2005-12-09 BOD MeetingPUBLIC RISK MANAGEMENT OF FLORIDA
BOARD OF DIRECTORS MEETING
The Terrace Hotel
Lakeland, FL
December 9, 2005
AGENDA
10:00 am Call To Order John Litton, Chairperson
Glenn Tobey Retirement Recognition
Consent Agenda
1. Request Approval of August 12, 2005 Board Meeting Minutes
2. Request Approval of Treasurer's Report as of September 30, 2005
Any Board Member may request to have an item removed from the Consent Agenda and placed on the
Regular Agenda for further discussion.
Regular Agenda
3. Executive Director's Report
A. Report on Hurricane Losses
B. 2006 National PRIMA Conference
C. Certificate of Insurance /Additional Insured
D. Members Notice of Intent to Withdraw 2006
Ross Furry, Executive Director
4. Broker's Report Glenn Tobey & Andy Cooper, A.J. Gallagher & Co.
A. Program Structure & Changes
B. The Property Market — What We Know About the Market After This Year's
Hurricanes
C. Property Appraisals
D. Educational Conference 2006
5. Legal Update Jeffrey Weiss, Esquire
A. Police Liability for Mistaken Identity at the Time of Arrest
6. Board Member Items
A. Establish Meeting Dates for Calendar Year 2006
Public Comment: State full name and address. Discussion must be limited to a maximum of five (5)
minutes per person.
Adjournment
Luncheon immediately following
PUBLIC RISK MANAGEMENT OF FLORIDA
BOARD OF DIRECTORS MEETING
DECEMBER 9, 2005
CONSENT AGENDA SUMMARY
1. Request Approval of August 12, 2005 Board Meeting Minutes
Background: Meeting Minutes attached
Request Approval of Treasurer's Report as of September 30, 2005
Background: Financial Reports Attached
Board Action:
Approved
Denied
Deferred
Other
1. BOARD MEETING MINUTES
AUGUST 12, 2005
PUBLIC RISK MANAGEMENT OF FLORIDA
BOARD OF DIRECTORS MEETING
Terrace Hotel, Lakeland, FL
August 12, 2005
MINUTES
Attendance: Renee Green, City of Avon Park; Susan Lee, Town of Belleair; Stacie Jo
Rimes, City of Belle Glade; Steve Baumgartner, City of Brooksville; Ted Byrd, City of
Clewiston; Faith Miller, City of Deltona; Jerry Hill, DeSoto County BOCC; Mike
Sheppard, City of Eustis; Delores Avery, City of Fort Meade; Elaine Trehy, City of
Gulfport; Jane Long, Hardee County BOCC; Lester Baird, Hendry County BOCC; Nancy
Beelman, Town of Kenneth City; Lisa Smith, City of LaBelle; John Litton, City of Lake
Mary; Phil Williams, Town of Lake Placid; Sandra Davis, City of Lake Wales; Fred
Moody, Levy County BOCC; Gerald Wilson, Town of Longboat Key; Dawn Jackson,
City of Longwood; Jeff Sutton, City of New Port Richey; Donna Reynolds, City of
Okeechobee; Robbie Charter, Okeechobee County BOCC; Dan Hood, City of Oviedo;
Jeanie Perkins, City of Pahokee; Shirley Dresch, City of Port Richey; Dave Drury, City
of Punta Gorda; Bill Cropsey, City of Safety Harbor; Martin Lange, Sarasota/Manatee
Airport Authority; Jeff Carlson, City of Sebring; Kara Schrader - Smith, City of St. Pete
Beach; Debra Woodall, Tampa Bay Water; Lori Tucker, City of Tavares; Woody
Hubbard, City of Temple Terrace; James Braddock, City of Wauchula; Sharry Boldt,
City of Zephyrhills
Sherri Bennett, Highlands County BOCC; Martin Schless, City of Indian Rocks Beach;
and George Hensley, Sun `n Lake of Sebring Improvement District, attended as non-
voting representatives.
Absent: City of Crystal River, Glades County BOCC, Hamilton County BOCC, Holmes
County BOCC, Town of Lady Lake, Lee County Port Authority, City of Moore Haven,
City of North Port, South Florida Conservancy District, City of South Pasadena, City of
Winter Garden
John Litton, Chairperson, called the meeting to order at 10:15 am with a quorum
present.
Consent Agenda
1. Request Approval of June 16, 2005 Board Meeting Minutes.
2. Request Approval of Treasurer's Report as of June 30, 2005.
3. Ratify the Election of Officers from June Board Meeting.
Motion was made by Dave Drury and seconded by Jane Long to approve the consent
agenda. The motion was unanimously approved.
Regular Agenda
4. Executive Director's Report
A. Highlights of June Conference & Board Meeting — Mr. Furry commented on the
June conference, noting good attendance and sponsorship.
B. Hurricane Claim Status — For Hurricane Charley, $26 million has been received
from the excess carriers with $21 million being disbursed. In some of the rural
communities, it has been difficult to obtain contractors, engineers and materials.
Currently, losses are $300,000 from Hurricane Frances and $1,750,000, with an
expected increase to $3 million, from Hurricane Jeanne. Members were
reminded to submit claims for contents and property in the open.
C. Impact of National Railroad Case — Mr. Furry urged members to share the
Florida Supreme Court's ruling on the National Railroad case with their legal
counsel. If a governmental entity indemnifies or holds a third party harmless for
their negligence in a contract, the entity cannot limit it to sovereign immunity
768.28. This ruling applies to any contract with a hold harmless or
indemnification agreement. Jeffrey Weiss indicated public entities are subject to
unlimited liability on any type of arrangement with a non - public or non - profit
party. Upon request, he will forward the full text of the case.
Workers' Compensation — CPS (Centralized Performance System) website was
established by the State for employers to monitor the performance of third party
administrators. Members are to view two areas, medical billing and indemnity for
form filing discrepancies, and to forward any items subject to penalty to Gallagher
Bassett for investigation. Terri Morris of Gallagher Bassett advised that their firm will
also monitor each member's site once a month. The member is ultimately
responsible for the website.
5. Brokers Report
A. 2005/06 Renewal Proposals — Mr. Tobey reported an average increase of 12-
16%. The rates for three members were higher than average while twenty -one
members received single -digit increases.
He advised that Gallagher Bassett will lead the coordination on future hurricane
claims handling.
Self- insured Retention for Workers' Compensation was increased from $250,000
to $500,000.
Mr. Tobey indicated that 58% of the total cost of the program is Loss Fund.
Increasing the Loss Fund decreases the premium cost.
2
B. Review of Coverage & Program Structure — Andy Cooper advised the average
exposure increase was 10 %, which includes property, vehicles, employees, and
payroll.
Deductible for property, auto physical damage and crime was increased from
$500 to $1000.
A vacant building endorsement was added to the policy. A building vacant for 90
days or more without contents will be replaced at the lesser of actual cash value
or repair cost at the time of loss.
Named Wind Storm coverage was 2% per Site, minimum of $200,000, capped at
$500,000 by the excess carriers. For 2005/06, the coverage has changed to 2%
per Building, minimum of $200,000, and the cap has been removed. "Building"
includes the building, contents, data processing, and property in the open.
Last year the Pool purchased $10 million of TRIA (terrorism) coverage for
property. This covers foreign based terrorism only and requires the federal
govemment to declare an emergency with a $5 million event. TRIA expires
12/31/05, and if not extended, a pro -rated portion of the annual premium would
be refunded. Mike Sheppard made a motion to accept Mr. Furry's
recommendation to purchase $15 million of TRIA coverage for property. It was
seconded by Lester Baird. The motion failed. A vote on TRIA coverage was
then required by the fourteen members who purchase excess liability coverage.
Jane Long made a motion to decline TRIA coverage for excess liability. It was
seconded by Kara Schrader -Smith and the motion carried.
C. 2006 Educational Conference — The Conference will be held at Marco Island
June 21 -23, 2006.
6. Legal Update
A. Draper v. Reynolds — Use of Taser Guns by Law Enforcement — Mr. Weiss
reviewed a case in which the Eleventh Circuit Court ruled in favor of law
enforcement's use of a taser gun with a suspect.
Mara Roth and Barbara Borenstein from Genex spoke on their company's efforts, in
conjunction with Gallagher Bassett, to monitor the State's CPS system and insure timely
medical billing and data transmission. Members were encouraged to contact them on
any issues needing investigation.
7. Board Member Items — No new items were presented.
There was no Public Comment.
3
With no further business, Mr. Drury made a motion to adjourn, seconded by Ms. Long,
and the meeting adjourned at 11:20 am.
Respectfully submitted,
Judith A. Hearn
Assistant Executive Director
Secretary to PRM Board
JAH:smb
O:\Judy\BD MTGS\Board of Directors Meeting 8-12 -05
4
2. TREASURER'S REPORT
AS OF 9 -30 -05
PUBLIC RISK MGMT OF FL
BALANCE SHEET
SEPTEMBER 30, 2005
CURRENT ASSETS
PETTY CASH $ 75.00
OPERATING -SO TRUST 26,556,949.12
INVESTMENT TRANSFER ACCOUNT 3,937.59
A/R MEMBERSHIPS (632,691.75)
A/R TRADE 93.46
A/R CONSULTANT FEE - MEMBERS 3,714.92
A/R- REINSURANCE RECOVERIES (30,025,955.86)
A/R OTHER 141.38
A/R -STATE W/C ASSESSMENT 22,521.57
A/R- APPRAISALS 767.00
A/R - ADDITIONAL INSURANCE 501.21
A/R HURRICANE DAMAGES (8,199.06)
DUE FROM MEMBERS 347,670.80
STATE ADMIN. FUND 12,628,504.18
SOUTHTRUST SECURITIES 514,226.29
TOTAL CURRENT ASSETS 9,412,255.85
PROPERTY AND EQUIPMENT
FURNITURE & FIXTURES 33,625.98
LESS: ACCUM. DEPRECIATION (23,606.65)
OFFICE MACHINES & EQUIPMENT 81,875.90
LESS: ACCUM. DEPRECIATION (52,584.47)
AUTOMOBILE 131,745.64
ACCUMULATED DEPRECIATION (59,039.23)
TOTAL PROPERTY & EQUIPMENT 112,017.17
OTHER ASSETS
PREPAID INSURANCE 596,071.88
PREPAID FLOOD INSURANCE 94.49
PREPAID EXPENSES 4,634.79
DEFER MEMBER CONTR - 1987 -89 183,808.00
DEFER MEMBER CONTR - 1989 -90 295,679.00
DEPOSITS 5,665.06
TOTAL OTHER ASSETS 1,085,953.22
TOTAL ASSETS
LIABILITIES
ACCOUNTS PAYABLE $ 7,817.85
A/P - GALLAGHER/RISX -FACS (3,159,061.03)
FEDERAL TAXES PAYABLE 128.88
PEBSCO PAYABLE (364.42)
A/P EMP LIFE INS (407.16)
A/P RELOCATION EXPENSES 178.64
A/P - OTHER 4,975.54
A/P - LOSS PREVENTION 15,158.76
ACCRUED VACATION 81,474.95
DEFERRED REVENUE 11,919.25
CLAIMS PAYABLE - 1987 -89 133,173.32
CLAIMS PAYABLE - 1989 -90 200.00
CLAIMS PAYABLE - 1990 -91 7,887.21
CLAIMS PAYABLE - 1991 -92 (199,551.69)
CLAIMS PAYABLE - 1992 -93 (73,002.00)
CLAIMS PAYABLE - 1993 -94 16,793.18
CLAIMS PAYABLE - 1994 -95 16,398.23
CLAIMS PAYABLE - 1995/96 (84.00)
CLAIMS PAYABLE - 1996/97 9,590.37
CLAIMS PAYABLE - 1997/98 (122,033.49)
CLAIMS PAYABLE - 1998/99 (425,926.36)
CLAIMS PAYABLE - 1999/00 (91,355.56)
CLAIMS PAYABLE - 2000/01 (956,511.14)
CLAIMS PAYABLE - 2001/02 1,135,012.61
CLAIMS PAYABLE - 2002/03 1,472,906.73
CLAIMS PAYABLE - 2003/04 2,522,814.45
$ 10,610,226.24
PUBLIC RISK MGMT OF FL
BALANCE SHEET
SEPTEMBER 30, 2005
CLAIMS PAYABLE - 2004/05 (7,833,412.08)
TOTAL LIABILITIES
CAPITAL
FUND BALANCE
REVENUE IN EXCESS OF EXPENSE
TOTAL CAPITAL
15,289,769.59
2,745,735.61
(7,425,278.96)
18,035,505.20
TOTAL LIABILITIES & CAPITAL $ 10,610,226.24
REVENUES
MEMBERSHIP ASSESSMENTS
INTEREST INCOME
ADMINISTRATIVE TRANSFER
TOTAL REVENUES
PUBLIC RISK MGMT OF FL
INCOME STATEMENT
FOR THE TWELVE MONTHS ENDING SEPTEMBER 30, 2005
CURRENT MONTH YEAR TO DATE
(84,369.34)
126,138.83
7,360.00
27,060,997.77
964,146.90
88,320.00
49,129.49 28,113,464.67
EXPENSES
OFFICERS' SALARIES 6,474.48 108,361.49
OFFICE SALARIES 28,488.00 417,438.43
PAYROLL TAXES 2,669.12 40,558.05
EMPLOYEE RETIREMENT BENEFITS 3,683.71 46,340.90
HEALTH INSURANCE - OFFICER 519.07 6,228.84
HEALTH INSURANCE - OFFICE 5,776.21 74,850.96
LIFE INSURANCE - OFFICER 66.96 748.96
LIFE INSURANCE - OFFICE 109.74 3,497.93
LTD INSURANCE 821.36 11,041.57
LEGAL FEES 741.72 5,606.59
LEGAL - PRE - DEFENSE 46.00 5,144.73
AUDIT FEES 0.00 26,000.00
ACTUARIAL STUDY 0.00 13,412.01
APPRAISAL FEE EXPENSE 0.00 2,500.00
AUTO EXPENSE 119.60 2,124.74
TRAVEL EXPENSE 4,153.00 42,212.50
ASSOCIATION MEMBERSHIPS 0.00 894.00
DUES & SUBSCRIPTIONS 230.00 1,851.11
EDUCATION/TRAINING /CONFER. 0.00 24,353.66
OFFICE LEASE 0.00 62,474.88
JANITORIAL / CLEANING 240.00 3,120.00
OFFICE/COMPUTER EQUIPMENT 1,755.54 26,329.93
TELEPHONE 2,591.67 23,081.64
COPY MACHINE LEASE 258.23 3,098.76
REPAIRS & MAINT. - EQUIPMENT 0.00 728.88
OFFICE SUPPLIES 546.56 13,829.44
NEWSLETTER 0.00 3,330.00
POSTAGE 312.85 9,530.48
PRINTING 1,117.64 1,446.14
INSURANCE - FLOOD /GENERAL 0.00 1,868.20
LOSS PREV EQUIP & SUPPLIES 228.38 18,821.37
MARKETING & PROMOTION 0.00 4,423.07
MEETING EXPENSE 89.00 17,763.62
MISCELLANEOUS EXPENSE 939.86 5,260.92
WEB SITE MAINT. 0.00 2,250.00
GALLAGHER MGMT FEES 97,729.92 1,172,759.04
GALLAGHER EXCESS INSURANCE 615,221.33 7,382,655.96
CLAIMS EXPENSE 1,306,534.17 15,678,410.04
TOTAL EXPENSES
REVENUE IN EXCESS OF EXPENSE
2,081,464.12 25,264,348.84
$ (2,032,334.63) $ 2,849,115.83
SALARY RELATED EXPENSES
OFFICERS' SALARIES
OFFICE SALARIES
PAYROLL TAXES
EMPLOYEE RETIREMENT BENEFITS
HEALTH INSURANCE - OFFICER
HEALTH INSURANCE - OFFICE
LIFE INSURANCE - OFFICER
LIFE INSURANCE - OFFICE
LTD INSURANCE
TOTAL SALARY RELATED EXPENSES
PUBLIC RISK MGMT OF FL
EXPENSES TO BUDGET
FOR THE Twelve MONTHs ENDING September 30, 2005
MONTHLY MONTHLY Y -T -D Y -T -D TOTAL YEAR
ACTUAL BUDGET ACTUAL BUDGET BUDGET
6,474.48 9,003.25 108,361.49
28,488.00 34,672.88 417,438.43
2,669.12 3,341.12 40,558.05
3,683.71 3,654.38 46,340.90
519.07 551.75 6,228.84
5,776.21 6,959.13 74,850.96
66.96 64.87 748.96
109.74 125.62 3,497.93
821.36 687.88 11,041.57
48,608.65 59,060.88 709,067.13
108,039.00
416,075.00
40,093.00
43,853.00
6,621.00
83,510.00
778.00
1,507.00
8,255.00
708,731.00
108,039.00
416,075.00
40,093.00
43,853.00
6,621.00
83,510.00
778.00
1,507.00
8,255.00
708,731.00
GENERAL EXPENSES
LEGAL FEES 741.72 1,000.00 5,606.59 12,000.00 12,000.00
LEGAL - PRE - DEFENSE 46.00 625.00 5,144.73 7,500.00 7,500.00
AUDIT FEES 0.00 2,583.37 26,000.00 31,000.00 31,000.00
ACTUARIAL STUDY 0.00 1,166.63 13,412.01 14,000.00 14,000.00
APPRAISAL FEE EXPENSE 0.00 208.37 2,500.00 2,500.00 2,500.00
AUTO EXPENSE 119.60 250.00 2,124.74 3,000.00 3,000.00
TRAVEL EXPENSE 4,153.00 2,375.00 42,212.50 28,500.00 28,500.00
ASSOCIATION MEMBERSHIPS 0.00 250.00 894.00 3,000.00 3,000.00
DUES & SUBSCRIPTIONS 230.00 208.37 1,851.11 2,500.00 2,500.00
EDUCATION/TRAINING /CONFER. 0.00 2,083.37 24,353.66 25,000.00 25,000.00
OFFICE LEASE 0.00 5,789.62 62,474.88 69,475.00 69,475.00
JANITORIAL / CLEANING 240.00 300.00 3,120.00 3,600.00 3,600.00
OFFICE/COMPUTER EQUIPMENT 1,755.54 1,500.00 26,329.93 18,000.00 18,000.00
TELEPHONE 2,591.67 2,166.63 23,081.64 26,000.00 26,000.00
COPY MACHINE LEASE 258.23 250.00 3,098.76 3,000.00 3,000.00
REPAIRS & MAINT. - EQUIPMENT 0.00 166.63 728.88 2,000.00 2,000.00
OFFICE SUPPLIES 546.56 1,166.63 13,829.44 14,000.00 14,000.00
NEWSLEI1ER 0.00 333.37 3,330.00 4,000.00 4,000.00
POSTAGE 312.85 916.63 9,530.48 11,000.00 11,000.00
PRINTING 1,117.64 166.63 1,446.14 2,000.00 2,000.00
INSURANCE - FLOOD /GENERAL 0.00 250.00 1,868.20 3,000.00 3,000.00
LOSS PREV EQUIP & SUPPLIES 228.38 1,833.37 18,821.37 22,000.00 22,000.00
MARKETING & PROMOTION 0.00 375.00 4,423.07 4,500.00 4,500.00
MEETING EXPENSE 89.00 2,008.37 17,763.62 24,100.00 24,100.00
MISCELLANEOUS EXPENSE 939.86 208.37 5,260.92 2,500.00 2,500.00
TRAINING /SEMINAR PRESENTATION 0.00 500.00 0.00 6,000.00 6,000.00
WEB SITE MAINT. 0.00 566.63 2,250.00 6,800.00 6,800.00
TOTAL GENERAL EXPENSES 13,370.05 29,247.99 321,456.67 350,975.00 350,975.00
TOTAL OPERATING EXPENSES
61,978.70 88,308.87 1,030,523.80 1,059,706.00 1,059,706.00
Public Risk Management of Florida
3434 Hancock Bridge Parkway, Suite 203
North Ft. Myers, Fl. 33903
Ph: 239.656.4666
MEMORANDUM
January 23, 2006
To: Board Members, Alternates, Contacts
From: Judy Hearn, Assist. Executive Director
Secretary, PRM Board of Directors
Re: Summary of December 9, 2005 Board Meeting
**** * * * * * * * * * * * * * * * * * * * * * * * * * * * * * **
The following is a summary of the Board of Directors meeting held in Lakeland
on December 9, 2005.
With Glenn Tobey's January retirement from A. J. Gallagher & Company, Mr.
Litton recognized his contributions to the success of the Pool.
Motions Passed
*Consent Agenda: Minutes of August 12, 2005 Board Meeting
Treasurer's Report as of September 30, 2005
*Meeting Dates & Locations for 2006:
March 10, Chateau Elan, Sebring
June 22, Hilton Hotel, Marco Island
August 11, Terrace Hotel, Lakeland
December 8, Terrace Hotel, Lakeland
Topics Discussed
Ross Furry, Executive Director reported on status of 2004/05 hurricanes.
Crawford & Company is the adjusting firm for the excess carriers on hurricane
Wilma claims. CJW is the adjusting firm for excess carriers on 2004 hurricane
claims.
The 2006 National PRIMA Conference will be held June 11 -14 in Las Vegas,
Nevada. Scholarships are available thru PERI (deadline 2- 24 -06) and PRM
(deadline is 2- 1 -06).
There is currently an issue as to whether a government agency can name another
government agency as additional insured on certificates of insurance. The issue
involves an inter -local agreement with Pinellas County for EMS services. This
has been submitted to the Attorney General's office for opinion.
Mr. Furry reported four (4) members have given notice of intent to withdraw
membership from PRM effective 9- 30 -06. Desoto County, City of Indian Rocks
Beach, Levy County and Tampa Bay Water.
PRM Loss Prevention staff has made enhancements to the Safety Talks program
and will be sent by e -mail rather than fax.
Bonnie Mims joined the PRM staff on December 1. She will focus on HR issues
with members.
The 2005/06 policies were distributed to members at the meeting. Andy
Cooper reviewed major coverage changes. See Attached Detail
Mr. Tobey along with Suzanne Brandt, Managing Director with CRC
likened the property markets to the hard casualty market in the 1980's.
Regulatory agencies such as Standard & Poors are working with catastrophe
writers Carriers are committed to update their modeling versions, cut back on
capacity and spread writings over larger areas of the U.S. to help spread risk.
The underwriting application process for members of PRM will begin in
January. It is important that Members review property appraisals to ensure that
all items are listed.
Jeffrey Weiss, Esq. reviewed a lawsuit against the City of Lake Mary for
Police Liability as a result of mistaken identity at the time of arrest. The suit was
filed by a victim of identity theft who was arrested on an outstanding felony
warrant. On a motion to dismiss, the Court had to rule if there had been a
constitutional violation. The judge ruled in favor of the police officer and
dismissed him as a defendant from the lawsuit. The attorney for Lake Mary will
now be able to argue that because there was no underlying constitutional
violation, the City should not be a defendant in the lawsuit.
PUBLIC RISK MANAGEMENT OF FLORIDA
BOARD OF DIRECTORS MEETING
DECEMBER 9, 2005
REGULAR AGENDA SUMMARY
Executive Director's Report Ross Furry
A. Report on Hurricane Losses
Mr. Furry will provide the status on claims, including losses incurred with
Hurricane Wilma. He will review action being taken by Crawford & Co., the new
adjuster. Attachment
B. 2006 National PRIMA Conference
The National PRIMA Conference will be held June 11 -14 in Las Vegas.
Members are encouraged to apply for scholarships available through PERI and
PRM.
PERI offers a $1,000 Small Entity Scholarship and the application deadline is
February 24, 2006. A copy of the application is attached for your convenience. It
may also be downloaded from the PERI website at www.riskinstitute.orq.
PRM scholarships are being offered this year. Attached is a brochure explaining
the application process. The deadline for submission is February 1, 2006.
C. Certificate of Insurance /Additional Insured
Mr. Furry will discuss if a government agency can require another government
agency as an additional insured on a certificate of insurance.
D. Members Notice of Intent to Withdraw 2006
DeSoto County BOCC
City of Indian Rocks Beach
*Levy County BOCC
Tampa Bay Water
*3rd Notice within 3 -year period
Application Form
Small Entity Scholarship Program for 2006
Use this application form to apply for a Small Entity Scholarship for attending the 2006
PRIMA Annual Conference and Expo, Las Vegas, Nevada, June 11 -14, 2006.
Please answer all questions. Continue on additional sheets, if necessary.
Name:
Organization:
Address:
City: State: Zip:
Phone: Fax: Email:
Title:
Provide a brief profile of your organization, including a description of services and /or constituencies served:
Describe how the risk management and insurance functions are handled in your organization:
State your expectations, purpose, and goals in attending the conference:
Provide a brief statement of financial need:
If selected, I agree to attend the PRIMA Annual Conference June 11 -14, 2006, in Las Vegas, Nevada.
Signature: Date:
Please enclose verification of population or student attendance for public entities and school districts. For nonprofit
organizations, please include a copy of the most recently available annual report, consolidated financial statement, or
budget summary for your organization.
Send completed applications postmarked by February 24, 2006 to:
Small Entity Scholarship Program
c/o Audre Hoffman
Public Entity Risk Institute
11350 Random Hills Road, Suite 210
Fairfax, VA 22030
Phone: (703) 352 -1846
Fax: (703) 352 -6339
ahoffman @riskinstitute.org
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PUBLIC RISK MANAGEMENT OF FLORIDA
BOARD OF DIRECTORS MEETING
DECEMBER 9, 2005
REGULAR AGENDA SUMMARY
Broker's Report Glenn Tobey & Andy Cooper, A. J. Gallagher & Co.
A. Program Structure & Changes
Mr. Cooper will review coverage changes for 2005/06 (summary
attached). Policies will be distributed at the meeting.
B. The Property Market — What We Know About the Market After This Year's
Hurricanes
C. Property Appraisals
D. Educational Conference 2006
The annual conference will be held June 21 -23 at the Hilton Beach Resort
on Marco Island.
No Board Action Necessary
121 �YNAVC /ILL, Aso,p
PRM Board Meeting
December 9, 2005
Summary of Coverage Changes
For the Period October 1, 2005 to October 1, 2006
PRM Coverage Document
Page 6
The maintenance deductible increased to $1,000 from $500. However, for Employees Personal property
and Employees Tools the deductible remains at $500.
Named Windstorm is no longer referred to as a deductible. Rather, it is an SIR with a minimum of
$200,000 and a maximum of $750,000. This is an increase in the maximum deductible of $500,000 last
year.
There is wording to clarify that in the event of more than one peril in Section I is involved in an
occurrence, only the higher SIR applies. An example would be flood and named windstorm together.
The WC SIR has been increased from $250,000 to $500,000. The WC limit has changed from $250,000
xs $250,000 to $500,000 xs $500,000.
The Association Loss Fund is $16,150,994. Most of the increase is due to the WC Self Insured Retention)
SIR increasing from $250,000 from $500,000.
Page 7
Number 4 clarifies that any maintenance deductible is not included in the sublimit limit shown.
The Named Windstorm specific limit is shown with the minimum and maximum.
The Fine Arts specific limit has been increased to $2,300,000 from $800,000.
"Ground up" has been inserted next to sublimits less than $2,300,000 with the wording in number 4
explaining this is excess of any maintenance deductible.
Page 8
No Fault Insurance is now listed.
The Association Annual Aggregate for E&O has been increased from $25,000,000 to $28,000,000.
The WC specific limit has been increased from $250,000 to $500,000.
Forgery & Alteration has been increased from Nil xs $25,000 to $75,000 xs $25,000, in line with Money
& Securities and Employee Dishonesty.
Pages 9 & 10
Wording has been inserted clarifying the Multiple Lines Loss Protection limit (MLLP).
The WC, Forgery & Alteration and Excess limit of Coverage have been amended.
Pages 60 & 61, Endorsement 7
If a member purchases higher crime limits to $250,000 or $500,000 all three crime coverages are
increased at the same time.
Page 72, Endorsement 13
The MLLP limits have been changed to reflect the amended crime limits in endorsement 7.
Page 73, Endorsement 14
Wording has been added to clarify that there is still coverage if an overhead transmission line is not the
sole cause of loss.
Page 74, Endorsement 15
The wording reflects the change in the WC SIR.
Page 75, Endorsement 16
Named Windstorm is now defined and is on a "per building" basis rather than a "per Site" basis.
Page 77, Endorsement 18
This is the vacant Building Endorsement that was discussed at the August Board Meeting.
Page 78, Endorsement 19
This Priority of Payments endorsement allows the Association to decide how to apportion loss under the
Coverage Document. It also states that any interest or peril not covered in the excess layers shall be
recognized by the excess layers as eroding the primary occurrence limits.
Page 79, Endorsement 20
This endorsement clarifies coverage under Section III for third party pollution caused an insured vehicle.
Page 81, Endorsement 21
This is the No -Fault Florida endorsement.
Excess Property
The excess property carriers do not recognize the maximum windstorm SIR in the Coverage Document.
The 2% is unlimited. However, they do allow the Coverage Document SIR and specific limit to erode the
windstorm 2 %.
Excess Workers Compensation
The excess workers compensation policy now attaches at $1,000,000 instead of $500,000 due to the
Coverage Document limit changing.
Hurricane Wilma
October 15 -25, 2005
Situation and Response Paper
Prepared by Crawford & Company
www.crawfordandcompany.com
November 14, 2005
Hurricane Wilma
October 15 -25, 2005
Briefing
Crawford & Company offers the following information, maps, and images of Hurricane Wilma.
Through Crawford Catastrophe Services, Claims Management Services, Global Technical Services, and
Global Marine and Transportation, the Company is responding to personal lines, commercial, and marine
losses in Florida, the Caribbean, and Mexico.
This briefing provides facts and figures, photos and maps of affected areas, and issues of concern to the
industry.
Information in this briefing is drawn from a variety of sources. Every effort has been made to
reference the appropriate credit or attribution. The information contained herein is accurate to the
best of our knowledge at the time. Critical business decisions should not rely solely upon this
information, but rather, should be made only after facts can be verified independently of our report.
Crawford®
2
Wilma in Context of the 2005 and Previous Hurricane Seasons
Hurricane Wilma was the 21st named storm, 12th hurricane, and sixth major hurricane of the record -
breaking 2005 Atlantic hurricane season. It was also the third category-five hurricane of the season.
At its peak, Wilma was the most intense tropical cyclone ever recorded in the Atlantic basin and the tenth -
most intense globally, with the lowest atmospheric pressure ever recorded in the Western Hemisphere of
882 millibars (26.05 inHg) at sea level. Wilma was history's third category-five hurricane to develop in
October, the other two being Hurricane Mitch in 1998 and Hurricane Hattie in 1961. Wilma represents only
the second time 21 storms have formed in any season, and Wilma formed nearly a month earlier than the
only previous 21st storm (in 1933).
Wilma made several landfalls, with the most destructive effects felt in the Yucatan Peninsula of Mexico,
Cuba, and in the United States in Florida. At least 47 deaths have been reported, and insured damage in the
United States is estimated by Risk Management Solutions as being between $8 to 12 billion. Total damage
likely to be in the $15 to 20 billion range, which would rank Wilma among the ten costliest hurricanes ever
recorded in the Atlantic.
Storm History
Wilma originated in the second week of October 2005, becoming Tropical Depression 24 on October 15.
T.S. 24 reached tropical storm strength at 5:00 a.m. EDT October 17 (09:00 GMT), making it the first
storm ever to use the "W" name since alphabetical naming began in 1950, and tying the record for most
storms in a season with 1933. Wilma strengthened steadily and became a hurricane on October 18.
Hurricane Wilma began to intensify rapidly
during the late afternoon EDT of October
18. In a 24 -hour period, Wilma strengthened
from a strong tropical storm with 70 mph
(110 km/h) winds to a powerful category-
five hurricane with 175 mph (280 km/h)
winds. With Hurricane Wilma, 2005 became
the first year on record to host three
category-five storms in the Atlantic basin
(the other two being Hurricanes Katrina and
Rita).
Wilma set a record for the lowest pressure
ever recorded in an Atlantic hurricane when
its central pressure dropped to 884 mbar
(26.10 inHg) at 8:00 a.m. EDT (12:00 UTC)
on October 19, then dropped again to 882
mbar (26.05 InHg) three hours later.
Above: Wilma's Path (source: National Weather Service)
Crawford
3
Wilma's Landfalls
Mexico's Yucatan Peninsula
On October 21, Hurricane Wilma made landfall on
Mexico's Yucatan Peninsula as a powerful category-four
hurricane, with winds in excess of 150 mph (240 km/h). The
hurricane's eye first passed over the island of Cozumel and
then made official landfall near Playa del Carmen in the
state of Quintana Roo around midnight on October 22 EDT
with winds near 140 mph (224 km/h). Some portions of the
Yucatan Peninsula experienced hurricane force winds for
well over 24 hours. The hurricane began accelerating in the
early morning hours of October 23, exiting the northeastern
tip of the Yucatan Peninsula and entering the Gulf of
Mexico as a category-two storm.
Above: Mexico's Yucatan
resort area.
(source: Washington Post)
South Florida
Hurricane Wilma regained some strength before making a third landfall just north of Everglades
City, Florida, near Cape Romano, at 6:30 a.m. EDT October 24 (10:30 UTC) as a category-three
hurricane. At landfall, Wilma had sustained winds of 125 mph (200 km/h). Over the Florida
peninsula, Wilma weakened slightly to a category-two hurricane, leaving Florida and entering the
Atlantic at that strength about six hours later.
Left: Wilma's path through
south Florida.
(source: Washington Post)
Florida Evacuation Orders
A mandatory evacuation of residents was put in effect for the Florida Keys in Monroe County. News
reports suggest, however, that as many of 80 percent of residents may have ignored the evacuation order.
Mandatory evacuations were also in effect for all Collier County residents living west or south of U.S.
Route 41. Other areas included in the mandatory evacuation were Seagate, Parkshore, The Moorings,
Coquina Sands, Olde Naples, Aqualane Shores, Port Royal, and Royal Harbour.
Crawford'
4
Wilma's Course Through Florida
(source: Washington Post)
Ihirricats Mina
Peptilatien Density
ireverepo swam nth)
n 0 -50
51 -250
More that 250
Hurricane path
The Gu1Fs Punching Bag
Florida has been hit by seven
hurricanes in 2004 and 2005.
including Ivan, whose center hit
Alabama. with hurrtcane,%rce winds
reaching Into the Panhandle.
etj_ Of
"IeJco
2005
A at
2 pm.
6•171,1 m
to
Crawford.
5
The Human Toll
Wilma claimed one death in Jamaica as a tropical depression on Sunday, October 16. At least eight deaths
were reported in Mexico. In Cuba, a bus carrying evacuees crashed, killing four people, including three
foreign tourists.
At least 22 Hurricane Wilma- related deaths were reported in the United States, all in Florida. Wilma was
also blamed for at least 15 indirect deaths.
Wilma's Economic Impact
Mexico
The popular Mexican resort towns of Playa del Carmen, Cozumel, and Cancun all suffered
significant damage from Wilma, causing major loss of tourism income.
The Governor of Quintana Roo, Felix Gonzalez
Canto, said in an interview: "Never in the history of
Quintana Roo have we seen a storm like this."
Insured damage in Mexico is estimated at between
$1 to 3 billion and 52 to 5 billion in total damage.
Structures throughout the Cancun area suffered
extensive damage. The area experienced significant
flooding, many downed trees and power lines, and a
heavy accumulation of debris. Rainfall amounts in
excess of 23 inches (590 mm) were reported in
several areas, with Isla Mujeres reporting 1,637
mm. On Cozumel, the damage was extensive but
not as catastrophic as originally feared. Cozumel
suffered many broken windows, fallen trees, and
power lines but not widespread structural damage.
Witnesses on the scene compare Cozumel after
Wilma with the scene after Hurricane Emily in July
of this year; Emily was similar to Wilma in intensity
but moved faster through the area.
Above: Photo take from a Cancun hotel.
(source: public domain)
Crawford
Wilma's Economic Impact
Florida
Wilma left a swath of downed trees, power outages and blown -out windows that stretched from
the Gulf Coast beachfront neighborhoods of Naples through the state's rural middle to the
downtown buildings of Miami and Fort Lauderdale. Florida officials, for their part, offered a
mixed assessment in the wake of the storm's path. On the Gulf Coast, officials seemed relieved
that damage was not worse, while in the Keys and on the Atlantic Coast, residents and authorities
appeared surprised by the extent of the devastation. Hurricane Wilma carried an unexpected punch
as it crossed Florida from the Gulf to the Atlantic. Hurricanes often dissipate swiftly after landfall,
but Wilma dropped only from a category-three to a category-two hurricane during its six -hour
surge across the Florida peninsula.
Florida Power & Light reported that
more than 3.2 million customers
(roughly six million people) lost
electrical power during Wilma and that
full restoration would take weeks.
Residents of south Florida were advised
to boil water before drinking it; sewage
systems were inoperative due to power
outages; fuel was undeliverable due to
lack of power; mobile and land -line
telephone services were sporadic; for a
week or more after Wilma, there were
shortages on many commodities,
including ice, water, and gasoline.
Left: Downed power lines in Florida.
(source: public domain)
Issues Related to the Hurricane Wilma Event
First -Party Coverage Considerations
The application of policy coverage for loss exposures in south Florida has been addressed by various
concerns. Although damage was less than officials anticipated on the Gulf Coast, Wilma remained
unexpectedly potent as it moved eastward.
• Along the Gulf Coast, reports indicate the damage was largely limited to trees, signs, screened
porches and scattered roof shingles, as well as some flooding.
• Low -lying and agriculture -heavy Glades County reported significant damage to mobile home
parks, as did Broward, where 40 percent of the county's mobile homes were left uninhabitable.
• Broken glass littered streets in Miami, where the wind and pressure had smashed countless
windows.
Business - interruption loss exposures may be complicated due to lingering power outages and fuel shortages
in Wilma's aftermath that deprived many businesses access to supply chains and/or customers.
• As of November 3, Florida Power & Light had restored electricity to 87.3 percent of the 663,500
Palm Beach County customers who lost it as a result of Hurricane Wilma, the utility reported.
Crawford'
7
• Nearly 81 percent of the 956,500 Miami -Dade customers who lost power had it restored by
November 3.
• In Broward County, 74.7 percent of the 862,800 customers who lost power had it restored by
November 3.
Accessibility to Affected Areas
Although Crawford & Company, other T.P.A.s, and insurers set up induction centers in central Florida and
elsewhere prior to Katrina, immediate access to affected areas was delayed due to power and fuel
shortages, discussed above. As well, housing for adjusters was in very short supply following Wilma.
Traffic was also slowed drastically by nonfunctioning traffic signals.
• By November 2, the Miami -Dade Emergency Management reported that 880 traffic signals were
still unpowered, 164 were in flash mode, and 1,755 traffic signals were operational.
Approximately 1,050 stop signs have been replaced.
Heavy Volume of Vehicle Claims
Florida's largest auto insurers have reported that the companies received more auto - damage claims from
Hurricane Wilma than from any of last year's hurricanes. The insurers cited wind as the cause of most of
the vehicle damage. Although fewer cars were destroyed than in Hurricanes Katrina and Rita, falling tree
branches, airborne roofing, and other wind -borne debris caused a great deal of scratches, dents, and broken
windows. As of November 1, one of the large insurers had received 35,409 auto claims, more than its auto
claims after Hurricanes Frances and Jeanne combined and far ahead of the 19,440 auto claims it received
after Hurricane Charley.
Marine, Ports, and Transportation
Marine claims were beginning to flow in to Crawford & Company's Global Marine and Transportation
(MAT) unit by the week of October 31. MAT expects that most claims will be for pleasure /recreational
craft. The major commercial ports and terminals are on the state's east coast and are well - protected from
strong storms. Initial reports indicate that the large, high - volume terminals of Port of Miami, Port
Everglades, and Port Canaveral escaped serious damage.
Availability of Qualified Adjusters
Given the scope and scale of this year's hurricane season, recruiting and retaining qualified CAT adjusters
has emerged as an issue for third -party administrators. Crawford & Company is responding by providing
expedited training for CAT adjusters and deploying them to affected areas under close supervision.
Crawford®
8
November 9, 2005
Assignments:
Crawford Catastrophe Services:
Phone: Contact your local Crawford & Company office
Fax: 888 - CRAWCAT (888- 272 -9228)
E -mail: catclaim @us.crawco.com
OR: XactAnalysis users can make electronic assignments
South Florida: Crawford Catrastrophe Services Local Office
Phone: 305-698-0831
Fax: 305-698-0837
1411 Commerce Way, Suite 300
Miami, Florida 33016
Property Services
Tom Carstens, Vice President, Property Services
Office: 404- 847 -4292
Mobile: 630 - 306 -6586
Fax: 404-847-4028
Thomas_Carstens @us.crawco.com
Global Risk Administration
Phone: 1- 800 -526 -4557
Fax: 404 - 240 -4382
Global Marine and Transportation
Phone: 912 927 7577
CRAWFORD_MAT@us.crawco.com
For additional information, contact:
Capt. John Tirel
Office: 404 - 847 -4554
Mobile: 404 - 429 -1256
Fax: 404-240-4382
John_Tirel @us.crawco.com
Jack van Lieshout
Office: 912 - 927 -7577
Mobile: 912 - 247 -2724
Fax: 912-927-7587
Jack_van_Lieshout @ us.crawco.com
9
Crawford'
PUBLIC RISK MANAGEMENT OF FLORIDA
BOARD OF DIRECTORS MEETING
DECEMBER 9, 2005
REGULAR AGENDA SUMMARY
5. Legal Update Jeffrey Weiss, Esquire
A. Police Liability for Mistaken Identity at the Time of Arrest
Mr. Weiss will address police liability. He will review the case of Gwenn
Carter vs. the City of Lake Mary et. al. Ms. Carter, a victim of identity
theft, had been arrested on an outstanding felony warrant. She was
released when it was discovered she was not the person responsible for
the criminal acts. Ms. Carter then filed suit against the City of Lake Mary,
law enforcement officers, retailers and a bank. Attachment
No Board Action Necessary
Case 6:05 -cv- 01137- GAP -DAB Document 57 Filed 11/10/2005 Page 1
GWENN CARTER,
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
Plaintiff,
Case No. 6:05 -cv- 1137- Or1 -31 DAB
CITY OF LAKE MARY, RICHARD
BEARY, Chief of Police of the City of Lake
Mary, OFFICER VIRGIL PICKLESIMER,
OFFICER DOE NO. 1, DONALD
ESLINGER, Individually and as Sheriff of
Seminole County, Florida, DAVID DIGGS,
C.O. ROE NO. 1, SEMINOLE COUNTY,
FLORIDA, WAL -MART STORES, INC.,
LOWES HOME CENTERS, INC. & BANK
OF AMERICA CORPORATION,
Defendants.
ORDER
The Plaintiff, Gwenn Carter ( "Carter"), a victim of identity theft, was arrested on an
outstanding felony warrant. She was released from jail soon thereafter when it was discovered that
she was not the person responsible for the criminal acts for which the warrant had been issued.
She then brought this lawsuit against various law enforcement officials, retailers and a bank,
alleging both state and federal causes of action arising out of the circumstances surrounding her
arrest.' (Doc. I ). This matter is presently before the Court on a Motion to Dismiss filed by Officer
Virgil Pickelsimer ( "Pickelsimer "). (Doc. 40).2
Carter's claims against 13slinger, Diggs, Roe, Wal -Mart and Bank of America were all
dismissed by previous Orders. (See Does. 50 and 5 1). The Court has also already dismissed Counts
III and IV, (Doc. 46), and dismissed Count XVII as it relates to Seminole Cofty; i:Does. 42 and 43). •
2 Carter's Response appears at Doc. 56.
Case 6:05 -cv- 01137- GAP -DAB Document 57 Filed 11/10/2005 Page 2
I. Background
A. Parties'
Carter is a resident of Seminole County, Florida." Pickelsimer is a police officer employed
by the City of Lake Mary.
B. Facts
On January 25, 2002, Carter's wallet, containing her checkbook, credit cards, driver's
license, social security number, and bank card, was stolen from her purse. Carter filed a police
report with the Tallahassee (Florida) Police Department, and then closed her bank account. At the
time that she filed the police report, Carter was advised that several charges had been made to
various cards, including withdrawals from her Bank of America checking account. On January 30
and 31, 2002, two fraudulent checks totaling $700 were written to Wal -Mart on Carter's closed
bank account. Also on January 30, 2002, a fraudulent check in the amount of $202.78 was written
to Lowe's on Carter's closed bank account. Lowe's and Wal -Mart subsequently filed sworn
complaints for worthless checks in the Second Judicial Circuit in Leon County, Florida, alleging
that Carter had submitted worthless checks to them. The Leon County Office of the State Auorney
filed an Information for passing worthless bank checks, and a capias for Carter was issued on
August 19, 2002.
On September 15, 2003, while she was running errands with two of her children, Carter
was approached in a store parking lot by Pickelsimer, who stated that, using a moving radar, he
had clocked Carter driving at a speed of 41 miles per hour in a 25 miles per hour zone. A short
The Court identifies here only those parties relevant to the resolution ofthis particular matter.
Unless otherwise noted, all future references to "Seminole County" indicate Seminole
County, Florida.
-2-
Case 6:05 -cv- 01137- GAP -DAB Document 57 Filed 11/10/2005 Page 3
time later, Pickelsimer asked Carter if she had ever been in Leon County, and when Carter
indicated that she had worked there, Pickelsimer advised Carter that there was an outstanding
warrant for her arrest. Carter advised Pickelsimer that she was the victim of identity theft. At
some point thereafter, Pickelsimer informed Carter that she was under arrest, and asked if someone
was available to pick up her children.' Carter told Pickelsimer that she needed to pick up her other
three children at a bus stop, and asked if he could follow her to the bus stop, but Pickelsimer
refused. Carter then requested that her husband be called to pick up the children.
Shortly thereafter, Carter's husband arrived, and also attempted to explain to Pickelsimer
that Carter was the victim of identity theft. Mr. Carter also asked that Pickelsimer wait a few
minutes to allow Mr. Carter to go to the Carters' home and retrieve the police report which would
indicate that Cartcr was innocent. Despite the Carters' explanations and offers to retrieve the
police report, Carter was arrested and brought to the Seminole County Jail (the "Jail ")
Once at the Jail, after being strip - searched, fingerprinted and photographed, Carter asked
the corrections officers why she was in jail, and she was told that she was being held for grand
theft. Carter advised the corrections officers that she was the victim of identity theft and had not
.stolen anything. -
After Carter was arrested, her husband began to seek to have her released. He was able to
get someone at the Tallahassee Police Department to verify to the State Attomey's Office the facts
surrounding her case. At 5:55 p.m. on September 15, 2003, an Assistant State Attorney sent a fax
Carter asserts that Piekelsimer's tone of voice became very degrading at this point.
b Although it is not clear from the contents of the Complaint, given that only one jail facility
is mentioned, the Court presumes that the John E. Polk Correctional Facility and the Seminole County
Jail arc the same facility. Carter alleges that her husband requested that she be brought to the Lakc
Mary Police Department, which request Pickelsimer also refused.
-3-
Case 6:05 -cv -01137 -GAP -DAB Document 57 Filed 11/10/2005 Page 4
to the booking section of the Jail, explaining that Carter was the victim of identify theft and
requesting that she be released as soon as possible. Carter was ultimately released from jail
several hours after her incarceration.' The next day, the State Attorney's Office filed a nolle
prosequi of the charges against Carter.
C. Claims and Arguments
In Count V of her Complaint, Carter asserts a claim for false arrest under 42 U.S.C. section
1983 ( "Section 1983 ") against Pickelsimer, and alleges that: (1) Pickelsimer had the authority to
hold Carter temporarily until he could obtain information which would have revealed that Carter
was not the person sought in the warrant; (2) Pickelsimer chose not to put off arresting Carter until
exculpatory information was available; (3) Pickelsimer ignored Carter's protestations of
innocence; (4) Pickelsimer knew or should have known that Carter's claims of innocence could
have been verified by waiting a few minutes for the police report; (5) by choosing to ignore readily
available exculpatory information, and by failing to investigate further, Pickelsimer was willfully
ignorant of exculpatory information; (6) Pickelsimer was advised of facts and circumstances that
would have led a reasonable person to conclude that Carter had not committed a crime and that
tended to negate the probable cause arising from the warrant; (7) any investigation by Pickelsimer
was so grossly inadequate as to amount to no investigation at all, and constituted a lack of
probable cause to arrest Carter; (8) Pickelsimer knew or should have known that his failure to
reasonably investigate the situation would lead an innocent person to he arrested; (9) Pickelsimer's
acts and omissions were willful, wanton, oppressive, outrageous and deliberately indifferent
' The parties dispute the timing of her release. Carter asserts that she was released eight hours
after being incarcerated. (Doc. 1 at 11). The Defendants assert that Carter was at the Jail for only four
hours and 41 minutes. (Doc. 28 at 5). Viewing the complaint in the light most favorable to Carter,
the Court presumes for the purposes of this Order that Carter was at the Jail for eight hours.
-4-
Case 6:05 -cv- 01137- GAP -DAB Document 57 Filed 11/10/2005 Page 5
toward Carter; and (10) as a result of Pickelsimer's acts and omissions, Carter was deprived of her
Fourth, Sixth and Fourteenth Amendment rights.
Pickelsimer has moved to dismiss this claim, arguing that: (1) Carter's Complaint fails to
state a claim for a violation of both the Sixth and Fourteenth Amendments; (2) Carter has failed to
state a claim for a Fourth Amendment violation because Pickelsimer made the arrest pursuant to a
facially valid arrest warrant, and thus had probable cause for the arrest; and (3) even if Pickelsimer
lacked actual probable cause, he is entitled to qualified immunity because under the circumstances,
he had arguable probable cause to arrest Carter.
111. Standard of Review
In ruling on a motion to dismiss, this Court must view the complaint in the light most
favorable to the Plaintiff, Cannon v. Macon County, 1 F.3d 1558, 1565 (11th Cir. 1993), and must
limit its consideration to the pleadings and any exhibits attached thereto. FED. R. CIV. P. 10(c);
see also GSW, Inc. v. Long County, Ga., 999 F.2d 1508, 1510 (11th Cir. 1993). The Court will
liberally construe the complaint's allegations in the Plaintiff's favor, Jenkins v. McKeithen, 395
U.S. 411, 421 (1969), and will not dismiss a complaint for failure to state a claim unless it appears
beyond a doubt that the Plaintiff cannot prove any set of facts that support a claim for relief.
Conley v. Gibson, 355 U.S. 41, 45 -46 (1957). In ruling on a motion to dismiss, "eonclusory
allegations, unwarranted factual deductions or legal conclusions masquerading as facts will not
prevent dismissal." Davila v. Delta Air Lines, Inc., 326 F.3d 1183, 1185 (1 l th Cir. 2003).
In reviewing a complaint on a motion to dismiss under Federal Rule of Civil Procedure
( "Rule ") 12(bX6), "courts must be mindful that the Federal Rules require only that the complaint
contain a short and plain statement of the claim showing that the pleader is entitled to relief." U.S.
.5-
Case 6:05 -cv -01137- GAP -DAB Document 57 Filed 11/10/2005 Page 6
v. Baxter Intern., Inc., 345 F.3d 866, 880 (I 1th Cir. 2003) (citing FED. R. CIV. P. 8(a)). This is a
liberal pleading requirement, one that does not require a plaintiff to plead with particularity every
element of a cause of action. Roe v. Aware Woman Ctr. for Choice, Inc., 253 F.3d 678, 683 (11th
Cir. 2001). Instead, the complaint need only "contain either direct or inferential allegations
respecting all the material elements necessary to sustain a recovery under some viable legal
theory." !d. (internal citation and quotation omitted). "A complaint need not specify in detail the
precise theory giving rise to recovery. All that is required is that the defendant be on notice as to
the claim being asserted against him and the grounds on which it rests." Sams v. United Food and
Comm? Workers Intl Union, 866 F.2d 1380, 1384 (11th Cir. 1989).
III. Legal Analysis°
A. Fourth Amendment - Section 1983 False Arrest Claim'
The case of Baker v. McCollan, 443 U.S. 137 (1979), involved an arrest and detention
pursuant to a valid warrant resulting from the plaintiff mistakenly being identified as the person for
whom the warrant was issued. Id. at 140 -41, The plaintiff was arrested and taken into custody,
where he remained for three days until the error was discovered and he was released. Id. at 141.
The Supreme Court indicated that the plaintiffs complaint was "simply that despite his protests of
° The Court's legal conclusions in this section are applicable only to Pickelsimcr. Should the
necessity arise for the Court to consider the issues of constitutional violations and/or qualified
immunity as those issues apply to other Defendants in this action, the Court will make the appropriate
findings at that time.
The Court only addresses Carter's Fourth Amendment claim, inasmuch as she tacitly
conceded her Sixth and Fourteenth Amendment claims when she failed to respond to Pickelsimer's
Motion to Dismiss regarding those issues. Further, Carter's Complaint only alleges those claims in
a conclusory fashion, which would be insufficient to survive a motion to dismiss. Accordingly,
Carter's Sixth and Fourteenth Amendment claims are dismissed.
-6-
Case 6 :05- cv-01137- GAP -DAB Document 57 Filed 11/10/2005 Page 7
mistaken identity, he was detained" for three days, after which the validity of his protests was
verified. Id. at 143 -44. The Supreme Court first noted that although the plaintiff was deprived of
his liberty, that deprivation was pursuant to a valid warrant, and thus concluded that the plaintiff's
allegations gave "rise to no claim under the United States Constitution." Id. at 144.'° More
specifically, the Court determined that although "mere detention pursuant to a valid warrant but in
the face of repeated protests of innocence will after the lapse of a certain amount of time deprive
the accused of liberty without due process of law[,]" but concluded that a detention of three days
did not amount to such a deprivation. Id. at 145.
The Court then stated that:
[g]iven the requirements that arrest be made only on probable cause and that one
detained be accorded a speedy trial, we do not think a sheriff executing an arrest
warrant is required by the Constitution to investigate independently every claim of
innocence, whether the claim is based on mistaken identity or a defense such as
lack of requisite intent. Nor is the official charged with maintaining custody of the
accused named in the warrant required by the Constitution to perform an error -free
investigation of such a claim. The ultimate determination of such claims of
innocence is placed in the hands of the judge and the jury.
Id. at 145 -46." The Court also noted that while the plaintiff's claim of innocence of the charge
contained in the warrant was relevant to a tort claim of false imprisonment, it was "largely
1 ° See also Hill v. California, 401 U.S. 797, 802 (1971) ( "[W]hen the police have probable
causc to arrest one party, and when they reasonably mistake a second party for the first party, then the
arrest of the second party is a valid arrest. ") (internal citation and quotation omitted).
" The Eleventh Circuit has voiced essentially the same standard in cases involving mistaken
identities that lead to arrest on otherwise valid warrants. See Rodriguez v. Farrell, 280 F.3d 1341,
1348 n.15 (11 th Cir. 2002) ( "Arresting police officers need not act as judges determining ultimate
facts. Trials of guilt or innocence cannot be undertaken by police officers on the side of the road . .
. before an officer can effect a lawful arrest pursuant to a valid warrant.... There are limits on how
much independent investigating an officer must make before executing an arrest warrant, even when
the arrested person is asserting a claim of mistaken identity... Furthermore, the circumstances that
justify a lawful arrest also justify a brief detention incident to the arrest "). In Rodriguez, the Eleventh
Circuit also explicitly noted that an arresting officer is "not obligated to accept plaintiffs statements
[of mistaken identity] as true." Id.
-7-
Case 6:05 -cv -01137- GAP -DAB Document 57 Flied 11/10/2005 Page 8
irrelevant" to a claim of deprivation of liberty without due process of law, because the
"Constitution does not guarantee that only the guilty will be arrested. If it did, § 1983 would
provide a cause of action for every defendant acquitted -- indeed, for every suspect released." !d.
at 145. Ultimately, "[d]ue process does not require that every conceivable step be taken, at
whatever cost, to eliminate the possibility of convicting an innocent person." Id. (internal citation
and quotation omitted).
In the instant case, Carter has not challenged the validity of the warrant pursuant to which
she was arrested, and thus the Court presumes that the warrant was facially valid.12 See Pickens v.
Hollowell, 59 F.3d 1203, 1206 (11th Cir. 1995). Thus, Carter's false arrest claim against
Pickelsimer boils down to the allegation that Carter provided Pickelsimer with exculpatory
information to which Pickelsimer failed to give credence, and which Pickelsimer failed to
investigate, thereby causing Carter to be arrested pursuant to a presumptively valid warrant. See
Baker, 443 U.S. at 144. These allegations are not sufficient to state a cause of action against
Pickelsimer for a Fourth Amendment violation." See Pickens, 59 F.3d at 1208 (plaintiff was
arrested pursuant to outstanding warrants for bad checks; plaintiff advised officers of mistaken
12 That a plaintiff's "identifying information was listed on the warrant only because the true
suspect made use of [the plaintiff's] stolen identity is irrelevant in determining whether the warrant
was sufficiently specific, and thus facially valid." Fulgencio v. City of Los Angeles, 131 Fed. Appx.
96, 98 (9th Cir. 2005). It is notable that under Florida law, "[a]n arrest pursuant to a valid warrant,
based on probable cause, is an affirmative defense to a false arrest claim." Card v. Miami -Dade
County Fla., 147 F. Sapp. 2d 1334, 1347 (S.D. Fla. 2001).
" "A policeman's lot is not so unhappy that he must choose between being charged with
dereliction of duty if he does not an-est when he has probable cause, and being mulcted in damages
if he does. The reasons for this broad protection are clear. An arrest is often a stressful and unstable
situation calling for discretion, speed, and on- the -spot evaluation. As a result, constabulary
latitudinarianism is important, and peace officers are and must be endowed with privileges not
accorded to ordinary citizens." Whirl v. Kern, 407 F.2d 781, 790 -91 (5th Cir. 1968) (internal citations
and quotations omitted).
-a-
Case 6:05 -cv- 01137- GAP -DAB Document 57 Filed 11/10/2005 Page 9 c
identity, that her purse had been stolen and that she had filed notices of forged checks, yet she was
arrested and held for several hours before district attorney dismissed the charges; Court found that
plaintiffs argument that officers lacked probable cause notwithstanding valid warrants once she
advised them of stolen checks had been foreclosed by Baker).14
"See also Thompson v. Olson, 798 F.2d 552, 556 (1st Cir. 1986) ("[Al police officer's initial
finding of probable cause justifies not only arrest, but a reasonable period of continued detention for
the purpose of bringing the arrestee before a magistrate. Generally, once the arrest has been properly
effected, it is the magistrate and not the policeman who should decide whether probable cause has
dissipated to such an extent following arrest that the suspect should be released.... [H]aving once
determined that there is probable cause to arrest, an officer should not be required to reassess his
probable cause conclusion at every turn, whether faced with the discovery of some new evidence or
a suspect's self - exonerating explanation from the back of the squad car. ") (internal citations omitted;
emphasis in original); Gero v. Henault, 740 F.2d 78, 84 -85 (1st Cir. 1984) (in case of reasonable
mistaken identity, "the law does not afford the plaintiff any solace;" in case involving facially valid
warrant or probable cause for arrest, only question is whether it was reasonable for arresting officers
to believe that person arrested was person sought, and mistaken arrest does not violate Constitutional
rights); Johnson v. City of St. Paul, Minn., 634 F.2d 1146, 1147 (8th Cir. 1980) (where plaintiff was
arrested pursuant to valid warrant, was held for several hours until posting bail, and it was later
discovered that he was not the person sought in the warrant, plaintiff failed to allege a violation of his
Constitutional rights); Cleveland v. Ciry of Detroit, 275 F. Supp. 2d 832, 839 (E.D. Mich. 2003)
( "Even 'an unreasonable or negligent refusal to investigate claims of innocence or mistaken identity
of an individual detained pursuant to a facially -valid warrant for a few days does not amount to a
Constitutional violation. ") (citing Kennel! v. Gates, 215 F.3d 825, 828 (8th Cir. 2000)); Gazic v.
Pucci, 1994 WL 201244 at *4 (ND. I11. May 17, 1994) (plaintiff was arrested pursuant to parole
violation warrant despite repeated protests that he was not on parole; arresting and jailing officers only
had a duty to determine facial validity of warrant, not to investigate plaintiffs claims that he was not
on parole); Howard v. Regional Transit Authority, 667 F. Supp. 540, 546 (N.D. Ohio 1987) ( "[I]f a
law enforcement officer acts reasonably and consistent with the information obtained from the
computer system, then a person who is mistakenly arrested because of such information cannot
maintain a cause of action under § 1983.... To maintain a cause of action under § 1983 for false
arrest or imprisonment due to mistaken identity, the plaintiff must demonstrate either that the arrest
warrant was invalid, or that the law enforcement officers acted unreasonably and failed to properly
consider the information regarding the outstanding warrant, which they obtained from the computer
system."). The cases Carter cites in support of her position are clearly distinguishable, as they do not
involve mistaken arrests pursuant to a valid warrant.
-9-
Case 6:05 -cv- 01137 -GAP -DAB Document 57 Filed 11/10/2005 Page 10 :
C. Qualified Immunity's
The Eleventh Circuit has established a two -part analysis for qualified immunity casts.
First, the defendant government official must "prove that he was acting within the scope of his
discretionary authority when the allegedly wrongful acts occurred[.]" Kingsland v. City of Miami,
382 F.3d 1220, 1231 (11th Cir. 2004) (internal citation and quotation omitted). Second, once the
defendant establishes that he was acting within the scope of his discretionary authority, "the
burden shifts to the plaintiff to show that qualified immunity is not appropriate." Vinyard v.
Wilson, 311 F.3d I340, 1346 (11th Cir. 2002) (internal citation and quotation omitted).1' In
conducting this second part of the analysis, a court must determine whether the plaintiff alleged
the deprivation of an actual constitutional right and, if so, then determine whether that right was
15 Carter's Response appears to misconstrue the qualified immunity analysis. She first
correctly states that in order to receive qualified immunity, an official must demonstrate that he was
acting within the scope of his discretionary authority. However, Carter then offers a legal non - sequitur
by stating that Pickelsimer is not entitled to qualified immunity because "the Complaint dots not
allege that Defendant Pickelsimer was acting in his official capacity." (Doc. 56 at 3). Carter thus
improperly muddles the "discretionary authority" and the "individual or official capacity" analyses.
"Qualified immunity offers complete protection for government officials sued in their individual
capacities as long as their conduct violates no clearly established statutory or constitutional rights of
which a reasonable person would have known." Mercado v. City of Orlando, 407 F.3d 1152, 1156
(11th Cir. 2005) (internal citation and quotation omitted) (emphasis supplied). In any event, Carter's
assertion that whether Pickelsimer is entitled to qualified immunity because it remains to be decided
whether he was sued in his individual or official capacity, (see Doc. 56 at 3), is incorrect for two
reasons. First, given that Carter alleges that Pickelsimer was acting under color of law, and it appears
that Pickelsimer was conducting a traffic stop for the purpose of issuing a citation, it can reasonably
be inferred that he was acting within the scope of his discretionary authority. Carter does not contest
this conclusion in her Response. Second, the caption of Carter's Complaint plainly identifies
Pickelsimer as being sued "individually." (Doc. 1 at 1) (emphasis supplied). Wherc Carter sued an
official in his official capacity, that distinction is clearly made, as was the case with Donald Eslinger,
whom Carter sued "individually, and as Sheriff of Seminole County, Florida." (Id.). Thus, because
Pickelsimer was acting within the scope of his discretionary authority, and is sued in his individual
capacity, he may be entitled to qualified immunity.
Pickelsimer was acting within the scope of his discretionary authority. See n.15, supra.
Case 6:05 -cv -01137- GAP -DAB Document 57 Filed 11/10/2005 Page 11
clearly established at the time of the alleged violation. Wilson v. Layne, 526 U.S. 603, 609 (1999);
Vinyard, 311 F.3d at 1346.
The threshold determination in the qualified immunity analysis is thus whether, "[tjaken in
the light most favorable to the party asserting the injury, do the facts alleged show the officer's
conduct violated a constitutional right ?" Saucier v. Katz, 533 U.S. 194, 201 (2001). "If no
constitutional right would have been violated were the allegations established, there is no necessity
for further inquiries concerning qualified immunity." Id. Having determined that Carter's
allegations against Pickelsimer do not state a claim for a Fourth Amendment violation, the Court's
inquiry ends. Durruthy v. Pastor, 351 F.3d 1080, 1094 -95 (11th Cir. 2003) (where there is no
Constitutional violation, court need not address whether the right in question was clearly
established). Thus the Court finds that Pickelsimer is entitled to qualified immunity on Carter's
claim against him in Count V.
IV, Conclusion
Carter has failed to provide any support for her claims against Pickelsimer under the Sixth
and Fourteenth Amendment. To succeed in a civil action under Section 1983, a plaintiff must
prove a deprivation of a Constitutionally guaranteed right. Tillman v. Coley, 886 F.2d 317, 319
(11th Cir. 1989). Carter has failed to do so. Further, because has she failed to state a claim for a
violation of her Fourth Amendment rights, Pickelsimer is entitled to qualified immunity on that
claim. Accordingly, it is
ORDERED THAT Pickelsimer's Motion to Dismiss Count V (Doc. 40) is GRANTED.
DONE and ORDERED in Chambers, Orlando,
Florida on November 10, 2005.
G R SHELL
U ITED ATES DISTRICT JUDGE
PUBLIC RISK MANAGEMENT OF FLORIDA
BOARD OF DIRECTORS MEETING
DECEMBER 9, 2005
REGULAR AGENDA SUMMARY
6. Board Member Items
A. Establish Meeting Dates for Calendar Year 2006
March 10 Chateau Elan, Sebring
June 22 Hilton Resort, Marco Island (annual conference)
August 11 Terrace Hotel, Lakeland
December 8 Terrace Hotel, Lakeland
Board Action:
Approved
Denied
Deferred
Other
Public Comment: Discussion must be limited to a maximum of five (5) minutes per person.
Adjourn
PRM BOARD MEETINGS
2006
S M
1 2
8 9
15 16
22 23
29 30
JANUARY
T W T
3 4 5
10 11 12
17 18 19
24 25 26
31
F
6
13
20
27
S
7
14
21
28
SM
5 6
12 13
19 20
26 27
FEBRUARY
T W T
1 2
7 8 9
14 15 16
21 22 23
28
F
3
10
17
24
S
4
11
18
25
S M
5 6
12 13
19 20
26 27
MARCH
TWT
1 2
7 8 9
14 15 16
21 22 23
28 29 30
F
24
31
5
4
11
18
25
S M
2 3
9 10
16 17
23/3o 24
APRIL
T W T
4 5 6
11 12 13
18 19 20
25 26 27
F
7
14
21
28
S
1
8
15
22
29
MAY
JUNE
JULY
AUGUST
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T W T
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S
S M
T W T
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S
S M
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S
S M
T W
T
F
S
1
2 3
4
5
6
1
2
3
1
1 2
3
4
5
7
8
9 10
11
12
13
4
5
6 7
8
9
10
2
3
4 5
6
7
8
6
7
8 9
10
®
12
14
15
16 17
18
19
20
11
12
13 14
a
16
17
9
10
11 12
13
14
15
13
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23 24
25
26
27
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20 21
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24
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18 19
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21
22 23
24
25
26
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29
30 31
25
26
27 28
29
30
23ho 24/31
25 26
27
28
29
27
28
29 30
31
SEPTEMBER
OCTOBER
NOVEMBER
DECEMBER
S M
T W
T
F
S
S M
T W
T
F
S
S M
T W
T
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5
S M
T W
T
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S
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2
1
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1
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1
2
3
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5 6
7
8
9
8
9
10 11
12
13
14
5
6
7 8
9
10
11
3
4
5 6
7®
9
10
11
12 13
14
15
16
15
16
17 18
19
20
21
12
13
14 15
16
17
18
10
11
12 13
14 1
16
17
18
19 20
21
22
23
22
23
24 25
26
27
28
19
20
21 22
23
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25
17
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26 27
28
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31
26
27
28 29
30
24/3i
25
26 27
28
29
30
PUBLIC RISK MANAGEMENT OF FLORIDA
3434 Hancock Bridge Pkwy, Suite 203
Fort Myers, FL 33903
Toll -Free 800 - 367 -1705
Main 239- 656 -4666
Fax 239 - 656 -1066
November 18, 2005
TO: All PRM Board Members and Alternate Members
FROM: Judy Hearn
Assistant Executive Director, Secretary to the Board
REFERENCE: Posting of Public Notice
Board of Directors Meeting
++• ++• ++•+d • • • D+• ++••++• • • • • • • • • • • •• • •• • • • ••• • • • +4. •
Please post the enclosed meeting notice in a display area for such notices in your
entity's offices.
We ask that you ensure these are placed in a prominently displayed area to allow the
public to attend should they wish to do so.
Your cooperation is greatly appreciated.
JH:smb
Encl: Public Notice of Meeting
Board of Directors Meeting Agenda
Directions
NOTICE OF MEETING
OF
PUBLIC RISK MANAGEMENT OF FLORIDA
BOARD OF DIRECTORS MEETING
December 9, 2005
Public Risk Management of Florida, an intergovernmental risk management association, organized
under Florida Statutes 163.01, hereby gives notice of its Board of Directors Meeting to be held on
Friday, the 9t of December, 2005.
The meeting will be held at 10:00 am in the Ballroom on the Mezzanine Level of the Terrace Hotel, 329
E. Main Street, Lakeland, Florida 33801.
Directions to the meeting site are attached, as well as a copy of the agenda for said meeting.
This is a public meeting and open for comments. If a person decides to appeal any decision considered
at this meeting, he or she may need a record of the proceedings, and that, for such purpose, he or she
may need to ensure that a verbatim record of the proceedings is made, which record includes the
testimony in evidence upon which the appeal is based.
Public Notice
Terrace Hotel
329 E. Main Street
Lakeland, FL 33801 -5046
Phone: 863 - 688 -0800
Tol I -Free: 888 - 644 -8400
Directions from Tampa
1-4 East toward Orlando
Exit 28 Memorial Blvd. (approx. 3.5 mi.)
Right on Massachusetts Ave. (approx. 1 mi.)
Hotel is located at the corner of Main St. & Massachusetts Ave.
Directions from Orlando
1-4 West toward Tampa
Exit 33, State Road 33
Continue South (approx. 4 mi.)
(SR 33 changes name to Lakeland Hills Blvd., then Massachusetts Ave.)
Hotel is located at the corner of Main St. & Massachusetts Ave.
Directions from Ft. Myers
1 -75 North to Exit 164 (old Exit 29), US Route 17 North
Follow 17 North to Bartow, turn left on US Route 98
Follow 98 North into town, turn left on Main Street and follow around the lake to the
hotel, located at the comer of Main St. & Massachusetts Ave.
Complimentary valet parking at hotel.