Florida Senate - 2011 SENATOR AMENDMENT Bill No. CS for SB 42 Barcode 190354 LEGISLATIVE ACTION Senate . House . . . Floor: 1/AD/2R . 05/05/2011 05:57 PM . ————————————————————————————————————————————————————————————————— ————————————————————————————————————————————————————————————————— Senator Benacquisto moved the following: 1 Senate Amendment (with title amendment) 2 3 Delete everything after the enacting clause 4 and insert: 5 Section 1. The facts stated in the preamble to this act are 6 found and declared to be true. 7 Section 2. The Sheriff of Broward County is authorized and 8 directed to appropriate from funds of the Broward County 9 Sheriff’s Office not otherwise appropriated and to draw a 10 warrant payable to Eric Brody in the sum of $12 million as 11 compensation for injuries and damages sustained as a result of 12 the negligence of the Broward County Sheriff’s Office. 13 Section 3. The amount paid by the Broward County Sheriff’s 14 Office pursuant to s. 768.28, Florida Statutes, and the amount 15 awarded under this act are intended to provide the sole 16 compensation for all claims arising out of the facts described 17 in this act which resulted in the injuries to Eric Brody. The 18 total amount of attorney’s fees, lobbying fees, costs, and other 19 similar expenses may not exceed 25 percent of the total amount 20 awarded under sections 2 and 3 of this act and shall be paid 21 exclusively to the attorneys and lobbyists currently retained by 22 the claimants at the time this act becomes a law and for their 23 benefit only. 24 Section 4. It is the intent of the Legislature that all 25 lien interests held by the state resulting from the treatment 26 and care of Eric Brody for the events described in the preamble 27 of this act are not waived and extinguished, and the claimant’s 28 guardianship is not relieved of any obligation to reimburse 29 Medicaid, Medicare, or the Agency for Health Care Administration 30 for such expenses pursuant to s. 409.910, Florida Statutes. The 31 claimant’s guardianship shall pay the amount due under s. 32 409.910, Florida Statutes, prior to distributing any funds to 33 the claimant. 34 Section 5. This act shall take effect upon becoming a law. 35 36 ================= T I T L E A M E N D M E N T ================ 37 And the title is amended as follows: 38 Delete everything before the enacting clause 39 and insert: 40 A bill to be entitled 41 An act for the relief of Eric Brody by the Broward 42 County Sheriff’s Office; providing for an 43 appropriation to compensate Eric Brody for injuries 44 sustained as a result of the negligence of the Broward 45 County Sheriff’s Office; providing a limitation on the 46 payment of fees and costs related to the claim against 47 the Broward County Sheriff’s Office; providing 48 legislative intent to prohibit a waiver of lien 49 interests held by the state; requiring that the 50 guardianship pay any such liens before distributing 51 funds to the claimant; providing an effective date. 52 53 WHEREAS, on the evening of March 3, 1998, 18-year-old Eric 54 Brody, a college-bound high school senior, was returning home 55 from his part-time job at the Sawgrass Mills Sports Authority. 56 Eric was driving his 1982 AMC Concord eastbound on Oakland Park 57 Boulevard in Sunrise, Florida, and 58 WHEREAS, that same evening, Broward County Sheriff’s Deputy 59 Christopher Thieman, who had been visiting his girlfriend and 60 was running late for duty, was driving his Broward County 61 Sheriff’s Office cruiser westbound on Oakland Park Boulevard. At 62 the time he left his girlfriend’s house, Deputy Thieman had less 63 than 15 minutes to travel 11 miles to make roll call on time, 64 which was mandatory pursuant to sheriff’s office policy and 65 procedure, and 66 WHEREAS, at approximately 10:36 p.m., Eric Brody began to 67 make a left-hand turn into his neighborhood at the intersection 68 of N.W. 117th Avenue and Oakland Park Boulevard. Deputy Thieman, 69 who was driving in excess of the 45-mile-per-hour posted speed 70 limit and traveling in the opposite direction, was not within 71 the intersection and was more than 430 feet away from Eric 72 Brody’s car when Eric Brody began the turn. Eric Brody’s car 73 cleared two of the three westbound lanes on Oakland Park 74 Boulevard, and 75 WHEREAS, Deputy Thieman, who was traveling in the inside 76 westbound lane closest to the median, suddenly and inexplicably 77 steered his vehicle to the right, across the center lane and 78 into the outside lane, where the front end of his car struck the 79 passenger side of Eric’s car with great force, just behind the 80 right front wheel and near the passenger door, and 81 WHEREAS, Deputy Thieman testified at trial that although he 82 knew that the posted speed limit was 45 miles per hour, he 83 refused to provide an estimate as to how fast he was traveling 84 before the crash, and 85 WHEREAS, despite the appearance of a conflict of interest, 86 the Broward County Sheriff’s Office chose to conduct the 87 official crash investigation instead of deferring to the City of 88 Sunrise Police Department, which also had jurisdiction, or the 89 Florida Highway Patrol (FHP), which often investigates motor 90 vehicle collisions involving non-FHP law enforcement officers so 91 as to avoid any possible conflict of interest, and 92 WHEREAS, in the course of the investigation, the Broward 93 County Sheriff’s Office lost key evidence from the crashed 94 vehicles and did not report any witnesses even though the first 95 responders to the crash scene were police officers from the City 96 of Sunrise, and 97 WHEREAS, the Broward County detective who led the crash 98 investigation entered inaccurate data into a computerized 99 accident reconstruction program which skewed the speed that 100 Deputy Thieman was driving, but, nevertheless, determined that 101 he was still traveling well over the speed limit, and 102 WHEREAS, accident reconstruction experts called by both 103 parties testified that Deputy Thieman was driving at least 60 to 104 more than 70 miles per hour when his vehicle slammed into the 105 passenger side of Eric Brody’s car, and 106 WHEREAS, Eric Brody was found unconscious 6 minutes later 107 by paramedics, his head and upper torso leaning upright and 108 toward the passenger-side door. Although he was out of his 109 shoulder harness and seat belt by the time paramedics arrived, 110 the Brody’s attorney proved that Eric was wearing his seat belt 111 and that the 16-year-old seat belt buckle failed during the 112 crash. Photographs taken at the scene by the sheriff’s office 113 investigators showed the belt to be fully spooled out because 114 the retractor was jammed, with the belt dangling outside the 115 vehicle from the driver-side door, providing proof that Eric 116 Brody was wearing his seat belt and shoulder harness during the 117 crash, and 118 WHEREAS, accident reconstruction and human factor experts 119 called by both the plaintiff and the defendant agreed that if 120 Deputy Thieman been driving at the speed limit, Eric Brody would 121 have easily completed his turn, and 122 WHEREAS, the experts also agreed that if Deputy Thieman 123 simply remained within his lane of travel, regardless of his 124 speed, there would not have been a collision, and 125 WHEREAS, in order to investigate the seat-belt defense, 126 experts for Eric Brody recreated the accident using an exact 127 car-to-car crash test that was conducted by a nationally 128 recognized crash test facility. The crash test involved vehicles 129 identical to the Brody and Thieman vehicles, a fully 130 instrumented hybrid III dummy, and high-speed action cameras, 131 and 132 WHEREAS, the crash test proved that Eric Brody was wearing 133 his restraint system during the crash because the seat-belted 134 test dummy struck its head on the passenger door within inches 135 of where Eric Brody’s head actually struck the passenger door, 136 and 137 WHEREAS, when Eric Brody’s head struck the passenger door 138 of his vehicle, the door crushed inward from the force of the 139 impact with the police cruiser while at the same time his upper 140 torso was moving toward the point of impact and the passenger 141 door. The impact resulted in skull fractures and massive brain 142 sheering, bleeding, bruising, and swelling, and 143 WHEREAS, Eric Brody was airlifted by helicopter to Broward 144 General Hospital where he was placed on a ventilator and 145 underwent an emergency craniotomy and neurosurgery. He began to 146 recover from a deep coma more than 7 months after his injury and 147 underwent extensive rehabilitation, having to relearn how to 148 walk, talk, feed himself, and perform other basic functions, and 149 WHEREAS, Eric Brody, who is now 30 years old, has been left 150 profoundly brain-injured, lives with his parents, and is mostly 151 isolated from his former friends and other young people his age. 152 His speech is barely intelligible and he has significant 153 cognitive dysfunction, judgment impairment, memory loss, and 154 neuro-visual disabilities. Eric Brody also has impaired fine and 155 gross motor skills and very poor balance. Although Eric is able 156 to use a walker for short distances, he mostly uses a wheelchair 157 to get around. The entire left side of his body is partially 158 paralyzed and spastic, and he needs help with many of his daily 159 functions. Eric Brody is permanently and totally disabled; 160 however, he has a normal life expectancy, and 161 WHEREAS, the cost of Eric Brody’s life care plan is nearly 162 $10 million, and he has been left totally dependent on public 163 health programs and taxpayer assistance since 1998, and 164 WHEREAS, the Broward County Sheriff’s Office was insured 165 for this claim through Ranger Insurance Company and paid more 166 than $400,000 for liability coverage that has a policy limit of 167 $3 million, and 168 WHEREAS, Ranger Insurance Company ignored seven demand 169 letters and other attempts by the Brodys to settle the case for 170 the policy limit, and instead chose to wait for more than 7 171 years following the date of the accident until the day the trial 172 judge specially set the case for trial before offering to pay 173 the policy limit. By that time nearly $750,000 had been spent 174 preparing the case for trial, and Eric Brody had past due bills 175 and liens of nearly $1.5 million for health and rehabilitative 176 care services. Because so much money had been spent preparing 177 the case for trial, the exhorbitant costs of Eric Brody’s 178 medical bills and liens, and the costs of future care continued 179 to escalate, settlement for the policy limit was no longer 180 feasible, and 181 WHEREAS, on December 1, 2005, after a 2-month trial, a 182 Broward County jury consisting of three men and three women 183 found that that Deputy Thieman and the Broward County Sheriff’s 184 Office were 100 percent negligent, and Eric Brody was not 185 comparatively negligent, and 186 WHEREAS, the jury found Eric Brody’s damages to be 187 $30,609,298, including a determination that his past and future 188 care and other economic damages were $11,326,216, and 189 WHEREAS, final judgment was entered for $30,609,298, and 190 the court entered a cost judgment for $270,372.30, and 191 WHEREAS, the court denied the Broward County Sheriff’s 192 Office posttrial motions for judgment notwithstanding the 193 verdict, new trial, or remittitur, and 194 WHEREAS, the insurer of the Broward County Sheriff’s Office 195 retained appellate counsel and elected to appeal the final 196 judgment but not the cost judgment, and 197 WHEREAS, the Fourth District Court of Appeal upheld the 198 verdict in the fall of 2007, and 199 WHEREAS, the insurer of the Broward County Sheriff’s Office 200 subsequently petitioned the Florida Supreme Court to seek 201 another appeal, but the petition was denied in April of 2008, 202 and 203 WHEREAS, all legal remedies for all parties involved have 204 been exhausted and this case is ripe for a claim bill, and 205 WHEREAS, the Broward County Sheriff’s Office has paid 206 $200,000 pursuant to s. 768.28, Florida Statutes, and the amount 207 of $12 million is sought through the submission of a claim bill 208 to the Legislature, NOW, THEREFORE,