HomeMy WebLinkAbout2007 10 22 Regular 600 Settlements with Smiths and Camarano from Sewer System Back-Ups
COMMISSION AGENDA
October 22, 2007
Regular Meeting
Consent
Informational
Public Hearin
Re ular
MGR. "~DEPT.
Authorization
x
ITEM 600
REQUEST: This item was tabled at the October 8, 2007 Commission Meeting. Request
Commission to remove item from the table.
City Manager requesting the City Commission to consider settlements with David
& Shelli Smith and Michael & Lorraine Camarano resulting from sewer system
back-ups during Hurricane Charley and approve a supplemental appropriation
from Utility Fund Reserves for funding of these settlements.
PURPOSE: This agenda item is needed to for the City Commission to consider settlements with
David & Shelli Smith and Michael & Lorraine Camarano, the final two claimants against
the City, resulting from sewer system back-ups during Hurricane Charley and approve a
supplemental appropriation from Utility Fund Reserves for funding of these settlements.
CONSIDERATIONS:
1. On December 14, 2005 the City Commission approved settlement with seven homeowners as a
result of sewer system back-ups during Hurricane Charley. Terms ofthe settlement included:
1. 10% of approved losses, plus
2. $2,500, plus
3. A pro rata share of a pool of $17,500 (Pool derived as follows: $2,500 per homeowner x
7 homeowners = $17,500). Homeowner's pro rata share based on the proportion of the
individual homeowner's approved losses to the whole.
On recommendation from counsel and the City's insurance company (Florida League of Cities),
three remaining cases (Smith, Camarano & Walters) were not settled at that time as these
parties had pending claims with their respective insurance companies. The aforementioned
December 14, 2005 approved motion specified that the settlement at that time was for the seven
claimants only.
II. On February 27, 2006 the City Commission approved settlement with Walters, as agreed upon
by Mr. Walters, as follows:
1. 10% oflosses per private carrier State Farm = $3,919.20, plus
2. $2,500.
Total Settlement for Walters = $6,419.20
As required, Mr. Walters provided the Florida League of Cities with a statement from his
insurance company that they were not pursuing any subrogation claim against the City.
III. Mr. Smith and Mr. Camarano are requesting settlement terms commensurate with those
afforded the original seven claimants as dictated per the December 14 Commission action.
However, the City and Mr. Smith & Mr. Camarano do not agree with the method in which to
arrive at a settlement amount that is commensurate with the original seven claimants. At issue
is the calculation of the "Proportional Share."
CITY POSITION
In the City's opinion, settlement for Smith and Camarano, commensurate with the Commission
action of December 14, 2006, would be calculated as follows:
Smith
Approved Losses per Claimant's
Insurance Company
$258,784.40
10% of Approved Losses
Base Amount
Proportional Share
Total
25,878.44
2,500.00
2,786.49
$31,164.93
Camarano
Approved Losses per Claimant's
Insurance Company
$205,570.54
10% of Approved Losses
Base Amount
Proportional Share
Total
20,557.05
2,500.00
2,213.51
$25,270.56
Total Settlement = $56,435.49
All offers are contingent upon:
1. Commission approval of settlement,
2. Claimant's execution of a full release within 15 days after receipt of this settlement
agreement, and
3. Each claimant providing the City with a statement from his insurance company that they
will not pursue any subrogation claim against the City. This documentation has been
provided to the City by both Smith and Camarano.
CLAIMANT POSITION
In Mr. Smith and Mr. Camarano's opinion, settlement for Smith and Camarano, commensurate
with the Commission action of December 14,2006, would be calculated as follows (the
difference relates specifically to the calculation of the "proportional share."):
Additionally, Mr. Smith is requesting 100% reimbursement for attorney's fees he has incurred as
a result if this claim.
Smith
Approved Losses per Claimant's
Insurance Company
$258,784.40
10% of Approved Losses
Base Amount
Proportional Share
Attorney Bills *
Total
25,878.44
2,500.00
13,948.48
1.365.00
$43,691.92
Camarano
Approved Losses per Claimant's
Insurance Company
$205,570.54
10% of Approved Losses
Base Amount
Proportional Share
Total
20,557.05
2,500.00
11.080.25
$34,137.30
Total Settlement = $77,829.22
* Includes $500 estimated cost for Smith's attorney to review settlement agreement (not yet
expended).
SUMMARY TABLE
City Claimant
Position Position Delta
Smith:
10% of Approved Losses $ 25,878.44 $ 25,878.44 0
Base Amount 2,500.00 2,500.00 0
Proportional Share 2,786.49 13,948.48 $ 11,161.99
Attorney Fees 0.00 1.365.00 1.365.00
Total 31,164.93 43,691.92 12,526.99
Camarano:
10% of Approved Losses $ 20,557.05 $ 20,557.05 0
Base Amount 2,500.00 2,500.00 0
Proportional Share 2,213.51 1 1.080.25 $ 8,866.74
Total 25,270.56 34,137.30 8,866.74
Total $ 56,435.49 $ 77,829.22 $ 21,393.73
City Position vs. Claimant Position Delta = $21,393.73.
ALTERNATIVE POSITION
An alternative settlement option would be to recalculate the proportional share as if all 10
claimants had been settled at the same time. Following the same logic that was established by
the Commission at the December 14, 2005 meeting, the ten homeowners would be offered
settlement terms as follows:
1. 10% of approved losses, plus
2. $2,500, plus
3. A pro rata share of a pool of $25,000 (Pool derived as follows: $2,500 per homeowner x
10 homeowners = $25,000). Homeowner's pro rata share based on the proportion of the
individual homeowner's approved losses to the whole.
This settlement arrangement is depicted in Attachment 1 and would result in the following
settlement offers for Smith and Camarano specifically:
Smith
Approved Losses per Claimant's
Insurance Company
$258,784.40
10% of Approved Losses
Base Amount
Proportional Share
Total
25,878.44
2,500.00
7.394.78
$35,773.22
Camarano
Approved Losses per Claimant's
Insurance Company
$205,570.54
10% of Approved Losses
Base Amount
Proportional Share
Total
20,557.05
2,500.00
5.874.19
$28,931.24
Total Settlement = $64,707.46
FUNDING:
Funding will be via payment by the Florida League of Cities and a supplemental appropriation
from Utility Fund Reserves as follows:
10% of Approved losses (FLC to pay):
Base Arnt. & Prop. Share (City to pay):
Total
City
Position
$46,435.49
10,000.00
$56,435.49
Claimant
Position
$46,435.49
30,028.73
$76,464.22
Alternative
Position
$46,435.49
18,268.97
$64,707.46
RECOMMENDATION:
The City Manager recommends the Commission choose one of the following four (4) options,
exclusive of attorney fees:
OPTION 1
1. Approval final settlement with David & Shelli Smith and Michael & Lorraine Camarano
resulting from sewer system back-ups during Hurricane Charley in the amounts of
$31,164.93 and $25,270.56, respectively, contingent upon execution of a full release
within 15 days after their receipt of the settlement agreement.
2. Approve a supplemental appropriation from Utility Fund Reserves in the amount of the
City portion of $10,000.
OPTION 2
1. Approval final settlement with David & Shelli Smith and Michael & Lorraine Camarano
resulting from sewer system back-ups during Hurricane Charley in the amounts of
$42,326.92 and $34,137.30, respectively, contingent upon execution of a full release
within 15 days after their receipt of the settlement agreement.
2. Approve a supplemental appropriation from Utility Fund Reserves in the amount of the
City portion of$30,028.73.
OPTION 3
1. Approval final settlement with David & Shelli Smith and Michael & Lorraine Camarano
resulting from sewer system back-ups during Hurricane Charley in the amounts of
$35,773.22 and $28,931.24, respectively, contingent upon execution of a full release
within 15 days after their receipt of the settlement agreement.
2. Approve a supplemental appropriation from Utility Fund Reserves in the amount of the
City portion of$18,268.97.
OPTION 4
1. Other action as deemed appropriate.
A TT ACHMENTS:
1. Settlement Calculations assuming all ten homeowners had settled at the same time.
COMMISSION ACTION:
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Date: October 22, 2007
The attached was distributed by Mr. Mike
Camarano during the discussion of Regular
Agenda Item "600" at the October 22, 2007 City
Commission Regular Meeting.
---- -- ---- ------T im
-----_~~~~___=____=_____+--------, _______ ! whaT-l--whac=___t------_
Appro,,~(jJ:~ss % of : % of : Should have . Did L % of
i - Loss r-SubtotaT_r=i_fOial=-=-TH8P-pened' Happen--I---Loss
$114,656.82 35.32%: 13.84%, $3,460.97 $6,180.16
__,_ ______+ m ___
$66,661.31 20.53% 8.05% $2,012.20 $3,593.14
$45,780.61 14.10%5.53%- -- -$1,381.9-1 $2,467.64
$43,207.03 13.31% 5.22%$1-,304-:-2-2l $2,328.92
$29,510.51 ' -9.09-0/0--3-.560/;$890.791 $1,590.66
$24,072.99 [ u 7.41% 2.91%$726.65[ $1,29T5Y
"-- -$777.661 0.24% 0.09%-- -$23:47r-$41.92
j -- ---------------r - ,
$39,192.00l 4.73%: $1,183.03' $0.00:
$2fjB,784.40 31.25% $2,786.49
$20fj,510.$4 -24.820/0$2,213.51
$9,8()0.22.
$15,199.781
$25,000.00 :
-nut ----un-nut -
, !
* - Approved Loss based on the figure provided in ITEM 300 December 1
10/22/2007
Claimant
Rutherford*
Bibiloni*
Mize*
Almeida*
Baker*
: German*
_nt----
! Schollhammer*
,
i Walters
:Smith
-t--
! Camarano
A
G
OPTION 2
What we
j Are asl<ir1g-fc:>r
+ ~/L~~S-
$6,180.16
_ ------------.-
$3,593.14
$2,467.64
$2,328.92
$1,590.66
$1,297.57
$41.92
-- ------------------
$0.00
c
D
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-- ------------------ --
OPTION 1
F
!-
39.20%
60.80%
1st 7 Subtotal $324,666.99
- --------------------....-------- .
2nd 3 Subtotal $503,546.94 I
---------n-----i-- --
,Total $828,213.931
$17,500.00
-- ----------------- -------- -
$5,000.00
$22,500.00
$17,500.00
$25,028.73
-- - - - --..---..------------ ------..---
$42,528.73
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What should have happened
· 1 st 7 ( 400/0 )
· $324K in damages
· $10,000 distributed
Remaining 3 (600/0)
$503K in damages
$15,000 kept for eventual settlements
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What Option 1 proposes
(Walter's "quarter" never paid)
· 1 5t 7 (700/0)
· 400/0 of damage ($324K)
· Paid $17,500
Final 2 (200/0)
560/0 of damage ($464K)
Split $5,000
Half a solution
Pay final 2 what we should have without the error
· 1 8t 7 Final 2
· Paid $17,500 Split $14,000
· Percentages are invalid because proportionality still not maintained
What Option 2 proposes
Pay the Final 2 the 5.390/0 rate established by payments to the 1 st 7
· 1 st 7 Final 2
· Paid $17,500 Split $25,000
· 400/0 of new total* 560/0 of new total*
· * New total would be $44.6K if Walter's share paid
Date: October 22, 2007
The attached was distributed by Mr. Dave Smith
during the discussion of Regular Agenda Item
"600" at the October 22, 2007 City Commission
Regular Meeting.
{poD
ITEM Ji'W
CAMARANO I SMITH SETTLEMENT
PROPORTIONAL SHARE - UNDISPUTABLE FACT
THE FIRST 7 RECIEVED COMPENSATION AT THE RATE OF
L1;11 ~k CITY COMMISSION'S PRIOR COMMITMENT, ALL WILL
BE TREATED EQUALLY.
SMITH ATTORNEY BILLS -
THE CITY HAS SET A PRECEDENCE BY PAYING THESES
FEES TO SOME OF THE 1sT 7. THESE FEES BEING SOUGHT
ARE STRICTLY FOR DEALINGS WITH THE CITY, NOT THE
NATIONWIDE LAWSUIT.
ACTUAL TOTAL LOSS -
THE ACTUAL TOTAL LOSS IS $44,133.00 HIGHER, SMITH
DID NOT INCLUDE ATTY FEES PAID BY NATIONWIDE WHICH
WOULD HAVE MADE THE SMITH CLAIM $6,792.00 MORE.
SMITH LAWSUIT TOOK 9 MONTHS TO SETTLE.
CAMARANO AND SMITH - SAVE CITY OF
WINTERSPRINGS 1/2 MILLION DOLLARS
AFTER 3 YEARS OF ARDUOUS EFFORTS ON BEHALF OF THE
CAMARANOS AND SMITHS PLEASE ALLOW THE BENEFIT OF
THE DOUBT, IF ANY, TO SIDE WITH THE CLAIMANT AND
PLEASE VOTE TO AUTHORIZE OPTION 2
DELLECKER "WILSON KING
McKENNA & RUFFIER, LLP
Robert H. Dellecker t
Samuel P. King *
Kenneth J. McKenna
William E. Ruffier*
Anthony E Sos
Brian T. Wilson*
· Board Certified Civil Trial Lawyer
t Also Admitted to the Georgia Bar
ATTORNEYS AT LAW
719 Vassar Street
Orlando, Florida 32804
Telepbone (407) 244-3000
Facsimile (407) 244-3033
www.dwklaw.com
Paralegals
Valerie L. Bridges
Darcie Carsner
Denise Eberhard-Coughlin
Susan Ochs-Conrad
Lori A. Velazquez
Sue Zupka
November 10,2006
City of Winter Springs
Ronald W. McLemore, City Mai1ager
1126 E. SR 434
Winter Springs, FL 32708-2799
Re: Sewer backup damage claim for 1612 White Dove Drive, Winter Springs, FL
Dear Mr. McLemore:
,
I have not heard from you since my letter of October 23,2006. However, since that letter the
Smiths have incurred more damages due to the City of Winter Springs' negligence. Specific,ally,
they have been rejected for homeowners' coverage due to the loss they sustained as a result of the
cities' negligence. We have enclosed a letter from Farley Insurance Services, who have been unable
to place the Smith's vacation home with a traditional insurance carrier, but instead had to place
them through Lloyds of London. We are enclosing the letter with the difference in insurance
premiums. As you can see, but for the City of Winter Springs' negligence, the Smiths would owe
an annual premium of $805.60 with Auto Owners instead of a premium of $3,130.55 from Lloyds
of London, for a difference of $2,324.95 per year. When this is annualized over time, the claim
becomes even more significant.
Please contact me within the next twenty (20) days and let me know how the City of Winter
Springs intends to deal with this issue.
"
WER:tl
cc: David & Shelli Smith
A Referral-Based Personal Injury Law Firm
DEAN, RINGEllH3. MORGAN AND LAWTON
A PROFESSIONAL ASSOCIATION
ATTORNEYS AT LAW
NOV - 9 2006
GOBLE D. DEAN [1913-2000]
DALE O. MORGAN'
WILLIAM E. LAWTON..
LAMAR D. OXFORD
F. SCOTT PENDLEY.++
JOHN D. ROBINSON
FRANK C. WESIGHAN+
JEFFRY J. BRANHAM+
JOSEPH R. FLOOD, JR.
ALAN D. KALINOSKI +.. #
RONALD P. GRENINGER
DOUGLAS T. NOAH
G. CLAY MORRIS
JAMES A. WILKINSON
S. RENEE STEPHENS LUNDY
CAPITAL PLAZA I. SUITE 1200
201 EAST PINE STREET
POST OFFICE BOX 2928
ORLANDO, FLORIDA 32B02
(407) 422-4310
FAX (407) 648-0233
JOHN M. JOYCE
A. LYNNE RINGERS..
MICHAEL A. LOWE
FERMAN M. FERNANDEZ
JOHN T. CONNER
DONNA N. MALONEY HANSEN
ANDREW L. RINGERS.
OF COUNSEL
FLORIDA BAR BOARD CERTIFIED
CIVIL TRiAL LAWYER
+ FLORIDA BAR BOARD CERTIFIED
WORKERS' COMPENSATION LAWYER
++ ADMITTED TO THE GEORGIA BAR
# ADMITTED TO THE DIST. OF COWMSIA BAR
."* ADMITTED TO THE ILUNDIS BAR
November 8, 2006
Will iam E. Ruffier, Esq.
Dellecker Wilson King McKenna & Ruffier, LLP
719 Vassar Street
Orlando, FL 32804
Re:
Your Clients
Date of Loss
Our Client
David 8: Shelli Smith
August 1 5, 2004
City of Winter Springs
Dear Mr. Ruffier:
I have been provided a copy of your letter dated October 23, 2006 to Ron
McLemore, the City Manager for the City of Winter Springs demanding a settlement on
behalf of your clients in the amount of $36,358.00. I have been asked to respond to
the same.
I would note that a similar demand had been made on behalf of Nationwide
Insurance Company by letter dated February 28, 2006. That letter was received from
counsel representing Nationwide.
The City of Winter Springs has already paid well in excess of $200,000.00 for
the claims which have been made against it arising from this incident. This would
include claims for the damage, repair, and restoration of the properties in question as
well as the payments which have been tendered and accepted for full and complete
settlement of claims by certain residents. For that reason, the City is statutorily
immune from the payment of any additional sums of money absent a claims bill.
Page 1 of 1
DJS INC
From:
To:
Sent:
Subject:
"Kevin Smith" <ksmith@winterspringsfl.org>
<djs_inc@bellsouth.net>
Saturday, September 08, 2007 11 :20 AM
FW: Agenda Item for Monday
Dave,
I forgot to mention that the City Manager was not in favor of reimbursing your attorney fees. That's why it's not included in the
"City's Position" number. However, I did include it in the "Claimant's position." Again, it will be the Commission's call but I wanted
you to know why I didn't include it .
Thanks,
Kevin
Kevin L. Smith
General Services Director
City of Winter Springs
407 -327 -6557
ksmith@winterspringsfl.org
From: Kevin Smith
Sent: Saturday, September 08,200711:18 AM
To: 'djs_inc@bellsouth.net'
Subject: Agenda Item for Monday
Dave,
Info attached. Call with any questions.
Thanks,
Kevin
Kevin L. Smith
General Services Director
City of Winter Springs
407 -327 -6557
ksmith@winterspringsfl.org
Confidentiality Note: This e-mail, and any attachment to it, contains information intended only for the
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immediately return it to the sender and delete it from your system. Thank you.
9/1 0/2007
DELLECKER "WILSON KING
McKENNA & HUFFIER, LLP
Robert H. Dellecker t
Samuel P. King *
Kenneth J. McKenna
William E. Ruffier*
Anthony E Sos
Brian T. Wilson *
ATTORNEYS AT LAW
719 Vassar Street
Orlando, Florida 32804
Telephone (407) 244-3000
Facsimile (407) 244-3033
www.dwklaw.com
* Board Certified Civil Trial Lawyer
t Also Admitted to the Georgia Bar
October 8, 2007
David Smith
Re: City of Winter Springs
Dear David:
Paralegals
Denise Eberhard-Coughlin
Susan Ochs-Conrad
LauraJ. Ryan
Christine Winsor
This letter is to confirm that we were paid by the City of Winter Springs for reviewing
a release that they proposed resolving the settlement of David Mize I s issues with the City of
Winter Springs over the home flooding.
Please give me a call should you have any questions.
Sincerely,
WER/kt
A Referral-Based Personal Injury LaW" Firm