2015-29195 Reso RESOLUTION NO. 2015-29195
A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE CITY OF MIAMI
BEACH, FLORIDA, CONSENTING TO A SETTLEMENT OF A PERSONAL INJURY
LAWSUIT FILED BY OTONIEL HERNANDEZ AGAINST THE CITY OF MIAMI
BEACH, AND PAYING $200,000.00 FROM THE CITY'S RISK MANAGEMENT FUND
PURSUANT TO FLORIDA STATUTE §768.28; AND FURTHER AUTHORIZING THE
EXECUTION BY THE CITY ATTORNEY'S OFFICE OF ANY AND ALL SETTLEMENT
DOCUMENTS.
WHEREAS, On June 6, 2013, Otoniel Hernandez, a 44-year old resident, was taking a break
lying in the Northshore Open Space Park when an F-150 Landscaping Truck driven by Enoise
Abelson, an employee/worker for Southern Landscaping, a contractor for the City of Miami Beach, ran
over Mr. Hernandez;
WHEREAS, the City had an agreement with Southern Landscaping Co., and they were
required to provide liability insurance naming the City as an Additional Insured, and further indemnify
the City from any and all claims that may arise out of their operation;
WHEREAS, the City concluded that Southern Landscaping Co. did not provide valid insurance
and also went out of business;
WHEREAS, following the accident, Mr. Hernandez had numerous surgeries and extensive
medical care at Jackson Memorial Trauma Center with a final diagnosis of permanent paraplegia, and
resulting in the incurring of medical expenses in the hundreds of thousands of dollars, which clearly
exceeds our sovereign immunity cap of $200,000.00 without the additional consideration of the
emotional trauma and pain and suffering Mr. Hernandez has experienced and endured and will
continue to experience in the future;
WHEREAS, Mr. Hernandez retained the law offices of Patino and Associates, P.A. to
represent him in resolving this matter with the City of Miami Beach, and pursuant to Florida Statute
§768.28 filed said claim on August 15, 2013;
WHEREAS, on January 16, 2015, a lawsuit was served on the City regarding this matter;
WHEREAS, after lengthy negotiations between, the City Attorney's Office, Risk Management
and the claimant's attorney, the City reached a settlement;
NOW, THEREFORE, BE IT DULY RESOLVED BY THE MAYOR AND CITY COMMISSION
OF THE CITY OF MIAMI BEACH, FLORIDA, subject to the terms of the Settlement Agreement, the
claimant and the City, without admission of liability, have agreed to resolve any and all claims and
disputes by and between them, for which the City will pay $200,000. -�
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PASSED and ADOPTED this 21st day of October 2015.
&/fi % PHILIP LEVIN //
AYO' /
A r :• ✓ APPROVED AS TO
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ORATED/ - FORM&LAN
/Iiamr—_as / 1= f-? &FOR EXECUTION
AFAEL E. GRAN/DO, ` ,-
CITY CLERK v......N•• '� '�, . 1is'
T.WGENDA12014\March\Reso-Serilement-L.Simkowitz v.CMB.d 1
2 6 < '` City Atto 'e' Dote
OCT '12 2015
M I AM I BEACH
City of Miami Beach, 1700 Convention Center Drive, Miami Beach, FL 33139,www.miamibeachfl.gov
COMMISSION MEMORANDUM
TO: Honorable Mayor Philip Levine and M;'
mbers oft - City Commission
FROM: Jimmy L. Morales, City Manager
DATE: October 21, 2015
SUBJECT: A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE CITY OF
MIAMI BEACH, FLORIDA, CONSENTING TO A SETTLEMENT OF A
PERSONAL INJURY LAWSUIT FILED BY OTONIEL HERNANDEZ AGAINST
THE CITY OF MIAMI BEACH, AND PAYING $200,000.00 FROM THE CITY'S
RISK MANAGEMENT FUND PURSUANT TO FLORIDA STATUTE §768.28;
AND FURTHER AUTHORIZING THE EXECUTION BY THE CITY
ATTORNEY'S OFFICE OF ANY AND ALL SETTLEMENT DOCUMENTS
BACKGROUND
This item was discussed with staff of Risk Management, the City Attorney's Office and the
Mayor and Commission in Closed Execution Session (R10B) on February 11, 2015, and was
approved for settlement authority, up to the sovereign immunity cap of$200,000.00.
The City entered into an agreement with Southern Landscaping Co., in May 2011. Pursuant to
this agreement, Southern Landscaping Co. were to provide liability insurance naming the City
as an Additional Insured, and further indemnify the City from any and all claims that may arise
out of their operation. The City later concluded that Southern Landscaping Co. did not provide
valid insurance, and also went out of business.
During the course of Southern Landscaping Enterprises Landscape Contract with the City, there
was an accident on June 6, 2013, wherein a 44-year resident, Otoniel Hernandez, who was
taking a break lying in the Northshore Open Space Park when an F-150 Landscaping Truck
driven by Enoise Abelson, an employee/worker for Southern Landscaping Co., ran over Mr.
Hernandez.
Following the accident, Mr. Hernandez had numerous surgeries and extensive medical care at
Jackson Memorial Trauma Center with a final diagnosis of permanent paraplegia, and resulting
in the incurring of medical expenses in the hundreds of thousands of dollars, which clearly
exceeds our sovereign immunity cap of $200,000 without the additional consideration of the
emotional trauma and pain and suffering Mr. Hernandez has experienced and endured and will
continue to experience in the future.
Mr. Hernandez retained the law offices of Patino and Associates, P.A. to represent him in
resolving this matter with the City of Miami Beach, and pursuant to Florida Statute §768.28 filed
said claim on August 15, 2013. On January 16, 2015, a lawsuit was served on the City
regarding this matter.
We are committed to providing excellent public service and safety to all who live,work and play in our vibrant, tropical,h Agenda Item R1
Date j Q-21-1
•
City Commission Memorandum
October 21,2015
Consent to Settlement—O.Hernandez
Page 2 of 2
After lengthy negotiations between the City Attorney's Office, Risk Management and the
.claimant's attorney, the City reached a settlement for the sovereign immunity cap of
$200,000.00.
RECOMMENDATION
Based on the severity of the injuries and damages described above, it is recommended that the
Mayor and City Commission approve the Settlement Agreement between the claimant and the
City, without admission of liability. Subject to the terms of the Agreement, we have agreed to
resolve any and all claims and disputes by and between them, for which the City will pay
$200,000.00.
JLM/SB
T:\AGENDA\2015\October\Oct 21\Memo-Consent to Settlement-O.Hernandez.docx