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.
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ATTEST:
FORM APPROVED
LEGAL DEPT.
CITY CLERK •
By
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OFFICE OF THE CITY ATTORNEY
64 wpm re4
F L O R I D A
SEN.
LAURENCE FEINGOLDtINCORPIORATED
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CITY ATTORNEY MIAMI BEACH, FLORIDA 33119-2032
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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
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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
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1700 CONVENTION CENTER DRIVE - FOURTH FLOOR - MIAMI BEACH
DATE
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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.