The URL can be used to link to this page

Home My WebLink AboutR-95-0793J-95-948 11/2/95 9 5 -- 793 RESOLUTION NO. A RESOLUTION AUTHORIZING THE DIRECTOR OF FINANCE TO PAY TO INTERAMERICAN CAR RENTAL, INC. THE SUM OF $65,000.00, 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, CASE NO. 94-15534 (CA 15), 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. 620103-651. WHEREAS, Interamerican Car Rental, Inc., through its attorney, has filed a claim and lawsuit against the City of Miami in the Circuit Court of Dade County, Florida, Case No. 94-15534 (CA 15), for indemnification for an amount it paid to settle a lawsuit filed against it and the City of Miami; and WHEREAS, the above claim and lawsuit 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 WHEREAS, said Offices recommend that the sum of $65,000.00 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. 94-15534 (CA 15); and CITY COTMk2ISSION MEETING OF NoV 1 6 1995 Resolution No. 95- 793 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 Interamerican Car Rental, Inc. the sum of $65,000.00, 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. 94-15534 (CA 15), 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 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 16th day of November 1995. 9Q-P-- STEPHE14P. CLARK, MAYOR ATTEST: WALTER J . ,JF02MAN,� CITY CLERK - 2 - 95- 793 RISK MANAGEMENT REVIEW: ` RAN K. ROLLASON, DEPUTY CHIEF RISK MANAGEMENT DIVISION BUDGE TY,,REV EW: MANOHAR . SURANA ASSISTANT CITY MANAGER ZPREPED-. AND,APPIZOVED BY DAVID Z. S E ASSISTANT CITY ATTORNEY i APPROVED AS TO FORM AND CORRECTNESS: A. WXNN OVE9, II CITY ATT EY i w 408/DZS/ss I f i I i -3 - 95- '793 CITY OF MIAMI, FLORIDA INTER -OFFICE MEMORANDUM To : Honorable Mayor and Members DATE November 1, 1995 FILE ,I-95-948 of the City Commission SUBJECT proposed Settlement-interamerican Car 9 Rental, Inc./Case No. 94-15534 CA 15 FROM A. QUII n Jo 'S,jII REFERENCES City Commission Meeting City Attorney/ November 16. 1995 ` ENCLOSURES (2) The attached proposed Resolution is being submitted for your consideration to authorize a settlement, without any admission of liability, in full and complete settlement of any all claims and demands against the City of Miami, in Circuit Court Case No. 94-15534 (CA 15), Interamerican Car Rental, Inc. vs. the City of Miami, in the amount of $65,000.00. Funds are available from the City of Miami Self -Insurance and Insurance Trust Fund, Index Code No. 620103-651. A complete analysis and description of this case is fully set forth in the attached copy of a memorandum to the Members of the Tort Committee. This claim has been investigated by the Division of Risk Management and evaluated by the Tort Committee and it is agreed that the settlement is in the best interest of the City. AQJ/ss/bss/W004 attachments 95- 793 CITY OF MIAMI, FLORIDA INTER -OFFICE MEMORANDUM Members of the Tort Committee DATE October 20, 1995 FILE' L-94-243 SUBJECT : Interamerican Car Rental vs. City of Miami Case No. 94-15534 CA 15 ROM REFERENCES RISK MANAGEMENT David Z. Stone Assistant City Attorney ENCLOSURES l 2 b 1993 REQUEST FOR SETTLEMENT AUTHORITY FACTS: This case is predicated on an underlying tort case involving the City of Miami and Interamerican Car Rental, Inc. On January 13, 1.989 at the intersection of N.W. 3rd Street and N.W. 17th Avenue, a vehicle owned by Interamerican Car Rental was being operated by an on --duty City of Miami police officer. The officer struck a minor, Jerry Vivas, who was riding a bicycle in that area. Jerry Vivas sustained major injuries which included a possible brain injury. Pursuant to an agreement between the City and Interamerican for the lease of police vehicles by the City, Interamerican provided bodily injury insurance coverage with limits of $100,000.00 per claimant or $300,000.00 per occurrence. The lawsuit involving the minor, Jerry Vivas, was styled as Pablo Vivas and Lastenia Vivas, individually and as parents and natural guardians of Jerry Vivas, a minor v. Interamerican Car Rental, Inc. and the City of Miami. This case was assigned to Assistant City Attorney Christopher F. Kurtz. Pursuant to the Interamerican agreement with the City, Mr. Kurtz tendered the defense of the City to Interamerican Car Rental. Interamerican agreed to defend the City and accordingly, the City placed the file on a "monitor" status. Being in a "monitor status", the City does not play an active .role in the lawsuit. Instead, the file remains open and all pleadings, notices, etc. are put in it. The assistant- city attorney's name remains on a].1 certificates of service of these documents. In other words, all court documents are received and filed in the City's litigation file during the pendency of the lawsuit. At all times during the pendency of the case, the Risk Management Department was aware that the City's 95— 793 Members of the Tort Ck—daittee Octooer 20, 1595 Page 2 insurance coverage was $100,000.00 per claimant or $300,000.00 per incident. The Vivas case was settled in 1992 as to all defendants in the amount of $165,000.00 paid entirely by Interamerican on the personal injury claim of Jerry Vivas. It is undisputed that the settlement was fair and reasonable especially considering the extent of the injuries involved. Although the case never went to trial, there is abundant evidence from the discovery of the Vivas case to indicate that there was a high degree of negligence on behalf of the City's police officer. Interamerican's liability was vicarious, in that it arose out of the conduct of the officer. Interamerican filed a lawsuit for indemnification against the City for the amount it paid over the $100,000.00 insurance provision, i.e. $65,000.00 in addition to interest, attorney's fees and costs it has incurred. STATUS: This case is set for non -jury trial in front of Judge Wetherington during the one -week trial period commencing October 23, 1995. EVALUATION Included in the Interamerican agreement was a provision providing for the City's indemnification against any and all claims which may be brought against it which may arise out of the agreement. The indemnity provision -however says nothing about indemnifying the City for its agent's own negligence. Case law clearly provides that the indemnification provision, as provided in the agreement, does not operate to shield the City from an indemnification claim for its own negligence. Jones v. Holi.day Inns, Inc., 402 So.2d 1032 (Fla. ist DCA 1982)(Enforcement of agreements to indemnify a party against their own wrongful acts will be denied in the absence of clear and unequivocal contractual expression of such intent; without such an expression, a contractual indemnitor's obligation -is negated by any fault of the indemnitee which was the legal cause of the loss). As such, the indemnity provision in the Interamerican contract serves no purpose in protecting the City in this lawsuit. ' Interamerican filed a Motion for Summary Judgment. On June 15, 1995 the motion was heard by Judge Wetherington. It seemed clear to me that the Judge fully agreed with the arguments of plaintiff's counsel in this case and felt that Interamerican was in fact due the $65,000.00. Nevertheless, Interamerican's motion 95- 793 SS: WO03TURT. [xx: Members of the Tort C,—,mittee Octouer 20, 1995 Page 3 was denied based upon the fact that little discovery was done at the time and a question remained as to the understanding of the $100,000, $300,000 insurance coverage. I firmly believe that the Judge barely denied the Motion for Summary Judgment but come time for trial he would likely find for Interamerican. Since the plaintiff's Motion for Summary Judgment, Interamerican has taken the deposition of Michael Misler from Risk Management. Mr. Misler's testimony indicated that the City was aware that it would be responsible for the amount over and above the $100,000.00 insurance coverage. Mr. Misler, in fact, was also involved with the drafting of the Interamerican contract and was aware of the $100,000.00, $300,000.00 insurance provision. The City' s defense in this case would be that it was never notified of the potential settlement in the Vivas case. The problem, however, is that the City was notified of the mediation conference, an offer of judgment in the amount of $150,000.00 and the hearing on the Motion to Approve Settlement before a Guardian Ad Litem. This, taken together with Michael Misler's testimony, is likely to defeat any argument pertaining to the City's lack of notice or even that the City never approved the settlement. The plaintiff has indicated that they will accept a $65,000.00 settlement and not pursue interest and attorney's fees. It is my opinion that this case should be settled in the amount of $65,000.00. Should this case proceed to trial, and the City not prevail, the potential judgment could be close to $100,000.00 inclusive of attorney's fees, costs and interest. A R 1DJDISAPPROVED - Authority to settle in the amount of 6 ,000.00. 0 P", - r1wa, 11m, Af CITY��Nb�S , I I I CI ATT Y CHA.RLES C . MAYS CHIEF ASSISTANT CITY ATTORNEY IAI LEON M. FIRTEL ASSISTANT CITY ATTORNEY 95- 793 SSMOWTOU DCK Members of the Fort t-„unittee bet—jer 20, 1999 Page 4 IRA CHRISTOPHER F. KUR.TZ 7-1 ASSISTANT CITY ATTORNEY EN BITTNER STANT CITY ATTORNEY L . Cr7;RT �� -�� D ID FORESTI] , JR. ASSISTANT CITY ATTORNEY re 9 cp ao'l F K. ROLLASON, DEPUTY CHIEF CHIEF OF RISK MANAGEMENT DZS/Ss SS:W003TORT.DOC