The Honorable Chainnan and Members ofthe Board ofcounty Commissioners. William M. Davis, Interim Director, Risk Management

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1 COMMISSION AGENDA: I. I/, II #=- /1 TO: IFROM: SUBJECT: DISTRIBUTION: DATE: The Honorable Chainnan and Members ofthe Board ofcounty Commissioners James L. Bennett, County Attorney Jf/f5 Notice ofnew Lawsuit and Defense of the Same by the County Attorney in the Case of Shannon Baker, as Personal Representative, et al v. Pinellas County; Circuit Civil Case No CI-15 William M. Davis, Interim Director, Risk Management January 11,2011 NOTICE: THIS IS TO ADVISE THE BOARD OF COUNTY COMMISSIONERS THAT THE ABOVE-REFERENCED LAWSUIT WAS FILED AGAINST THE COUNTY AND THE COUNTY ATTORNEY'S OFFICE WILL DEFEND THE SAME. DISCUSSION: This is a wrongful death action as a result of a motor vehicle accident between two vehicles at the intersection of State Road 580 and Bayview Boulevard, Oldsmar, on June 15,2009. Plaintiff's Complaint, brought by a personal representative on behalf ofthe estate of Andrew James Cavanaugh and his wife, alleges that the intersection's traffic signal was negligently maintained. The named Defendants are Pinellas County and the Florida Department of Transportation, as well as the decedent's automobile insurance carrier, Depositors Insurance Company, under separate counts seeking uninsured/underinsured insurance policy benefits. The Complaint is attached without the referenced Exhibit A. H:\USERS\ATYKB02\WPDOCS\LITIGATION - JES\Cavanaugh Estate\BOARD MEMO RE NOTICE TO DEFEND LITIGATION.docx

2 IN THE CIRCUIT COURT FOR PINELLAS COUNTY, FLORIDA CIRCUIT CIVIL DIVISION SHANNON BAKER as Personal Representative of the Estate of ANDREW JAMES CAVANAUGH, deceased, for the use and benefit of the Estate of ANDREW JAMES CAVANAUGH, deceased, and MARGARET ARMALEEN CAVANAUGH, vs. Plaintiff/Petitioner, Case No. : BOARD OF COUNTY COMMISSIONERS, PINELLAS COUNTY, FLORIDA, STATE OF FLORIDA, DEPARTMENT OF TRANSPORTATION, and DEPOSITORS INSURANCE COMPANY, Defendants/Respondent ~---_/ COMPLAINT & PETITION FOR DECLARATORY JUDGMENT The Plaintiff/Petitioner, SHANNON BAKER, as Personal Representative of the Estate of ANDREW JAMES CAVANAUGH, deceased, for the use and benefit of the Estate of ANDREW JAMES CAVANAUGH, deceased, and MARGARET ARMALEEN CAVANAUGH, by and through the undersigned attorney, sues the Defendants, BOARD OF COUNTY COMMISSIONERS, PINELLAS COUNTY, FLORIDA; STATE OF FLORIDA, DEPARTMENT OF TRANSPORTATION; and DEPOSITORS INSURANCE COMPANY, and files this Petition for Declaratory Judgment pursuant to Florida Statutes Chapter 86 to declare the rights, status, and other legal and equitable relations as to the Respondent/Defendant, DEPOSITORS INSURANCE COMPANY, and alleges:

3 GENERAL ALLEGATIONS 1. This is an action for damages which are in excess of FIFTEEN THOUSAND DOLLARS ($15,000.00), exclusive of costs and interest. 2. At all times material hereto, the decedent, ANDREW JAMES CAVANAUGH, was and is a resident of Pinellas County, Florida. 3. At all times material hereto, the Defendant/Respondent, DEPOSITORS INSURANCE COMPANY, was and is a foreign corporation authorized to do business in the State of Florida. 4. At all times material hereto, the Defendant, BOARD OF COUNTY COMMISSIONERS, PINELLAS COUNTY, FLORIDA, was and is a government entity existing in the State of Florida. 5. At all times material hereto, the Defendant, STATE OF FLORIDA, DEPARTMENT OF TRANSPORTATION, was and is a government entity existing in the State of Florida. 6. That pursuant to Section (6) (a), Florida Statutes, the Plaintiff has provided a Notice of Claim to the appropriate agency and to the Department of Financial Services within three (3) years after the claim accrued. 7. That six (6) months have elapsed since the delivery of the above-mentioned Notice and neither the agency nor the Department of Financial Services have made a final disposition of the claim. 8. That on or about August 10, 2010, an order was entered appointing the Plaintiff, SHANNON BAKER as Personal Representative of the Estate of ANDREW JAMES CAVANAUGH, deceased. 9. That MARGARET ARMALEEN CAVANAUGH is a "survivor" pursuant to Section , Florida Statutes, since she is the surviving spouse of

4 the decedent. 10. On or about June 15, 2009 at or near the intersection of State Road 580 and Bayview Boulevard, in the City of Oldsmar, Pinellas County, Florida, the Defendant, BOARD OF COUNTY COMMISSIONERS, PINELLAS COUNTY, FLORIDA, and/or STATE OF FLORIDA, DEPARTMENT OF TRANSPORTATION, negligently maintained a traffic control device on Bayview Boulevard/State Road 580, in Oldsmar, Florida, thereby creating a danger and reasonable likelihood of possible automobile collision; and the traffic control device was under the ownership, control and supervision of the Defendants. 11. The actions/inactions of the Defendants as mentioned above, caused or contributed to cause the automobile operated by one Jacqueline Stinson to collide with and against the automobile operated by the decedent, ANDREW JAMES CAVANAUGH, causing serious bodily injuries and the subsequent death of the decedent, ANDREW JAMES CAVANAUGH. 12. That the Defendants created a dangerous condition and/or a hidden trap or condition at said place and/or failed to warn of same in that it failed to properly light its streets in a reasonable manner as mentioned above. COUNT I 13. The Plaintiff realleges paragraphs 1 through 12 of the General Allegations. 14. At all times material hereto, the Defendants, BOARD OF COUNTY COMMISSIONERS, PINELLAS COUNTY, FLORIDA and STATE OF FLORIDA, DEPARTMENT OF TRANSPORTATION, owed a duty to the decedent, ANDREW JAMES CAVANAUGH, and others similarly situated, to use a reasonable amount of

5 .. care in the traffic lights of its streets. 15. That the Defendants, BOARD OF COUNTY COMMISSIONERS, PINELLAS COUNTY, FLORIDA, and STATE OF FLORIDA, DEPARTMENT OF TRANSPORTATION, breached its duty of care to the decedent, ANDREW JAMES CAVANAUGH, in one or more of the following ways, anyone of which was a departure from the accepted standard of care: (a) By failing to provide an adequate traffic control device of the county streets and roads in question in a safe and reasonable condition; (b) By failing or neglecting to give warning of said latent or unrevealed dangers of the property; (c) By failing or neglecting to properly inspect said traffic control device in question; (d) By failing to make reasonable provisions for the safe condition of the streets in its county. 16. The negligent condition was known to the Defendants or had existed for a sufficient length of time so that the Defendants should have known of it. 17. As a direct and proximate result of the aforesaid negligence of the Defendants, the Plaintiff, SHANNON BAKER, as Personal Representative of the Estate of ANDREW JAMES CAVANAUGH, deceased, for the use and benefit of MARGARET ARMALEEN CAVANAUGH, suffered the loss of support and services, loss of the decedent's companionship and protection and mental pain and suffering. 18. As a direct and proximate result of the aforesaid negligence of the Defendants, the Plaintiff, SHANNON BAKER, as Personal

6 Representative of the Estate of ANDREW JAMES CAVANAUGH, deceased, for the use and benefit of the Estate of ANDREW JAMES CAVANAUGH, has a claim for the loss of net accumulations of the Estate of ANDREW JAMES CAVANAUGH, deceased, and for funeral expenses. WHEREFORE, the Plaintiff, SHANNON BAKER, as Personal Representative of the Estate of ANDREW JAMES CAVANAUGH, deceased, for the use and benefit of the Estate of ANDREW JAMES CAVANAUGH, deceased, and MARGARET ARMALEEN CAVANAUGH, demands judgment for damages against the Defendants, BOARD OF COUNTY COMMISSIONERS, PINELLAS COUNTY, FLORIDA, and STATE OF FLORIDA, DEPARTMENT OF TRANSPORTATION, in an amount in excess of FIFTEEN THOUSAND DOLLARS ($15,000.00), exclusive of costs and interest and further demands a trial by jury on all issues. COUNT II 19. The Plaintiff realleges paragraphs 1 through 12 of the General Allegations. 20. At the time of the collision set forth herein, the De fendant, DEPOSITORS INSURANCE COMPANY, had in full force and effect a policy of insurance issued to cover saicr deceased, ANDREW JAMES CAVANAUGH. Said policy of insurance insured said deceased for bodily injury coverage, and must, due to legal precedent and statutory law, also cover said Plaintiff for uninsured/underinsured motorist coverage. A copy of said policy information is attached as Exhibit "A". 21. That, there is not a sufficient, collectable policy of bodily injury insurance to compensate the deceased's estate for the damages caused by the deceased's injuries and death sustained in

7 and/or caused by said accident. 22. That the Defendant, DEPOSITORS INSURANCE COMPANY, and the Plaintiff have been unable to reach an amicable compromise of said Plaintiff's claim. WHEREFORE, the Plaintiff, SHANNON BAKER, as Personal Representative of the Estate of ANDREW JAMES CAVANAUGH, deceased, for the use and benefit of the Estate of ANDREW JAMES CAVANAUGH, deceased, and MARGARET ARMALEEN CAVANAUGH, demands judgment against the Defendant, DEPOSITORS INSURANCE COMPANY, for an amount in excess of FIFTEEN THOUSAND DOLLARS ($15,000.00), exclusive of costs and interest, and further demands a trial by jury on all issues. COUNT III PETITION FOR DECLARATORY JUDGMENT 23. The Plaintiff realleges paragraphs 1 through 12 of the General Allegations. 24. This is an action for declaratory judgment filed for the purpose of determining a question of actual controversy between Petitioner/Plaintiff and Respondent/Defendant DEPOSITORS INSURANCE COMPANY, as set forth below. 25. At the time of the collision set forth herein, the Defendant, DEPOSITORS INSURANCE COMPANY, a foreign corporation, had in full force and effect a policy of insurance issued to cover the above-mentioned deceased. Said policy of insurance insured the deceased for bodily inj ury coverage. A copy of said policy information given to Petitioner/Plaintiff by said Defendant is attached as Exhibit "A".

8 26. That, since the Defendant, DEPOSITORS INSURANCE COMPANY, has failed to produce a valid uninsured/underinsured motorist coverage selection/rejection form, signed by either of the named insureds for the policy number PPDM , to Plaintiff's counsel, the Plaintiff is unsure whether there is uninsured/underinsured motorist insurance coverage available in amounts, stacked, to the bodily injury coverage, to compensate the deceased's estate for the damages caused by the deceased's injuries and death sustained in and/or caused by said accident. 27. That the Defendant, DEPOSITORS INSURANCE COMPANY, a foreign corporation, and said Plaintiff have been unable to reach an amicable compromise of said Plaintiff's claims. 28. Said Plaintiff has been forced to employ the undersigned attorneys to represent the Plaintiff in this cause and has incurred certain costs in doing so, and are obligated to pay said attorneys a reasonable fee for their services. 29. At all times material hereto, it is believed that Respondent/Defendant DEPOSITORS INSURANCE COMPANY, under the laws of the State of Florida, insured the deceased with uninsured/underinsured motorist coverage for the accident as listed above. 30. The deceased, ANDREW JAMES CAVANAUGH, as detailed above, was involved in an automobile accident causing serious bodily injury and death to said person. 31. The Plaintiff/Petitioner, by and through the

9 undersigned attorney, has requested that the Respondent/Defendant provide proof that it did not insure the Plaintiffs/Petitioners for uninsured/underinsured motorist coverage with limits equal to the bodily injury coverage limit, stacked, regarding said deceased, ANDREW JAMES CAVANAUGH, for said accident. 32. Under the terms and conditions of the level of bodily injury coverage made known to said Plaintiff/Petitioner by the Defendant/Respondent and prevailing case-law and statutes, Plaintiff/Petitioner believes that the Defendant/Respondent is obligated to provide the deceased, ANDREW JAMES CAVANAUGH, with such uninsured/underinsured motorist coverage equal to the bodily injury coverage limits, stacked, as provided by such policy. 33. By reason of the aforementioned, an actual, justiciable controversy exists between the parties relating to their legal rights and duties under the policy of insurance involved herein. WHEREFORE, the Petitioner/Plaintiff respectfully request that this Honorable Court enter a judgment determining that: A: The policy of insurance issued herein to ANDREW JAMES CAVANAUGH, and in question herein, provides Uninsured/Underinsured Motorist coverage limits of $25,000.00/$50,000.00, stacked, on said policy, for the damages and death the deceased sustained due to the automobile accident mentioned above; B. Award the undersigned a reasonable attorneys' fee and

10 all taxable costs as a result of bringing this action. PETITIONER/PLAINTIFF further demands a trial by jury on all issues so triable by jury as a matter of right. Eduardo R. Latour LATOUR & ASSOCIATES, P.A. 135 East Lemon Street Tarpon Springs, Florida / Attorneys for Plaintiff/Petitioner FBN