HomeMy WebLinkAboutR-96-0091J-96-68
1/30/96
96- 91
RESOLUTION NO.
A RESOLUTION AUTHORIZING THE DIRECTOR OF
FINANCE TO PAY BENJAMIN FULLINGTON, THE SUM
OF $75,000.00, 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 OF DADE
COUNTY, FLORIDA, CASE NO. 94-536-CA (09);
ALLOCATING FUNDS THEREFOR FROM THE CITY OF
MIAMI SELF-INSURANCE AND INSURANCE TRUST
FUND, INDEX CODE NO. 620103-651.
WHEREAS, Benjamin Fullington through his attorney, has filed
a claim and lawsuit against the City of Miami, in the Circuit
Court of Dade County, Florida, Case No. 94-536-CA (09), for an
injury Benjamin Fullington sustained on October 26, 1991; and
WHEREAS, pursuant to Ordinance No. 8417, the above claim and
lawsuit have been investigated by the Tort Committee of the City
Attorney's Office and the Division of Risk Management; and
WHEREAS, said Offices recommend that the sum of $75,000.00
be paid without any admission of liability;
NOW, THEREFORE, BE IT RESOLVED BY THE COMMISSION OF THE CITY
OF MIAMI, FLORIDA:
Section 1. The recitals and findings contained in the
Preamble to this Resolution are hereby adopted by reference
thereto and incorporated herein as if fully set forth in this
Section.
CITY COMMISSION
MEETING OF
FEB 2 9 1996
Resolution No.
96-- 91
Section 2. The Director of Finance is hereby authorized
to pay Benjamin Fullington, the sum of $75,000.00, 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 of Dade County, Florida, Case No. 94-536-CA (09),
with funds therefor hereby allocated from the City of Miami
Self -Insurance and Insurance Trust Fund, Index Code
No. 620103-651.
Section 3. This Resolution shall become effective
immediately upon its adoption.
PASSED AND ADOPTED this 29th
ATTEST:
i
F o'-
ALTER MAN
CITY CL
SELF-INSURANCE TRUST FUND REVIEW:
FRANK . ROLLASON, DEPUTY CHIEF
CHIEF OF RISK MANAGEMENT
PREPARED AND APPROVED BY:
CHRISTOPHER F. KURTZ
ASSISTANT CITY ATTORNEY
CFK/BSS/pb/W546
day of February , 1996.
STEPHEN P. CLAR , MAYOR
BUDGET Y REVIEW:
LOHAR S. SURANA
ASSISTANT CITY MANAGER
APPROVED AS TO FORM AND
CORRECTNESS:
A. WINNIJOMS, I
CITY AT O EY
2 -
96- 91
CITY OF MIAMI, FLORIDA
INTER -OFFICE MEMORANDUM
Honorable Mayor and Members January 30, 1996 J-96-68
To : of the City Commission DATE : FILE
Settlement: Case No. 94-536-CA (09)
SUBJECT : Benjamin Fullington
A. Qui Jon s, II City Commission Agenda
FROM City Attorne REFERENCES February 29, 1996
i
ENCLOSURES: (2)
i
The attached proposed Resolution is submitted for Commission
consideration concerning the settlement for the above -referenced
case. The details of said case are set forth in the attached
Tort Memorandum.
This item has been submitted to the Agenda Coordinator for
placement on the February 29, 1996 City Commission Agenda.
W055:BSS
96- 91 1
CITY OF MIAMI. FLORIDA RISK MANAGEMENT
INTER -OFFICE MEMORANDUM DEC 2 9 1995
To A. Quinn Jones, III, City Attorney DATE December 27, 1995 G,LE LT-94-018
Members of the Tort Committee
SUa,ECT Benjamin Fullington v. City of Miami
% Case No. 94-536-CA (09)
Claim No. 011 N-92-021
CROM Christopher F. Kurtz REFERENCES
Assistant City Attorney
ENCLOSURES
REQUEST FOR APPROVAL OF SETTLEMENT
FACTS
Plaintiff, Benjamin Fullington, has sued the City for injuries he sustained as a result of a
City of Miami Solid Waste trash truck colliding with his vehicle. Plaintiff is represented by
Kathleen Murphy, Esq., of the law firm of Jugo & Murphy. This case is presently set for jury trial
for the two -week period commencing January 2; 1995.
. On October 26, 1991, Mr. Fullington was traveling westbound on Northwest 50th Street
at approximately 13th Avenue, in his 1991 GMC pickup truck (mid -size) when a City of Miami
Solid Waste Division trash truck, traveling Eastbound on 50th Street crossed over the center lane.
Mr. Fullington tried to avoid the collision by swerving to the right but was struck directly on the
driver's side door of the pickup by the trash truck. The impact propelled him into a chain link
fence along the side of the road. The collision caused $9,573.00 in damage to Mr. Fullington's
vehicle. The City truck, based upon motor pool records, suffered approximately $1,000.00 in
damage. As a result of the accident, Mr. Fullington was transported to Jackson Hospital where
he was admitted for his injuries. Pictures of the vehicles and a copy of the accident report are
attached.
EVALUATION
The City driver has maintained throughout this litigation that he was driving normally
when all of a sudden the steering pulled to the left. He tried to pull back to the right but was
unable to and his truck crossed the center• lane and crashed into Mr. Fullington's vehicle. The
City driver has stated that he had no prior indications that day of any problems with the steering.
A review of motor pool records, however, has revealed no work or repair orders on this truck
subsequent to the accident for any steering problems (there are records regarding body shop
9V'- 91 5
A. Quinn Jones, III, City Attorney December 27, 1995
and Members of the Tort Committee Pagel
repairs from the accident). There are no written records substantiating any steering complaints
and the motor pool mechanic called to the scene is now deceased.
There is an independent witness to this accident (an off -duty City of Miami firefighter)
who has stated he was also traveling Westbound on Northwest 50th Street. He saw the City trash
truck swerving in and out of his lane several times and it almost ran him off the road.
Furthermore, he has stated that the truck's driver had his head down (for reasons unknown)
during the time the truck was swerving in and out of his lane. When he passed the City truck, he
looked in his rear-view mirror and observed the truck swerve once again this time crashing into
Mr. Fullington's vehicle. The City driver was charged with the accident and given a ticket for
careless driving. He subsequently pleaded guilty to careless driving in traffic court.
Based on the physical evidence, the final resting point of the vehicles, the fact that the City
driver pleaded guilty in traffic court to careless driving, and the independent eyewitness testimony,
liability against the City is very clear. There is no evidence of any negligence by Mr. Fullington
(such as speeding, careless driving, etc.). Furthermore, Mr. Fullington was wearing his seatbelt at
the time of the accident. The ,only real issue for a jury to decide will be the amount of damages
suffered by Mr. Fullington as a result of this accident.
DAMAGES
At the time of impact, Mr. Fullington sustained lacerations to his left elbow from broken
window glass and had pain in the entire left side of his body, particularly his left shoulder, knee
and leg. He claimed that his left knee was smashed against the dashboard. Additionally, he hit his
head on the dashboard and his stomach smashed against the steering wheel. Miami Fire Rescue
treated Mr. Fullington at the scene of the accident and he was transported by ambulance to
Jackson Memorial Hospital.
Upon arrival at Jackson Memorial Hospital, Mr. Fullington was seen in the emergency
room where he complained of pain in his left elbow, knee, shoulder, abdomen and entire back.
His left elbow laceration was sutured and he was admitted to the hospital. He spent two days at
Jackson Memorial Hospital before being discharged.
Thereafter, Mr. Fullington came under the care of Dr. Robert Ennis, orthopedist, and Dr.
Marshall Abel, neurologist. At the time of his initial consultation with Drs. Ennis and Abel, Mr.
Fullington was complaining of pain in his left knee, left shoulder, neck, and low back. He was
suffering from headaches as well. Mr. Fullington began treating with Dr. Ennis who eventually
ordered an MR1 of the lumbar spine due to the severe back pain.
The lumbar MR1 came back abnormal with findings of moderate diffuse bulging at. L5/S 1,
and mild Spondylolisthesis L5 on S 1 and mild spondylosis L5/S 1. Plaintiff will argue that prior to
6
96- 91
A. Quinn Jones, III, City Attorney December 27, 1995
and Members of the Tort Committee Page 3
this accident, he was asymptomatic for lumbar pain. Spondylolisthesis and spondylosis are both
thought to be congenital defects in the spine. The Plaintiff's doctors will testify that a person with
these anomalies can live pain -free and asymptomatic lives and that a trauma such as that sustained
by Mr. Fullington can aggravate this pre-existing condition, causing an onset of low back pain.
According to Dr. Ennis, once symptoms develop, the prognosis remains guarded.
Due to Mr. Fullington's continued knee and shoulder pain, he sought consultation and
treatment with Dr. Charles Weiss, orthopedic surgeon. Dr. Weiss diagnosed a torn rotator cuff in
the shoulder. He also found, through an MRI, a torn meniscus and tear in the anterior cruciate
ligament in the left knee. Dr. Weiss performed arthroscopic surgery on Mr. Fullington's left knee
on June 23, 1993. Although Mr. Fullington had some arthritis in his left knee prior to this
accident, he claims he did not have any locking, swelling or buckling, nor did he have the intense
pain that he suffered following the accident.
It is Dr. Weiss' opinion that Mr. Fullington has a permanent impairment of 4% to the
whole body regarding his cervical spine, 5% of the whole body regarding the lumbar spine, 5% of
the whole body related to the rotator cuff tear and 20% of the total body related to the left knee.
Mr. Fullington incurred $30,304.44 in medical expenses as a result of this accident of
which the following are the major expenses: Southcoast Physical Therapy - $1153,00, Jackson
Memorial Hospital - $6287.00, MIS Center for Neurology & Orthopedics (Drs. Ennis and Abel) -
$12,555.00, MRI Scan Center - $1,295.00, Dr. Charles Weiss - $4371.00, Aventura Magnetic
Imaging Center - $1,100.00, Mount Sinai Medical Center - $2496.00.
In addition to these injuries, Mr. Fullington missed a total of 14 months of work; 11
months directly following the accident and another three months following the arthroscopic
surgery. His weekly wage was $541.20, making a total of $32,472.00 in lost wages (he is a
plumber for the Dade School Board). There is no claim for future wage loss. Since this accident
occurred while not working, worker's compensation benefits were not available. His PIP carrier,
First Miami Insurance Co., paid their policy limits in PIP benefits, $8,008.08 of which went to lost
wages. Additionally, his health insurance company, Care Florida has paid $8,522.07 in medical
bills to date. They have a right to reimbursement under the terms of the policy.
During his tenure as a plumber, Mr. Fullington has sustained a number of back injuries and
has received worker's compensation benefits. Furthermore, two weeks prior to this accident, Mr.
Fullington was in another automobile accident (he was a passenger) and suffered injuries to his
back and left knee. However, Mr. Fullington has stated these injuries resolved themselves prior to
this accident. His treating physician, Dr. Ennis, stated that there is a slight possibility that Mr.
Fullington's present complaints, and knee surgery, are as a result of the prior injuries, but that
they are more likely to have been a result of the- October 26, 1991 accident. Even Dr. Scott
Piper, a conservative doctor who performed an independent orthopedic examination of Plaintiff,
96 - 91 7
A. Quinn Jones, III, City Attorney
and Members of the Tort Committee
December 27, 1995
Page 4
has opined that even though 3-5% partial permanent impairment of the left knee existed prior to
this accident, the remaining 5-7% impairment of the left lower extremity is directly related to the
accident.
SUMMARY
Plaintiffs attorney will argue to a jury that Mr. Fullington was a 32 year old man with a
life expectancy of another 48 years according to conservative mortality tables. He has incurred
$30,304.00 in medical bills to date. His wage loss claim is $32,472.00. Given the seriousness of
Mr. Fullington's injuries and scarring and the clear liability of the City, a jury verdict well in
excess of the $100,000.00 sovereign immunity "cap" is a distinct possibility.
After extensive negotiations, Plaintiff's attorney has agreed to settle this lawsuit for
$75,000.00, subject to Tort Committee and City Commission approval. Based upon the clear
liability, extensive injuries, medical bills, and lost wages claim coupled with the risk and increased
costs of a jury trial, it would be in the best interests of the City to accept this offer. Therefore, I
am requesting approval to settle in the amount of $75,000.00.
APPROVED - Authority to settle for $75 000.00 .
n
D/DIS ty ,
12.
Q NES, III . �jily l�avJ A&
CITY A RNEY��
/ /I it d UWh2oll•"y 645e-
CHA?N'k
C. MAYS
CHIISTANT CITY C
OIR
ASSISTANT__ Y ATTORNEY
DAVID STONE '.,,/ -
ASSISTANT CITY ATTORNEY
0
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96- 91
A. Quinn Jones, III, City Attorney
and Members of the Tort Committee
December 27, 1995
Page 5
.W N BITTNER�
SISTANT CITY ATTORNEY
� q�ocd
THERESA GIRTEN �6
ASSISTANT CITY ATTORNEY
a
DAVID FORESTIER, JR.
ASSISTANT CITY ATTORNEY
Reviewed as to Content and Proposal:
. . . . . . . . ....
K. ROLLASON, DEPUTY CHIEF
CHIEF OF RISK MANAGEMENT
CFK/pbiW001
9
96- 91
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96- 91
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96- 91
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PHYSICAL DEFECTS
ALCOHOL/DRUG USE
LOCATION IN I1849
01 risen tr Vehicle 15 Taxicab
02 Psssenper van 16 Public SdxIO1 BUS
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03 17 Private SUwd Bus
04 Truck Light) Pickup 11 City Transit Bus
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4 Akdal; Onrygqe.� Inlwattce
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06 Truck rarxor 20 Other Tyr Bus
07 Motorcycle 21 Special title E"ipment
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6 SO= Epi . Blackout
7
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6 Pending BAC Tau Result
5 Rut GMer
6 Rear Right
1 uar 1 otor.
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7 In Body of Truck
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01 Of1'Adad 22 Farm EQuipment
2 C aufttur dt
6 Bus P
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09 Moped 23 Gowrnmrnt
3 Res. Operator 5 N�ne
9 Other
10 Bicycle 24 Military
11 Law Enforcement Vehtclt 25 Train
2 Seat BtI Ml4der Maim
3 Chile Runint
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12 Fire Vtluds 26 Trailer
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CONTRIBUTING CAUSES•ONVERiPED
VEHICLE DEFECT
VEHICLE MOVEMENT
VEHICLE FUNCTION
of No i ncrot.er Uriving: Action t 2 3
01 No Detects 1
2 3
01 Stralpht'Anfad 1 2 3
01 None 1 2 3
02 Carn-less Driving
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02 S1tir+�/SaptUStaarl
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06 Imatoper Turn Ell®®
Lights •
05 Punctur8bwoull
OS Making Right Turn 11 Passing
08 Changing Wes 12 Driverless or
08 Tnx:x-Trsca Puaq Tao TraYre
05 Pulling Tank Trailer 11 Pulling
07 Alconol•Under Influence
06 SteeringMech.
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07 EjiWWLeartq Pang Spec Runaway Veh.
07 Pulling House Trailer Simi, tort
08 Drugs•Under Influence
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07 Windshield Wiper
08 Property Parked T7 All Other
06 Pulling Small Tranef 12 Polo Pontrt
09 Alcal*I 6 Daips kXW Intkaerce;
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08 EAwprtNMiVehnde T7 All
DOW
09 Improperly Parked �F 00 ■
OB Yen. Berg Towed/Pusfro 77 All Diner
10 Foil( wed Too Closely
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10 Making U•Twit fun"
10 Putting Pole Trader fix"
11 Disr(parded Traffic Signal
12 Exec eded Safe Speed Limit 19 1moro0er Load
VEHICLE MODIFIED
LOCATION ON ROADWAY
PEDESTRIAN ACTION
13 Dnsrtgarded Slop Sign 20 Disregarded Other
1 2 3
01 On Road 1 2 3
01 Crossing Not at Intersection 3
14 Fa!lel to Maintain Ediup•/Vehicle Traffic Control
1s Impr )per Passing 21 Onvmg Wrong
16 Drov Left Center Side/Way
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02 Not On Road
03 Shoulder
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02 Crossing at Intersection
03 Walking Along Road With Traffic
Walking Along Road Against Traffic O D D
i of
17 Exce)ded Stated Speed Limn 77 All Other
01 Yes pf Ya
boo
04 Median
05 Turn Lanell
D4
05 Pushing/Workring on Ytntcq in Road Ol StattieyltaYlef ateat
18 Obstiucting Traffic !Ewan w flat,
02 No 03 Not Applicable
Safety Zone
08 Other Waling in Road 77 All Other &#" 88 unknown
FIRS'•/SUBSEQUENT HARMFUL EVENT
ROAD SYSTEM IOENTIF!l
LIGHTING CONDITION
01 Cdllition With MV m 'ransport iAta.Me 15 Collision With Bicytke F S
27 MV Hit COWVA '
Ot Interstate 08 Turnpike
Ot Daylight
02 CAlid ton With MV rn ' ansport W4M (Bike Lane)
With MY "-- Loh ten! 16 MY Ran into D'AldUda+wrt
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a w Hit Brow
02 U.S. 07 Dow Full CoWal
03 Staee OB Oder Mejer
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02
02 Dusk
03 Dawn O
M Collilton in anger
17 Ran Off Road kflo Wally
PiNIAbArntR Rail
wley 04 CaAnimal
Dark am 1.1e10
04 co" on With Parked Car
05 Court loci with MY in Transport ISwam" 18 Dvtrturrad
21 Obtaprt Fed Fiat_ Wld*.
05 Local TT All Othw IEs** .................
05 Dark a Stan UPC
O6 Collision With MV in Transport SWO kft 19 MV Hit FVU
X Traeler/TrslWr Acumutl
88 Unknown
07 Collision With MY in TranSPOn 0* Twit 20 Colusiott With MV On 00111' Roadway
21 MV Hit Sign/Sign PM
3l Cow wwtlt Catfeeo8ttt
BYtiude/31/t M Ilad
ROAD SURFACE/
WEATHER
ROAD %MACE TYPE
08 MV Hit Other Fixed Obfea
09 MV Nit Utility Pt1M/Lignt Pole 22 MV HK Guio trail
32 CoMition Wkh Traffic Gale
CONDnION
10 Colifsan With MY in Transport taall-tM 23 Colfisan With Fixed Obod
it Collis on With Pedestrian Abow Road
33 Collision With Cram
Altemiators
Train
01 Ory
02 wed
03 S4
ED
Ot Clear
02 Cloudy
03 Rain
®
01 Stag/Gravti/Stone
02 Blacktop
03 Brick/Block
12 Collis on With MOW 24 Fire
34 Collision With
m
177
13 MV H it Tree/Shrubbery 25 Collision With An" 35 Explosion
14 Collis on With Bicycle 26 CoMitian WAh Mov ON ON god On Ri)fd 77 All Other 000 177
04 Icy
Au
04 Fop
AN Other EataM
04 Concrete
05 Din 77 All Other 11,10ar
CONTRIBUTING CAUSES -ROAD
CONTRIBUTING CAUSES-
ENVIRONMENT
TRAFFIC CONTROL
SITE LOCATION
WAY
CHARACER
T
HAAGEA
01 No Oelects
Ot Vision Not Obscured
01 No Comtol 77 AN Other paMep
01 Not At Intersection/RR Xing1&WQ4
at Stralght-Level
02 Obstruction With/wittrout Warning
03 Road Jndef Repair/Construction
02 Indanwtt Wnthat
03 P&*wt$.,W"W YefreM
02 Speed Control lone
03 Traffic Signal
02 At Intersection
03 IrMivaKed BY Irttfrsectim
02 Straignt•U09radel
Downgrade
04 Loose Surface Matenals
05 Shout, lers•Soff/Low/ High
j
04 Tre"lCmpslBashu
OS Load on Yehide
®
04 Stop Sign
05 Yield Sign El
04 Driveway Aam
OS Railroad Creasing
03 Curve -Level
04 CurvWpgrade/
El
06 HoNes/ iuts/Unsaf4 Paved Edge
I
06 Burdirg/Fixad ObW
06 Fluting Light
08 Bridge
�w^g aos
r
01 Stand ng Water
08 worn/Pohshed Road Surface
07 Sign sl8nUbotrds ®
08 Fop
07 Railroad Signal ®
06 OffitwIGuardIFlagman
07 Entrarta Ramp I Pnvata
08 Exit Rainy ProOerlY
TYPE SHOULDER
Paved
77 All Offer IELOM
09 Smoke
09.0esiod No U•Turn
09 Parking Lot•Pubiic 77 All Other
10 Parking Lol•Private Ena>faf
Ot
1 02 Unpaved
10 Glare 77 All Other isltaq 110
WITN SZIP
'NAV% _ . .
School Zone
ADDRESS CITY CfTY M STATE -' —. . A-V
0
2
4-0
4:
FLORIDA TRAFFIC CRASH REPORT ,k Only If Update
NARRATIVE AND DIAGRAM ..
MAIL TO: MT. OF 140MAY SAFETY r MOTOR YEINCLES
TRAFFIC CRASH RECOM, TALLAAASSEF, FLORIDA M264M
CRASH REPORTSUMBER
IL4 A-W.Am
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NAM
Midi,
NA
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DIAGRAM
%( (A)
INDICATE NORTH
WITH ARROW
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2
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