Agenda

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County Attorney's Report 12. 2.

BCC Regular Meeting

Action

Meeting Date:	08/17/2017
Issue: Ratify and Approve the Joint Stipulation for Dismissal with Prejudice in the Estate of Sara Daw vs. Escambia County
From:	Charles Peppler
Department:	County Attorney's Office
CAO Approval:

RECOMMENDATION:

Recommendation Concerning Ratifying and Approving the Joint Stipulation for Dismissal with Prejudice in the Estate of Sara Daw vs. Escambia County, Case No.: 2014 CA 001903

That the Board ratify and approve the execution of a Joint Stipulation for Dismissal with Prejudice in the matter of the Estate of Sara Daw vs. Escambia County.

BACKGROUND:

On October 10, 2012, Sara Daw was operating her Chevy pickup truck in the southbound lanes of U.S. 29 at approximately 7:45 a.m. in Century. She had stopped for a school bus which had been stopped in the northbound lanes to pick up a child. Anthony Richburg was employed by Delco General Contractors and was operating a pickup truck owned by Delco General in the same lane as Ms. Daw, proceeding southbound. Mr. Richburg became distracted by a dropped bottle and did not see Ms. Daw’s vehicle in time to stop. When he became aware of the Daw vehicle he applied his brakes, leaving approximately 4 feet of skid marks, but collided with the rear-end of Ms. Daw’s vehicle at approximately 47 to 54 miles per hour. EMS personnel were called to transport Ms. Daw to the emergency room at Jay Hospital, being the closest facility.

The impact caused Ms. Daw to sustain a right hemothorax (intrusion of blood into chest cavity), fractured thoracic vertebrae and ribs. She eventually died at Jay Hospital. Mr. Daw sued Escambia County claiming that our EMS personnel provided inadequate treatment. County retained an expert emergency room physician, Dr. Marc Farraye, who opined that the treatment provided by County EMS personnel was adequate and responsible first responder treatment. He opined that Ms. Daw’s injuries were not survivable and that EMS personnel performed the only response possible for them: bring Ms. Daw to a hospital for emergency treatment. The medical examiner, Dr. Andrea Minyard, stated that the only treatment that could have been done, in her opinion, was an emergency thoracotomy (opening up the chest) and tie off the bleeding. Because County’s emergency personnel are not surgeons, they could not perform such surgery in route to the hospital.

During the discovery phase of the lawsuit, Mr. Daw disclosed that he had negotiated in February 2013, a settlement with the employer of Mr. Richburg, Delco General Contractors, for a settlement in the sum of $766,000.00. The release and settlement agreement did not reserve the right to bring a lawsuit against Escambia County. The County moved for summary judgment on this ground based on valid case law, but the court thought differently and denied the motion for summary judgment. This office believes the Court was in error in denying the motion.

In the face of these obstacles to obtaining a favorable verdict, Plaintiff’s counsel proposed the execution of a joint stipulation for dismissal with prejudice with each party bearing their own attorney’s fees and costs. The County had previously submitted a proposal for settlement to the Plaintiff which would entitle the County to recover attorney’s fees in the event of a judgment in its favor. The County has also expended costs of retaining Dr. Farraye and other expert witnesses.

Mr. Daw resides in Alabama with his daughter, Candida. Both Mr. Daw and Candida receive SSA total Disability benefits as their only source of income. Even if the County were to obtain a judgment for attorney’s fees and costs, the judgment would have to be domesticated in Alabama. His SSA disability benefits could not be garnished. It is unknown whether Mr. Daw has any remaining assets from the Delco General settlement. His residence would be protected from collection by the Alabama homestead law. An Alabama attorney would have to be retained and paid fees in order to collect on a domesticated final judgment.

Based on all these uncertainties, it is the recommendation of this office to ratify the execution of the Joint Stipulation for Dismissal with Prejudice with each party bearing its own attorney’s fees and costs so that this litigation will come to an end in a favorable manner to Escambia County.

BUDGETARY IMPACT:

N/A

LEGAL CONSIDERATIONS/SIGN-OFF:

N/A

PERSONNEL:

N/A

POLICY/REQUIREMENT FOR BOARD ACTION:

N/A

IMPLEMENTATION/COORDINATION:

N/A

Attachments
No file(s) attached.