Bill Text: FL S0068 | 2010 | Regular Session | Introduced
Bill Title: Relief/Eric Brody/Broward County Sheriff's Office
Spectrum: Partisan Bill (Republican 1-0)
Status: (Failed) 2010-04-30 - Died in Committee on Criminal Justice [S0068 Detail]
Download: Florida-2010-S0068-Introduced.html
Florida Senate - 2010 (NP) SB 68 By Senator Fasano 11-00200A-10 201068__ 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 to execute an assignment to the legal 8 guardians of Eric Brody of all claims that the Broward 9 County Sheriff’s Office has against its insurer 10 arising out of its handling of the claim against the 11 sheriff’s office; providing that the Broward County 12 Sheriff’s Office has a complete and absolute covenant 13 on the part of Eric Brody and his legal guardians to 14 never enforce the act, any award pursuant to the act, 15 or the Brody’s final judgment and cost judgment 16 against the Broward County Sheriff’s Office under 17 certain circumstances; requiring the legal guardians 18 to execute a satisfaction and release under certain 19 conditions; providing legislative intent to permit the 20 prosecution of a bad faith claim; providing a 21 limitation on the payment of fees and costs and an 22 exception to that limitation; providing an effective 23 date. 24 25 WHEREAS, on the evening of March 3, 1998, 18-year-old Eric 26 Brody, a college-bound high school senior, was returning home 27 from his part-time job at the Sawgrass Mills Sports Authority. 28 Eric was driving his 1982 AMC Concord eastbound on Oakland Park 29 Boulevard in Sunrise, Florida, and 30 WHEREAS, that same evening, Broward County Sheriff’s Deputy 31 Christopher Thieman, who had just left his girlfriend’s house, 32 was driving his Broward Sheriff’s Office cruiser westbound on 33 Oakland Park Boulevard on his way to roll call and to begin his 34 shift at the Weston Station. At the time he had left the home of 35 his girlfriend, he had less than 15 minutes to travel 11 miles 36 in order to make roll call on time, which was mandatory pursuant 37 to sheriff’s office policy and procedure. The speed limit on 38 Oakland Park Boulevard was 45 miles per hour, and 39 WHEREAS, at approximately 10:36 p.m., Eric Brody began to 40 make a left-hand turn into his neighborhood at the intersection 41 of NW 117th Avenue and Oakland Park Boulevard. Deputy Thieman, 42 travelling in the opposite direction, was not within the 43 intersection, and was more than 430 feet away from Eric Brody’s 44 car when Brody began the turn. Eric’s car cleared two of the 45 three westbound lanes on Oakland Park Boulevard, and 46 WHEREAS, Deputy Thieman, who had been traveling in the 47 inside westbound lane closest to the median, suddenly and 48 inexplicably steered his vehicle to the right, across the center 49 lane and into the outside lane, where the front end of his car 50 struck the passenger side of Eric’s car, just behind the right 51 front wheel and near the passenger door, and 52 WHEREAS, Deputy Thieman testified at trial that although he 53 knew the posted speed limit was 45 miles per hour, he had no 54 idea how fast he was traveling before the crash. His employer, 55 the Broward Sheriff’s Office, conducted the official traffic 56 accident investigation and reported no witnesses. However, 57 accident reconstruction experts for the claimant and the 58 defendant testified that Deputy Thieman was driving between 60 59 and 70 miles per hour when he struck the passenger side of Eric 60 Brody’s car, and 61 WHEREAS, Eric Brody was found unconscious 6 minutes later 62 by paramedics, his head and upper torso leaning upright and 63 toward the passenger-side door. Although he was out of his 64 shoulder harness and seat belt by the time paramedics arrived, 65 photographs taken at the scene by sheriff’s office investigators 66 show the belt to be fully spooled out, because the retractor was 67 jammed, and the belt dangling outside the vehicle from the 68 driver-side door, providing proof of belt use during the crash, 69 and 70 WHEREAS, the interior of the right passenger door of Eric 71 Brody’s car had a dent and blood above the arm rest and below 72 the window due to the right side of Eric Brody’s head striking 73 the passenger-side door during the crash. At the time his head 74 hit the passenger door, the door was crushing inward from the 75 force of the impact with the police cruiser. The impact resulted 76 in skull fractures and massive brain sheering, bleeding, 77 bruising, and swelling, and 78 WHEREAS, Eric Brody was airlifted by helicopter to Broward 79 General Hospital where he was placed on a ventilator and 80 underwent an emergency craniotomy. He was in a coma for 6 months 81 and underwent extensive rehabilitation, having to relearn how to 82 walk and talk, and 83 WHEREAS, Eric Brody, who is now 28 years old, has been left 84 profoundly brain-injured, lives with his parents, and is 85 isolated from his former friends and other young people his age. 86 His speech is barely intelligible and he has significant 87 cognitive dysfunction, judgment impairment, memory loss, and 88 neuro-visual disabilities. Eric also has impaired fine and gross 89 motor skills and very poor balance. Although Eric is able to use 90 a walker for short distances, he must mostly use a wheelchair to 91 get around. The entire left side of his body is partially 92 paralyzed and spastic, and he needs help with many of his daily 93 functions. Eric is permanently and totally disabled. However, 94 Eric has a normal life expectancy, and 95 WHEREAS, among other counts, the Brodys alleged in their 96 lawsuit against the Broward County Sheriff’s Office that the 97 sheriff’s office, by and through its employee Deputy Thieman, 98 was negligent due to Deputy Thieman driving his vehicle well in 99 excess of the posted speed limit and suddenly and negligently 100 steering his vehicle into the path of Eric Brody’s vehicle, 101 causing the cruiser to hit the far side of Eric Brody’s vehicle, 102 and 103 WHEREAS, the Broward County Sheriff’s Office alleged that 104 Eric failed to yield the right-of-way and use his seat belt. 105 However, the accident reconstruction and human factor experts 106 called by both the plaintiff and the defendant testified that 107 Thieman’s excessive speed caused Brody to misjudge the time and 108 distance he had to clear the intersection, and that the fact 109 that Eric Brody’s restraint belt was spooled out and the 110 retractor jammed was prima fascia evidence of seat belt usage 111 during a high-speed, far-side impact. Had Deputy Thieman been 112 driving the speed limit, the experts agreed that Eric Brody 113 would have easily completed his turn. The experts also agreed 114 that even at his excessive speed, had Deputy Thieman simply 115 remained within his lane of travel, there would have been no 116 collision, and 117 WHEREAS, in order to investigate the seat belt defense, the 118 Brody’s experts re-created the accident by conducting an exact 119 car-to-car crash test, which was conducted by a nationally 120 recognized crash test facility. The crash test used vehicles 121 identical to the Brody and Thieman vehicles, a fully 122 instrumented hybrid III dummy, and high-speed action cameras. 123 The test demonstrated that because of the severity of the forces 124 of the crash, combined with the significant intrusion and 125 reduced occupant compartment where Eric Brody was seated, 126 Brody’s head would have made contact with some portion of the 127 interior of the vehicle regardless of whether he wore his 128 restraint system and that restraint system use could not have 129 prevented his injuries. Moreover, the crash test proved that 130 Eric Brody was, in fact, wearing his restraint system during the 131 crash because the test dummy, which was wearing its restraint 132 belts, struck its head on the passenger door within inches of 133 where Eric Brody’s head actually struck the passenger door, 134 providing further proof that Eric Brody was wearing his 135 restraint system at the instant the impact occurred, and 136 WHEREAS, on December 1, 2005, a Broward County jury made up 137 of three men and three women found that Deputy Thieman and the 138 Broward County Sheriff’s Office were 100 percent negligent and 139 Eric Brody was not comparatively negligent, and rendered a 140 $30,690,000 verdict in favor of the then 25-year-old Eric Brody, 141 which included $11,326,216 for past and future care and other 142 economic damages. The trial lasted almost 2 months, including a 143 2-week break due to Hurricane Wilma, and 144 WHEREAS, judgment was entered shortly after the jury 145 verdict for the full amount of $30,690,000, and the court 146 entered a cost judgment for $270,372.30, for a total judgment of 147 $30,960,372.30. The trial court denied the Broward County 148 Sheriff’s Office posttrial motions for judgment notwithstanding 149 the verdict, new trial, or remittitur. The Broward County 150 Sheriff’s Office appealed the final judgment but not the cost 151 judgment. The Fourth District Court of Appeal upheld the verdict 152 in the fall of 2007. The Broward County Sheriff’s Office 153 subsequently petitioned the Florida Supreme Court, which denied 154 the petition in April of 2008. Therefore, all legal remedies 155 have been exhausted and this case is ripe for a claim bill, and 156 WHEREAS, before the lawsuit was filed, the Brodys made a 157 demand for $3 million, which was the limit of the insurance 158 policy of the Broward County Sheriff’s Office, reiterated that 159 demand at mediation, and gave the carrier additional time after 160 mediation to pay the policy limit before the Brody’s attorneys 161 began the expense of preparing the case for trial. The insurance 162 carrier also ignored multiple demand letters and attempts by the 163 Brodys to settle the case for the policy limit and instead chose 164 to wait for more than 7 years, from the date of the accident 165 until the very day the trial judge specially set the case for 166 trial, before offering to pay the policy limit. By that time 167 nearly $750,000 had been spent preparing the case for trial and 168 Eric Brody had past bills and liens of nearly $1.5 million for 169 his health care costs. Because so much money had been spent 170 preparing the case for trial and Eric Brody’s medical bills, 171 liens, and Medicaid obligations continued to escalate, 172 settlement for the policy limit was no longer economically 173 feasible. By the time the trial was completed and appeals 174 resolved in favor of Eric Brody, another $350,000 had been spent 175 by the Brody’s lawyer, and 176 WHEREAS, the Sheriff of Broward County may have a valid 177 legal claim against his liability insurance carrier for bad 178 faith based in part on the multiple opportunities that the 179 insurance company had to settle the case within its policy 180 limits and protect its insured but instead unreasonably chose to 181 expose the Broward County Sheriff’s Office to an obligation to 182 pay in excess of its policy limit, and 183 WHEREAS, upon the passage of a claim bill for any amount in 184 excess of $3 million, the Broward County Sheriff’s Office may 185 have the right to initiate an action against its insurer for 186 bad-faith-claims practices and other remedies in order to 187 recover the entire amount of the claim bill, and 188 WHEREAS, the Broward County Sheriff’s Office has paid the 189 $200,000 allowed under s. 768.28, Florida Statutes, and the 190 final judgment and cost judgment remainder in the amount of 191 $30,760,372.30 is sought through the submission of a claim bill 192 to the Legislature, NOW, THEREFORE, 193 194 Be It Enacted by the Legislature of the State of Florida: 195 196 Section 1. The facts stated in the preamble to this act are 197 found and declared to be true. 198 Section 2. Except as provided in section 3 of this act, the 199 Sheriff of Broward County is authorized and directed to 200 appropriate from funds of the Broward County Sheriff’s Office 201 not otherwise appropriated and to draw a warrant payable to Eric 202 Brody in the sum of $30,760,372.30 as compensation for the 203 claimant’s injuries and damages sustained. 204 Section 3. Within 30 days after the enactment of this act, 205 and before paying the sum specified in section 2 of this act, 206 the Sheriff of Broward County may execute an assignment to the 207 legal guardians of Eric Brody of all claims the Broward County 208 Sheriff’s Office has against its insurer arising out of its 209 handling of Eric Brody’s claim against the Broward County 210 Sheriff’s Office, including its claim for policy benefits, bad 211 faith, breach of fiduciary duty, and breach of contract and any 212 other similar claim that may result in recovery from the insurer 213 of all sums that remain unpaid in accordance with the final 214 judgment and cost judgment after the payment of the statutory 215 limit of $200,000 under s. 768.28, Florida Statutes, made by or 216 on behalf of the Broward County Sheriff’s Office. If the Sheriff 217 of Broward County elects to make an assignment of all claims 218 against its insurer to the legal guardians of Eric Brody, upon 219 making the assignment the Broward County Sheriff’s Office shall 220 have a complete and absolute covenant on the part of Eric Brody 221 and his legal guardians never to enforce this act, any award 222 pursuant to this act, or the Brody’s final judgment and cost 223 judgment directly against the Broward County Sheriff’s Office 224 regardless of whether Eric Brody and his legal guardians accept 225 or refuse the assignment and regardless of whether they file 226 suit pursuant to the assignment. At the conclusion of any claims 227 brought pursuant to that assignment, the legal guardians of Eric 228 Brody shall execute a complete satisfaction and release of their 229 final judgment and cost judgment against the Broward County 230 Sheriff’s Office. If the Sheriff of Broward County makes the 231 assignment permitted under this act, the protection given to the 232 Broward County Sheriff’s Office pursuant to this act or 233 otherwise shall not impair in any respect the ability or right 234 of the assignees to pursue and recover Eric Brody’s final 235 judgment and cost judgment less $200,000 paid by or on behalf of 236 the insurers of the Broward County Sheriff’s Office. It is the 237 intent of the Legislature to permit the prosecution of a bad 238 faith claim and any other related claim against the insurer for 239 the full amount remaining unpaid at the time of the assignment. 240 Section 4. The amount paid by the Broward County Sheriff’s 241 Office pursuant to s. 768.28, Florida Statutes, and the amount 242 awarded under this act are intended to provide the sole 243 compensation for all claims against the Broward County Sheriff’s 244 Office arising out of the facts described in this act which 245 resulted in the injuries to Eric Brody. The total amount of 246 attorney’s fees, lobbying fees, costs, and other similar 247 expenses relating to this claim shall be paid only to the 248 claimant’s currently retained attorneys and lobbyists and may 249 not exceed 25 percent of the total amount awarded under sections 250 2 and 3 of this act. Any attorney’s fees, costs, and related 251 expenses awarded by a court or earned pursuant to the 252 prosecution of an assigned claim are not limited by this 253 section. 254 Section 5. This act shall take effect upon becoming a law.
