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County Attorney's Report 12. 2.
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| BCC Regular Meeting |
Action |
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| RECOMMENDATION: |
Recommendation Concerning Partial Settlement of Litigation: Audra Creech v. Escambia County, FL v. Colette Maxwell, Case No. 2011 CA 002463, and Raphael Kyles v. Escambia County, FL v. Colette Maxwell, Case No. 2011 CA 002461.
That the Board approve a settlement payment of $25,000 to Colette Maxwell in exchange for the execution of a general release and hold harmless agreement and dismissal of the pending counterclaims in the litigation titled Audra Creech v. Escambia County, FL v. Colette Maxwell, Case No. 2011 CA 002463, and Raphael Kyles v. Escambia County, FL v. Colette Maxwell, Case No. 2011 CA 002461. |
| BACKGROUND: |
On June 12, 2009, Road Corrections Officer (RCO) Michael Prince was operating a crew truck from an Escambia County facility on Nine Mile Road and was intending to make a left to proceed west bound on Nine Mile Road at the intersection with Barren Miller Road. Traffic had stopped in the outside lane eastbound. RCO Prince proceeded to the middle of the median to await an opening in traffic traveling west bound. However, while waiting for traffic to clear westbound, Colette Maxwell operated her 2002 Pontiac in either the outside eastbound lane or the left turn lane for traffic proceeding onto Barren Miller Road. Rather than braking, she swerved around the crew truck into oncoming westbound traffic. She collided with a motor vehicle being operated by Rafael Kyles in which Audra Creech (Ricci) was a passenger. Ms. Creech was 25 weeks pregnant. Ms. Maxwell testified in her deposition that the County crew truck moved in front of her lane of travel and that she had no option but to swerve in front of the truck.
Although RCO Prince was given a traffic citation for violation of right of way, he contested the traffic citation with the assistance of a lawyer retained under the PBA union contract and was found not guilty. The Florida highway trooper who investigated the accident had determined that RCO Prince, based on skid marks and damage to the two motor vehicles involved, had operated the crew truck to cause the accident. Investigation by Risk Management also came to the conclusion that operator error had caused the accident. However, RCO Prince maintained that he was not at fault and testified in a truthful and forthright manner at his deposition as to the actions he took on that day.
Ms. Maxwell's Pontiac received severe damage from the collision and the County paid her property damages in the approximate sum of $6,000. She began seeing a chiropractor for her injury to the neck, low-back and suffered headaches. In the collision, her airbag deployed and she lost consciousness for a period of 30 minutes en route to the hospital. After a series of treatments with her chiropractor, she was given a 13% permanent impairment rating to her neck and low-back. She continued to see the chiropractor for pain to her neck and upper mid-back through September 2010. Dr. Renfroe, as her chiropractor, determined that in June 2011 that she would be looking at between $2,000 and $2,500 future medical expenses every year. Ms. Maxwell was employed as a custodian with the University of West Florida and lost approximately four weeks of work from the accident. Her amount of lost wages was approximately $2,000. At the present time, she has a medical lien with Blue Cross Blue Shield of approximately $8,200 and is out of pocket for medical expenses in the sum of $7,800. In summary, her total out of pocket expenses relating to her injury comes to $18,000.
A review of verdicts for similar neck and back injuries with related headaches and limitation in work activities reveals that the settlement is within the range of verdicts for this type of injury and permanent condition. It should be noted that this settlement is lower than the usual range of settlements for this type of injury and the amount of out of pocket expense because of the comparative negligence which a jury could assign to Ms. Maxwell.
It is this office's recommendation that the Board approve the settlement as a reasonable compromise recognizing the costs of proceeding to trial with the taking of depositions of treating physicians and the retaining of expert witnesses to provide opinions as to Ms. Maxwell's condition and accident reconstruction. This recommendation is in no way a reflection upon RCO Prince's credibility, but is predicated solely on the uncertainties of litigation and the benefits of a negotiated settlement. |
| BUDGETARY IMPACT: |
| Funds for the settlement proceeds will be provided from Fund 501, Account 239898. |
| LEGAL CONSIDERATIONS/SIGN-OFF: |
| Charles V. Peppler, Deputy County Attorney, prepared the Recommendation and will ensure all requirements of settlement, if approved, are completed. |
| PERSONNEL: |
| N/A |
| POLICY/REQUIREMENT FOR BOARD ACTION: |
| N/A |
| IMPLEMENTATION/COORDINATION: |
| The County Attorney's Office will work with the Risk Management Division to effectuate settlement upon approval. |
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