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Home My WebLink AboutR-92-0075J-92-133 1/27/92 f RESOLUTION NO. A RESOLUTION AUTHORIZING THE DIRECTOR OF FINANCE TO PAY TO CAROL JOSEPH THE SUM OF $65,000.00, WITHOUT THE ADMISSION OF r LIABILITY, IN FULL AND COMPLETE SETTLEMENT OF ANY AND ALL CLAIMS AND DEMANDS AGAINST THE CITY OF MIAMI AND JERRY ADE, IN UNITED STATES DISTRICT COURT CASE NO. 89-1233-CIV- HIGHSMITH, SAID PAYMENT TO BE MADE UPON THE ACCEPTANCE OF THE OFFER OF JUDGMENT FILED WITH THE UNITED STATES DISTRICT COURT AND THE EXECUTION OF A RELEASE RELEASING THE CITY AND JERRY ADE FROM ALL CLAIMS AND DEMANDS, SAID FUNDS TO BE PROVIDED FROM THE INSURANCE AND SELF-INSURANCE TRUST FUND. WHEREAS, CAROL JOSEPH, through counsel, filed a claim against the City of Miami and Jerry Ade, resulting from an incident that occurred on April 25, 1985 at or near Northeast 67th Street and 3rd Avenue, Miami, Dade County, Florida; and WHEREAS, the above claim has been investigated by the Risk Management Department and the City Attorney's Office and in accordance with Ordinance No. 84-17, which created the City of Miami's Self Insurance Program, and said Offices recommend that the claim be settled without the admission of liability for the sum of $65,000.00; 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 to CAROL JOSEPH the sum of $65,000.00, without the admission of liability, in full and complete settlement of all I CITY C'.}:�pi"ir SSION NX. EYNO OF �,. F E a i s 1992 WEWLVTM*. claims and demands against the City of Miami and Jerry Ade in United States District Court Case No. 89-1233-Civ-HIGHSMITH, said payment to be made upon the acceptance of the Offer of Judgment filed with the United States District Court and the execution of a Release releasing the City of Miami and Jerry Ade from all claims and demands, said funds to be provided from the Insurance and Self -Insurance Trust Fund. Section 2. This Resolution shall become effective immediately upon its adoption. PASSED AND ADOPTED this 13th day of _YAeb CITY CLERK BUDGETARY REVIEW: /i MANOHA� S. SURANA ASSIST T CITY MANAGER G' PREP AND PP V BY: L NM. IRT L ASSISTANT CITY ATTORNEY AQJ/LMF/cm/M2768 , 1992. XAVIER L. S-U_hREZ , MAYOR SELF-INSUR NCE TRUST FUND REVIEW: SUJA RISK RAA DIRECTOR MENT DEPARTMENT APPROVED AS TO FORM AND CORRECTNESS: Q N ES, III CITY AT NEY j� li !I f TO CITY OF MIAMI, FLORIDA INTER -OFFICE MEMORANDUM Honorable Mayor and Members of the City Commission FROM : in nes , I I I City A ney DATE A CAM.13 January 27, 1992 FILE J-92-133 SUBJECT . Carol Joseph v . City/Jerry Ade USDC Case No. 89-1233-Civ- HIGHSMITH REFERENCESClaims #015/PT-85-090 L-89-112 ENCLOSURES: Attached is a copy of a Tort Committee Memorandum dated December 24, 1990 and a supplemental Request for Additional Settlement Authority of $5,000.00 dated January 27, 19512, approving settlement of the above -referenced case in the total amount of $65,000.00. We are requesting that you authorize the Law Department to file an Offer of Judgment with the United States District Court in the amount of $65,000.00, under the Federal Rules of Civil Procedure. Attached is a proposed Resolution authorizing the Director of Finance to pay to Carol Joseph, without admission of liability, the sum of $65,000, in full and complete settlement of any and all claims and demands against the City of Miami and Jerry Ade, upon the acceptance of the City's Offer of Judgment and the execution of a Release of All Claims, releasing the City of Miami and Jerry Ade from any and all claims and demands. The complete evaluation of this claim is contained in the attached Tort Committee Settlement Memorandum dated December 24, 1990 and the supplemental Request for Additional Settlement Authority dated January 27, 1992. This claim has been investigated by the Tort Committee (Tort Committee authorization enclosed), approved by the Risk Management Department, and is hereby recommended by this Office. AQJ/LMF/cm/8 attachments tE9 CITY OF MIAMI, FLORIDA INTER -OFFICE MEMORANDUM TO 'fort Committee Law Department FROM Leon M. Firtel Assistant City Attorney DATE September 24, 1990 FILE SUBJECT Carol Joseph v. City, et al USDC Case No. 89-1233-Civ- ARONOVITZ REFERENCES Claims No. 015/PT--85--090 ENCLOSURES Shortly after midnight on April 25, 1y5, City of Miami Police Officers Jerry Ade and Maria Romine // were riding on patrol in the area of 70th Street and Biscayne Boulevard, when they heard a radio dispatch to another unit, advising that a silent alarm had gone off at a warehouse located at 67th Street and Northeast 3rd Avenue. Ade and Romine advised dispatch that they would respond to the call and proceeded to the location of the silent alarm. They were the first unit to arrive on Lhe scene. Upon arriving, they observed a black male in the alleyway. Romine jumped out of the car and took off after the slispoct, who had started to run away. Ade proceeded to go around the corner in the vehicle in an attempt to "cut him off" and he finally cornered the Plaintiff, Carol Joseph, a nineteen year old black male. Ade jumped out of his car, pointed his weapon at Joseph and had him lie down on the ground before him. During the course of this action taking place between Ade and Joseph, Romine had encountered another person further down the alleyway who also had begun to run away upon observing the officer. Although that activity was taking place approximately one block away, Ade was only able to observe that a problem wars occurring at Romine's location. Apparently, Romine was able to control the situation and due to the arrival of other units and the establishment of a perimeter, a total of four suspected offenders were captured. During the course of Ade's covering Joseph with his weapon and Ade also trying to observe the activity in which Romine was involved, Ade claims that he noticed the Plaintiff move his arm to a position underneath his body and then thought he saw Subsequent to this incident (but not because of it), Ade resigned from the City of Miami Police Department and is now an officer with the Aurora, (Denver Suburb) Colorado Police Department. Maria Romine continues to be a Miami Police Officer. Page 2 Tort Committee September 24, 1990 Carol Joseph/Ade something in his hand. Thinking that Joseph had obtained a weapon, Ade reflexively began to squeeze the trigger on his gun and then claims that he determined that there was no weapon, so that he quickly moved his gun and instead of shooting Joseph directly, the bullet that was discharged ricochet off the ground and struck Joseph in the buttocks in the area of the sciatic nerve. During the course of a subsequent investigation of this shooting, Ade maintained his story and position as stated, claiming an intentional shooting, but the Department Shooting Board classified the shooting as being accidental a nd Ade was penalized by the loss of forty hours of earned time. Joseph was convicted of the burglary charge and sentenced to probation at that time as a first offender. Approximately two years later, Maria Romine, as a part of a police drug sting, purchased drugs from an individual who appeared to be working out of his apartment.,. The person was arrested and a search warrant was obtained for the apartment. A search was conducted but no drugs were discovered. Shortly thereafter, the drug seller appeared on television to protest his arrest and the alleged police misconduct involved in searching the individual's home, which he alleged was a part of a conspiracy to foil his claim based upon the shooting incident. It was at that time that Romine recognized the arrestee as being the s±pe Carol Joseph who had been shot by Ade some two years earlier. Plaintiff was subsequently convict?d on the drug sale and possession charges and as a result, his probation on tKe burglary related charges were violated. He was sentenced to a term of two and one-half years on all charges. The conviction was affirmed on appeal. The original penalty against Ade was firing, but this was reduced to forty hours, as stated. Plaintiff claims that the drug bust and subsequent raid at his apartment were part of a conspiracy to retaliate against him for certain public records requests and other legal maneuvers made during the burglary prosecution. 4/ Plaintiff's probationary sentence had also been violated by his failure to meet certain other conditions of hic probation. i ,) Page 3 Tort Committee September 24, 1990 Carol Joseph/Ade 1. Officer Ade, the "shooter", prior to the burglary had, during 1984, suffered from a benign intrasellar cystic lesion in his scull (pituitary gland) for which he had been taking certain psychotropic drugs both before and after undergoing surgery in November, 1984. He was certified as being able to return to full duty in February, 1985, approximately two months prior to the burglary related shooting. 2. Plaintiff has sued the City, Ade, Romine, former Chief Dickson, and sixteen other employees of the City, including: a) The officers who investigated the shooting. (Buhrmaster, Ilhardt, Fleitas, Martinez and O'Connor); b) The officers involved in returning Ade to active duty, who allegedly had knowledge of his "prior bizarre behavior" due to the allegations of his "brain tumor" and drug use to control it. (Colpitts, Ross, Russo and Stevens); c ) The City physician who returned Ade to work based upon his private physicians certification that he was able to perform (Milera); d) The officers involved in the drug bust, and -search of his apartment (Arostegui, Brooks and Harvard); e) An officer who allegedly tampered with the jury during the drug trial (Butler); f) Two Assistant City Attorneys, who were allegedly involved in the conspiracy by participating in directing the drug bust (Secher) and by covering up evidence or unlawfully denying access to public records (Mays). 3. The Amended Complaint contains eleven Counts, including: Count I - State claim against the City for negligence of Ade. Count II - State claim against the City for negligent assignment and retention of Ade. 9 9 1. V 4 Page 4 Tort Committee September 24, 1990 Carol Joseph/Ade Count. III -Section 1983 claim against Ade for shooting. Count IV - Section 1983 claim against the City for violation of civil rights as a result of the shooting. Count V - Constitutional claims against the City and certain Defendants based upon conspiracy. Count VI - Constitutional claim against certain officers. Count VII -Violation of due process and other Constitutional rights. Count VIII -Violation of Constitutional rights pertaining to the alleged illegal search. Count IX- Interference with right to impartial jury (Constitutional claim). Count X- Constitutional breach of duty to supervise, train, and evaluate against certain officers. Count XI- Constitutional breach of duty against City physician by allowing Ade to return to duty: While this is one of the worst examples of over pleading case that I have ever reviewed, Judge Aronovitz upheld most/ Plaintiff's claims in ruling on a motion to dismiss. Additionally, I am confident that almost every other defendant could be extricated on a motion for summary judgment or would be exonerated at trial. However, notwithstanding the foregoing comments, the simple fact of the matter is that Plaintiff was inappropriately and probably accidentally shot by Officer Ade. The judge dismissed claims against certain Defendants, but allowed the various counts to stand. He also indicated that perhaps many of the claims and counts might be dismissed on summary judgment. fL�r r] Page 5 Tort Committee September 24, 1990 Carol Joseph/Ade In attempting to evaluate this matter, I have had the Plaintiff examined by a psychiatrist, orthopaedic surgeon and neurologist. While the former found no impairment, both the orthopaedic surgeon (W. Scott Piper) and the neurologist (Alan Wagshul) found that Plaintiff had a permanent disability of between 1-8% of the body as a whole as a result of the shooting. The impairment rating is a consequence of the sciatic nerve injury, which are manifested by numbness, burning pain, discomfort and some loss of function in the right lower extremity. Because of Plaintiff's age and his claimed inability to a work, there is no real loss of wages; however, Plaintiff claims that the shooting impaired his future earning capacity and he was ` hospitalized for approximately one week after being shot. Based upon the circumstances and facts described, I am requesting the sum of up to $60,000 to settle this claim. Plaintiff's present demand through his attorneys Kent Robbins, is $150,000. Furthermore, with regard to settlement of this matter, assuming a number can be agreed upon, I am going to insist that Plaintiff first dismiss all defendants and counts of the Amended Complaint, which deal with matters extraneous to the shooting. t Please indicate your agreement/disagreement and comments with regard to settlement of this case at a figure not to exceed $60,000.00 below: J RG ' L . F�{RNANDEZ CITY ATTORNEY to pmrE r) QUINN JONESL, 111' DEPUTY CITY/ATTORNEY CHRISTOPHER F. KURTZ ASSISTANT CITY ATTORNEY Page 6 September 24, 1990 Tort Committee Carol Joseph/Ade 1 [:1 PREN R. BITTNER SISTANT CITY ATTORNEY omitted due to involvement in this Case CHARLES C. MAYS ASSISTANT CITY ATTORNEY PAUL WEBER CLAIMS DIVISION LMF/Cm/PB04 ( 9 .. t, , CITY OF MIAMI. FLORIDA INTER -OFFICE MEMORANDUM TO Tort Committee DATE Law Department SUBJECT FROM Leon M Firtel REFERE14CES Assistant City Attor y 7 P ENCLOSURES January 27, 1992 'L L-89-112 Carol Joseph v. City et al USDC Case No. 89-1233-Civ- HIGHSMITH Claim No. 015/PT-85-090 • • - It = t i ' ! • * • • • 1 - Attached you will find a copy of the original Tort Memorandum dated September 24, 1990, regarding the above - referenced case. Through the attached memorandum, a settlement in the amount of $60,000.00 was approved. After over a year of negotiations and further discovery, Plaintiff has finally reduced his settlement demand to $65,000.00, which is absolutely the rock bottom amount he can accept in light of various liens that exist on .his file. By way of this memorandum, I am requesting Tort Committee authority to settle this case for an additional $5,000.00 For the total sum of $65,000.00 by way of an Offer of Judgment to be filed in the case. Of course, the Offer of Judgment will be all inclusive in regard to costs, attorney's fees, liens, and all claims. There will be no admission of liability and all Defendants, other than the shooter Jerry Ade, will be voluntarily dismissed by the Plaintiff. The case is set for trial before Judge Highsmith during the two week trial calendar period commencing April 6, 1992. Please indicate below your approval/disapproval with settlement in the amount of $65,000.00. �K. QTd NN -J 'S;- T 11. - - CITY ATTO Y CHARLES C. MAYS CHIEF ASSISTANT CITY ATTORNEY 4 Tort Committee Page 2 CH F. Kvn-.L-z,j ASSISTANT CITY ATTORNEY W EN R. BITTNER ISTANT CITY ATTORNEY HUMBERTO HERNANDEZ ASSISTANT CITY ATTORNEY ERESA GIRTEN ASSISTANT CITY ATTORNEY MICHAEL MISLER RISK MANAGEMENT January 27, 1992 Carol Joseph v. City/Ade -'� vio J� i JAN-2"-1992 16 : 31 FRC' j I TY" ]F M I AM I R I Sk MONT-- TO �� l r!t.i i E=- , • jAt4-27-•42 MON 1 r.i^��D t-041" A -- Tort Committee January 17, 1992 Page 2 Carol Joveph v. City/Ade Nr J "14 e;jr- . KURT ASSISTANT CITY ATTORNEY REN R. DIRNER ASSISTANT CITY ATTORNEY 1 ASSISTANT CITY ATTORNEY ASSISTANTIKTCITY ATTORNEY .'. 01) Ai RISK MAN#0 MENT i JAN-27-92 MON 16:31 305 372 4518 P.03