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tech / rec.bicycles.misc / Widow of cyclist killed in crash by cop wins $3 million verdict but can't collect

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o Widow of cyclist killed in crash by cop wins $3 million verdict but can't collecChange The Law!

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Widow of cyclist killed in crash by cop wins $3 million verdict but can't collect

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From: lawl...@cops.fl (Change The Law!)
Subject: Widow of cyclist killed in crash by cop wins $3 million verdict but
can't collect
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 by: Change The Law! - Sat, 2 Mar 2024 10:07 UTC

Three years after a bicyclist was killed in a head-on crash with a
speeding Miami-Dade police officer, a jury declared the cop negligent and
awarded $3 million to the man�s widow and daughter.

But because of a state cap that shields employees at police departments,
schools, hospitals and other government entities from liability, the
victim�s survivors are limited to $300,000 in damages, must take their
case to the Florida Legislature and persuade lawmakers to pass a special
claim bill to exceed the sovereign immunity limit.

A bill in the Florida Senate, which faces opposition from counties, cities
and insurance companies, would increase immunity caps on compensation and
revamp the claims process.

Miami-Dade County offered the cyclist�s widow $49,000 to settle the case
before trial.

�It is beyond surreal to have the needless death of my husband treated so
dismissively, and now to do the trial all over again in Tallahassee,�
Jeishy Zerpa said. �Any other person in another line of work who is held
liable or who acted irresponsibly or illegally would be punished instead
of protected. Why do we have this double standard of immunity for the
police?�

Cop speeding in 40-mph zone: widow�s lawyer
A Miami-Dade Circuit Court jury sided 6-0 with Zerpa and her attorneys,
who argued Officer Christopher Bendana was driving 70 mph in a 40 mph zone
after he was dispatched to assist another officer with a non-emergency � a
report of mailbox theft or vandalism.

�Outrageous and insulting,� attorney Luis Suarez said of the county�s
offer. �Miami-Dade County doesn�t care because they have sovereign
immunity. But a jury saw fit to award 60 times more.�

Zerpa�s husband, Juan Carlos Martinez, 40, died Feb. 27, 2021, while on
his regular Saturday morning group ride near Black Point Park and Marina
near Cutler Bay.

Bendana was speeding toward a peloton of 20 cyclists � a common sight on
Southwest 248th Street at that time of day � as they pedaled west and he
traveled east. The cyclists warned each other to slow down and edge to the
right as they saw the patrol car coming with lights flashing and siren
blaring.

Martinez, an experienced cyclist and triathlete, brushed wheels with
another cyclist, causing him to fall. Bendana testified he saw Martinez
fall and roll into his lane, yet he did not slow down, even though the
cyclists waved at him vigorously, and did not brake for 50 feet after
striking Martinez, attorneys demonstrated in their reconstruction.

�Even speeding wildly the officer had time to evade the cyclist, and had
he been going 40 mph he would have had time to stop,� said attorney Mark
Heise, Suarez�s partner. �After the collision, he dragged the body across
the grass and ran over the body until he stopped 180 feet later.�

County: Crash was unavoidable
The county�s attorneys argued at trial two weeks ago that Bendana was
going 50-58 mph when Martinez �tragically fell into the path� of Bendana�s
patrol car, and the collision was unavoidable. Because Bendana was not
charged with a crime, he was �not found to be at fault for the accident,�
the county said. He was given a written reprimand for speeding, and for
activating his emergency signals without authorization, violations of
police department policy.

�Even though we see police officers speeding all the time, they are not
entitled to speed; that is a fallacy,� Suarez said. �It depends on the
type of crime they are responding to. In this case, he had absolutely no
reason to speed. He was not dispatched to an emergency but rather a
property crime � two people vandalizing or stealing from mailboxes. He was
sent as a backup to a 27-15 call. They tried to justify it by saying he
was concerned about the other officer who was the primary responder.�

Miami-Dade officers dispatched to an emergency with possible or actual
harm to life are allowed to go 10 to 20 mph over the speed limit. Police
agencies have strict policies on speed in order to avoid collateral
injuries or fatalities.

Bendana also failed to activate his body camera upon dispatch, another
policy violation. He did not press the record button until after the
collision.

�Had he hit record when required we would have seen his speed and the
collision,� Suarez said.

Bendana was promoted to detective a year later.

�If that police officer had followed the law, J.C. would still be alive,�
Zerpa said of Martinez, who was an event producer and an employee at Mack
Cycle and Fitness. �I go to bed every night with the thought that my
husband�s death was avoidable.�

Left behind 9-month old daughter
The couple�s daughter Miranda was 9 months old when her father died. They
live in Buena Vista. Zerpa, 45, is a human resources manager at a hotel.

�We went to place some flowers at the crash site and Miranda asked, �When
is Papi going to come from heaven and get his flowers?�� Zerpa said.

Government agencies in Florida are protected by laws that limit their
liability and place a cap of $200,000 on payment per person and $300,000
per incident.

Those caps can be exceeded only if legislators pass a claim bill in favor
of the victim. Zerpa�s attorneys will now have to draft a bill, find a
legislator to sponsor it, and win a vote in Tallahassee in order to
collect damages of more than $300,000 for her and her daughter, now 3
years old.

�We will have to basically re-try this case � and Jeishy will have to
relive the tragedy � and convince the state to pay this claim,� Suarez
said. �It�s far from automatic and sometimes it can take more than one
legislative session. There have been cases that took 10 years. We�ll be at
the mercy of politics.

�It�s an unfair process that enables government and insurance companies to
delay or reduce compensation to those who have been harmed.�

Government agencies say the immunity caps are a necessity because of their
exposure to liability and the high cost of insurance.

�In the private world, a company held liable would have insurance to cover
the claim,� Suarez said. �If I ran a 1,000-employee business with a fleet
of vehicles, I would analyze my exposed risk and purchase insurance to
cover that risk. If I didn�t have enough, I could go bankrupt. But
government entities say they can�t afford more insurance, and they don�t
need to buy it because they have immunity.�

Florida Senate bill would raise caps
A bill in the Florida Senate (SB 472) would double the caps to $400,000
and $600,000, and reform the lengthy and unpredictable claims process. If
passed, the new law would give more discretion to cities, counties, police
departments, school districts and hospitals to settle cases for higher
amounts. Currently, some insurance policies require the government entity
to go to trial, and, if they lose, to contest the victim in the state
claims process.

�Every year, local governments come to us and ask for more control and
power,� said Sen. Jason Brodeur, R-Sanford, the bill�s sponsor. �We�re
giving it to them. We want to help them manage risk better. In cases where
you did it, you were negligent, you�re liable � you need to carry
insurance. If small governments say they can�t afford it, they need to be
absorbed into county government.�

The Martinez case never should have gone to trial, said Stephen Cain, a
Miami lawyer and president of the Florida Justice Association, which
represents plaintiffs� attorneys and supports the bill.

�Those are the kinds of cases that should be settled out of court but they
are not because of insurance companies� sinister tactic of not allowing
government to settle, and slow-walking or creating a shell game so they
don�t have to pay,� Cain said. �They�ll hire a lobbyist to fight the claim
bills.

�Our goal is to make it less arduous for families who do not want a
payday, who do not want a trial; they want a just resolution. I feel for
the spouse and child who will be put through the wringer again and may not
see compensation for a long time.�

Sovereign immunity evolved from the historical notion that the �King could
do no wrong.� Florida maintained absolute immunity until 1973. The caps
have not increased since 2010.

Florida�s caps among the lowest in the country
Florida�s sovereign immunity caps � lower than those in 90 percent of U.S.
states, including Georgia�s $1 million and $1.3 million caps, according to
Brodeur � make it difficult for victims or survivors to find a lawyer to
take their case. Suarez agreed to represent Zerpa knowing his expenses
will likely exceed the fees he collects because he is a cyclist himself
and because �it�s important to fight abuses of power,� he said.

�We field cases against sovereign hospitals and doctors that we can�t
pursue because the caps are so low and we know that filing a claim bill
could take years,� Cain said.

The Martinez case represents another facet of Florida�s insurance crisis,
Cain said.

�It has gotten grotesque up here,� Cain said from the legislative session
in Tallahassee. �Despite promises, we are not seeing any rate relief for
policy holders, yet insurance companies are making record profits.�


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tech / rec.bicycles.misc / Widow of cyclist killed in crash by cop wins $3 million verdict but can't collect

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