2007-26665 Reso Inc.RESOLUTION NO. 2007-26665
A RESOLUTION OF THE MAYOR AND CITY COMMISSION
OF THE CITY OF MIAMI BEACH, FLORIDA, RATIFYING A
SETTLEMENT OF THE TORT CLAIMS STYLED: a)
FREDERICA E. BREAUX, AS ADMINISTRATRIX OF THE
ESTATE OF ZACHARY CHARLES BREAUX, DECEASED V.
CITY OF MIAMI BEACH, ET AL., 11T" JUDICIAL CIRCUIT
COURT CASE NO. 99-3808 CA 27, BY PAYING A TOTAL
OF $160,000, WITH NO MORE THAN $100,000 TO ANY
INDIVIDUAL BENEFICIARY, FROM THE CITY'S RISK
MANAGEMENT FUND PURSUANT TO FLORIDA STATUTE
§768.28 AND b) RABBI ISRAEL POLEYEFF, AS
PERSONAL REPRESENTATIVE OF THE ESTATE OF
EUGENIA POLEYEFF, DECEASED V. CITY OF MIAMI
BEACH, ET AL., 11T" JUDICIAL CIRCUIT COURT CASE
NO. 99-04209 CA 13, BY PAYING $40,000 FROM THE
CITY'S RISK MANAGEMENT FUND PURSUANT TO
FLORIDA STATUTE §768.28; AND RETAINING THE
RIGHT TO PURSUE THE AMOUNTS PAID IN BOTH
CLAIMS AGAINST MONTICELLO INSURANCE COMPANY
FOR FAILING TO DEFEND OR PAY UNDER A
CONCESSIONAIRE INSURANCE POLICY IN WHICH THE
CITY WAS NAMED AS AN ADDITIONAL INSURED; AND
ASSIGNING RIGHTS TO ANY OTHER CLAIMS TO THE
PLAINTIFFS IN THESE CASES TO PURSUE THE BALANCE
OF STIPULATED AMOUNTS AGAINST MONTICELLO
INSURANCE COMPANY; AND FURTHER AUTHORIZING
THE EXECUTION BY THE OFFICES OF THE CITY
MANAGER AND THE CITY ATTORNEY OF ANY AND ALL
DOCUMENTS RELATED TO THE SETTLEMENTS.
WHEREAS, Frederica E. Breaux, as Administratrix of the Estate of Zachary
Charles Breaux, Deceased, has sued the City of Miami Beach (~'City'~ for an alleged
wrongful death concerning a drowning incident on February 20, 1997 in Case No. 99-
3808 CA 27, 11th Judicial Circuit of Miami-Dade County, Florida, and the City has denied
any liability, and
WHEREAS, Rabbi Israel Poleyeff, as Personal Representative of the Estate of
Eugenia Poleyeff, Deceased, has sued the City of Miami Beach for an alleged wrongful
death concerning a drowning incident on February 20, 1997 in Case No. 99-04209 CA
13, 11th Judicial Circuit of Miami-Dade County, Florida, and the City has denied any
liability; and
WHEREAS, Monticello Insurance Company ('~Monticello'~ has issued a policy of
insurance to a beach concessionaire in the City providing that the City of Miami Beach is
an additional insured, and
WHEREAS, Monticello has denied a defense and coverage to the City for the
above-referenced incident that occurred on February 20, 1997, and
WHEREAS, the City of Miami Beach is concerned about the possibility of a very
large judgment being entered against the City if the above-referenced cases were to
proceed to a jury trial, considering the allegations of the particular circumstances of the
decedent, Zachary Charles Breaux, in attempting to rescue Eugenia Poleyeff who
drowned in the same incident ,and
WHEREAS, the Florida Supreme Court has reversed the grant of a summary
judgment to City of Miami Beach and remanded for trial, and
WHEREAS, the City of Miami Beach desires to limit its financial exposure from
any future trial of these matters, and
WHEREAS, the City, without an admission of liability, and all plaintiffs in the
above-referenced cases have agreed to resolve any and all claims and disputes
between them by assignment of the City's rights to Plaintiffs to pursue stipulated
2
amounts against Monticello to Plaintiffs upon the City's total payment of $160,000 from
the City's Risk Management Fund regarding Breaux, with no more than $100,000 to any
individual beneficiary, and $40,000 from the City's Risk Management Fund regarding
Poleyeff.
NOW, THEREFORE, BE IT DULY RESOLVED BY THE MAYOR AND CITY
COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA, that the Mayor and City
Commission herein ratify and approve a settlement of the claims styled Frederica E.
Breaux, as Administratrix of the Estate of Zachary Charles Breauxl Deceased v. City of
Miami Beach, et al., 11th Judicial Circuit Court Case 99-3808 CA 27, for which the City
shall pay $160,000 from the City's Risk Management Fund, no more than $100,000 of
which shall be paid to any one individual, and assign its rights against Monticello
Insurance Company to the plaintiff for all sums recovered above the amount paid, and
Rabbi Israel Poleyeff, as Personal Representative of the Estate of Eugenia Poleyeff
Deceased v. City of Miami Beach, et al., Case No. 99-04209 CA 13, for which the City
shall pay $40,000 from the City's Risk Management Fund, and assign its rights against
Monticello Insurance Company to the plaintiff for all sums recovered above the amount
paid, and further authorizing the City Manager and City Attorney to execute any and all
documents related to the settlement substantially in the form as set forth in the
Settlement Agreements, Stipulations, and Agreements for Assignments of Claims for
Damages, which documents are attached hereto and in
PASSED and ADOPTED this 26th day of
A ST:
CITY CLERK
F:\atto\PAPD\Breaux &Poleyeff Resolution.doc
MAYOF-~
by reference.
2~~•
APPROVED AS TO
FOP~+A ~ L~-1~lGUA~;E
& PUR EXEC~'1'lfl~t
!o%~/o
3 City Dine
IN THE CTRCIJTT ('(~TJIrI• c:)r~ 'rr rt, 11.'1'1.1.
JiJDICIAI, C:TRC.iT(T lN. AN17 F(7R
DADS COUNTY, FLnRTDA
. CASE NO: 99-3R~8 CA 27
r'ftl!;L~LxiC~A L. l~xLAUx, As
ADMINISTRATRIX OF THE ESTATE OFD
7.ACT.~ARY CI~IARLES RRF,ALJX, DECEASED,
Plaintiff,
vs.
THE CiTy' (7F MTAMI BF.,ACH,
llcfcndant.
. ~
SETTLE1ViENT AQRCEM:ENT AND STIPiTL,ATTQN
This Settlemelit Agreement and Slipulalicm entered inlc~ liy and between i~RIllLK1C:A L.
BREAI JX, as Adrninistratrix ofthc Irstt~te of ZACHARY (:.IiARLLS BRLAl1X, I)eceayed (hereinafter
referred tows "13RrAI_JX") vvi#h respect tc> claims arising c~ui al' the dearth of ZACHARY C:HAItLL''ti
BRF,AIJX, and THE CITY OF M1AM1 BE11C:H (hc~rcinaftcr referred to as "MIAMI BI;AC:I T"} (every
mention of the parties in this Agreement is also assumed tc~ include all claims. made cin behalf of
themselves and their successors, ~ssigms, descend~uits, subsidiaries and hene(iciaries):
W11L;1ZLAS,13ItLALtX has sued MIAMI I3EACII as a result ofthe alleled wrcmgfe~l drowning
death ofLAC:11A.1ZY CIIAItLI;51;REAt_T.X on February 20, 199.7, contending that MTAMI BEACH
was negligent and that such ncgligcucc caused the death of LAC:l~IAKY (_'tiAlZi1LS ):i1:tT?AI.IX, and
whicly claims arc more particularly set forth within BREAiJX's Complaintfor Damages ui the lawsuit
stylcillr~d~ricaE. Brea~rac, asftdmiaistra~trixoftlre.Estat~vfZachary CllarlesBrcaux,ll~eccased
Plaintiff, a Tl:e City ufMiarni B~uc:h, c-t ul, Casc Nu. 99-3808 0:1127 pcttding in the C:.ircut (::curt
of the 11`'` Judicial Circuit ui asid .far Dade County, I'lorida (the "Civil Acticin"); the allegalicros of
which MI11M1 i3LAC:l-i denies, and
W 1: (:I ;1Z1~Ati, Monticello Insurance Company (hcreuiafterreferred to as "MC)N"1'1CL'LLC_)")has
issucel a policy cal' insurance, Policy Number MCL371227 to the named insured, Hurricane Reach
<.
Rent<~ls, Inc., and providing that the City of Miami 13c~ch is an additional insured, and which pt>licy
provides coverage in the amount of,(~ne Milli<~n (~1,00O,OOGL(lQ) T)ollars. for those negligence claims
ac9vanccd against MTt1MLBEACH by BREAiT?f in .the Civil Action; and
WHT1T.tEAS, MUNTTCLLLO was aftbrdcd the opporh~nity to settle the ncgiigcncc cl3iitis
advanced i..n the Cavil Action within its Pc?licy limits pf One Mil lien ($ l ,QOp,00~.00) I)c~llars and failed
is da sc~; and
WI-iL,RLAS, MUN'1'1C:LLLC_) has denied coverage tc~ MTAMT RF,AC;H 1'or the ttegligenee claims
bciug brought against MIAMI RT?ACTT ley RRF,A[.TX and has .Gaited to provide a defense for MIAMI
BEAt'H drn~ulg the litigation of those claims despite request fc~r a defense.; anil . .
WIIEItEAS, Iv.[ONTTC`F,T.T.C)'s denial of eovc~rage and failure to defend constitute a clear
breach of the 1VIC)NTICELI,O contract; and
WI IEREAS, IVTTAMT RF.A CH is conurncd about the possibility. of a very large j udgment hero g
entered against MIAMI BEACH if this case were taproceed to a jury trial, inasmuch as the potential
damages ui this ca.sc are unique and extrac.~rdinary based im .a. combination of the particular
characteristics of the decedent, Zachary Charles. Breaux, his surviving wife and three daughters, and
the tragic nature oi'thcir observation of the .subject drowning incident, .M~~re spccificaily,Lachaay
Charics l3reaux was an accomplished jazz l;uitarist whc~ had.~ichieve:d notoriety in his field, having
recorded three (CDs, and having contracted with a record company to record uP tc~ five additional CDs
over the next five years at the time of his death. Tiffs latest CD, Uptown Groove, had reached number
imc on NAC radio charts at the timc~of his death, and made the second.highest debut on Billboard's
contemporary jazz chart. at number 14. 7,achary Charles Breaux, who was 3.6 years old at the time of
his death, was a vegetarian, who did not smoke, drink alushc~l or use drugs and worked at. being a .role
model for youngsters in his community <~I'Harlem,.New Y~~rk..Hc performed extensive volunteer
work, settuig up an after school program athis d~urch, w<~rking.with a boy scout troop (as he himself
had been an eagle scout) and volunteered regularly at the schools a.f his three daughters. He and his
wrlc, Fredciica, who is a public school teacher, had bcctt.marricd since 1983. She and. their three
-2-
daugltters, who were ages 14, 12 and 7, wvitnessed the entire drowning event, The event occurred when
Zachary was building a sand castle at the edge of the water. with his three daughter:s_ A woman,
Eugenic Yoleycff, was trapped in a rip current. and scrcatncd for help. Whcn.Lachary sawno life guard
he told one of ltis children to find a life guard and attempted to rescue Ms. Yolcycff, who was a stratrgcr
to hirn. 'tragically, they both drowned. According to the .cvaluatiott of a..vocati~na! rcltabilitation
expert. and the evaluations of an economist, the projected present money value of the economic
damages resulting from the death of 7achary (~harles Rreaux could .amount to as much as
$G,2C9,4Sf1A0. Accordingly, due la the unusual combination of the celebrity nature of the decedent,
his very large earning capacity, his young age, the stellar qualify. of the decedent and his surviving
family, the heroism. of the decedent which led tcl his death, and thc.cmotional injury'of. the surviving
family having witnessed the drowning and death, a damages award by a jury in this case could reach
record levels; and
WHL1tL;AS, MIAMI BEACH is concerned ahc~ul ch.c possibility of 131ZEALTX bringing a
('laims Rill before the Legislature of the State of i~lorida in order to collect a potentially very loge
.judgment against MTAMi RRAC.H in excess ol'its Two Hundred 1~tousand ($?OO,t~OQ_0~) Dcrilar per
utcidcnt Sovereign Inununity limitations; and
N/I~It.EAS, MIAMI BEACH desires to limit the.cxposurc of MIAMI BEACH; and
WTTF,RF.AS, the parties.havc had the hill opperhinity to review a.ll discovery materials in this
action, tltc n~lutg of the l~lorida Supretxie t:ourt dated.March 24, 20Q5, quashing the decision of the .
Third 1)isirict Court of Appeals which had upheld the gratttittg of sumtuary judgment tc~ the C'TTY C7F
MiAPvli BEACH, have had full advice of counsel, and. are satisfied that tl,ey.undersland the issues,
risl;.s, and be.n.efts of continuing or terminating this litigalion;.and
WHEREAS, the parties wish to enter into this Settlement Agreement and Stipulation for the
purpose of resolving all. issues in this lawsuit, with tltc rcco~nitiou.that a lawsuit will he litigated
against MONTT(;F,i.i,() tcs enforce and.c;glleet the sttticmcnt hereby agreed to; and
WHF..REAS, M[AMI 13LAC.H has cooperated hilly with MONTICELLO at all. times;
-3-
NClW THEREFORE, Ic~r and in c;on~ideralion ofthe mutual promises anal covenants contained
hcroiz~ the sui'licicncy ot'which is hereby acknowledged, RRF,AiTX and MTAMT RFAC:H intending tip
be legally bound, agree as follows:
1. I)eGendant, MIAMI BEACH, agrccstoscttlcmcntofall claunsbrought against MIAMI
BL'AC:H in tl~c Civil Action e-r in any other actinn that could have been bn~ught yr asserted against it
for the total amount a!'Five Million ($S,UUU,UUt).UU) Uo1l~rs.
?. MLAMI T3EA.CIT a~n•ees Lc~ pay the total sum of $16Q,000.OU.to I3Rl;AUX which
payment will be divided among the four (4} survivors of ZACIIARY CHARLES BREAUX, upon
approval e.~l'ihis settlement by the Court asmay be required t}y law. Hc~wevcr, per the requueinent of
Florida Statute ?68.28, payment of more than $1U4,UUU.U{) shall Heil be made to.any one survivor.
T 7pon payment ul: such sum, BKL;AUX will. give MIAMI REACH a partial release for the amount paid
by M1AM113LACI I, specifying lhat the remainder of the scttlexuent amountis unsatisfied and remains
unpaid acid in full force and e! Ecct.
3. BRL,AUX covenants not'to execute Fyn or othciwisa claim, pursue or col]ec;t this
settlement from M1AlVII BEAC~:II ui excess of$1 GU,Ut)0.00 under any circumstances, regardless of the
outcome of the litigation against MONTICELLU or any other parry.
4. it is the uitenticin of the parties-that nothing in this Agrccmentshall be construed as a
Release, T)ischarge, or Satisfaction with respect to the liability of MTAMI BEACH for the settlement
a.grccd to hereto ui excess of $1 GU,tUcl.QO: Nothing in this Settlcnzcnt Agreement and Stipulation shall
release MONTiCELLO. Both MIAMI.131JAC'II and BREAI_lX sped (acally intend not to release
MUNTICELLU from any claims that may eaust agauist MONTTCFT.LO.
5. MIAMI BLAC:iI agrees to assi~n~ tc~ BRRATJX all o1'its rights and benefits in excess
of the x+16{l, {)UU.(.l0.being paid by MIAMI BEACH to B&L;AUX, including any and all rights to
atti~rneys lees, that it had or may have under applicable law and -the Contract of Lisurwce with
Mt~NTICRI,T.O and any of the agents, independent brokers or other perscros or entities directly or
uidirectly related with said insurance company in the ('ailurc to defend and/or inderruiify an.d%or provide
-4-
insurance coverage to and/or otherwise carry out its u~ntractual and tiduciary ohligations to MTAMI
BEACH tin-the damage:; claimed by RRRAtFX: MIAIVII BEACI I reserves to itself its rights to recover
fri~m M(~NTTCF.T,T,n Uie $1 CQ,OOO.O(1 it is payuib to BRlAUX.
IN'V4'1TNESS WI~REC)P; the undersigned cxceutcd and seals t1~is Settlement At,*reeinent and
Slip~ilaliun on this day of :, , , , 2007.
TTpWARfl T.. T'nMERr1NTZ, ES{2., as attorney
forl~itl;L)Lli1CAE: BR1sAUX, ~ Administrttlri:~C
of the Rslate cif 7ACHARY CHARLES
IiIt11AUX, Deceased
STATE, OF FLORIDA )
C'i_)TTfVTY C)F RROWARD )
BLrUItL; ML, the undersigned authority, personally appeared, HUWAItL) L. P(~MRRANT7,,
ESQ., as attorney (.i~r FRF.flRRTt'A E. 13RLAUX,. as Adniinistratrix of the Fatale of %ACHAIZY
CHARLES BR>/AUX,17eccased, who, after being duly ca~tii,ned and sworn, deposed and stated that
he has read the foregouig Settlement Agreement and :stipulation and it is trtae and u~rrect to the best
c.~fhis knowledge, information and belief. .
SWORN "I'C) and StTBSCRTRRfl he('ore me lhiti day of , 2007.
NU"I'ARY PUBLIC- Slate cif Florida at Large
My C:olntnission Expires:
IN WITNESS WJ.1.1.?It>r:(~F, the undersigned executes and scalsthis Settlett~en# Agreement and
Stip~datlon 011 tlll5 day of , 21)07.
PRET~FRTC'A F,. ~RREAiTX; as Adrt~inistratrix
of the . Lstatc of 7ACTTARY CHARLES
BREAUX, Deceased
-5-
STATIr UT~ 'l'IXAS
rotnvTY ar
iiL'1~ URE ME, thy, undersigned authority, personally appeared, FREDERTCA R. RRFAT_TX, as
Adrttiniskratrix of the Estate oi'7,ACIIAIZ'Y C11Ait1,E5 BR£AIJX,.Dee:eatied, who, a{ter beinb duly
cautian.eci and sworn, deposed and stated that shahas read the fc~regoing Setllement Agreement and
Stipulation and it is tote and correct to the best cif her knowledge, information. anal belief.
SWORN TO and SIJRSCRIRF,T) before me this day.of , 2UU7
My f.:ammissicm Expires.:
NOTARY P[JBLI(' ~ State of Texas at Ilargc
iN WTTNF,SS WHF.RF.O.F,.I}ic;.undc:rsigned execulesand seals this Setllement Agrec;m~;nt and
Stipulation on this day of ; 2UU7:
THE. GTT'Y C)F MTANIT RF,AGH:
sy: .___:__.__~~---. ...
CO[.TNTY OF DADF, ~ )
RF.FQRF. MF, the undersigned authority, personally appeared,
for '1'Hl; G1TY OF MIt1MI SEA,C.H, wha, after being duly cauticmed.and sworn, deposed and stated
lhal he/she has read the foregoing Settlement A~~reement and stipulation and it is true and correct to
the best of his/her knowledge, information and belief. .
SWC)lZhl "1•U and SU135C:R113L'la before me this day of ._ _ -... , 2UU7.
NC)TARY PITRT.TC' ,.Slate ol'Florida at T,arge
My Conunission Expires:
AC.R>H;:f!:MLN T FUR ASSIGNMENT OF Cl.,rilklVlS FOR, DAMAGES
The parties, l~REDLRiCA L. BRE~I,TX, dy Administratrix of tf~e !;state of ZAC:IiARY
C'H.4RLI1S BREAi JX, Deceased {hereinaflerreferred to as "BREA~UX'Y) and THL CITY C)F MIAMI
1.3I AC'il (hereutaftcr referred to as "M1ANli BEACH") hc~rcby entc,7 into the fc~llowiu~ Agreement:
1. MIAMI BEACH itrevocably assi~~s, delivers and Transfers to $itEAY7X.any and al l
sights, benefits and/or causes of action in excess of $1GU,UU(1.Uf}being paid by 1VCI AMI 13>iACH to
h1t1~;.A1J:?C, including any and all ri~hls to atlc}rneys fees it has, had or may have under applicable
law a.nd the contract of insurance with Monticello Insurance Company, and any ~f the agents,
independent brokers ur olh.er persons or entities directly ar indirectly related with said insurance
company in the failure to ciefetzd anchor indemnify andlor provide insurance coverage to and/or
otherwise carry out its contractual and, fiduciary obligations to MIAMI BEACH for the.damages
claimed by BREAT JX. A~IIAMI BEACH reserves to itself its rights to recover from MONTICELLO
the $1(iU,UUU.UU it is paying to T3RFALTX:
2. RREAI7X is hereby irrevocably subrogated to.M1A.Ml liEAC'H for all the rights,
claims quid interests which it may have in excess of $160,000.UU being paid by MIAIvfT I3RACH to
IiRh;Al_1X., itt.cl.udi.ng any and ;all rights to attorneys fees, against Monticello Insttr'ulce Company
and/or all persons and entities directly or. indirectly related with Laid insurance cnml~any in their
f~,ilurc to defend Fund/ur indemnify and/or provide insurance coverage aaid/or otherwise honor their
contractual and fiduciary obligations to MIt1MI BEACH for the daanages claimed by BREAUX
covered under Monticello li~surance CompanyPolieyNumberMC`L371227, issued to named insured
Hurrictu~c Beach Rentals, Inc. and providing that THE CITY OF MIAMI BEACH is an additional
utstircd. MIAMI BEACH reserves. to itself its rights to rrrc;over. t'rom MOl1T'l'IC';ELLO the
$1 CiU,(IUU.UU it is paying to BRLIIUX:
3. MlflMl BEACH will execute and sign releases and endorse checks or drafts given
in settlement of such cl.ai.ttis n1 the vatnc of MIA1~II BEACH, dr sign any other, documents and dp
whatever else is reasonablynecessaryto assist BREAI7X in icr.fc~rming the in.lenl anti purpose of this
Agreement. li is clearly not the intt~ni utthe undersigned la release Monticello Insurance Cotnpafay
and other related entities from liability of any claims.
4_ Ail oftherighlsandhenefitsofMIAMTRF,ACHpursuanttotheaforesaidMonticello
lusurance Cotnpauy Policy of insurance and pursuant to applicable law in excess of $1 G(i,000.t.1{)
being paid by MIt1MI BEILCH to BREliUX, including any. and all rights to.attorneys fees, shall
hereby he irrevocably assigned, delivered and transferred to 13REALTX_ MIAMI BEACH resc,~rvcs
to itself its rights to recover from MUNTICLLL:U the $1GU;000:UU it is paying to 13R1rAUX.
5. 1N CUNSIDLRATiUN for the above, BREAUX agrees to collect and execute uron
any sums owed to 13R1:AUX by M1AMi i31rAC'll pursuant to the Selilement Agreement and
Stipttlatiort being executed sirnultancously with this ~~ccmcnt Ior Assignnrcnt of Claims for
DamaKes, in excess of the $16U,0UU.UU being.paid. to BREALTX by .MIAMI BEACH, solely on
Monticello ittsuraricc Companyand/or arty as~;nts, indcpcneicnt brolccrs or otltcr persons or entities
directly or indirectly related to said insurance company. BREAUX shall not, collect and/or execute
ag<~ittst MIt1MI BEACH to recover any atnoimis set forth in the Sctilcmcnt 11~ccmcnt anal
Stipulation in excess of $160;OOU:O~.
G, lIND11RSiGNEi~ hereby declare. that the terms of this Assignment of t:laims have
been completely read and are ful ly understood attd voluntarily accepted.
Pa,~c 2 of 5 : .
IN WITNESS WHEREOF, the undersi,~ied I1ave hereunto set our l~~ids and seals this
day of . , 2007.
Witness HOWARD L. POMERANTZ, ESQ. as
ailorney fur FREDERICA E. BREAi.JX, as
Adnutustratrix of 'the Estate of %AC;ilA.tZ.Y
CHARLES BREALJX, Dc~cascd
Witness
STATE OF FLORIDA
CUUNI'Y UP BRUWAR-D )
F3FFQRF. MF,, the undersigned authority, pe,;~cinalTy appeared, HOWARD L. PUNILRAN'1L,
LSD)., as Attorney for 1~iZEi)1~:RI~C.A 1 ~~.:13:k}:AIF~C:, as Administratrix of the Estate of ZACHARY
C:IIAR.LLS BR>/AL1X, Deceased, who, after being. dulycautioned and sworn, deposes and states that
he has read the foregoing Agreeu~ent for.Assignment of Claims for Damages at~d i.t is true and
correct to the best ol'Itis kttowledgc, uiforniation and belief.
2007.
SWORN "1'O and SLn3SCRIBED before nie this aay of _ ,
. NU'I'ARY PUFiI:IC;-StateofFloridaatLarge
My Commission E:~pires:
iN Wl"1'NESS W11ERE01{, the undersigned.hayeliereunto setourhand.5 and seals this
day of .. .....-.------- , 2007.
~~ ~-~~~„
____.. .
Witness
FREDERICA E. BREALTX, as Adtnirustratrix .
of the Estate of ZACHARY CHIIRLLS
BREALTX, Deceased
Page 3 uj5
STATE OF TEXAS }
t.'.UUNTY OF 1
]3E1~0I~ ME, the undersigned authority, personally app~arcd, FREDERIGIL E. BREIITJX;
as Adtuinistratrix of the Estate of ZtYCHt1RY CHARLES B:REAUX, Deceased, whey, after being
duly caulic~neti and swam, deposes anti states that she has read, the .foiretoiing A.~~eeinent fox
Assigiunent of Clauus for Damages and it is true. and .correct to the, best of her ]~uowledge,
information. and belief.
SWORN 'i'0 and SUI3SC''ItU3Ef) before nie this day of
2UU7
NOTARY PUBLIC -State of 'Texas at T.arge
My C:otrunission Expires:
TN WT'fNFSS WHEREOF, the undersibRiedhavehcrcunto sctourhands and seals this
.. .. __-, 2UU7.
day o f ...........
Witness
TIiL• CITY Oh MIAMI I3F.ACH
BY~ ._
Witness
STATE OF i~LORiUA ) .
t:~C7i.7N'rY car' }
RLI'URL ML, the undcrsin,,,ncd authority, pcrsonallyappcared,: for
Page 4 nf'S
THE t'11'Y OF MiAMT BF ACH, who, a,ftcr being duly cautioned and sworn; deposes and states that
heJshc has reed the foregoing Agreement for Assignment of C',laims for Damages and it is true and
correct to the hest c~l'his,~er knowledge, informati~m anal F~elief.
SWORN TU and SITBSCRIBED before me this day o1' ,
2UU7.
NOTARY PUBLIC - State ofi?lorida at Large
My Cattmtis5icm Expires:
Nu,Kc:. S of S
I1~d THR C:iRCU1T COURT OF THR 1 1 ~'
nrurC,tAL CIRCtrrr; ~ AND 'rUtt WADE
cotrnrrY, rLURIDIL
GENERAL JUR15D1CTIUN DIVIST()N
CAS)/ NU: 99-042Q9 CA 2?
RARTiT TSRAJ,;L PULEYErP, as Personal
Represcut.~tivc ofthc Estate of ELJGENTF,
POLEYEFF, deceased,
Plaiutifl;
res.
T1iL C1TY OF MIAMI BE11CH,
Defendant.
S>H','I"'1'I.1H:M1+'N~7' AGR:I!:1k~MENT ANA STIPULATION
"Plus Scttlcnacnt Agrcctncnt and Stipulation entered itata by and bctwccar RABBI ISRAEL
T'QT,EYRFF, as Pennnal Representative cif the F.srtate ofELTCrENIEI'UI,FYF.FF, deceased (hereinafter
referred to as "PULEYEFF") with respect to claims arising aul c~l'the death of ETJGENTE PULEYEFF,
and '1'iJL Cl'1'Y Ul~ M1AM1 BLt1C:H (hcrciu.~ftcr referred to as "MIAMI BEAt'H") {every nacntion
c>1'the parties in this Agreement is alsn assumedto include al[ claims made cm behalfofthemselvesaWd
tt~.eir successors, assigns, desccndaaats, subsidiaries and bcncliciarics):
Wlil,~RRAS, PC)T,RYFFF has sued MTAMT BEAC:Ii as a .result of the alleged wrcingful
drawnin~ death it CFT iCrF.NiR POT.F,YF,FF Cm Febru~ny 20,1997, contendiaag that MIAMI BEAGIi was
negligent caul that such ncglig~nce caused the death eI~F,T JGFNTF. PnT,F.YF.FF, and which claims ara
more paaticul~arly set forth within PULIJYLPP's Complaint far Damages irr the lawsuit styled Rcrhbi
I.sracl 1'nlcyeff as Pcrsont~l.Representativc of theLstate of~ugenie Poleyeff, deceased, Plaintiff,
v. The City of'Miami 13euch, et al, Case No. 99-0429 CA 27 pcndi>ag in.the Circuit Court ofthe 1~1
Judicial t;:ircuit in at.~d for Dade C:ounty, l~ lorida. {the ``Civil Action"); the allegations of which MIAMI
J.3.EAC1I dctaics, atad
WHEREAS, Mimticellcr Insurance C'ampany (hereinafterreferred to as "MUN'1'1t:LLLU")has
issued a policy of insurance, Palicy Number MCT:.371227 to the maned insured, IIurricznc IIeach
It.entals, lric., and providing that the City of Miami Beach is an additional insured, and which policy
provides e~~verage ui the amount ol'Chtc Million ($1,OOO,UOO.UU)Dnllars for those negligence claims
advanced against MIAMT REACH by P4LEI'IJFr in the Civil Acti(m; and
WIICKL;AS, MC-N'1'1C:L'LLU was al7i~rded the opportunity to settle the negligence claims
advanced in the Civil Action within its p(~licy limits of (_)ne Million {$ I,000,UUU.UU) Dollars and li~ilcd
to dc> so; and
WHEREAS, MnNTICELLO has denied coverage to MIAMI BEACH for the negl i Bence claims
bein ~ brought agauist MIAMI III/AC.II by PULLYLI~I~ and ha.s fined to. provide a defense for MIAMT
BF,ACH during the litigation o.l'those claims despite request for a defense; and
Wl~iLRliAS, MC)N'1'I(>LLLU's denial of coverage and failure to defend constitute a clear
breach of the MQNTTCF,T.T,Q contract; and
WHEREAS, MIAMiBEACH is conccrncd ahoutthc possibility ofavery large judgment being
entered against MiANII 13LAC.II if this case were to proceed to a jury trial; and
~WIlL1tL;AS, MI~11V11 I3IJACII is conccrncd about the possibility of PnLEYEFF hrinling a
C:laims 13i1I liefore the Lebislature of the State of Florida in order to ccillec;l a potentially very large
jucign-tent against MTAMI BEACH in excess ol'its Twc~ Hundred Thousand ($200,OOO.UU) Dollar per
iricide.nt Sovereign lnuuuta.ity G.naitations; acid
WHRRRAS, MIAMT BF,ACH desires tip iimil the expos~~re ot`MIAMI BEACH; and
WiIL;RLAS, the panties have had the fiill opportuiuty to review all discovery materials in this
acticin, the ruling (~C the Tl<}rida Supreme Court dated March 24, ?005, cluarhing the decision of the
'1'liird District Court ofAppeals which had upheld t11e Srantiug of summary judgment to the C'TTY nF
MIAMI BEACH, have had ('ull advice of counsel, and are satisfied that they understand the issues,
risks, and benefits of continuint; or terminating this. litil;atican; and .
WT--TF:RFAS, the I?atlie~ wish to enter into this; Settlement Agreernettt and Stipulation for the
purpose of resolving alI issues in this lawsuit; wide the recognition that a. lawsuit will be litigated
against M(7NTTCF,T.T,n tip en[itrce and collect the settlement hereby agreed lei; and
-~_
~11V'11~:;:ltL;AS, MIAIv1T T;T;A.CII hats eoc~perated filly with M()N'1'IC:LLLC7 at all titncs;
NOW THLR.GP'UItC, for and in consideration of the.tnutual promises and covenants contained
herein the sufficiency of which is hereby acknowledged, PULEYEFF anti MTAMT REACH intending
to be lcga.lly bound, agree as follows:
l . T)efendan t, MTAIVIT BEACH, agrees t~~ scttictncnt of all claims brought against MIAMI
BEAt:H in the Civil tlction or.in any other action that could have been brought or asserted agaizlst it
liar the little}wing amounts: l°ive IIundred Thousand t;$500,(}f10.00} T)ollars fornon-economic clatnages
ul'Rahhi Tsrael Polcycff as surviving spocise of Eugenie T'oleyel7; deceased, plus "1'wo IIundred Filiy
'T'liau.sand (,$25Q,Of?O.OOj TJollars for cconotnic damages of Rabbi Israel Poleyel'f.as surviving, spouse
ul'Eugenic Polcycff, deceased, and the Fstate of Eugenie Polcyclf, far a totn.l of Seven TTundred Filiy
Thousand {$7,SO,OA0.00) Dollars.
2. MTAMI BEACH agrees to pay the total sum t~f $40,OQ(}:UO to PULIrYEFF upon
approval of this settlement by the Court as.may he reyuircd by law. Upon payment of such si~m,
PUT,T?YT:FF will give 1vlI.AMI BEACH a p3rtiai release .for the amount paid by MIAMI 13LAC'TT,
specifying that tlic rctnainder of the settlement amc>uni is ttr}satisficd and remains in full (i~rcc and
effect.
3. T'(7T,FYFFF covcniints not to execute on or otherwise claim, ptirsuc or collect tlus
seflJemenl. ficnr MTAMT REACH in excess of $40;000:00 under ~tny circumstances, regardless of the
outcome of the litigation against MUNTiCLLLU or a.ny other party_
4. Tt is the intention ol'the parties that nothing in this Agreement shall he construed as a
Release, Uischargc, or Satisfaction with respect to the liability i~l'M1AMI BLt1C'FI for the settle~nenl
agreed to herein excess of $44,000.OQ. Nothing in this Settlement Agreement and Stipulation shall
release MUNT'1CLLLU, iioth MIAMI RFACT~ and T'nLFYEFF specifically intend not to release
MON'1'1CLLLt) from any claims. that may exist against MUN'1'1.C:LLLU.
S. MIAM1131sAC'TT agrees to a~;sign to PQT.FsYEFF all of its rights and benef is in excess
of. tlt.e $4U,U(lU.UO being paid by MTAMT RRAC:H to T'.nT,RYF,RF, including azLy and all rights to
-3-
attorticys fees, lh;:~l it .had or may .have under app(i.cable law and the Gc~ntracl of Insurance with
MONTTCFT,T.n and any of the agents, independent brakcrs c)r c~lhGr perscros or entities duectly or
indirectly related with said insurance company intlx: failttrc to dcf'e;nd anchor irfdemnify and/or provide
uistuance coverage to and/r,r otherwise carry out its contractual and fiidr~eiary obligatiunti la MTAMT
RRA(-:TT for the da~nagcs claitncd by POLEYEFF. MTAIIRT TiTAC~:II reserves to itself its rights to
recover Iion~ MONTTCF,T.T,n the $4U,UUf.1.UU it is paying to PULEYEFF.
1.N Wl"1'NL?SS WHCREOF, flee undersigned executes and seals ibis Setlle~nent
Agrccnicnt and Slipulatir~n on this, day of , 2Ut)7.
ANllRCW YAI~1<tl, ESQ., as attorney for
RARRT TSRAFI. PnLF.YF,FF, as Pe:rsimal
representative of the Estite of EtT(JENI£
POLEYEFF, deceased
STA.'I"F.; Ol' a~L(~ltll)A j
~.
COtiNTY OF BRUWARD )
EiEFC_)RE ME, the undersigned authority, personally appeared, ANI?RFW YAFFA, RSQ., as
attorney for I2t1l3l3i 15RALL YULLYL'I~1~, as Personal Kcprescntativc. of the Lstate'of EUGENLE
PgT.EXEFF, decreased, whc> a.tier being duly cautioned and :swum; derascd and stated that he has read
tlic foregoing Settlement Agrccrncnt and- Stipulation and it is tn~e and correct to the hest cif hiti
knowledge, informaii~n and bclicl:
SWC)RNTnandSTIRSC'RTRF,Dbefi~remethis day.c~f ,?UU7.
NUI'ARY PUBLIC: -State of Florida. at-Large
My Conui~ission Lxpires:
-4-
TN Wl'1'NL•'SS WHEREOF, the undersigned cxecutcs and seals this Settlement Agreement alit!
Stipulation on this day cif ; 2UU7. .
RABBT TSRAFT, P()T,FYEFF, as Ycisou~~l
Represent<tive cif the Lstate of EiJC;FNTF.
P()IJEYFFF, deceased
STATE nF 1VI!/W rLRSLY )
C:UUNTY OF . )
BF,FORF, MF,, the undersigned auttun-ity; personally appeared, RAI3BI !BRACE POLP.YTsPF,
as Persc.~nal Representative of the Lstatc of CUC;ENTE POLEYRFF, dec;ea.5ed,. whU; after being duly
cautionec! and sworn, dcpc~sed a»eI slated ghat fie has read tl~e foregoing Settlement Agreement and
Stipulation and it is true and eorrcet to the best of his knuwlc;clge, inli~rmaticm and belie(:
SWURN TU and SiJBSCRTBRT) before me this day. of , 2UU7.
NnTARYPi TBLTC- State cif I~Tew 7ertiey al T~arge
My Cutnmissi~n Expires:.
IN WITNESS WHEREOF, the undersigned execule~ and tieals this Settlement Agreement and
Stipulation nn this day of , ~UU7.
THE (:[TY OF MIAMI BEACH
.~y:
_~_
STATF. (7F FI,t )1ZlllA
(;()i l1vTY c_)r _ )
I3hFnRR MF., the undersigned authority, personally appeared,
tier THR C:TTY ()r' 11N11AM1 BEAC`.H, who, after being duly cautioned and sword, deposed and stated
tl~at lie/she has read the li~regoing Settlement Agrccmcml and Stipulation and it is true and correct to
the best oi'l~is/her knowledge, infortnation and belief.
tiWC)!iN "1'U and•SITBSC'RTBED before me this. day c~i' _ , ?UU7
IVnTARY T'LTI~LIC: - St<zte of !~ lorida at Large
My Cimimission F..xpires:
-fi-
AGREEMI±:N'I' ISUR ASSIGNMENT t)F' C.1AIrVIS FOR DAMAGES
The Parties, ~lt-A,-1.31;1 1SRE~CL PULEYEFF, ~.5 Personal ltepresentativc ol` the Etitate of
F.LTC~ENiE YULEYCFF, dcceaserl; (hereinafter referred to as "POT,EYEFF") and THL C;1TY nF
MTAMT T3EA.C11(hcrcinaltcr referred to as "MIAMI BLACH"} hcrcby enter into the following
Agrcctricnt:
l . M.lAMf BEACH irrevocably a5si~~s; delivers and transfers to POLEYEFF any and
all rights, bclzefits and/or causes of action in excess ol'$40;11(i0.~0 beui~; paid by M1AM1 BLAt:ki
to PULLYEFF, including any .and all rights to attorneys fees, it has, . ,had or may have under
applicable law anti the contract of it~siu~~uee with Mc~ntioe[la Insurance Company, and any ofthe
agents, independent brokers or other persons or entities directly or iridircctly related with said
insurance company in the failure to defend ancUor :indemnify and/or provide instuanec coverage to
andlirr i~therw.i.se c~ury out its contractual and Fiduciary -obligalons to MIAMI BLACH for the
datriagcs claimed by PC)LEYEFF. MTA[v11 BFA~:H reserves to itself its rights to reviver from
MC)N'"I'l~C'ha,a.0 the $4(1,UUUAU it,is paying to POLEYEFF.
2. POLEYEFF is hereby irrevocably subrogatcd to MIAMI BLACH for all the rights,
claims and interests wluch it niay liavc in excess cif $4n,gOf).UO being paid by NIIAM.t. BFAC'.I1 to
POI_.EYEFF, including any and all .rights to attorneys fees, against Monticello Insurance Company
and/or all persons and entities directly or indirectly related with said insurance coinpauy in their
failure to defend and/or indcrnnify and/or provide insurance coverage acid/or otherwise honor their
coutrach~al and ~iduciarv obligations to 1vlIAMI BIrACH for, the damagcs:claimcd by T'OLEYEFF
covered underMvnti.cello lusu,ranc~ CompanyPolicyNuniberMCryT.3? 1.227, issued to named insured
Humcane Beach K.entals, luc. and providing that THT; CI'T'Y. UX~ M1AMi BLAt:H is an additional
insured. MIAMI BEACH reserves to itselfits rights to rr~cover from MONTTCET,LO the $4U,UUU.UU
it is paying to POLLYEFF.
3. MIAMI BEAC.`H wiJ.l execute and sign releases and endorse checks ur drafts given
in scttlcmc'nt of such cl~iims in the Warne of MTAl~11 BP,At~f3, or sign any olhei- dacuinents and do
whatever else is reasonably necessary to assist POT.RYI1~l~ in pcrformint; the intent and purpose of
this Agt-ee-Tient. .I.t is clearly not the intent of the undersigned to rc:lcasc; Monticello Insurance
Company and other related entities from liability of any claims.
4. All ofthc rights and benefits cifMIAM113EAC;ii pitrsuantto the aforesaidMonticello
lnsurauec Conip~uly Policy of lnsurance and pursuant to applicable law in ex.ces5 of $4U,UUU.OU
being paid by M:fAMi i3EAC:H to PULEYEFF,. including any and all rights to attorneys fees, shall
hcrct~ybc irrevocably assigned, delivered and transferred to POLEYEFF. MIAMiT3FAC'l I resc.tves
to itself its rights to recover from MQNTTCELLO t1~e $4U,UU().00 i.t is'paying to POLEYEFF.
5. IN CONSIDERIITIC)N for the ~tboue; POI.. F YErr agrees Go eollc:et and e~ccc;utc t,pon
any sutras owed to POLEYEFF by MIAMI [3)AG.I i. pursuant to tlic Scttlenicut 11~cctnc;nt ttnd
Stipulation bcittg c~cct,tcd simultaneously with this Agreeitient for Assigrunent of Claims for
Damages, in excess of the $4(};OOUAO.being paid to EOLIlYLFF by MIAMI BEA('H, solely on
Monticello Jnsur~.acc Corrtpany and/or arty agents, independentbrokets or other persons or ctttitics
direci.ly or indirectlyrelated to said insurance company, PC)LEYI ~Fh'.shal l not collect and/or execute
against M1Al~ll BLt1C'.H to recover any arnounls set forth itx the Settlement Agrecincnt and
Stipulation iri excess of $4Q,OOf).OU.
Ci. l1NDLR5IGNED hereby declare chat the lennS of this A.ssigntrie~it of C~l.aims have
bccu completely read and are ful ly und.erstood and voluntarily iececptx;ii.
Page 2 of ,S
IN VVITI~TESS W.HEREUI', the undcrsignecl leave liercuttto set our hands and seals t1Tis _
day of ._..
_.. _~ , 2UU7.
_.. _ _ _ _
Witness ANL7iZCW YAFFA, FSQ., as attorney !'or
RABBI ISRAEI:, -POLEYEFF, as Personal
Rcpresenlative of the .Estate of EUGENlE
~()LEYRFF, deceased
Witness ~ ... _. -. __
STA'L'E Ole FLORIDA )
C;OTJNTY Ol.~ F3.EtOWARD
BEFORE ME, tlTe undersigned authority, personally appeared, ANDREW YAP'FA, ESQ.,
as attorney For TtAlil3~l ISI~AEl, PULEYEFF, as Personae Ttepresentative ofthe Lstatc o1-EUGENIE
POLEYEF'F, deceased, who, ai~er bciu~ duly caTitioned anal sword, deposes and. states that he has
read the fozegoing Agreeincut 1'or Assignment of C'laizris for Patnages and it is true and correct to
the hest oflus knowledge, information. and relief.
SWORN TU and SUBSC'RTBED hcfc~re nee lhis day of ,
20(}7
NOTARY PUBLiC", - State of Florida at Large
My C.~OTllTT11 ssi011 Expires:
TN WTTNF.SS WH~iRE.Oi~, the undersigned have hereunto set our hands and seals this
day cTf , 2UU7. .
Witness R.Al313.1 1SI~A.El~ ;POL,fiYF.FF,. as Personal
Representative of the Lstate of EUGLNiC
POLEYEFF, clei;easeil
W itT1CSS - . .._
Page 3 of 5
STATE CAF NF,W JEILSEY )
COUNTY OF _.... )
BEF(~RI MFi, the undersi~cd authority, penanally appeared, RABBI ISRAEL PnLEYEFF,
as T~ersanal. kiepreseutativc ol'ihe Estate ofEUG~h NIE PUL,I;YEFF, derceased; who, after being duly
cautioned and sworn, dcposcs and stales that he has read thc.fore~oing Agreement, for Assignment
~f Claims fi~rDamages and it is true and correct to the bast of'his knowledge, information and belief.
SWORN TQ anci SU63SC'R1BLL~ t~~clbrc rue this day of ,
2007,
NOTARY PUBLIC -State of New Jersey at
L~'irgC
My C'ummissian Expires:
IN WITNESS WHLRCOF,thcundcrsignedhavehereuntosetour.hand.Sancisealsthi.s
day of _ _ . , 2007.
TI3L' .CITY OF MIAMI BIrACH
___..... By:
Witness
Witness
STATR ()F ~F'~C,Qlt~f()A j
C`O~_1N'rY 01~ 1
BEFORE MF,, the undersi~~.ed authority, pcrsonallyapp~~cd,
I'~r~re. 4 of ,5
fur
't'11L CITY OF MTA,M1 BL11CI~, whc, after bcint; duly cautioned and svvarn, deposes and states that
lie/she has read the foregoing Agreecucut for Assi~im.eut ofClaims for Damages and it is true and
correct to the best of his/her kn.owledgc, information and belief.
SWORN TC) and SUBSC'RTBF,1~ before me this clay of __, _ ,
?007.
My C'.ouunission Expires:
NQ't'ARY PUBLIC - State of Florida at Large
Pcrgc S of S.