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HomeMy WebLinkAboutR-79-02132. ? f �� Oro CL a- V O D O La_ CP 0 JBA/RFC/S/1 3/16/79 RESOLUTION NO. 7 9 - 2 1 3 A RESOLUTION AUTHORIZING THE DIRECTOR OF FINANCE TO PAY TO ROBERT JACOBS AND VICKIE .JACOBS, HIS WIFE, WITHOUT THE ADMISSION OF LIABILITY, THE SUM OF ONE -HUNDRED FIFTY THOUSAND DOLLARS ($150,000.00) IN FULL AND COMPLETE SF,TTLEMENr OF THEIR CLAIMS AGAINST THE CITY OF MIAMI FOR PERSONAI. INJURIES SUSTAINED BY ROBERT JACOBS UPON THE EXECUTION OF A RELEASE RELEASING THE CITY OF MIAMI FROM ALT. CLAIMS AND DEMANDS. WHEREAS, the Plaintiff, ROBERT JACOBS, filed an action against the City of Miami in the Circuit Court of Dade County, Florida, bearing Number 78-6840 for personal injuries due to an accident involving a city -owned vehicle on March 11, 1977, at or about N.W. 5th Street and 3rd Court, in the City of Miami, Florida; and WHEREAS, this claim has been investigated by the Office of the City Attorney and after considerable negotiations with the attorneys for the Plaintiff, a settlement in the amount of One -Hundred Fifty Thousand Dollars ($150,000.00), payable upon an installment basis would he acceptable to the Plaintiff; and WHEREAS, the Office of the City Attorney recommends that this law suit be settled for the sum of One -Hundred Fifty Thousand Dollars ($150,000.00), which includes Plaintiff's medical expenses of approximately $10,000.00; NOW, THEREFORE, BE IT RESOLVED BY THE COMMISSION OF THE CITY OF MIAMI, "DOCUMENT INDEX ITEM NO. the Director of Finance is hereby authorized and FLORIDA: Section 1. That 11 directed to pay to ROBERT JACOBS and VICKIE JACOBS, his wife, without the admission of liability, the sum of one -Hundred Fifty Thousand Dollars ($150,000.00) in full and complete settlement of their claims against the City of Miami, for alleged personal injuries sustained by ROBERT JACOBS, upon the execution of a release releasing the City of Miami from all claims and demands whatsoever. PASSED AND ADOPTED this22nd day of ATT CITY CLERK PREPARED AND APPROVED BY: MARCH , 1979. MAURICE A. FERRE dad-- Mr-t-t< ROBERT F. CLARK, Assista APPROVED AS TO FORM AND CORRECTNESS: GE F. KNOX, JR., Ci 79- 13 27 go\ Honorable Members of the City Commission eo , e F. Knox Citj Attorney STATEMENT OF FACTS I. LIABILITY March 13, 1979 Robert Jacobs vs. Arthur Corlazzoli and City of Miami Circuit Court Case No. 78-6840 On March 11, 1977, the defendant, ARTHUR CORLAZZOLI, while employed by the CITY OF MIAMI, ran a red light, collid- ing with ROBERT JACOBS' automobile. Under oath, Mr. Corlazzoli explained that he was at fault (page 17 of his deposition) and was angry at having done "such a dumb thing" (page 21 of his deposition). Summary Judgment on the issue of liability was granted on behalf of the plaintiff on November 15, 1978, and the CITY OF MIAMI has been held, as a matter of law, totally liable for plaintiff's injuries. Therefore, the substantive issues remaining in the lawsuit all relate to the amount of money to compensate Mr. Jacobs for his physical injuries. II. BACKGROUND At the time of this injury, plaintiff was 23 years of age, married, with an infant son. His life expectancy is 48.3 years (HEW tables), during which he will suffer epileptic seizures arising from the scarring to his brain cells as a result of this accident. Plaintiff was employed as a buyer for Richard's Department Store, earning approximately $14,000.00 a year. Prior to the accident the evidence discloses that he had an active, normal life, was in excellent health, was making good progress in his employment and expected to advance in pay status. This was testified to at a sworn deposition by co-workers and supervisors. Since the accident he has been unemployable as a result of epileptic seizures caused by the brain trauma. To this date his lost income is $32,246.20. His future loss of earning capacity according to H. T. Shulenberger, Economist, C.L.U., approaches $336,000.00, when reduced to present money value. As a result of his unemployability, plaintiff and his family left Miami and have since been living with his parents in Syracuse, New York. ter, tv . u, IV 79-213 Honorable Members of the City Commission March 13, 1979 Page 2. III. MEDICAL HISTORY By use of sophisticated diagnostic tests, such as EEG and brain scan, several neurologists have found scar tissue to the temporal lobe area. This scarring of the brain cells manifests itself in the form of memory loss, neurological deficit, and most important, epileptic seizures. Plaintiff is on anti -convulsive Dilantin and Tegrital. He will be required to continue with these drugs under medical supervision for the rest of his life. His convulsions have been documented by physicians, friends, family, as well as other co-workers. Gregg Boyd describes these seizures as follows: "His knees came up to his face and hit him in the forehead. I then at that time seized the opportunity and opened the door, and he started convulsing and vomiting and trying to say something. He looked as if he had stuck his finger in an electrical socket." (Page 9-11). Board Certified Neurologist, Sherif Shafey, in his deposition, confirms plaintiff's brain damage and injury to the temporal lobe by diagnostic study. He absolutely relates this injury to the accident caused by Corlazzoli and finds that plaintiff will have to continue on anti -seizure medication for the rest of his life. Plaintiff has also been treated by Harvard Medical School graduates Allan Wright and Dr. Max Kutzer. In his deposition Dr. Kutzer confirms that plaintiff's seizure disorder has affected his speech, memory and instant recall and that it is a permanent condition. Additionally, the prescribed medication, will cause a slurring of speech and mental ability (pages 45-50). Dr. Kutzer states that plaintiff should not participate in activities alone and points out that he cannot obtain a driver's license because of his condition (pages 50-51). Dr. Wright, a Board Certified Neurologist, has testified that plaintiff is "totally disabled" (page 98) as a result of the scarring of the brain. Dr. Wright also points out that the temporal lobe of the brain governs the emotional state and damages to that area can result in rage reactions (pages 82-83). Two additional consultants, Dr. Carmen and Dr. Orgel, find plaintiff to have suffered intellectual losses, anger and depression and a deficit in the area of immediate recall (pages 52-53 of Dr. Kutzer's deposition). Honorable Members of the City Commission March 13, 1979 Page 3. Plaintiff's family doctor, Bernard Alpert, and consultant neuro-psychiatrist, Michael Gilbert, further confirm plaintiff's medical injuries. Dr. Alpert, who treated plaintiff prior to the accident, has corroborated his excellent prc-accident physical condition. Nothing in plaintiff's medical history before the date of the accident reflects any traces of his present disorders. Eye surgeon, Robert H. Goldwyn, has testified as to the effects on plaintiff's vision as a result of this brain damage, diagnosing a fourth nerve palsy. IV. DAMAGES If the case went to trial on the matter of damages, the jury would be presented with the above -described facts and, as a matter of law and pursuant to standard jury instructions, they would also be presented with the following table: A. Past medical bills B. Past lost wages C. Future loss of earning capacity (H. T. Shulenberger, C.L.U.) D. Capacity for enjoyment of life Date of accident to present E. Pain and suffering Date of accident to present F. Future loss of capacity for enjoyment of life and pain and suffering (48.3 years) TOTAL DAMAGES ' 1 1 i1 $ 9,787.65 32,346.20 336,000.00 40,000.00 40,000.00 480,000.00 $938,133.85 s 79-213 Honorable Members of the City Commission March 13, 1979 Page 4 V. APPLICABLE LAW Florida Statute 768.28, Waiver of Sovereign Immunity,and several recent District Court decisions are applicable to this case. If the City were to avail itself of the $50,000/100,000 Judgment limitation contained in F.S. 768.28, and if this statute was to be found constitutional as to the City under the particular facts of this case by the Supreme Court of the State of Florida, the City could be obligated to pay the maximum limitation of $100,000 per occurrence contained in the statute. The reason for this is that Mrs. Jacobs has also brought forth a derivative action for loss of support, and pursuant to the recent decision in the Department of Health & Rehabilitative Services vs. McDougall, 359 So.2d 538 (1978), her claim would be separate from that of her husband, thus making the amount ultimately payable by the City, if successful at a Supreme Court level, $100,000.00. Considering the facts of this case, and keeping in mind that liability is no longer an issue in this suit, to pursue this avenue brings about the risk of testing the constitutionality and applicability of F.S. 768.28 to a municipality under, at best, a bad factual situation. It is commonly said that "bad facts make bad law." VI. ANALYSIS AND RECOMMENDATION This case has been discussed with several prominent defense firms in the area, and it has been the consensus that if exposed to a jury verdict, the range could be anywhere from $300,000 to $500,000.00. The case was scheduled to be tried on March 12, 1979 before the honorable Circuit Court Judge Stuart M. Simons, who, on March 8, 1979, called a meeting in his chambers, between counsel for the City, and counsel for the Plaintiffs. As a result of this meeting, and in open Court, as a climax of considerable on -going negotiations, it was announced that the following settlement agreement was reached by counsel for both sides, subject to the approval of the City Commission: Honorable Members of the City Commission March 13, 1979 Page 5. The City will compensate Plaintiff for his injuries in the amount of $150,000.00, payable in the following manner: $50,000.00 upon the City Commission's approval of this settlement agreement; $50,000.00 six (6) months from the date of the first payment; $50,000.00 one (1) year from the date of the first payment. Inasmuch as liability is a foregone conclusion against the City of Miami; damages to the Plaintiff have been thoroughly verified and found not to be of the average type; that a Jury range has been estimated to be from $300,000 to $500,000, and that the applicable F.S. 768.28, Waiver of Sovereign Immunity, if found constitutional by the Supreme Court of the State of Florida, could still have the City pay an amount of $100,000, it is strongly recommended that the settlement of $150,000.00, as described above, be approved as the very best possible alternative to the City. 79-213