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RESOLUTION 91-20374 RESOLUTION NO. : 91-20374 A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA, AUTHORIZING ATTORNEY, ANDREW J. MIRABITO, ESQ. TO SETTLE GARCIA, JR. , ET AL. V. CITY OF MIAMI BEACH ET AL. , CIRCUIT COURT FOR THE ELEVENTH JUDICIAL CIRCUIT IN AND FOR DADE COUNTY FLORIDA, CASE NO. : 91-26591 CA 05 FOR AN AMOUNT NO GREATER THAN $200,000.00 . BE IT RESOLVED BY THE CITY COMMISSION OF THE CITY OF MIAMI BEACH: WHEREAS, in 1991, Garcia, et al . v. City of Miami Beach, et al . was filed in Circuit Court, wherein Plaintiff alleged that due to the negligence of the City of Miami Beach he was rendered quadriplegic in an accident caused by debris left over from the South Beach Pier demolition, and WHEREAS, Andrew J. Mirabito, Esquire of Floyd Pearson Richman et al . , representing the City of Miami Beach, has advised that consideration of a settlement with Plaintiff in the subject litigation is in the best interest of the City of Miami Beach, and has thus recommended that the City attempt to settle this case for the $200, 000. 00 statutory limit; and WHEREAS, the City Attorney concurs in the recommendation of Attorney Mirabito and would further recommend that Attorney Mirabito be authorized to attempt to settle this cause for the $200, 00. 00 statutory cap. NOW, THEREFORE, BE IT DULY RESOLVED BY THE CITY COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA that the recommendation of the City Attorney that Attorney Mirabito Esq. outside counsel representing the City of Miami Beach in Garcia, et al . v. City of Miami Beach, et al . be authorized to settle this matter for $200, 000. 00 is hereby accepted and Attorney Mirabito is thus hereby authorized to attempt to settle this case consistent with those figures as outlined herein above. PASSED AND ADOPTED this 25th day of September 1991. AIL /1101? - AAO, /A YOR ATTEST: FORM APPROVED LEGAL DEPT. CITY CLERK • By (a:\garres.jlw) Date gliqh/ I - -.r•' .rl: c:♦ .Y b V' :jc. ..t __ - -i,s. _j __ _..,- _ _ _ _ s:J J r..,:>`: - -- - 'J- - t t . r. ., . .('+K.D-y-. -� r j+.> ti<+.• f•t.r 7:y� '1 , .rLa... w. '•.bf-i> : •. rZ. t.. } . •'f` =1"• _Ji.Y.l`�,td'• 'M't r_.. .. :_ 1. •t!; ' :,'isrr.. ..iyr.''..a.: ...�:�i..tar.._'';ies.►'ri.► '`3}•ts�i7C�"`,�dr''a�i�.`-,c:: 1�...ria.!-...srilr..•�.1iI�'�i5►e-��:$ .,�'.iet'�s9ir.cc.:r�...•c�7rrs::..SR:�.'u:iC��4•.,2 1�`s �ciiL7,.:s.•i�t�ci.._,s:r..ii�tt�Sc::a..s:i.�:'#:,�a.� .:.i..��.�a�•% '•i:atil'aaR''.:� - ( 41 OFFICE OF THE CITY ATTORNEY 64 wpm re4 F L O R I D A SEN. LAURENCE FEINGOLDtINCORPIORATED l = P.O. BOX O ,,•'�9PC���q�h CITY ATTORNEY MIAMI BEACH, FLORIDA 33119-2032 '�\..H 26_-• TELEPHONE (305)673-7470 TELECOPY (305)673-7002 COMMISSION MEMORANDUM NO. : :39'6-9/ DATE: September 25, 1991 TO: Mayor and Members of the City Commission FROM: Laurence Feingold City Attorney SUBJECT: Juan Garcia, Jr. , et al. v. City of Miami Beach Case No. : 91-26591 CA 05 (Gordon) Request for Settlement Authority REQUEST FOR SETTLEMENT AUTHORITY This claim arises from an accident which occurred on February 1, 1989 when Juan Garcia, seventeen, dove into the surf at the beach between Biscayne and First Street, striking his head on the ocean bottom causing a fracture in his cervical spine which rendered him quadriplegic. The plaintiff claims that he hit debris left over from the wreckage of the South Beach Pier, that the area was not roped off as unsafe for swimmers and that there were no warning signs posted in the area. According to our consulting orthopedic surgeon, the boy is indeed quadriplegic. The accident was clearly a diving accident caused by hitting sandy bottom which may or may not have contained concrete debris from the wreckage of the pier. The abrasions on the plaintiff's chest were indicative of hitting sandy bottom which, however, does not preclude rebar or concrete covered with sand from being present on the ocean floor and possibly raising the ocean floor at the point of the accident. LIABILITY As the Commission is aware, Cuyahoga Wrecking Corporation won the bid to demolish the South Beach Pier. Cuyahoga left a considerable amount of debris on the ocean floor, therefore the City notified and made written demand upon Travelers Insurance,the performance bond carrier, to complete the contract work. On December 14, 1987 the City filed a lawsuit against Travelers, which suit was settled in April of 1988 . Prior to the suit being in Februaryof 1988 the City distributed an invitation to settled, bid to remove the debris left over from the Cuyahoga demolition. Although the bid was won by Dickerman in March of ' 88 , work didnot begin nor was the contract signed until subsequent to Juan Garcia' s accident on February 1, 1989. The City was therefore on notice for a considerable amount of time about the dangerous condition and although we did enter into a contract to alleviate said condition, the plaintiff was injured prior the debris being removed. Both Cuyahoga and their insurer are now insolvent and in Federal Bankruptcy Court. The City was self-insured on the date of the accident. Although the State of Florida is the ostensible owner of the land near the shoreline, the City of Miami Beach is responsible for the maintenance of the beach and surf. There is an agreement with Dade County that the City maintain the beaches and provide lifeguards. Additionally, the permit received from the Florida g DepartmentP of Natural Resources on October 2, 1984 states that as �,� a specific condition of the permit the City is wholly responsible for makingsure all debris over one and half inches in diameter is -� AGENDA ITEM " Q -c 1700 CONVENTION CENTER DRIVE - FOURTH FLOOR - MIAMI BEACH DATE �•r. -.r n..,.. v..r. .:-.y.•i+...-!t7'...r.r' _. .... ... .-... . _.. .. ... -•--.yy.r t .. a .r •i!'., Sr. •r7►... . .;..i rr r...>: •Y>'tt,cr• '•. ..YY., •' i:^Yt.w>.;•,y;"T^'•R'.?c. .i..:T=. V'}' t• 1\fl'1JY Y.r;.•L..'\-.^q.+"k..• r.r. :'k•:r"'r."•l.C.•xi1••�1-c.gR•>'►':•51►f_ !,".'!'..">'{%^'-by.w,?5"'.{",.;Tr:.i!\=y1Rt^,T 'Tl.7'rL.T6"'w?C:•.rf:' „ >^'�^^:�'•ti:T'. .`! .Y•:i'{.' -•_-'f,'}, •,� 1!•.f:l.` ,. � •y74..r'i! s i.,,.'i' vii:- t- �.J J.....0 .-7:.r '. -,.t.- p ti tv"_ s+, `'• -t•y,/. j •[ .' `:••.4---r: -fc•.- .J• �.L{"..:i7+LS1:i�;'2ritit3�1S:fa'. i!-�rJrul' '`'i�"'J'•*.:c7d.i..?'�.�`iEd::+ic��-l.S[1iF.r"1�s•.71#niq..a 71�'�e's..a.ia�':Ys.'-iia. . :�ci�v.+as,J� �JG , - - �i .+.st:�`;ia "` �li�zi.,._•:'lL.e.i�t ^""`':itirs. 1 a.{::�"=}_�;` �i. s'a:e•_ n.' ti removed. All contracts that were signed, were signed solely by the City of Miami Beach and paid for by Miami Beach Reallocation Bonds. Permits were additionally issued by Dade County Beaches and Shores Commission which laid out the specifics of City responsibility as stated above. DAMAGES As it is clear that the City had notice of a dangerous condition at the beach, if the jury finds that the boy's accident was a result of negligence on the part of the City, then an award well in excess of our $200, 000. 00 cap is almost certain. Although there is considerable comparative negligence since the plaintiff dove into knee high clear water with no visible signs of concrete and there is no physical evidence of hitting sharp concrete or rebar, the injury is so devastating and the boy is so young that a runaway verdict in the millions cannot be discounted. This clearly is a case in which the Plaintiff will seek a claims bill in the event of such a verdict because the claims bill procedure was enacted to provide relief to persons seriously injured by some governmental action or inaction for which there is no other available remedy. Therefore, where a claim (or verdict) exceeds the statutory limit, the Plaintiff can seek a legislative bill to supplement that statutory limit. The City, through legislative enactment, can be directed to pay as much as the total amount of any verdict or claim. Recently the legislature has considered between 30 and 50 claims bill per year. Those claims bills which have passed both houses of the legislature typically involve catastrophic injuries. REQUEST FOR AUTHORITY This case is now being handled for the City by a highly competent attorney, Andrew J. Mirabito of Pearson Richman Greer, et al. Mr. Mirabito fully concurs with our opinion that this is a most serious case which certainly requires the City to promptly offer its full $200, 000. 00 coverage in accordance with the statutory cap. He does request our authorization to present such an offer to counsel for the claimants in formal written form as soon as possible. Mr. Garcia's attorney is A. Francisco Areces of Spence Payne Massington one of the most prominent and competent plaintiff firms handling cases of this sort in Dade County. Although I am not at all certain that the plaintiff will accept our $200, 000.00 statutory cap as settlement of the City' s portion of this case, I believe that in light of the facts as stated above I must recommend authorization for Mr. Mirabito to attempt to settle this matter in the amount as stated. Mr. Areces has advised that although he will not recommend acceptance of this amount he is duty bound to present it to his client and must act in accordance with his clients' wishes. LF:JLW/jal Attachments (a:\garcomem.j lw) 13 ORIGINAL RESOLUTION NO. 91-20374 Authorizing Attorney, Andrew J. Mirabito, Esq. to settle Garcia, Jr. , ET AL. V. City of Miami Beach ET AL. , Circuit Court for the Eleven Judicial Circuit in and for Dade County Florida, Case No. : 91-26591 CA 05 for an amount no greater than $200,000.00.