The unfinished business of Eric Brody

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When Florida lawmakers gather in January, they will again face the unfinished business of Eric Brody, writes Jim Saunders of the News Service of Florida.

Attorneys and lobbyists are already gearing up for another battle about a claims bill to compensate Brody, who suffered brain injuries in 1998 when his car was hit by a Broward County sheriff’s deputy.

On the surface, the debate is about how much money Brody should receive. A Senate bill has been filed for 2012 that calls for a payment of $15.575 million.

But much of the lobbying and jockeying center on two words: Bad faith.

Depending on the outcome of the claims bill, the Brody family could pursue what is known as a “bad faith” case against the Broward Sheriff’s insurance company. And if successful, that case could cost the insurer millions of extra dollars.

Lance Block, a longtime Brody attorney who is shepherding the claims bill in the Legislature, said the insurer could have settled with the Brody family years ago. Even when it made settlement offers, he said, they were not large enough to meet the needs of Brody, who won a nearly $31 million jury verdict against the sheriff’s office in 2005.

“This is the worst bad-faith case I have ever seen,” Block said.

But Pete Antonacci, a lobbyist for Fairmont Specialty Insurance Co., a successor to the original insurer in the case, said the Brody side has rejected settlement offers of as much as $8.5 million. He argues that a bad-faith case would be driven by efforts to get millions of dollars in additional fees for Brody’s attorneys.

Antonacci said anybody who doesn’t think fees drive decisions in such cases is “not in the real world.”

The Brody family has asked lawmakers to pass a claims bill since 2009, but the issue gained extra attention this year when Senate President Mike Haridopolos, R-Merritt Island, made it a priority. The Senate approved a bill that called for Brody to receive $12 million, but the measure died in the House during an acrimonious final night of the legislative session.

Haridopolos plans to bring the issue up again early during the 2012 session.

“I remain committed to ensuring that Eric Brody finally receives the justice he deserves,” Haridopolos said in a statement released by his office. “And while it’s unfortunate the claims bill wasn’t approved this past session, I am hopeful that we will be able to pass it out of the Senate at the onset of the 2012 session.”

As a sign of the high stakes involved in the issue, both sides have used prominent lobbyists to try to sway lawmakers. For example, Fairmont paid $97,000 to the firm Gray Robinson between April 1 and June 30, and lobbyists included Antonacci, a former deputy attorney general, and former Supreme Court Chief Justice Charles Wells.

Meanwhile, the Brody team includes well-known lobbyists such as Brian Ballard and Michael Corcoran. Those lobbyists will get fees if a claims bill passes.

Brody, an 18-year-old high school senior at the time, suffered brain injuries when the 1982 AMC Concord he was driving got hit by a Broward sheriff’s deputy who was speeding to make a roll call. Brody was in a coma for months and is permanently disabled, needing help with many of his daily functions.

The state’s sovereign immunity laws protect government agencies, such as the Broward Sheriff’s Office, from routinely having to pay large legal judgments. Sovereign immunity limits the amount agencies pay to $200,000 — unless the Legislature approves a claims bill directing payment of a larger amount.

The Broward Sheriff’s Office had a $3 million policy with the original insurer in the case, Ranger Insurance Co. But Block contends Ranger repeatedly refused to settle for $3 million until shortly before the trial, after the Brody side had already wracked up $750,000 in trial-preparation costs and more than $1 million in health-care debts.

Since 2009, lawmakers have considered Brody claims bills of varying amounts, including the nearly $31 million that jurors originally awarded.

Both sides say Senate leaders pushed them to reach a settlement at the end of this spring’s session, which Antonacci said led to an $8.5 million offer. He said it is common for claims bills to result in lower payments than what were awarded in court.

“Every legislative session, the Legislature authorizes claims bills far below the amount juries award,” he said. “That is the way it’s always been.”

But Block said the $8.5 million amount wouldn’t have compensated Brody for his needs and that the insurer refused to negotiate further.

“It was either take it or leave it,” Block said.

The Brody side’s arguments about bad faith have played an underlying role in the claims-bill debate each year and also affect how the Broward Sheriff’s Office views the issue.

Ordinarily, if lawmakers approved a claims bill, the sheriff’s office would be liable for making sure it is paid. That can make it difficult politically to get approval of large claims bills, because lawmakers might be reluctant to saddle local taxpayers with a multimillion-dollar tab.

But if lawmakers approve a claims bill for Brody, Block said the family is willing to take what is known as an “assignment” of the case from the Broward Sheriff’s Office. In effect, that would absolve the sheriff’s office from paying the claim, and the family would file a bad-faith lawsuit against the insurer to try to collect the full amount.

The move would be a gamble, because the Brody family would not get paid if it loses the lawsuit. But a bad-faith lawsuit also poses major financial risks to the insurance company, including the possibility of having to pay millions of dollars in extra attorneys fees to the Brody side if the lawsuit succeeds.

At the end of this spring’s legislative session, Broward Sheriff Al Lamberti agreed to support the Senate-approved bill that called for Brody to receive $12 million. That support, he said in a letter, was based on assignment of the bad-faith case and an assurance that his agency would “be fully released from any further liability for payments in this matter.”

The newly filed Senate bill for the 2012 session is worded differently, along with calling for Brody to receive $15.575 million. In e-mail responses to questions about the proposal, sheriff’s spokesman Jim Leljedal said the “BSO wants to see Eric Brody compensated and still protect the taxpayers of Broward County.”

Leljedal also said the sheriff’s office wants the case to be settled. But when asked if it was comfortable with the wording of the 2012 bill, he said not “entirely,” but said the agency could not elaborate.

Block vehemently disputes Antonacci’s contention that a bad-faith lawsuit would be driven by increased attorneys fees. Block, who has represented Brody since the accident without payment, said he would get 25 percent of the claims-bill amount, though that also would have to cover the original trial expenses and lobbying fees.

Any additional fees from a bad-faith lawsuit would go to an attorney that the Brody family would hire to handle that case. Block said he would be a witness in such a case and would not be the family’s attorney.

Rep. James Grant, a Tampa Republican who sponsored a House version of the Brody claims bill in 2011 and plans to sponsor another in 2012, blasted the insurer’s lobbyists for arguing that the case is about attorneys fees.

“I think, number one, it’s disingenuous, and, number two, it’s a pathetic stance to take when Eric Brody is in the position he is in,” Grant said.

Antonacci declined to address Grant’s comments but said fees motivate lawyers in various types of personal-injury cases.

“Anybody that says otherwise doesn’t know lawyers,” he said.

Armed with opinions from Wells and former University of Florida law-school dean Jon Mills, Antonacci also argues that using a claims bill as a step toward a bad-faith lawsuit could be unconstitutional. He said that likely would set off a legal fight that would take years to resolve.

“Those constitutional issues will continue to present an obstacle to Eric Brody’s compensation,” Antonacci said.

But Block said he is confident the proposal is constitutional and scoffed at the notion that the insurer is worried about delays in compensating Brody.

“Their claim of unconstitutionality is pure bunk,” he said.

Peter Schorsch is the President of Extensive Enterprises and is the publisher of some of Florida’s most influential new media websites, including SaintPetersBlog.com, FloridaPolitics.com, ContextFlorida.com, and Sunburn, the morning read of what’s hot in Florida politics. SaintPetersBlog has for three years running been ranked by the Washington Post as the best state-based blog in Florida. In addition to his publishing efforts, Peter is a political consultant to several of the state’s largest governmental affairs and public relations firms. Peter lives in St. Petersburg with his wife, Michelle, and their daughter, Ella.