HomeMy WebLinkAboutR-98-0246J-98-229
2/23/98
RESOLUTION NO. 9 8_ 246
A RESOLUTION AUTHORIZING THE DIRECTOR OF
FINANCE TO PAY ROBERT TORRES AND MYRIAM
TORRES, HIS WIFE, WITHOUT ADMISSION OF
LIABILITY, THE SUM OF $49,500.00, IN FULL
AND COMPLETE SETTLEMENT OF ANY AND ALL
CLAIMS AND DEMANDS AGAINST THE CITY OF
MIAMI, IN UNITED STATES DISTRICT COURT,
SOUTHERN DISTRICT OF FLORIDA, COURT CASE NO.
96-0966- CIV-UNGARO-BENAGES, UPON THE
EXECUTION OF A GENERAL RELEASE RELEASING THE
CITY OF MIAMI FROM ANY AND ALL CLAIMS AND
DEMANDS; ALLOCATING FUNDS THEREFOR FROM THE
INSURANCE AND SELF-INSURANCE TRUST FUND,
ACCOUNT CODE NO. 515001.424401-652
WHEREAS, ROBERTO TORRES and MYRIAM TORRES, his wife by and
through their attorney, filed a claim and lawsuit against the
City of Miami, in the United States District Court, Southern of
Florida, Case No. 96-0966-CIV-Ungaro-Benages, for alleged federal
civil rights violations and state law claims arising out of an
incident that occurred on January 21, 1994, in Miami, Dade
County, Florida; and
WHEREAS, the above claim and lawsuit have been investigated
by the Tort Committee of the City Attorney's Office and the
Department of Risk Management pursuant to Ordinance No. 8417,
which created the City of Miami's Insurance and Self -Insurance
Trust Fund and said Offices recommend that said claim and lawsuit
be settled for the sum of $49,500.00;
CITY COISSIOM
MEETING OF
MAR 10 IM
�hS
NOW, THEREFORE, BE IT RESOLVED BY THE COMMISSION OF THE CITY
OF MIAMI, FLORIDA:
Section 1. The Director of Finance is hereby authorized
to pay ROBERTO TORRES and MYRIAM TORRES, his wife, forthwith,
without the admission of liability, the sum of $49,500.00 in full
and complete settlement of any and all claims and demands against
the City of Miami, in the United States District Court, Southern
of Florida, Case No.: 96-0966-CIV-Ungaro-Benages, upon the
execution of a general release, in a form acceptable to the City
Attorney, releasing the City of Miami from any and all claims and
demands, with funds therefor hereby allocated from the Insurance
and Self -Insurance Trust Fund, Account Code No. 515001.424401-
652.
Section 2. This Resolution shall become effective
immediately upon its adoption.
PASSED AND ADOPTED this loth day of March , 1998.
XAVIER SUAREZ, MAYOR
In accordance with Miami Code Sec. 2-36, since the Mayor did not indicate approval of
this legislation by signing it in the designated place provided, said legislation now
becomes effective with the elapse of ten (10) days from the date of Commi
ATTEST: � n action
regarding same, without the Mayor exerci ' a eto.
W ter J. r e n. City Clerk
WALTER J. FOEMAN
CITY CLERK
- 2 - 98- 246
RISK MANAGEMENT REVIEW:
MARIO SOLDEVILLA, ADMINISTRATOR
DEPARTMENT OF RISK MANAGEMENT
PREPARED AND APPROVED BY:
CHARLES C. MAYS
CHIEF ASSISTANT CITY ATTORNEY
W2286/CCM/kd
BUDGETARY REVIEW:
Vito
DIPAK PAREXII, DIRECTOR
BUDGET & MANAGEMENT ANALYSIS
APPROVED AS TO FORM AND
CORRECTNESS:
S
L EDWARD ELL
ERIM CITY ATTORN
- 3 -
98- 246
TO
FROM
CITY OF MIAMI, FLORIDA
INTER -OFFICE MEMORANDUM
CA=18
Honorable Mayor and Members DATE: February 26, 1998 FILE
of the City Commission
SUBJECT: Roberto Torres, et. al. v.
LJ City of Miami, et. al.
9J
Case No. 96-0966-Civ-Ungaro-Benegaes
YJOE.Maxwell, REFERENCES: Claims No. 015/PT/94-090
ity Attorney Settlement
ENCLOSURES:
Attached hereto for your consideration for the City Commission meeting of March
10,1998, is a resolution approving the settlement of the above captioned lawsuit against
the City and City police officer Evelio Cobas in the amount of FORTYNINE
THOUSAND FIVE HUNDRED ($49,500.00) DOLLARS, without admission of liability,
for federal civil rights violations and state law claims. Although the corresponding tort
memorandum explaining the reasons underlying the recommended settlement is likewise
attached, it is critically important to note two factors. First, even if a jury were to decide
the credibility issues with respect to the state law claims in favor of the defense, as a
matter of law the plaintiff will obtain a judgment with respect to the federal constitutional
claim. As a consequence of prevailing on the constitutional claim, the plaintiff will not
only recover compensatory damages but will also be entitled to an award of attorneys fees
and costs:- The plaintiffs case has been prosecuted by three attorneys who did not
perform duplicative services, and, equally important even if only one attorney were
involved the attorneys fees awarded would probably exceed the amount of the
recommended settlement. Aside from that concern is the fact that Officer Cobas is
exposed to punitive damages. The City, of course, is responsible for compensatory
damages awarded against Officer Cobas, but not for punitive damages. In that regard, just
as an insurance company owes a fiduciary duty to its insured to settle a liability claim
within the policy limits so as to protect the insured from damages in excess of the policy
limits, so too does the City have a similar responsibility to protect Officer Cobas from
punitive damages. -
As previously stated this matter is set for agenda of March 10, 1998. A status conference
on the settlement is set before U.S. District Judge Ungaro-Benages for March 20, 1998.
e
CCM:commemo.doc
98- 246
TO
FROM
CITY OF MIAIMI. FLORIDA
INTER -OFFICE MEMORANDUM
Tort Committee Members
_ February 24, 1998 FILE LT-96-15E
Roberto Torres, et.al. v.
City of Miami, et.al.
(� Case No. 96-0966-CIV-UNGARO-BENAGES
Charles C. Mays Claims #015/PT/94-090
Chief Assistant City Attorney
REQUEST FOR SET' LE14 NT AUTHORITY
CONFIDENTIAL: THIS DOCUMENT IS NOT SUBJECT TO
DISCLOSURE AS A PUBLIC RECORD UNTIL SO NOTIFIED
TO THE CONTRARY BY THE CITY ATTORNEY'S OFFICE.
This document was prepared by the Miami City
Attorney to reflect mental impressions,
conclusions, and litigation strategy in pending
civil litigation cases and administrative
proceedings involving Roberto Torres and his
wife, Myriam Torres v. City of Miami and Evilio
Cobas, Case No.: 96-0966-Civ-Ungargao-Benages.
This document is exempt from Public Records
t disclosure as an attorney work -product until
such time as all litigation and administrative
proceedings involving said parties have been
concluded. [Section 119.07(3)(n), Florida
Statutes (1993)].
In this lawsuit Roberto Torres has sued the city and city
police officer Evelio Cobas for violation of his federal civil
rights pursuant to a federal statutue authorizing the award of
damages and attorney fees for deprivation of constitutional
rights. Mr. Torres also seeks damages against Officer Cobas for
various state law claims including assault, battery, and false
imprisonment. In addition to compensatory damages, he seeks
punitive damages against Officer Cobas. Mr. Torres' wife also
seeks damages for loss of consortium. For the reasons set forth
below, it is recommended that this lawsuit be settled for
FORTYNINE THOUSAND FIVE HUNDRED ($49,500.00) DOLLARS, without
admission of liability on the part of the city or Officer Cobas.
On January 24, 1996, Mr. Torres, his wife, and his mother-
in-law resided in a duplex located at 111 N.W. 26`" Avenue in the
city of Miami. That morning Mr. Torres inadvertently locked
himself out of the residence when he moved his car from behind
his mother-in-law's car so that she could drive to work. Mr._
Torres drove to his mother-in-law's job, a short distance away,
Tort Committee Members
Law Department
February 24, 1998
Page 2
to obtain her house keys. Upon returning home he was driving
west on Flagler Street, when he noticed several city police cars
proceeding in the same direction. Shortly after Mr. Torres
returned home he heard someone knocking on the front door of the
residence. When he opened the door he saw several uniformed city
police officers armed with handguns pointed at him. In a panic,
he slammed the door shut. Whereupon the door was kicked in by
Officer Cobas, who thereafter handcuffed him and placed him in
the rear of Officer Cobas' patrol car. Mr. Torres was told that
he was being arrested for reckless driving, fleeing a police
officer, and resisting arrest without violence.
Officer Cobas has testified that as he -was driving on
Flagler Street he observed from his rear view mirror a late model
car approaching at a high rate of speed, and driving erratically.
After the car drove past him, Officer Cobas began to follow the
car suspecting that it was stolen. According to Officer Cobas,
when he attempted to stop the car via his lights and siren, the
car sped away, and committed several traffic violations in the
process.- Officer Cobas continued to follow, but lost sight of
the carYuntil such time as he saw it parked in the driveway of
the Torres residence. Upon parking in the driveway, Officer
Torres came in contact with Sergio Rodriguez, a -city firefighter, -
who lived in front of the Torres residence. Mr. Rodriguez, who
was dressed in a firefighter's jump suit, identified himself to
Officer Cobas. From his contact with Mr. Rodriguez Officer Cobas
learned that the car parked in the driveway belonged to Mr.
Torres and that he lived in the duplex. During this time
additional officers began to arrive. Officer Cobas has further
testified that based upon the information obtained from Mr.
Rodriguez, he no longer believed the car to be stolen or that Mr.
Torres had committed a felony of any sort. Nonetheless, Officer
Cobas, accompanied by his fellow officers, approached the front
door at gun point and announced his presence. According to
Officer Cobas, Mr. Torres opened the front door, observed the
officers and slammed the door shut as he exclaimed that he was
afraid of the police. In response, Officer Cobas has
acknowledged that he kicked the front door open in order to
arrest Mr. Torres.
Mr. Torres was transported to jail, where he remained for
approximately six (6) hours. He retained counsel to defend
against the charges. At the non -jury trial Mr. Torres testified
that he was not speeding, driving recklessly, or was otherwise
aware that Officer Cobas was attempting to stop him. (Indeed, the
9"-� 246
Tort Committee Members
Law Department
February 24, 1998
Page 3
civil deposition of Sergio Rodriguez suggests that Officer Cobas
was not using his siren -at least when Officer Cobas drove his
patrol car into the driveway of the Torres residence.) In
contrast, Officer Cobas testified that Mr. Torres was speeding,
and ran through stop signs. Mr. Torres was acquitted.
If this case were to proceed to trial a jury will be
presented with conflicting evidence with respect to whether or
not Mr. Torres was speeding and otherwise committed traffic
offenses. Such an inquiry will be resolved by credibility
determinations by the jury. Significantly, however, what is self
evident is that the forced entry into Mr. Torres' residence
without a warrant to arrest him for alleged traffic offenses
violates the Fourth Amendment's- prohibition against unreasonable
searches and seizures. See Welsh v. Wisconsin, 466 U.S. 740
(1984) (the Fourth Amendment forbids warrantless entry into a
home to effect an arrest for driving under the influence of an
intoxicating beverage); See also, Ortiz v. State, 600 So.2d 530
(Fla. 3d DCA 1992) ("fresh pursuit" of suspect into his home to
arrest trim for misdemeanor possession of marijuana violated the
Fourth 1�mendment). Thus, ignoring the resolution of the state
law claims, it is abundantly clear that the Constitution was
violated which thereby serves as a basis for federal civil rights
damages, including attorneys fees and costs. Moreover, a finding
of liability against Officer Cobas also exposes him to the
imposition of punitive damages which he would be personally
responsible for.
Based on the foregoing it is respectfully recommended that
this case be settled.
Please indicate your approval/disapproval for settlement in
the amount of $49,500.00.
APPRO ISAPPROVE $49,500.00
JJ 4L/,�k//J AP/
EDWARD MAXWELL
RIM CITY ATTORNE
Tort Committee Members
Law Department
l
REN BITTNER
ISTANT CITY ATTORNEY
CHRI'nOPHER F. KURTZ
ASSISTANT CITY ATTORNEY-
-. -1..
STANT.CITY A
I,/ , �1�kv
MARIO SOLDEVILLA, ADMINISTRATOR
DEPARTMENT OF RISK MANAGEMENT
W0013:tortmemo.doc:TORRES
February 24, 1998
Page 4
98- 246
J-98-229
2/,23/98
RESOLUTION NO.
A RESOLUTION AUTHORIZING THE DIREPTOR OF
FINANCE TO PAY ROBERT TORRES MYRIAM
TORRES, HIS WIFE, WITHOUT AD„ SSION OF
IABILITY, THE SUM OF $49,500.,U, IN FULL
COMPLETE SETTLEMENT OF AND ALL
C MS AND DEMANDS AGAINST�,''THE CITY OF
MI IN UNITED STATESISTRICT COURT,
SOUTH DISTRICT OF FLORI COURT CASE NO.
96-096 CIV-UNGARO-BEN S, UPON THE
EXECUTI OF A GENERAL REASE RELEASING THE
CITY OF AMI FROM ANY" AND ALL CLAIMS AND
DEMANDS; OCATING FDS THEREFOR FROM THE
INSURANCE SELF7 NSURANCE TRUST FUND,
ACCOUNT CODE 51�001.424401-652
WHEREAS, ROBERTO
MYRIAM TORRES, his wife by and
through their attorney, ailed k\ laim and lawsuit against the
City of Miami, in theVnited States'`,District Court, Southern of
Florida, Case No. 96_��966-CIV-Ungaro-Be ges, for alleged federal
r
civil rights vio14Iions and state law cf*,lms arising out of an
incident that 0urred on January 21, 1"14, in Miami, Dade
County, Florid ' and
WHEREAS,;the above claim and lawsuit have betn investigated
by the Tor Committee of the City Attorney's Offce and the
Departmen of Risk Management pursuant to Ordinance''-Vo. 8417,
which c ated the City of Miami's Insurance and Self -I� urance
Trust d and said Offices .recommend that said claim and lawsuit
be s tled for the sum of $49, 500 . 00;
*SS�