HomeMy WebLinkAboutR-96-0058RESOLUTION NO.
A RESOLUTION AUTHORIZING THE DIRECTOR OF
FINANCE TO PAY TO MARTHA FERNANDEZ,
INDIVIDUALLY, AND LUIS FERNANDEZ, INDIVIDUALLY
AND AS PERSONAL REPRESENTATIVE OF THE ESTATE
OF MARISOL OVEIDO, DECEASED, THE TOTAL SUM OF
$150,000.00, WITHOUT ANY ADMISSION OF
LIABILITY, IN FULL AND COMPLETE SETTLEMENT OF
ANY AND ALL CLAIMS AND DEMANDS AGAINST THE
CITY OF MIAMI, IN THE CIRCUIT COURT CASES
NO. 94-3013 (CA 05) AND NO. 95-3016 (CA 03),
UPON THE EXECUTION OF A GENERAL RELEASE
RELEASING THE CITY OF MIAMI FROM ANY AND ALL
CLAIMS AND DEMANDS; ALLOCATING FUNDS THEREFOR
FROM THE CITY OF MIAMI SELF-INSURANCE AND
INSURANCE TRUST FUND, INDEX
CODE NO. 620103-652.
WHEREAS, Martha Fernandez, individually, and Luis Fernandez,
individually and as Personal Representative of the Estate of
Marisol Oveido, deceased, through their attorney, have each filed
claims and lawsuits against the City of Miami in the Circuit
Court of Dade County, Florida, Case No. 94-3013 (CA 05) and Case
No. 94-3016 (CA 05) for alleged negligence in the injury of the
Plaintiff, Martha Fernandez; and in the death of Marisol Oveido;
and
WHEREAS, the above claims and lawsuits have been
investigated by the Tort Committee of the City Attorney's Office
and the Division of Risk Management, pursuant to Ordinance
No. 8417, which created the City of Miami Self -Insurance and
Insurance Trust Fund; and
CITY COMMISSION
MEETING OF
Resolution No,
96- 58
WHEREAS, said Offices recommend that the total sum of
$150,000.00 be paid without any admission of liability in full
and complete settlement of any and all claims and demands against
the City of Miami in the Circuit Court of Dade County, Florida,
Case No. 94-3013 (CA 05) and Case No. 94-3016 (CA 05), with the
exact amount to be paid to each Plaintiff to be determined based
upon the resolution of certain liens for which the Plaintiffs are
to be fully responsible; and
WHEREAS, funds are available from the City of Miami Self -
Insurance and Insurance Trust Fund for the payment of said
Settlement;
NOW THEREFORE, BE IT RESOLVED BY THE COMMISSION OF THE CITY
OF MIAMI, FLORIDA:
Section 1. The recitals and findings set forth in the
Preamble to this Resolution are hereby adopted by reference
thereto and incorporated herein as if fully set forth in this
Section.
Section 2. The Director of Finance is hereby authorized
to pay to Martha Fernandez, individually, and Luis Fernandez,
individually and as Personal Representative of the Estate of
{
I Marisol Oveido, deceased, the total sum of $150,000.00, without
4
y any admission of liability, in full and complete settlement of
any and all claims and demands against the City of Miami in the
` Circuit Court of Dade County, Florida, Case No. 94-3013 (CA 05)
and Case No. 94-3016 (CA 05), upon the execution of a General
Release releasing the City of Miami from any and all claims and
demands, with funds therefor hereby allocated for said Settlement
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from the City of Miami Self -Insurance and Insurance Trust Fund,
Index Code No. 620103-652.
Section 3. This Resolution shall become effective
immediately upon its adoption.
PASSED AND ADOPTED this 25th day of January 1996.
ATTE T:
WALTER , EMAN, CITY CLERK
STEP EN P. CLARA, MAYOR
RISK MANAGEMENT REVIEW:
Fi K �KR�OLLA�SON, DEPUTY CHIEF
CHIEF OF RISK MANAGEMENT
BUDGETARY AND FINANCIAL REVIEW:
- 3 -
rIS
,_"
a CITY OF MIAMI, FLORIDA
INTER -OFFICE MEMORANDUM 70
10 Honorable Mayor and Members
of the City Commission
ROLL A. Qu' Jo ey,11I
City Attorn
DATE January 8, 1996 FILE J-96-2
SUBJECTS L9400307/L9400282
Settlement: Case Nos. 94-2013 & 94-2016 (CA 05)
Martha Femandez/Luis Fernandez as
Personal Representative for Oveido Fernandez
REFERENCES : City Commission Agenda
ENCLOSURES: January 25, 1996
(2)
The attached proposed Resolution is submitted for Commission
consideration concerning the settlement for the above -referenced
cases. The details of said cases are set forth in the attached
Tort Memorandum.
This item has been submitted to the Agenda Coordinator for
placement on the January 25, 1996 City Commission Agenda.
W050:BSS
�i
CITY OF MIAMI, FLORIDA
INTER -OFFICE MEMORANDUM
A. Quinn Jones, III, Esq. and
:)ATE November 28, 1995 -:LE LT94003o7
Members of the Tort Committee
LT9400282
Law Department/Risk Management
SuBjECT Martha Fernandez v. City of Miami, et al.
Case No. 94-3013 CA (05)
Risk No. 015/PT/92034
Leon M. Firtel
4E=ERENCEs Luis Fernandez as Personal Rep. of the
Assistant City Attorney
Estate of Marisol Oveido, deceased
ENCLOSURES Case No. 94-3016 CA (05)
Risk No. 015/PT/92034
Settlement 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 Assistant Miami City Attorney to reflect mental impressions,
conclusions, and litigation strategy in pending civil litigation in the above -referenced cases. This
document is exempt from Public Records 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), Fla. Stat. (1991)].
DESCRIPTION OF PARTIES AND THEIR RELATIONSHIPS
As you can see, the above -described two cases were filed separately in Circuit Court. They have
been consolidated for the purposes of discovery and trial. Each of the cases arose out of a police pursuit and
accident that took place on February 15, 1992.
Martha Fernandez was the owner and driver of the vehicle that was struck by the vehicle owned
by Anthony Abraham Chevrolet which was being driven by Calvin Lamont Mack. Luis Fernandez is the
brother of Martha Fernandez and he serves as the Plaintiff in the second case as the Personal Representative of
the Estate of Marisol Oveido, his wife, who was killed in the accident. She ccc;: -_:ed the passenger seat in
Martha Fernandez' vehicle.
Anthony Abraham Chevrolet is a Co -Defendant with the City. Calvin Lamont Mack was not sued
by the Plaintiff, however, he has been brought into the case as a Third Party Defendant in regard to the claims
brought by each Plaintiff against the City.
FACTUAL BACKGROUND
On or about February 11,1992, Calvin Lamont Mack stole a vehicle from the final preparation lot
which was owned and operated by the Anthony Abraham Chevrolet dealership. He drove the car for five days
before the accident, which occurred at approximately 5:00 PM on Saturday, February 15, 1992. The car was
reported stolen by Anthony Abraham Chevrolet to the police authorities shortly after it was taken from their
lot.
'
96- 58
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T,1
A few minutes before 5:00 PM on February 15th, Mack was observed driving the high-
performance Chevrolet IROC Camaro north on Third Avenue in the vicinity of 22nd Street. At that
intersection he ran through the stop sign and made a left turn onto 22nd Street. This activity was observed by
an officer who was on patrol at that time and was located approximately a half of block behind Mack. The
officer began to follow Mack, so as to make traffic stop in another location. He observed Mack run through a
second stop sign a .few blocks away and then Mack did a 180 degree spin in his vehicle. Immediately
thereafter, Mack did a second 180 degree turn and at that point he began to increase his speed as he drove in a
westerly direction with the officer following. Within seconds Mack reached the intersection of Northwest 6th
Avenue and 21 st Terrace where he turned north (right) and sped off at an increasing rate of speed. By the time
the officer reached the corner to go north and follow him again, Mack was estimated to be at or nearing the
intersection of 25th Street. The officer activated his emergency lights just after Mack did the second spin turn
and he activated his siren just as Mack was turning north on 6th Avenue. At that point, the officer (according
to his testimony) considered the "encounter" to have changed from a traffic stop to a pursuit.
Within thirty seconds (according to the police tape) after making the turn at Northwest 6th
Avenue and 21 st Terrace, Mack impacted at 6th Avenue and Northwest 29th Street with the vehicle being
driven by Martha Fernandez in which Marisol Oveido occupied the passenger seat. By that time, Mack was
estimated to have reached speeds of at least 60 to 70 miles per hour and perhaps as much as 80 to 100 MPH.
The point of impact was in the center of the intersection and the force of the impact, according to photographs,
pushed in the passenger's door almost to the driver's side of the Fernandez vehicle. (See attached photos:)
Marisol Oveido, age 25, died as a result of the accident. She was pronounced at Jackson
Memorial Hospital upon arrival there at approximately 5:32 PM. Martha Fernandez, her sister-in-law, suffered
serious injuries as hereinafter described.
APPLICABLE LAW
The Plaintiffs expert in this case will no doubt testify at trial that the decision to chase and continue to
chase "created a foreseeable zone of risk", so that the law places a duty on the Defendant either to lessen the
risk or see that sufficient precautions are taken to protect others from the harm that risk poses. See, City of
Pinellas Park v. Brown, 604 So.2d 1222 (Fla. 1992) citing Kaisner v. Kolb, 543 So.2d 732, 735 (Fla. 1989).
Thus, we can expect that the matter would go to the jury.
EVALUATION AS TO CLAIM OF MARTHA FERNANDEZ
Martha Fernandez, age 25 at the time of the accident, immigrated to the United States from
Nicaragua because of political reasons in late 1987. Upon arriving in the United States, she attended school
and was working in an office at the time of the accident.
During the course of the accident, she suffered serious injuries, including a fractured pelvis,
related internal injuries, bruising to the hips and lower extremities, cuts on her forehead and right cheek which
have left some small scars, back injury and other lacerations and contusions.
While she has recovered to a great degree, she suffers residual headaches and claims to walk with
a limp when she becomes tired. She still has the small scars to her face and I am sure that she has other
scarring on her legs and thigh that was not examined.
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She was hospitalized after the accident for approximately one week and she was required to use a
walker and crutches for some months thereafter.
Martha is a very sympathetic person with whom the jury will have great empathy, because of her
own injuries and because of the loss of her sister-in-law with whom she was close. Also, the jury will feel
sympathetic because Martha has some guilt feelings because she was the driver in the accident, although she
recognizes there was nothing that she could do to avoid being struck by the vehicle driven by Mack.
Finally, Martha also has a claim for lost wages amounting to approximately $10,000 and her
medical bills were in excess of $15,000.
Martha's claim, based upon the nature and severity of her injuries and the residuals from which
she is still suffering, has a value of $250,000 to $300,000,
EVALUATION AS TO CLAIM OF LUIS FERNANDEZ,
AS PERSONAL REPRESENTATIVE OF THE ESTATE OF MARISOL OVEIDO
Luis Fernandez is a young man in his early 30's who, after being married for three years, is now a
widower as a result of the accident in question. He too is very sympathetic as a witness and he testifies
convincingly that he and his deceased wife were very much in love and had plans for the future which were
destroyed as a result of this accident. Recognizing her bias, Martha Fernandez, who is Luis's sister, confirms
Luis's devotion to his deceased wife and their happiness as a couple.
There is no claim for wages or loss accumulations and the entire matter is based upon Luis Fernandez'
pain and suffering as the husband of the decedent, Marisol Oveido. There is a video tape made by our Fire
Rescue Department showing the emergency treatment Marisol received at the scene. It is extremely
compelling as a visual aid.
This is the "wild card" claim, because a jury could award $50,000 or as much as half a mullion dollars,
because of the death of this young woman.
MEDIATION AND SETTLEMENT
Mediation of this claim is set for December 14, 1995, before retired Judge Jack Turner. The Plaintiffs are
represented by Larry Freshman of the law firm of Freshman, Freshman and Traitz and Anthony Abraham is
represented through insurance counsel, Donald Mason.
The claim against Anthony Abraham is based upon their lack of providing security so that their vehicle
could be stolen. As a result, I believe that they have a valid proximate cause argument, especially in light of the
fact that the accident did not happen for almost three days after the car was stolen. Notwithstanding this fact,
their counsel has indicated that they will be willing to contribute to the settlement.
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96- 958
0
Re: Martha/Luis Fernandez Settlement
November 28, 1995
Of course, the other "wild card" or imponderable in this case is the percentage of liability that
the jury will assign to Mr. Mack, who entered a plea of nolo contendre to a variety of criminal
charges filed against him as a result of this accident. He is presently serving a term of twelve (12)
years. The amount or percentage of negligence assigned to Mr. Mack would determine the City's
liability with regard to the pain and suffering claims of each Plaintiff pursuant to the Fabre Case.
With regard to Martha Fernandez, if in fact her claim is evaluated at $300,000 or more, a
finding of only 30% against the City would result in our paying the cap on her claim. Similarly, with
regard to the Personal Representative's claim, the same is applicable. Therefore, based upon the
circumstances, I am requesting authority to settle these cases for the full amount of the cap, or
$100,000 each, although I am confident that a settlement can be obtained at somewhat less in light of
our being able to avoid a trial and the fact that Anthony Abraham Chevrolet will be making some
contribution to the final and overall settlement.
Please indicate your comments and approval, or denial, below.
LMF:cros
Attachments
A. Qt
CITY
CHARLES C. MAYS
CHIEF ASSISTANT CITY ATTORNEY
CHRISTOPHE URTZ
ASSISTANT/CITY ATTO Y
W N R. BI lid
A CIT
DAVID FORREST V
ASSISTANT CITY TTORNEY
10
4
96-
Re: Martha/Luis Fernandez Settlement
i
THERESA L. GIRTEN
I ASSISTANT� ATTORN
DAVID Z. STONE
ASSIISTANT CITY ATT Y
-Z�"- cr.
CHIEF FRANK.K. ROLLASON
RISK MANAGEMENT
November 28, 1995