  letters and other attempts by the Brodys to settle the case for
  138  the policy limit, and instead chose to wait for more than 7
  139  years following the date of the accident until the day the trial
  140  judge specially set the case for trial before offering to pay
  141  the policy limit. By that time nearly $750,000 had been spent
  142  preparing the case for trial, and Eric Brody had past due bills
  143  and liens of nearly $1.5 million for health and rehabilitative
  144  care services. Because so much money had been spent preparing
  145  the case for trial, the exhorbitant costs of Eric Brody’s
  146  medical bills and liens, and the costs of future care continued
  147  to escalate, settlement for the policy limit was no longer
  148  feasible, and
  149         WHEREAS, on December 1, 2005, after a 2-month trial, a
  150  Broward County jury consisting of three men and three women
  151  found that that Deputy Thieman and the Broward County Sheriff’s
  152  Office were 100 percent negligent, and Eric Brody was not
  153  comparatively negligent, and
  154         WHEREAS, the jury found Eric Brody’s damages to be
  155  $30,690,000, including a determination that his past and future
  156  care and other economic damages were $11,326,216, and
  157         WHEREAS, final judgment was entered for $30,690,000, and
  158  the court entered a cost judgment for $270,372.30, for a total
  159  of $30,960,372.30, and
  160         WHEREAS, the court denied the Broward County Sheriff’s
  161  Office posttrial motions for judgment notwithstanding the
  162  verdict, new trial, or remittitur, and
  163         WHEREAS, the insurer of the Broward County Sheriff’s Office
  164  retained appellate counsel and elected to appeal the final
  165  judgment but not the cost judgment, and
  166         WHEREAS, the Fourth District Court of Appeal upheld the
  167  verdict in the fall of 2007, and
  168         WHEREAS, the insurer of the Broward County Sheriff’s Office
  169  subsequently petitioned the Florida Supreme Court to seek
  170  another appeal, but the petition was denied in April of 2008,
  171  and
  172         WHEREAS, all legal remedies for all parties involved have
  173  been exhausted and this case is ripe for a claim bill, and
  174         WHEREAS, upon the passage of a claim bill for any amount in
  175  excess of the insurance policy limit of $3 million, the Broward
  176  County Sheriff’s Office may have a cause of action pursuant to
  177  state law against its insurer for bad-faith-claims practices,
  178  breach of fiduciary duty, breach of contract, and other possible
  179  legal remedies which may result in a recovery from the insurer
  180  to pay all outstanding sums owed to the guardianship of Eric
  181  Brody, and
  182         WHEREAS, the Broward County Sheriff’s Office has paid
  183  $200,000 pursuant to s. 768.28, Florida Statutes, and the final
  184  judgment and cost judgment remainder in the amount of
  185  $30,760,372.30 is sought through the submission of a claim bill
  186  to the Legislature, and
  187         WHEREAS, Eric Brody is willing to accept an assignment of
  188  all claims the Broward County Sheriff’s Office may have against
  189  its insurer in lieu of the sheriff’s office making any payment
  190  on this claim, and
  191         WHEREAS, if the Broward County Sheriff’s Office assigns all
  192  of its claims against its insurer to Eric Brody, he will not
  193  hold the sheriff’s office responsible for any payment, NOW,
  194  THEREFORE,
  195  
  196  Be It Enacted by the Legislature of the State of Florida:
  197  
  198         Section 1. The facts stated in the preamble to this act are
  199  found and declared to be true.
  200         Section 2. The Sheriff of Broward County is authorized and
  201  directed to appropriate from funds of the Broward County
  202  Sheriff’s Office not otherwise appropriated and to draw a
  203  warrant payable to Eric Brody in the sum of $30,760,372.30, or
  204  all amounts that remain unpaid in accordance with the final
  205  judgment and cost judgment as provided for in the preamble of
  206  this act. In lieu of payment, the Sheriff of Broward County may
  207  assign to Eric Brody and his legal guardians all rights it may
  208  have against its liability insurance carrier for breach of
  209  contract, breach of fiduciary duty, bad faith, and any similar
  210  or related claims that may exist pursuant to state law. If the
  211  Sheriff of Broward County makes an assignment to the claimant as
  212  provided for in this section, the Broward County Sheriff’s
  213  Office is not responsible for any further payment to the
  214  claimant.
  215         Section 3. If the Sheriff of Broward County makes the
  216  assignment permitted under section 2 of this act, the protection
  217  given to the Broward County Sheriff’s Office does not impair in
  218  any respect the ability or right of the assignees to pursue the
  219  final judgment and cost judgment against the insurer of the
  220  Broward County Sheriff’s Office, less the $200,000 already paid,
  221  pursuant to state law.
  222         Section 4. The amount paid by the Broward County Sheriff’s
  223  Office pursuant to s. 768.28, Florida Statutes, and the amount
  224  awarded under this act are intended to provide the sole
  225  compensation for all claims against the Broward County Sheriff’s
  226  Office arising out of the facts described in this act which
  227  resulted in the injuries to Eric Brody. The total amount of
  228  attorney’s fees, lobbying fees, costs, and other similar
  229  expenses relating to the claim against the Broward County
  230  Sheriff’s Office may not exceed 25 percent of the total amount
  231  awarded under sections 2 and 3 of this act. Any attorney’s fees,
  232  costs, and related expenses awarded by a court or earned
  233  pursuant to the prosecution of an assigned claim are not limited
  234  by this section and shall be earned in accordance with state
  235  law.
  236         Section 5. This act shall take effect upon becoming a law.