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HomeMy WebLinkAbout02-26-2009 VC SP-M• • Present: ROLL CALL MINUTES OF THE SPECIAL SESSION VILLAGE COUNCIL OF NORTH PALM BEACH, FLORIDA FEBRUARY 26, 2009 William Manuel, Mayor David B. Norris, Vice Mayor Darryl Aubrey, Sc.D., President Pro Tem Edward M. Eissey, Ph.D., Councilman T.R. Hernacki, P.E., Councilman Jimmy Knight, Village Manager Leonard Rubin, Village Attorney Melissa Teal, CMC, Village Clerk Mayor Manuel called the meeting to order at 7:00 p.m. All members of Council were present. All members of staff were present. REOUEST FOR ATTORNEY -CLIENT SESSION Village Attorney Len Rubin requested advice from the Village Council in an attorney -client session concerning pending litigation styled Cynthia Tschudi v. Village of North Palm Beach/Employer's Mutual, OJCC Claim Case No. 06-011156TMB. ANNOUNCEMENT OF CLOSED ATTORNEY -CLIENT SESSION Mayor Manuel announced that at this time the Village Council would recess for the purpose of holding a closed Attorney -Client Session. Mayor Manuel announced all persons who would be in attendance at this Session. Mayor Manuel estimated that the Attorney -Client Session would last approximately thirty minutes. RECESS Mayor Manuel recessed the Special Session at 7:02 p.m. SPECIAL SESSION RECONVENES The Special Session reconvened at 7:22 p.m., following the adjournment of the attorney -client session. All members of Council were present. All members of staff were present. MOTION TO APPROVE SETTLEMENT Councilman Eissey moved to approve the settlement. President Pro Tem Aubrey seconded the motion, which passed unanimously. ADJOURNMENT There being no further business to come before the Council, the meeting adjourned at 7:22 p.m. Melissa Teal, CMC, Village Clerk Attorney/Client Meeting Village of NPB 1 2 3 4 5 6 7 8 9 STATE OF FLORIDA DIVISION OF ADMINIS`IRATIVE HEARINGS OFFICE OF THE JUDGE OF COMPENSATION CLAIMS DISTRICT - WPB OJCC NO.: 06-011156TMB D/A: 2/28/2006 VENUE: Palm Beach Honorable Timothy M. Basquill 10 CINDY TSCHUDI, 11 Employee/Claimant, 12 vs. 13 VILLAGE OF NORTH PALM BEACH AND EMPLOYERS MUTUAL, INC., 14 Employer/Carrier. 15 16 17 18 ATTORNEY/CLIENT CLOSED DOOR MEETING 19 20 21 22 23 24 25 Palm Beach Gardens, Florida Thursday, February 26, 2009 7:06 p.m. - 7:20 p.m. Preferred Real -Time Reporting, Inc. Page: 1 Attorney/Client Meeting Village of NPB 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 APPEARANCES: LEONARD G. RUBIN, P.A. 701 Northpoint Parkway Suite 209 West Palm Beach Florida 33407 Attorney for the Employer/Carrier BY: LEONARD G. RUBIN, ESQUIRE. WILLIAM MANUEL, MAYOR DAVID NORRIS, VICE MAYOR DARRYL AUBREY, PRESIDENT PRO TEM EDWARD EISSEY, COUNCILMAN T.R. HERNACKI, COUNCILMAN JIMMY KNIGHT, VILLAGE MANAGER. Preferred Real -Time Reporting, Ine. Page: 2 Attorney/Client Meeting village of NPB 1i BE IT REMEMBERED that the following 2 proceedings were had at 501 U.S. Highway One, Palm Beach 3 Gardens, Florida, on February 26, 2009, beginning at 4 7:06 p.m., with appearances as hereinabove noted, to 5 wit: 6 7 MR. KNIGHT: Gentlemen, I handed you a white 8 paper kind of explaining how we came here this 9 evening. It is two pages. If you want to just 10 take a moment to read over that. 11 Mr. Rubin has been in contact with the 12 workers' comp attorney, so he can fill you in on 13 any dialogue they may have 14 What we are looking to do here is -- this is 15 a settlement to wrap up a number of issues to 16 include the possibility, and although it hasn't 17 been filed yet, a wrongful termination, but we can 18 discuss that at length when you finish that. 19 MR. MANUEL: If I may, Mr. Knight, are you 20 going to be running by the options that we will 21 have, or are you going to make a presentation of 22 the options that are available for us? 23 MR. KNIGHT: I think there is not really 24 options. 25 MR. RUBIN: There is not really options. Preferred Real -Time Reporting, Inc. Page: 3 Attorney/Client Meeting Village of NPR 1 MR. AUBREY: Singular, right, option? 2 MR. KNIGHT: Well, it is somewhat perfunctory 3 because they really don't need us. 4 The insurance carrier is intending to settle 5 with or without your blessing, essentially, so 6 this is -- 7 This is provided for in the contract that it 8 be presented to the perspective municipalities, 9 but really it is perfunctory in nature, and they 10 are going to settle either way. 11 The only thing that we have on the table here 12 is the wrongful termination and wrapping it all up 13 together. 14 Truthfully, and I will go back to early 2006. 15 Ms. Tschudi, who was a firemedic for the Village, 16 alleges that she was injured when she was pulling 17 out a stretcher out of the ambulance and it 18 collapsed. 19 This particular incident was not witnessed by 20 anybody. There, quite frankly, is some indication 21 that it didn't occur. 22 Nonetheless, she does have a back injury. 23 Whether it was as a result of that incident or a 24 prior incident can't be determined. 25 As is indicated in the white paper, she also Preferred Real -Time Reporting, Inc. Page: 4 Attorney/Client Meeting Village of NPB 1 is battling cancer which only exacerbates an 2 already tough situation for the doctors because 3 4 5 they can't effectively determine where the pain is coming from. The wrongful termination issue comes from she 6 was given an opportunity to come back in another 7 capacity. The Village was looking to have her 8 to a physician to determine just what her 9 10 11 12 13 14 go abilities were, fitness for duty, if you will. She refused to go, so she was subsequently terminated. The claim is really watered down as if you -- when you read in here, the claim is watered down quite a bit because she has already been deemed by 15 social security as being totally disabled. 16 So, you know, if she is disabled, 17 theoretically she can't work for the Village. So, 18 you know, I don't think that -- it is not a 19 situation where we really believe that we would 20 lose the wrongful termination. In fact, we 21 believe that we would probably prevail. But if we 22 can wrap it up in the settlement, it seems like it 23 would make all the sense in the world. 24 If you go through those numbers and add up 25 where we are today and the likelihood of what Preferred Real -Time Reporting, Inc. Page: 5 Attorney/Client Meeting Village of NPB 1 would have to be paid out anyhow, I think you are 2 3 4 5 6 at $88,000. So for another $12,000, we are just going to wrap up the entire settlement. So that would be our desire. There are some other extenuating issues that I think need to be put on the table. One is, as I 7 indicated before, the attorney for EMI is 8 intending on settling, again, with or without your 9 blessing. 10 The only thing that they are going to do 11 though is they are going to settle just for their 12 claims and they are not going to wrap ours up. So 13 it, obviously, would behoove us at that point, and 14 I would recommend that we do settle. 15 It gets a little bit complicated because 16 Ms. Tschudi, since she has left the employ of the 17 Village, she is now dating our fire chief, which 18 kind of -- I don't know where that might lead in a 19 situation of the wrongful termination, but it is 20 not something that I would feel comfortable, you 21 know, having to deal with. 22 MR. AUBREY: Out of this 100,000, how much is 23 out of our account? 24 MR. KNIGHT: We are in a pool. 25 MR. RUBIN: Right. Preferred Real -Time Reporting, Inc. Page: 6 Attorney/Client Meeting Village of NPB 1 2 3 4 5 MR. KNIGHT: If you recall, this was when we were self -insured with EMI or SERMA, if you will. So nothing comes out of the Village, you know, as a hard number, of course. MR. RUBIN: Correct. Right. 6 MR. KNIGHT: We share in the costs with the 7 pool, and as you may recall last year, depending 8 on the claims for that particular year, we could 9 end up paying, and we did last year, but I think 10 it was the first year we paid in some years. 11 If you recall, we were in the pool with --- 12 the largest participant in the pool was the Town 13 of Davie. They had since pulled out as well, but 14 just as we share in their claims, they are going 15 to share in this one as well. 16 MR. RUBIN: Right. All the claims that arose 17 while they were still members of the pool. And 18 the other thing is, as we wrap up all the 19 outstanding claims, the sooner we will be out of 20 SERMA entirely where we don't have to worry about 21 those deficiency payments that Jimmy was just 22 referring to. 23 MR. MANUEL: Are you saying that we will 24 eventually be completely out of SERMA? 25 MR. RUBIN: Eventually. Once all the open Preferred Real -Time Reporting, Inc. Page: 7 Attorney/Client Meeting Village of NPB 1 the open claims or open cases are resolved, then 2 we will be done with them. But until that 3 happens -- I don't know how many are still out 4 there. This was one significant one. 5 6 7 8 9 10 11 12 MR. KNIGHT: Right. MR. MANUEL: So the exposure to the Village as far as dollar --wise, we will not be taking money out -- MR. RUBIN: Direct out of pocket, no, correct. MR. MANUEL: We probably will pay a little bit more to SERMA because of the claim? 13 MR. KNIGHT: You potentially could, but it is 14 a good point, and I do want to make another is 15 that this will settle any and all future claims as 16 well. 17 So there is some confusion as to what her 18 health is as it relates to the cancer. We know 19 that the cancer is back, but we don't know at what 20 level it is. 21 Assuming that it is treatable. She does have 22 a back injury. If she wanted to, two years or 23 five years from now, we own this until we settle 24 it. She could have back surgery, and you would 25 still be paying that claim and that could be in Preferred Real -Time Reporting, Inc. Page: 8 Attorney/Client Meeting Village of NPB 1 2 4 5 MR. RUBIN: Right. EMI is concerned that it 6 can become a permanent disability case at some 7 future time. 8 MR. AUBREY: Once we settle it is over. 9 MR. KNIGHT: Once we settle it is over. 10 MR. MANUEL: Well, there are two parts to 11 this situation, and the other part is the wrongful 12 termination. 13 MR. RUBIN: Correct. 14 MR. MANUEL: How do we wrap the wrongful 15 termination up? 16 MR. RUBIN: That's going to be as part of the 17 settlement agreement and settlement documents that 18 are executed between counsel for EMI and counsel 19 for Ms. Tschudi. 20 It is going to be released from any and all 21 claims against the Village of North Palm Beach. 22 It is going to specifically reference the wrongful 23 termination, but it will be for any and all 24 claims. 25 MR. NORRIS: Does that include the additional Preferred Real -Time Reporting, Inc. Page: 9 the hundreds of thousands of dollars. So it behooves us, if nothing else, just strictly from a medical standpoint to settle the case. Attorney/Client Meeting Village of NPB 1 $12,000? 2 MR. RUBIN: Well, yes. There is actually 3 more. There is the future exposure that we have 4 5 6 for future medical costs. There are some issues about things that she -- and that the attorney for EMI was 7 explaining to me like the doctor prescribed a 8 therapeutic mattress which is a pretty costly 9 item. 10 11 12 MR. KNIGHT: $7,000. MR. RUBIN: $7,000 mattress that theoretically they can be on the hook for. 13 So in speaking to the attorney for EMI, and 14 EMI really wasn't the attorney who is -- EMI is 15 going to settle it regardless because they want 16 this claim to be closed. 17 But we really -- you know, he strongly 18 believes that this is a good settlement and we are 19 getting off, you know, pretty lightly, all things 20 considered when you take into account the 21 potential future claims, especially the medical 22 claims. 23 MR. MANUEL: Do you have any questions? 24 MR. NORRIS: Yeah. So what are we being 25 asked? You keep saying it is going to be settled Preferred Real -Time Reporting, Inc. Page: 10 Attorney/Client Meeting Village of NPB 1 anyway. So what are you asking us? 2 MR. KNIGHT: Well, to agree to the $100,000 3 settlement offer with the proviso that they will 4 settle the case with all outstanding current and 5 future, you know, ending all litigation. 6 7 8 MR. NORRIS: If we don't say yes, what happens? MR. KNIGHT: They are going to settle -- 9 MR. RUBIN: They will probably settle just 10 the disability claim, the workers' comp claim and 11 just sort of leave us out there on the wrongful 12 termination. 13 There is, in the SERMA documents, there is a 14 way that you can petition not to accept the 15 settlement. They don't have to accept your 16 petition, and if they do accept your petition, you 17 are liable for any excess judgment out of pocket. 18 So it takes it out of the insurance pool. 19 So that's also a risk. If you move to 20 prevent a settlement that they have arrived at, 21 you risk having to pay more out of pocket at some 22 future time. 23 MR. NORRIS: But if we say no, you are asking 24 us to say yes or no, we say no, they are going to 25 settle, and the claim against us will probably Preferred Real -Time Reporting, Inc. Page: 11 Attorney/Client Meeting Village of NPB 1 still be hanging out. 2 If we say yes, they are going to settle and 3 4 5 include our claim and pay the additional money for our claim. MR. RUBIN: Correct. Well, ours is going to 6 be settled as part of this, correct. 7 But this was the opportunity for you all to 8 understand and ask questions and -- 9 MR. EISSEY: Realistically, this is a 10 no-brainer for us. 11 MR. KNIGHT: You know, I think Len shares in 12 my belief that there is probably more to this. We 13 can't get their attorney to explore more about her 14 health. The fact that she is settling kind of 15 indicates to me that it is probably more terminal 16 than not. 17 MR. MANUEL: I have one other question. I 18 think we can call for a vote here. I think we 19 probably made up our mind, but is the relationship 20 that she has with the fire chief now, how is 21 that -- does that have any role or play any role 22 here? 23 MR. KNIGHT: I don't think so other than, 24 mayor, other than, you know, if they filed the 25 wrongful termination, I would hate to believe that Preferred Real -Time Reporting, Inc. Page: 12 Attorney/Client Meeting Village of NPS 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 he would, because of his personal relationship, would change his view. He was very involved in the termination. Whether he would change that view and create a significant problem for the Village, I would like not to believe that; but, you know, it is just an exposure that is probably not worth taking. MR. AUBREY: It is a little bit of a risk. MR. KNIGHT: It is a little bit of a risk, and probably not one that I -- I wouldn't want to put him in that position., nor would I want to put the Village in that position. MR. MANUEL: So what do we need? Do we need a motion on this? MR. RUBIN: Well, actually, you have to vote at the meeting. It is really a consensus now but -- MR. MANUEL: Let me see if I have a consensus in favor of accepting your recommendations. (Aye) I think you have. MR. RUBIN: We will take the actual vote in the public meeting and then it will be done and it will wrap it up. MR. KNIGHT: Gentlemen, if I have those white Preferred Real -Time Reporting, Inc. Page: 13 Attorney/Client Meeting Village of NPB 1 papers back and -- because there are some HIPAA 2 law issues here that -- 3 MR. RUBIN: Right. 4 MR. KNIGHT: About her medical. I need yours 5 back as well, please, ma'am. 6 MR. MANUEL: In that case, we will adjourn 7 and go back to the open session. 8 MR. RUBIN: Yes. 9 (Thereupon, the meeting was concluded at 7:20 10 p.m.) 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Preferred Real -Time Reporting, Inc. Page: 14 Attorney/Client Meeting Village of NPB 1 CERTIFICATE 2 THE STATE OF FLORIDA ) 3 COUNTY OF PALM BEACH ) 4 I, MAUREEN HALL, Registered Professional 5 Reporter, do hereby certify that I was authorized to and 6 did report the foregoing proceedings at the time and 7 place herein stated, and that the foregoing is a true 8 and correct transcription of my stenotype notes taken 9 during said proceedings. 10 IN WITNESS WHEREOF, I have hereunto set my 11 hand this 1st day of March, 2009. 12 13 14 15 16 MAUREEN HALL Registered Professional Reporter 17 18 19 20 21 22 23 24 25 Preferred Real -Time Reporting, Inc. Page: 15