Florida Senate - 2011 (NP) CS for SB 42 By the Committee on Rules; and Senator Benacquisto 595-05182-11 201142c1 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 $30,609,298, 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 $30,609,298, and 158 the court entered a cost judgment for $270,372.30, and 159 WHEREAS, the court denied the Broward County Sheriff’s 160 Office posttrial motions for judgment notwithstanding the 161 verdict, new trial, or remittitur, and 162 WHEREAS, the insurer of the Broward County Sheriff’s Office 163 retained appellate counsel and elected to appeal the final 164 judgment but not the cost judgment, and 165 WHEREAS, the Fourth District Court of Appeal upheld the 166 verdict in the fall of 2007, and 167 WHEREAS, the insurer of the Broward County Sheriff’s Office 168 subsequently petitioned the Florida Supreme Court to seek 169 another appeal, but the petition was denied in April of 2008, 170 and 171 WHEREAS, all legal remedies for all parties involved have 172 been exhausted and this case is ripe for a claim bill, and 173 WHEREAS, upon the passage of a claim bill for any amount in 174 excess of the insurance policy limit of $3 million, the Broward 175 County Sheriff’s Office may have a cause of action pursuant to 176 state law against its insurer for bad-faith-claims practices, 177 breach of fiduciary duty, breach of contract, and other possible 178 legal remedies which may result in a recovery from the insurer 179 to pay all outstanding sums owed to the guardianship of Eric 180 Brody, and 181 WHEREAS, the Broward County Sheriff’s Office has paid 182 $200,000 pursuant to s. 768.28, Florida Statutes, and the final 183 judgment and cost judgment remainder in the amount of 184 $30,679,298.30 is sought through the submission of a claim bill 185 to the Legislature, and 186 WHEREAS, Eric Brody is willing to accept an assignment of 187 all claims the Broward County Sheriff’s Office may have against 188 its insurer in lieu of the sheriff’s office making any payment 189 on this claim, and 190 WHEREAS, if the Broward County Sheriff’s Office assigns all 191 of its claims against its insurer to Eric Brody, he will not 192 hold the sheriff’s office responsible for any payment, NOW, 193 THEREFORE, 194 195 Be It Enacted by the Legislature of the State of Florida: 196 197 Section 1. The facts stated in the preamble to this act are 198 found and declared to be true. 199 Section 2. The Sheriff of Broward County is authorized and 200 directed to appropriate from funds of the Broward County 201 Sheriff’s Office not otherwise appropriated and to draw a 202 warrant payable to Eric Brody in the sum of $23,679,298.30. In 203 lieu of payment, the Sheriff of Broward County may assign to 204 Eric Brody and his legal guardians all rights it may have 205 against its liability insurance carrier for breach of contract, 206 breach of fiduciary duty, bad faith, and any similar or related 207 claims that may exist pursuant to state law. If the Sheriff of 208 Broward County makes an assignment to the claimant as provided 209 for in this section, the Broward County Sheriff’s Office is not 210 responsible for any further payment to the claimant. 211 Section 3. If the Sheriff of Broward County makes the 212 assignment permitted under section 2 of this act, the protection 213 given to the Broward County Sheriff’s Office does not impair in 214 any respect the ability or right of the assignees to pursue the 215 final judgment and cost judgment against the insurer of the 216 Broward County Sheriff’s Office, less the $200,000 already paid, 217 pursuant to state law. 218 Section 4. The amount paid by the Broward County Sheriff’s 219 Office pursuant to s. 768.28, Florida Statutes, and the amount 220 awarded under this act are intended to provide the sole 221 compensation for all claims arising out of the facts described 222 in this act which resulted in the injuries to Eric Brody. The 223 total amount of attorney’s fees, lobbying fees, costs, and other 224 similar expenses may not exceed 25 percent of the total amount 225 awarded under sections 2 and 3 of this act, which shall include 226 any fees earned and amounts recovered in the prosecution of any 227 assigned claim as permitted under section 2 of this act. 228 Section 5. This act shall take effect upon becoming a law.