HB 57

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


CODING: Words stricken are deletions; words underlined are additions.