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.