September 20, 2018
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       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.

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