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Home My WebLink AboutR-94-0806J-94-877 10/26/94 RESOLUTION NO. 9 4- 806 A RESOLUTION AUTHORIZING THE DIRECTOR OF FINANCE TO PAY TO WILLIAM SWIKEHARDT AND XIOMARA SWIKEHARDT, HIS WIFE, THE SUM OF $12,500.00, 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. 93-15298 CA (13); ALLOCATING FUNDS THEREFOR FROM THE CITY OF MIAMI SELF-INSURANCE AND INSURANCE TRUST FUND. WHEREAS, WILLIAM SWIKEHARDT and XIOMARA SWIKEHARDT, his wife, by and through their attorney, have filed a claim and lawsuit against the City of Miami, in the Circuit Court of Dade County, Florida, Case No. 93-15298 CA (13), in consequence of an automobile accident that occurred on or about December 9, 1992; and WHEREAS, the above claim and lawsuit has 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 Self -Insurance and Insurance j Trust Fund; and i WHEREAS, said Offices recommend that the sum of $12,500.00 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 set forth in the Preamble to this Resolution are hereby adopted by reference Ory COMMISSION MEETING OF NOV 1 7 1994 Resolution No, 94- 806 thereto and incorporated herein as if fully set forth in this Section. Section 2. The Director of Finance is hereby authorized to pay to WILLIAM SWIKEHARDT and XIOMARA SWIKEHARDT, his wife, the sum of $12,500.00, 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. 93-15298 CA (13), with said funds therefor hereby allocated from the City of Miami Self -Insurance and Insurance Trust Fund. Section 3. This Resolution shall become effective immediately upon its adoption. PASSED AND ADOPTED this 17th ATT T- MATTY HIRAI, CITY CLERK SELF-INSURANCE TRUST FUND REVIEW: FRANk K7 ROLLSON, Deputy Chief CHIEF OF RISK MANAGEMENT DAV OREST , JR ASSISTANT CITY rTORNEY DOF/kd/M4689 -2- day of Nov GETARY REVIEW: , 1994. MAU .SURANA CITY MANAGER APPROVED AS TO FORM AND CORRECTNESS: A. Q NN S, III CITY ATT EY 94- 806 CITY OF MIAMI, FLORIDA CA=22 INTER -OFFICE MEMORANDUM J-94-877 TO : Honorable Mayor and Members DATE ` October 14, 1994 FILE ' LT-93-19 of the City Commission FROM: A. Quinn es, III City Att ney SUBJECT : Swikehardt, William & Xiomara vs. City of Miami Court Case No. 93-15298 CA (13) REFERENCES: ENCLOSURES: Attached is a proposed Resolution being distributed to you at this time so that you may review the item for consideration at the City Commission Meeting. The Resolution seeks Commission approval to settle the above -referenced case for the sum of $12,500.00 without any admission of liability. The details of the case can be found in the Tort Memorandum, enclosed for your information. AQJ/DOF/kd 94- 806 e4zz"I CITY OF MIAMI, FLORIDA INTER -OFFICE MEMORANDUM Tort Committee Members Law Department FROM David Forestier, Jr. Assistant City Attorney GATE September 13, 1994 F,LE LT-93-195 SUBJECT Swikehardt, William & Xiomara vs. City of Miami Case No. 93-15298 CA (13) Claim No. 011/GL/93-300 REFERENCES ENCLOSURES T j��IWN A G EI FEN 1 REQUEST FOR SETTLEMENT AUTHORITY SEP 1 6 1994 FACTS: CITY OF MIAMI At 7:55 p.m. on December 9, 1992, plaintiff, William Swikehardt, an on duty Coral Gables motorcycle police officer was severely injured. While responding to a non -emergency call (without lights and siren) Swikehardt's motorcycle collided with an -automobile. Traveling northbound on LeJeune Road Swikehardt's motorcycle was struck by a west bound automobile on Park Avenue, operated by Ms. Carol Gavin, a civilian. The impact occurred at the intersection of LeJeune Road and Park Avenue. Westbound traffic on Park Avenue is controlled by a stop sign. The operator of the automobile received a citation for failure to yield while making a left turn. Ms. Gavin was turning left from Park Avenue after the stop sign and claims she did not and could not see the motorcycle because of vegetation/debris on LeJeune Road. Gavin's insurance company settled with officer Swikehardt pre -litigation, for the policy limits of $50,000.00. This accident occurred approximately 15 weeks after Hurricane Andrew. Swikehardt and his wife are suing both the City of Miami and Metro -Dade County for negligently allowing the accumulation of vegetation, debris and construction refuse in an excessively tall and lengthy pile on the LeJeune Road swale area. Swikehardt too maintains that this barrier obstructed his vision and thereby impaired his ability to perceive the intersecting street(s), vehicular traffic and traffic control devices. The swale area east of Le Jeune Road is City property and serves as a jurisdictional boundary for corporate city limits. LeJeune is a Dade County maintained road which prior to Hurricane Andrew included maintenance of the swale area. Post Hurricane Andrew FEMA, and the Federal Government Army Corp. of Engineers omitted this area from the contracts for county debris removal. Therefore, the area reverted to the City for cleanup. Per Frank Rollason, Chief Deputy of Risk Management, separate contracts for debris removal were negotiated by the City. 4. Tort Committee Mez, .rs Sept .,ber 13, 1994 Law Department Page - 2 - MEDICAL INFORMATION Officer Swikehardt sustained multiple and massive trauma as a result of this accident. At the scene of the accident Swikehardt was resuscitated and transported to Jackson Memorial Hospital with a left femoral fracture requiring Orthopedic Internal Fixation (ORIF). Additionally, he sustained a right side comminuted fracture of the Numerous which also required ORIF i.e. fixation with metal plates, pins and screws. Swikehardt also suffered a broken nose, massive hemorrhage and lacerations to the face and body. Plaintiff underwent two separate surgeries one for the fractured humerous and another for the fractured femur. As a direct result of the massive trauma, blood loss and injury to the bone marrow in fractured femur, Plaintiff developed anemia. This damage to the bone marrow which reproduces vital red blood cells further complicated and delayed plaintiff's recovery. Swikehardt was hospitalized for several months and continues to receive comprehensive physical rehabilitative therapy since his discharge. Swikehardt has been treated as an inpatient at Jackson Memorial Hospital, Doctor's Hospital and Health South Regional Rehabilitation Center. The medical expenses are in excess of $88,000.00 to date and were covered by workers compensation. The principal treating physicians Dr. Gregory Zych and John McAuliffe assigned Plaintiff a 35% permanent impairment rating of the body as a whole. Officer Swikehardt despite his eligibility for work related 2/3's disability retirement has resumed work as a police officer. However, he is assigned to light duty and administrative matters within the Coral Gables Police Department. Officer Swikehardt continues to use a cane and occasionally a walker to assist him in ambulating. BACKGROUND At the time of this accident Plaintiff was 29 years old. He is currently 31 years of age. Plaintiff has been married for eight years and has two children. His employment history with Coral Gables Police Department is unblemished and he has received numerous commendations. Plaintiff is a youthful, intelligent, presentable and ideal witness. Swikehardt makes a good impression and will easily win jury empathy. Tort Committee Mei. ors Law Department REPRESENTATION Sept aber 13, 1994 Page - 3 - Plaintiff is ably represented by Barry Davis, Esq. of Thornton, David, Murray, Richard & Davis P.A. with law offices located at 2950 SW 27 Avenue, Suite 100, Miami, Florida 33133- 3704. Mr. Davis handles most of the F.O.P. referrals involving civil litigation for the Coral Gables Police Department. SPECIAL DAMAGES As previously mentioned medical bills are in excess of $88,000.00 to date. A lost wages evaluation based on pre and post accident, income tax returns reveals that Plaintiff's income for 1993 was reduced by 50% for a loss of approximately $32,000.00. Plaintiff's base salary was covered by workers compensation however, as a result of the accident he was unable to work the usual off duty police jobs. Income derived from off - duty employment is not protected by workers compensation insurance. Lastly, the pain and suffering damages and loss of consortium claims alone, could exceed the statutory cap in a case of this magnitude. EVALUATION The central issue of liability in this lawsuit will involve a factual dispute between the City and County as to who had responsibility for the LeJeune Road swale area debris removal after the hurricane. The next issue for a jury, reasonableness of the length, height and duration of the refuse pile could inure to the benefit or detriment of either party given the devastation wrought by Hurricane Andrew, the greatest natural disaster in the history of the United States. Lastly City and County could point to a high degree of comparative negligence and fault of the automobile operator -...Ms. Gavin. Counsel for the County and I have thoroughly emphasized to Plaintiff's -attorney our mutual willingness to fully litigate this case given the Hurricane Andrew factor and comparative negligence of the tort feasor motorist. Unquestionably, it is a variable of great and unpredictable weight. We also concur that if a jury establishes municipal or county liability the damages are clearly in excess of the statutory cap. It was carefully pointed out to Plaintiff's counsel that certainly officer Swikehardt, as a police officer, was familiar 94- 806 Tort Committee Mei, rs Sept mer 13, 1994 Law Department Page - 4 - with the area of LeJeune and Park and that he knew or should have known of said hazards. Plaintiff had traversed the road frequently since the hurricane yet did not put City or County on notice. Additionally, after Andrew many intersections were missing traffic control signs and/or devices and all motorists were on notice to treat all such intersections as full four-way stops. Therefore, the greater fault could potentially be determined by a jury and assigned to the tort feasor motorist and/or plaintiff, thereby further limiting City or County liability. The issue concerning the City's separate and exclusive contract for debris removal has not been fully discovered by plaintiff's counsel. However its discovery could result in a discharge of the County and leave sole liability resting with the City. Given all these variables: 1) the cost of litigation; 2) limits of the sovereign immunity cap; 3) the likelihood and cost of obtaining a claims bill; 4) compound issues of reasonableness and foreseeably; 5) questionable stacking of debris and timing of its removal; and 6) the ultimate contigency juror perception especially since most will have had personal experience with Andrew and knowledge that, it took many months even pears to remove debris from some area roads; the Plaintiff has agreed to compromise and will settle for $25,000.00 split evenly $12,500.00 between the City and the County. A jury verdict in a case such as this, like the path of a hurricane and the resulting damage is unpredictable. The cost of further litigation and discovery will far exceed our contribution to this settlement and yet assure no definite result. I therefore strongly encourage your approval of $12,500.00 in full settlement of this matter. 94- 806 Tort Committee M -)ers Law Department WA AS BITTNER ANT CITY ATTORNEY � �/,f' ,� •,` �, ;-ram , CHRISTOPHER F. KURTZ ASSISTANT CITY ATTORNEY THERESA GIRTI;N--'r— ASSISTANT CITY ATTORNEY AVI Z . ST, E ASSISTANT C-1; Y ATTORNEY i r: Sel nber 13, 1994 Page — 5 — Reviewed as/� to Content and Proposal: eeaQ Se�er►,�Y- . =h gyp.,, p -� 0" %! G 17S o` 1f. ku.'(-� S4ow0 be G a iG c. ��o f eQ' i .(G `f-�¢ L oS e a c4* e n s o,"e .1,1 ey, h x, w^n ,0K FRANK K. ROLLASON, DEPUTY CHI RISK MANAGEMENT DEPARTMENT M006/DOF/kd/mis 2B THE MIAMI HERALD, TUESDAY,THE MIAMI HERALD, JAB 1994 F --0 1Cet Swghded '004 for injuries .' `.A Dade ury has awarded a former Miami Shores police .ofiicer-mgre ttan $340,000 for injuries he suffered ed � t a railroad crossing.in 1989. t Raymond Newby, 53,•was traveling to the scene of a minor traffic accident when his motorcycle was hit by a falling cross- ing gate. He suffered two herniated disks in his neck. -- Newby sued'the Florida East Coast Railway. At trial before Dade Circuit Judge Sidney Shapiro, attorneys.Alex Alvarez and Ibis Hiilencamp. argued:,that the railroad was responsible. because of a malfunction in_ the gate. No train;` had been,-,,',.. approaching at the time.. ; The jury initially awarded Newby, a 21-year decorated vet- ` $571,000. But it reduced the amount by finding the... patrolman 40 percent responsible for the accident. J 4- 806