In a lengthy legal battle, the family of a New York jazz musician who drowned trying to save a rabbi’s wife in dangerous riptides off Miami Beach will receive $5 million in damages. The decade-old case raised serious liability issues for seaside communities that don’t provide lifeguards at public beaches. Last month U.S. District Judge Alan Gold ordered Delaware-based Monticello Insurance Co. to pay damages to the wife of Zachary Breaux. The insurance carrier had refused to pay, even though the family’s lawyer and the City of Miami Beach had negotiated a settlement.
Judge Gold also ordered the insurance company to pay $750,000 in damages to the husband of Eugenie Poleyeff, a New York school secretary. She was the person Breaux tried to save during a midwinter vacation in 1997. The city also negotiated a settlement in that case, but the insurer also refused to pay in the case.
Both cases went up to the Florida Supreme Court at mid-decade and wound up in federal court in Miami. During the interim, the state Legislature passed a law removing liability for seaside municipalities if they posted warning flags about dangerous swimming conditions or if someone drowned because of natural causes. But the new law didn’t affect the two cases referred to above. Eugenie Poleyeff and her husband were on vacation in 1997 and Mrs. Poleyeff went for a swim on Miami Beach. She got in trouble and Zachary Breaux went into the water while his wife and daughter searched desperately for a lifeguard. Both Breaux and the woman drowned, pulled into deep waters by rugged riptides.
Frederica Breaux and Israel Poleyeff, a rabbi, sued Miami Beach, asserting that the city should have had lifeguards and riptide warnings at the public beach. Miami Beach provided parking, showers and concessions near the 29th Street beach to cater to the public, but didn’t station lifeguards, supply lifesaving equipment or put up riptide warnings.
The two cases had been in both the state and federal courts. State circuit and appellate courts didn’t allow the cases to go to trial, saying the city couldn’t be held responsible for ocean conditions. In 2002, the Third District Court of Appeals panel ruled that a city which does not regulate a particular beach area has “no common-law duty” to safeguard the public from ocean dangers. The state Supreme Court agreed to review that opinion because it ran contrary to decades of High Court rulings that Florida communities can be held liable. In a landmark ruling in 2005, the state Supreme Court found that cities, like private landowners, have a responsibility to warn beachgoers of dangerous conditions that are known or should be known.
Soon after the drownings, the city erected a lifeguard stand at that beach. The lawyer for the Breaux family contended that the city should have posted signs that this was not a protected beach. After the Supreme Court’s ruling, Monticello, the city’s insurer, refused to defend Miami Beach. So city officials decided to negotiate a settlement with Breaux’s estate and the estate of Poleyeff.
After the 2007 settlements, the city and the families ended up on one side of the legal fight and the city’s insurer, Monticello, on the other. The city wanted to do the right thing and settle with the victims, but it also became a victim when Monticello abandoned them by denying both coverage and defense. Judge Gold ordered Monticello to pay not only the damages to the Breaux and Poleyeff families, but also to reimburse the city for its $200,000 obligation under the settlements. The judge also ordered the insurer to pay interest on the damages as well as attorneys’ fees and costs for the decade-long case. Monticello could still appeal Judge Gold’s ruling.
Miami Beach City lawyer Jose Smith and Howard Pomerantz represented the Breaux family. The Poleyeff family was represented by Andrew Yaffa, a lawyer with Grossman Roth, a Florida firm. Both did very good jobs for their respective clients.
Source: Miami Herald
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