1. Opinion

When government is at fault but doesn't pay up

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Published Jan. 6, 2012

It has been 14 years since a speeding Broward County sheriff's deputy who was late to work crashed into Eric Brody's car at an intersection near the teen's home in Sunrise.

At the time, the 18-year-old Brody was a promising college-bound high school senior on his way home from a part-time job. Today, despite winning a court battle and more than $30 million in damages, Brody has yet to collect a penny in public money. Now 32, he gets around in a wheelchair and is mostly cared for at home. Meanwhile, high-powered lobbyists, legislators and insurance companies bicker over a claims bill that would appropriate the public money he won in court to pay for his future care.

Brody's claim is also caught in a running political battle between Senate President Mike Haridopolos, who has pledged to pass a bill awarding him $15 million on the first day of session, and House Speaker Dean Cannon, who suggests the House will wait a few weeks before taking up any bill. Last year's legislative session ended in bitter wrangle between the House and Senate after the House refused to take up a Senate bill that would have awarded Brody $12 million.

Haridopolos, R-Melbourne, is not a lawyer. Cannon, R-Winter Park, is a lawyer and a former law partner at Gray Robinson, the Orlando firm that represents the Broward Sheriff's Department's current insurance company. This arcane process is a pathetic example of the way Floridians are treated even when they win compensation from a government agency that injured them. It's called sovereign immunity. No government can pay more than $200,000 in damages without approval of a claims bill by the Legislature. And no claims bill passes the Legislature without a lobbying battle that can last for years.

This battle is a bit more complex than most. There is an element of trial lawyers versus the business community, an age-old fight in legislative halls.

Insurance lobbyists are guarding against a bill that would allow the Brody family to win approval of damages and then turn around and file a "bad faith" claim against the insurance company — a claim that the insurer acted inappropriately by initially refusing to consider a settlement. Fairmont Specialty Insurance Co., the company that took over for a now-defunct insurer, now has offered the Brodys $8.5 million to settle all claims. The Brodys would still have to pass a claims bill, but all litigation would end if the deal was accepted.

Brody's lawyers say he is entitled to pursue a bad faith claim against the insurance company for the entire $30 million awarded at trial because insurers repeatedly refused to settle the claim for $3 million in the months after the accident. Broward Sheriff Al Lamberti has agreed to allow the family to pursue the claim as long as the department is not liable for further payments.

Language allowing a bad faith claim is not currently in the bill. But some expect the provision to be added and say that could draw a veto from business-oriented Gov. Rick Scott, leaving the Brodys with nothing.

Unlike many claims bills in the past, the Brody bill has attracted a who's who of big-time lobbyists, 27 in all. Brian Ballard and Michael Corcoran, lobbyists with close ties to many legislators, are among those helping pursue the claim for Brody. Former Senate Presidents Ken Pruitt and Jim Scott, Greenberg Traurig lawyer Fred W. Baggett, Broward lobbyist Dave Ericks and Republican consultant Rich Heffley are among the 13 lobbyists hired by the Broward Sheriff's Department. The insurance company has hired Gray Robinson attorneys Peter Antonacci and Jason Unger, and former Supreme Court Justice Charles T. Wells.

Bitter feelings run deep. Lobbyists for Brody say the insurance company lobbyists have attempted to stall any payment to the Brodys and block a bad faith lawsuit. Insurance lobbyists say Brody's lobbyists are simply playing for millions of dollars in fees for themselves.

Lance Block, the lawyer who has represented the Brodys since shortly after the accident, says he has spent more than a $1 million in costs and collected no fees for his work so far. Like many trial lawyers, Block accepted the case on a contingency basis. Block and the six lobbyists who work for Brody will share 25 percent of whatever award is finally approved by lawmakers. If lawyers pursue a bad faith claim, the 25 percent limit would not restrict fees and costs.

The Brodys believe they can collect the $3 million limit written into the sheriff's insurance policy, but lobbyists for the insurance company say no money would be paid until all litigation is settled. That could add years to the fight if a bad faith claim is pursued.

Brody was critically injured on the night of March 3, 1998, as he drove home alone from a part-time job at the Sawgrass Mills Sports Authority. He would never work again.

He remained in a coma for more than six months and slowly regained the ability to walk and talk. But he remains partially paralyzed, has trouble speaking coherently and often falls down. He will always need full-time care. He is currently at a rehab center recovering from hip surgery after a December fall.

"He needs a bigger home; he can't get to his bedroom down a narrow hall in his wheelchair,'' Block said.

In late 2005, a Broward County jury awarded Brody $30.6 million in damages, including $11 million for his future care. Brody has collected only the $10,000 payment from his own insurance company. His parents provide care for their partially paralyzed, brain-injured son, who depends on Medicaid and Social Security disability payments of about $560 a month.

Ballard, a lobbyist with dozens of big-name clients, admits he doesn't like to work a claims bill but says "this is a case that cries out for it.''

"This man had his life obliterated,'' Ballard said. "These are working-class folks who take care of their son. They lift him out of a wheelchair that is put together with duct tape.''

Lucy Morgan is a Times senior correspondent. She can be reached at