HomeMy WebLinkAboutR-92-0543J-92-546
9/10/92
9 2 - N
RESOLUTION NO. t�
A RESOLUTION AUTHORIZING THE DIRECTOR OF
FINANCE TO PAY TO RAFAEL SIERRA THE SUM OF
$8000.00, WITHOUT THE ADMISSION OF
LIABILITY, IN FULL AND COMPLETE SETTLEMENT OF
ANY AND ALL CLAIMS AND DEMANDS AGAINST THE
CITY OF MIAMI AND POLICE OFFICER PABLO FARIA
IN THE ELEVENTH JUDICIAL CIRCUIT COURT, CASE
NO. 91-39084 CA (25), SAID PAYMENT TO BE MADE
UPON THE EXECUTION OF A RELEASE RELEASING THE
CITY AND OFFICER FARIA FROM ALL CLAIMS AND
DEMANDS, SAID FUNDS TO BE PROVIDED FROM THE
INSURANCE AND SELF INSURANCE TRUST FUND.
WHEREAS, RAFAEL SIERRA, through counsel, filed a claim
against the City of Miami and Police Officer Pablo Faria
resulting from an incident that occurred on June 7, 1990 at or
near 6441 S.W. 29th Street, Miami, Dade County, Florida; and
WHEREAS, the above claim has been investigated by the Risk
Management Department, the Police Department Office of Internal
Affairs, and the City Attorney's Office and it is recommended
that this claim be settled without admission of liability for the
sum of $8,000.00; and
WHEREAS, a Stipulation and Order of Dismissal with Prejudice
in the above claim was signed and approved on April 28, 1992 by
Judge Phillip Bloom, Eleventh Judicial Circuit Court;
NOW, THEREFORE, BE IT RESOLVED BY THE COMMISSION OF THE CITY
OF MIAMI, FLORIDA:
CITY COM 1101OA 91!
MEETING OF
FP in1992
W.1vAr,11Qft Na
J?- 543
Section 1. The Director of Finance is hereby authorized
to pay to RAFAEL SIERRA and his attorney JACK B. WOODARD the sutra
of $8,000.00, without the admission of liability, in full and
complete settlement of all claims and demands against the City of
Miami and Pablo Faria in the Eleventh Judicial Circuit Court Case
No. 91-39084 CA (25), said payment to be made upon the execution
of a Release releasing the City of Miami and Pablo Faria from all
claims and demands, said funds to be provided from the Insurance
and Self -Insurance Trust Fund.
Section 2. This Resolution shall become effective
immediately upon its adoption.
PASSED AND ADOPTED this loth day g'f SepjAg±etr, 1992.
XAVIER L. Z REZ, MAYOR
ATTES :
NATTY HIRAI
CITY CLERK
BUDGETARY REVIEW: SELF-INSURAN TRUST FUND REVIEW:
MANOHAR S . A SUJAN CH W, I$E TOR-.
ASSISTANT 7CY MANA R RISK MANAG NT DEPARTMENT
AP ED APPROVED AS TO FORM AND CORRECTNESS:
DAVID FORE , JR.
ASSISTANT PlITY ATTORNEY
AQJ/DOF/kd%csk/M3060
ft . f-QU�rft 04ES , II
CITY ATTOMAY
2
92-- 543
CITY OF MIAMI, FLORIDA
C-A=22
INTER -OFFICE MEMORANDUM
TO: gonorable Mayor and Members DATE: July 8, 1992 FILEJ-92-846
of the City Commission
SUBJECT
Sierra, Rafael vs
,.� City of Miami
FROM /tr v;� G ��� REFERENCES. Court Case No. 91-39084 CA i
lG Claims 4015PT-91-043
o
A. Quinn es , SII ENCLOSURES LT-91-274
City Atto ey (7)
Attached is a copy of a Request for Settlement Authority
dated May 10, 1991, a Supplemental Tort Memo of $7,500.00 dated
February 3, 1992, and a Request for Supplemental Authority of
$500.00 dated March 11, 1992, approving settlement of the above -
referenced case in the amount of $8,000.00. (See attached
Exhibits 1-3 respectively.)
Also attached is a proposed Resolution authorizing the
Director of Finance to pay Rafael Sierra and his attorney, Jack
B. Woodard, without admission of liability, the sum of $8,000.00,
in full and complete settlement of any and all claims and demands
against the City of Miami and Officer Fernando Figueroa, and the
execution of a Release of All claims, releasing the City of Miami
and Officer Fernando Figueroa from any and all claims and
demands.
The complete evaluation of this claim is contained in the
attached Request for Settlement Authority dated May 10, 1991,
Supplemental Tort Memo dated February S, 1992 and the Request for
Supplemental Authority dated March 11, 1992.
This matter although being settled for less than $25,000.00
Is being brought before the Commission for final approval due to
the objection of one Commissioner. This case was initially
settled and dismissed on or about April 28. 1992. after the
Plaintiff signed the necessary waivers and releases. (See
attached Exhibit 4.) - --- --
- t
On June 30, 1992, Judge Phillip Bloom ordered the City of
Miami to honor its settlement agreement and effectuate payment
immediately. Further delay or failure to abide by the Court's
Order may result in Contempt proceedings, sanotions, fines, or
interest payments on the $8,000.00. (See attached Exhibit 6)
Whether the Plaintiff suffered a permanent impairment is a
question of fact for the jury to decide. There is however, no
92- 543
CRAB
Honorable Mayor JIM,embers Ju 8 1992
of the City Commission page ' -2
question of fact that City of Miami Polioe Offioers did assualt
and batter an innocent bystander outside his home as a result of
the Police Department raid on the wrong property. A jury verdict
may well be in the excess of this $8,000.00 settlement figure
especially since Plaintiff has medical bills which exceed
$7,300.00.
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:DOP:kd
Enclosures
CITY OF MIAMI. FLOMDA
INTER -OFFICE MEMORANDUM
*o Honorable Mayor and Members DATE April 3, 1992 CL�Lt_91-274
of the City Commission
SL,WEC; Rafael Sierra
Court Case #91-39084 CA (25)
1 Claims #015PT-91043
`004,j David Forestier =EFEaENCEs
Assistant City Attorney
Law Department ENCLOSUP.ES
This memorandum is written pursuant to the requirements of
Ordinance No. 10072, which authorizes the City Attorney to
approve the settlement of lawsuits when the amount of the
settlement does not exceed $25,000.00.
Attached you will find a settlement memorandum circulated in
the Law Department concerning the above -referenced matter. This
case involves an assault and battery by police which occurred on
June 7, 1990. The Plaintiff was exiting his residence when he
was assaulted and battered by City of Miami police officers. The
officers although acting with probable cause and in the course of
an undercover narcotics operation, were mistaken as to
Plaintiff's identity and the residence in question. Police
should have in fact been arresting subjects at the residence
adjacent to Plaintiff's home. Plaintiff maintains he sustained a
temporary hearing loss and continues to suffer with periodic
dizziness and headaches.
The amount of the settlement is $8,000.00.
This claim has been investigated by Risk Management and the
Tort Committee of the Law Department and both concur that the
settlement of this case, as described in the attached settlement
memorandum, is in the best interest of the City. Provided that
you express no objections by April 17, 1992, a check will be
prepared, in the amount of eight thousand dollars ($8,000.00)
made payable to Rafael Sierra and/or his attorney Jack B.
Woodard, Esquire.
DOF: kd
___ ...;,:.:v.- i":--::m sa+-Ysues�wi.+iwa`wnau•a[+x+w+vxw'•
tv �R
INTER -OFFICE f`.i IVIORANi3UM
J Members of Torts
r�
Commi ttne =
-
Sujan S. Ghh br Administrator
Risk Managem nt Office
Facts:
May 10, 19011 `=`015T
PT90U7o
Rafael Sierra vs.
The City of Miami
D/A: 6/7/90
L/A: 6441 SW 29 Street
Miami , Florida
REQUEST FOR SETTLEMENT AUTHORITY
On June 7, 1990, City of Miami police officers, while engaged in
a stake out for a robbery suspect that lived at 6443 S.W. 29th
Street, Miami, (next door) observed subject exiting same address.
Since the subject fit the description of the wanted suspect he
was ordered to put his hands up in the air. Subject refused and
was rushed and taken down to the ground. Shortly thereafter the
officers realized that they made a mistake. Therefore they then
apologized to the subject and asked him if he was okay. He said
he was and they released him.
Claimant:
Rafael Sierra, male, D/O/B 10/24/53, resides at 6441 S.W. 29th
Street, Miami. Subject has no past arrests on record, however,
he is wanted on a warrant by the City of New York, on burglary
charges.
Legal representation is by Attorney Richard M. Kirshner, Esq.,
Suite 404, 5901 S.W. 74th. Street, South Miami, Florida 331439
phone number 661-3633.
Medical Specials:
Dr. Games Gorelick, M.D.: Impression: This patient probably has
enC organ cisease pro ucing the hypoacusis. Perhaps due to
labyrinth trauma, or maybe even a shearing type phenomena to the
nerve ending.
M.R.I. of South Dade, LTD:- Impression: Intracranially no
abnormality s seen. n ngs: In the T1 weighted anial and
coronal images obtained after the administration of magnevist
( Gadolinium DTPA) there is no evidence of abnormal enhancement
.within .the brain parenehyma or in the leptomeningeal areas. The
size of the cortical sulci and ventricles are within normal
limits for the patients age.
EXHIRIT ( 92- 543
S
Dr. Luis A. Velar, M.O.: Diagnosis impression and evaluation.
1) Hypoacusis post traumatic
most likely post traumatic
headaches.
2) Cervical spine sprain
post traumatic.
3) race and temporo -
mandibular contusions post traumatic.
Patient has sustained a
permanent physical impairment
to the body
as a whole, which is
rated as a 4-6ry disability,
which is a
result of the traumas suffered
in this incident.
FACILITY
DATES
AMOUNT
Dr. Luis A. Velar, M.D.
5/R/90-12/10/90
S3,416.00
M.R.I. of South Miami
11/30/90
2,575.00
Westchester General Hospital
6/20/90
683.50
South Miami Audiology
6/21/90
610.00
Dr. Carlos Wolf, M.D.
5/21/90-8/20/90
145.00
TOTAL
$7.429.50
EVALUATION:
Plaintiff attorney is demanding fifty thousand dollars ($50,000),
for full and final settlement of this claim for alleged injuries
to his client, as a 'result of this incident.
It is our opinion based on the facts of this case, the officers
made an honest mistake and the incident was not done willfully.
Furthermore, it appears the claimants medical specials were
overdone, because the officers were told at the scene that he was
okay and they did not see any evidence of injury to this subject
after this incident.
Therefore, it is suggested that we attempt to settle this case
for up to $4,500 as a compromise, not admitting that the officers
used excessive force.
SSC/MAT/acp
EXHIBIT.. �
6 - 92- 543
31
pprove i sapprovedt Settlement authority in the amount of 54500.00.
:yn
Ail jul nn jogres, 111
Deputy Cit Attorney
s u.-mays
ant Cit torney
Keon M . f i rze i
Assistant City Attorney
N w't M�
•
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C i►ei l n�
�: t v t (tom LN t hti+ cS-y wxM ).r.E+� f�n�►��t a � � kt �rtnl.•.t
OC4 I;;yw
4
r s opher- Kurtz .Z' �,r,t� s , ,lam �lA.�, F.i Q.�••y� �
Assistant City Attorney 1,; Wefj. c(tJA
`�- 1 � � •� ,f 'r �` � �', c � � .:ems f
ren ner
Assistant City Attorney
Assistant City Attorney
0 Untoftl
92- 543
EXHIBIT..
CITY OF MIAMI. FLORIDA
INTEROFFICE MEMORANDUM
To Members of the Tort Committee DATE
SUEdECT
PROM David F estier, Jr.
Assistant City Attorney REFERENCES
ENCLOSURES
February 5 , 19 9 i PILE
Rafael Sie?:I•� v.;;ON
D/A: 6/7/90
L/A: 6441 5. 29-h Street
V
Miami, ��-
A settlement conference is scheduled in this matter for FebZu ary
10, 1992. Plaintiff's attorney has expressed a willingness to
settle this case for ten thousand dollars ($10,000.00); however
we believe that a compromise at seven thousand five hundred
dollars ($7,500.00) or less may be accepted. The original pre -
discovery settlement value assigned to this case was two thousand
five hundred dollars ($2,500.00). (See attached tort memo;
Plaintiff claims permanent injury to his ability to heez as a
result of this incident where he claims to have been st-uz k
during the course of a "wrongful,, seizure. Our doctors i;�'icae
no impairment, but depositions of additional experts, :is_ c:Ctl
doctors, related witness fees and associated trial costs
most certainly exceed the five thousand dollar difference between
the approved two thousand five hundred dollars ($2,:00.00� end
proposed seven thousand five hundred dollar ($7j500.00)
settlement figure. It is unlikely that we will escape liabil_ty
via summary judgment given the disputed material facts. An
adverse jury verdict may prove even more costly in the long =un.
Please indicate your agreement with settlement at seven thousand
five hundred dollars ($7,500.00) or less.
DOF:kd
Enclosures
EXHIRIT 92- 543
l _
.ri
Members of the Tort Committee February 5, 1.992
Page Two
EVALUATION:
ON
APPROVE DISAPPROVED - Authority in the amount of $7,00.0; or
wh%0
UA t /7-0
KQUrNY 4FOVEs-,
ity Att y
CHARLES C . MAYS �i-
Chief Assistant City Attorney
L ,N Mil FIRTEW 4 -r '
A istant City Attorney i
CHRISTOPHER F . KURTZ
Assistant City Attorney
EXHIBIT-L-
92 - 543
3.
0
Members of the Tort Committee
February 5, 123:
Page Three
V
HUMBERTO
HERNANDEZ
Assistant
City Attorn
vD vF ... �.,ci..J
THERESA L. GIRTEN
Assistant City Attorney tJi
Department iof
L • fir:
A, irector
is Management
•
EXHIBIT-
92- 543 j
\ CITY OF MIAMI. FLORIDA
INTEROFFICE MEMORANDUM
Member of the 'Tort Committee Z)A.1 March il, 1992
CIE
�.
David ForestiE_-;, 17r
`°'=f-j Assistant City Attorney
SUBJECT
Rafael Sierra vs COX
D/At 6/7/90
REFERENCES L/As 6441 S.W. 29th Street
Miami, Florida
ENCIOSUAES
Prior to the Mediation Conference, settlement authority had been
approved in the amount seven thousand five hundred dollars
($7,500.00). At the Mediation Conference of February 11, 1992,
Plaintiff made unrealistic demands and the negotiations never
progressed beyond the City's offer of six thousand five hundred
dollars ($6,500.00). Plaintiff's counsel now advises that his
client is willing to resolve this matter for eight thousand
dollars ($9,000.00). Plaintiff alleges that his medical expenses
are seven thousand three hundred dollars ($7,300.00) and his
legal costs are one thousand two hundred dollars ($1,200.00). 'As
the proposed amount is merely five hundred dollars ($500.00) over
the previously approved seven thousand five hundred dollars
($7,500.00), it is recommended that their supplemental request be
extended to resolve this matter.
DOF:kd
Enclosures
EXHIBIT
92-- 543 / 3
Members of the Tort Committee
March 19PI992
Page Two
EVALUATTOkl:
APpRC'�E jDISAP PROVED - Authority in the amount of $8,000.00.
T JONE , III
City Attorney
CHA C. MAY
Chief Assistant City Attorney
ON M o FIRTI
sistant Ci Attorney
CM I 0 ER F. KURTZ
Assistant City Attorney
EXHIBIT
92- 543
i �+
Members of the Fort Cott i.ttee
March 19- ..?:'2.
Page Three
HUMBERTO HERNANDEZ �. • • , ' i
Assistant City Attorney
�
4THERsistant
P
ESA L. GIRT NAs
City Attorney (j
y�
REV BITTNER
As sistant City Attorney
1, 7
w[A
SUJAN S. H , Direc r
Departure t f Rlihxw4gement
FXHIRIT
9 2 - 543 /,.S
0
RAFAEL SIERRA,
Plaintiff,
va
THE CITY OF MIAMI, a
Municipal corporation,
Defendant.
IN THE CIRCUIT COURT OF THE
ELEVENTH JUDICIAL CIRCUIT IN
_ AND FOR DADE COUNTY, FLORIDA
GENERAL JURISDICTION DIVISION
CASE NO. - ( )
-
STIPULATION AND ORDER
OF DISMISSAL WITH PREJUDICE
STIPULATION OF DISMISUL
The Parties hereto, by and through their undersigned
attorneys, show the Court that all matters and things in
controversy in this action, including costs, have been amicably
settled and move that the above -styled cause be dismissed with
prejudice to Plaintiff.
DATED:
RICHARD M. KIRSHNER, P.A.
JACK BROWN WOODARD, ESQ.
Attorney for Plaintiff
5901 S.W. 74th Street
Suite 404
South Miapd, Flo a 3 143,
PH: (3 ) 661 33
rs
By
DATED: '�W;wd, .go_ . lqq L,
A. QUINN JOKES, III, City Atty.
DAVID FORESTIER, Jr., Asst. City Atty.
Attorneys for Defendant
Dupont Plaza Center, Suite 300
3P ,,Biscayne Boule d Way
iami, Florida ,.33 31:
PH: 5) 57 - 70
OOV— - By:
D, ESQ.
DAVID FO�TIER, JR., ESQ.
Assistan pity Attorney
EXHIBITS--
92- .543 / 7
CASE , 91-35084 CA (25)
OtL�t Eft ,.OF__ DISMISSAL WITH PR> mI)Trr
THIS CAUSE coming on upon the foregoing Stipulation and the
Court being fully advised in the premises, it is
ORDERED AND ADJUDGED that the above -styled cause, be and the
same is hereby dismissed with prejudice to Plaintiff.
DONE AND ORDERED in ,Chambers at Miami, Dade County, Florida
this AP day of 1992.
IV
OUDGE PHILIP. 6L"
CIRCUIT COURT JUDGE
Copies furnished to:
Jack Brown Woodard, Esq.
David Forestier, Jr.-, Asst. City Attorney
DOF:kd
EXHIBIT-.4.-
92- 543
V.
0
INDENTURE W1;` � t'.._ :. 1 _ : �cideratic;. : f 5 _�frs
'*?:C�:SAND DOLLARS (Sa . "'_'C • "'" ' _ =oei��` where^x • ?_reby
a �kn•D*��I _dg9d, for mycs:. f � -hir airs • �r��-sc-ial
rSr," :a-ntati:es and assi.;ns, �'•.___BOL SIERRA, re :ease and
fore.•__ discharge the CITY OF ':_::: :_ts agents, ser'.ants,
contractors, lessees. c i:Z t etc., and any
other person, firm or corrcra.tio.. c:!arged or chargeable with
responsibility or liability, .heir respective heirs,
representatives and assigns, f_^r.: a. +r and all claJ.-s. demands,
damages, costs, expenses. loss of ser--ices, actions and causes of
action. whether in the nature of subrogation or :-Qrwise,
arising from any act or occurrence up to the present time -;?trd
pdic:.cularly on account of all personal injurj,
pregerty damage, loss, damage or �.e=:ivation of any kind alre:-.dy
sustained or that may, hereafter be sustained, including
reputation or civil rights, in co nse ;pence of an. incident th-t
occurred on or about June 30, 193-101• t. or near 6441 S.W. 29th
Street: in the City of Miami, Dade County, Florida, and as a
consea-..ence of which suit was filed in the Circ.iit r->u.r': of the
lith Judicial Circuit, CASE NO. 91- 1?4 CA 115).
To procure payment of the sa4.:•'. sum, I hereby dec-.ar `.1^-a . I
am ;;ore than 18 years ci age; that no rsoresentatLons
naturs and extent of said injuries, _.._s?!°J3 cr ti?.; :'" tz ina-fe
by an-, physician, attorney or - ,': o :: a•n1, r : • . ' e ."
released. nor any representations ago::': ::-e na tuze and e::te:,-
said. injuries, disabilities or da_-.-,ces mad'.s by any ph_r. a cian,
or agent of any part-- ne_eby released, nor ::ny
representations regarding the nature and extent of legal
liability or financial responsibility of any of the parties
hereby released, have induced us to make this settlement; that: in
determining said sum there has been taken into consideration not
only the ascertained injuries, disabilities and damages, but also
the possibility that the injuries sustained may be permanent a:-,.d
progressive and recovery therefrom unc:srtai, and indefinite, so
that consequences not now anticioats^ may result from the s:�..Ld
incident.
+
I hereby
agree that,
as a =u=rt; er consideration and
inducement
for
this compromise
se :t:ement .
th? s settlement ah� 1.1
apply to
all
unknown and unanticipa.ted
injuries and damagss
resu l tina
from
said incident,
cas�_.a! *' _ or
event, as we:.l '%5 to
those - -. w
disclosed.
I ,Fr.ders*_and that the pa_ :.r er=_ .,r rc_9!kAsd a,'Lm L : no
liability of any sort by 1'e86Q'1 e`_` : a._d incident cident and ta-a . --aid
payment and settlement in comprom _s made tc tee+:.nats =-t..-r
controversy respecting all c_a•ir.s rcr '"amdags the.`.
hereto.c-•re asserted or that I or .nL ,s=sosel _sprssen et_ye -~t
or could hereafter assert because ,jr said incident.
RELEASE OF •AZu
Page 1
EXHIBIT
92- 543 J 9
0
A. - understand `hat sl:c', 'J.a. —; �t? as I •na_' ; :all
have incurred, directly or indirs::':*:=^nnection For
damages arising out of the __.�... = ezCh -�•.:,:�:l or
organization released and discha =_c. o
any othsr person or organizatiTr.. :ass'C.:1
of then, such liability not bei. •a�_-ed,. B reed a ed
nor settled by this release.
In consideration of the a`T::s _? id 3 I!n it is raed to
indemnify and save harmless the parties a ~:a- ":e
hereby released of and from any end all lie.'i= :. =ci+-,-!..ng
those that are under the Florida Reoa._ations Act or = sbrog�.t_on
claims arising out of the aforesai_'.
SIGNED AND SCALED this
WITNESSED B
ft
STATE OF FLORIDA)
COUNTY OF DADE ) ss:
7 FAZZL -_ERRS
Or. this '14 day of ,
• : J
appeared RAFAEL SIEFAA.
presented
identification.
acknowldeged that
DOF:kd:L91-274
fe executed t:
he executed the
.
rinaw•n LV Tc .. ._ ;1 io
as
^regoing instrurent and
as his free act anti —,4, .
My Expires
jtii_IC STATE 07 ..A
RELEASE OF AL2, C=.A T:T.5
-L� page 2
92— 543
EXHIBIT�
CItY OF MIAMI. FLORIbA
i INTER -OFFICE MEMORANDUM
i
TO A. Quinn Jones, III DATE April 13, 1992�1Lt
City Attorney
BUbJECT
Rafael Sierra
Court Case # 91-39084 CA (25)
I; rt�pM REFERENCES
J. L. Plummer, Jr
Commissioner ENCLOSURES.
Please be advised that as a prerogative of the commission I am
objecting to the settlement of this case.. I predicate the
settlement due to our doctors indication of no impairment.
Thank you.
cc: Cesar Odio City Manager
David Forestier Asst. City Attorney
IN THE CIRCL J -� COURT OF THE
11TH JUDICIAL CIRCUIT, IN AND
FOR DADE COUNTY, FLORIDA
GENERAL JURISDICTION DIVISION
JUL ii CASE NO, 91-39084 CA-25
RAFAEL SIERRAr:-i- .
Plaintiff,
V. ORDER GRANTING PLAINTIFF'S
MOTION TO ENFORCE SETTLEMENT
CITY OF MIAMI,
Defendant.
THIS CAUSE, coming before this Court on 6/30/92, on
Plaintiff's Motion to Enforce Settlement, and the Court having
heard argument of counsel and being otherwise fully advised in
the premises, it is hereby
ORDERED AND ADJUDGED:
1. That Plaintiff's Motion to Enforce the Settlement
Agreement between the parties is hereby granted.
2. That Defendant shall tender a settlement draft in
the amount of $8,000 forthwith.
D NE AND ORDERED in Chambers at Dade County, Florida
this day of 1992.
juWE PHILIP SLOoir
CIRCUIT COURT JUDGE
cc: JACK BROWN WOODARD, Esq
DAVID FORESTIER, JR., Esq.
LAHIBIT...�
92- 543