THE FLORIDA SENATE
SPECIAL MASTER ON CLAIM BILLS
Location
409 The Capitol
Mailing Address
404 South Monroe Street
Tallahassee, Florida 32399-1100
(850) 487-5229
DATE COMM ACTION
1/19/22 SM Favorable
1/24/22 JU Pre-meeting
AEG
AP
January 19, 2022
The Honorable Wilton Simpson
President, The Florida Senate
Suite 409, The Capitol
Tallahassee, Florida 32399-1100
Re: SB 70 – Senator Darryl Rouson
HB 6509 – Representative Juan Fernandez-Barquin
Relief of Donna Catalano
SPECIAL MASTER’S FINAL REPORT
THIS IS A SETTLED CLAIM FOR $3,175,000, SUPPORTED
BY THE FLORIDA DEPARTMENT OF AGRICU LTURE AND
CONSUMER SERVICES (DACS). THE CLAIM SEEKS
COMPENSATION FROM TH E GENERAL REVENUE FU ND
TO DACS, TO COMPENSATE CLAIMANT FOR PERSONA L
INJURIES AND DAMAGES SUSTAINED IN A MOTOR
VEHICLE ACCIDENT RESULTING FROM THE NEGLIGENT
OPERATION OF A DACS VEHICLE.
FINDINGS OF FACT: The Accident
On June 26, 2019, at around 3:20 p.m., Claimant, Donna
Catalano’s vehicle was struck head-on by a DACS pickup
truck that was being operated by Donald Gerard Burthe, a
DACS employee, acting within the scope of his employment.
Claimant was driving to her home, in Jefferson County, after
she finished her shift as an emergency room nurse at
Tallahassee Memorial Hospital.
1
As Claimant drove east on
U.S. 90/Mahan Drive, in her blue 2015 Chevrolet Equinox,
she approached an area with a curve, where she saw a white
1
Claimant’s shift was from 4:00 a.m. - 2:30 p.m. SPECIAL MASTER’S FINAL REPORT – SB 70
January 19, 2022
Page 2
vehicle drift across the center line and onto her side of the
road.
According to the crash report, the weather was clear, it was
daylight, and the road surface was dry. The extent of damage
to both vehicles was described as disabling and both vehicles
were towed. The vehicle that collided with Claimant was listed
as owned by “Florida Department of Agricult [sic],” and driven
by Donald Gerard Burthe. Both Claimant and the DACS
employee are listed as having been wearing shoulder and lap
belts. Both vehicles are listed as having had front airbags
deploy. Both parties were transported to Tallahassee
Memorial.
Prior to the collision, Claimant was traveling at the posted
speed limit of 60 miles per hour. Claimant attempted to avert
the collision by breaking and turning out of the way. Data
downloaded from Claimant’s vehicle shows that Claimant
reduced her speed from 60 miles per hour down to 43 miles
per hour.
2
The DACS employee was driving above the posted speed
limit of 60 miles per hour. Photographs of the DACS vehicle
show that the speedometer froze at just under 70 miles per
hour. An affidavit by professional engineer, G. Bryant
Buchner, states that the speedometer was electrically
powered. When the collision occurred, all electrical power in
the vehicle was severed. As a result, the speedometer froze
at the time of the collision, indicating that the vehicle was
travelling above the posted speed limit at impact.
There was a car traveling in front of Claimant and a car
traveling behind Claimant. The car in front of Claimant was
driven by Jennifer Washington, with her daughter Teriana
Robinson as a passenger. The driver, Washington, states in
her deposition that she saw the DACS vehicle drifting into her
lane and crossing over the yellow line
3
toward her, so she
sped up to avoid a collision. Washington witnessed the
collision through her rearview mirror and saw the vehicle hit
Claimant head-on. The passenger, Robinson, states in her
deposition that she saw a white truck going toward
2
The data downloaded from Claimant’s vehicle was memorialized in an affidavit by G. Bryant Buchner, a
professional engineer, recognized in the state of Florida.
3
Photos of the crash scene and the diagram below reflect that the yellow line mentioned in Teriana Robinson’s
deposition was actually a set of two solid yellow lines (Exhibit G). SPECIAL MASTER’S FINAL REPORT – SB 70
January 19, 2022
Page 3
Tallahassee and coming into their lane of travel, so
Washington slightly swerved off of the road to keep the DACS
vehicle from hitting them. Robinson states that she also
witnessed the DACS truck hitting the blue car behind them,
through the rearview mirror, causing both vehicles to flip in
opposite directions.
The car behind Claimant was driven by Marian Simmons. She
states in her deposition that she saw a white pickup truck with
the driver's side wheels over the center line. She slowed down
and saw the truck hit Claimant head-on.
The responding Florida Highway Patrol Trooper, N.A.
Hagedorn, confirmed in his crash report:
The [DACS vehicle] failed to maintain his lane of
travel and crossed the centerline onto the
eastbound lane and into the path of [Claimant’s
vehicle]. [Claimant's vehicle] was unable to
react in time to avoid a collision with [the DACS
vehicle]. [The DACS vehicle’s] front left struck
the front left of [Claimant’s vehicle]. After the
[DACS vehicle] struck [Claimant’s vehicle], [the
DACS vehicle] began to overturn where it came
to rest on the eastbound lanes on its right side,
partially on its roof. [Claimant’s vehicle] traveled
onto the south shoulder where it overturned
before coming to rest. [The DACS vehicle] came
to final rest between the centerline and
eastbound lane of Mahan Drive facing east on
its right side, partially on its roof. [Claimant’s
vehicle] came to final rest facing west on the
south shoulder of Mahan Drive.
4
The DACS Employee was cited for violating s. 316.089, F.S.,
relating to driving on roadways laned for traffic.
5
4
Trooper N.A. Hagedorn, Florida Highway Patrol Crash Report (Jun 26, 2019) (Exhibit A).
5
“A vehicle shall be driven as nearly as practicable entirely within a single lane and shall not be moved from such
lane until the driver has first ascertained that such movement can be made with safety.” Section 316.089 (1), F.S. SPECIAL MASTER’S FINAL REPORT – SB 70
January 19, 2022
Page 4
Crash Report Diagram
Damages
The Leon County Emergency Medical Services records show
that after the crash Claimant could not exit the vehicle and
paramedics had to cut her out. She was placed in a cervical
collar awaiting extrication. The windshield was compromised,
the A-pillar was pushed back and the driver’s door was folded.
The steering wheel was against Claimant’s chest and the
dashboard pinned her legs. All airbags were deployed. The
wreckage had to be pried back from Claimant’s torso. She
was extracted, and placed on a backboard, immobilized and
transported to Tallahassee Memorial Hospital.
Claimant underwent multiple surgeries in the days after the
collision. X-Rays compared to demonstrative medical
illustrations show bone grafts, plates, cables, and screws
used to repair fractures in Claimant’s left arm and both femurs.
Emergency Center Records from Tallahassee Memorial
hospital reflect the following medical injuries:
acute post hemorrhagic anemia;
left hand abrasions;
contusions diffusely across left side of body;
left distal skin laceration;
right hemotympanum;
trace left basilar pneumothorax;
displaced comminuted fracture of shaft of radius, left
arm (surgical repair);
displaced comminuted fracture of shaft of ulna, left
arm (surgical repair);
displaced comminuted fracture of all the humeral
head and neck, left arm (surgical repair); SPECIAL MASTER’S FINAL REPORT – SB 70
January 19, 2022
Page 5
placement of external fixator, left femur (surgical
repair);
placement of external fixator, right, femur (surgical
repair);
displaced supracondylar fracture with intracondylar
extension of lower end of left femur (surgical repair);
displaced supracondylar fracture with intracondylar
extension of lower end of right femur (surgical repair);
hypomagnesemia;
multiple displaced fractures of ribs;
displaced left L2, L3, L4 transverse process fractures;
traumatic pneumocephalus.
Claimant spent nine days in Tallahassee Memorial Hospital
from her admittance on June 26, 2019, until her discharge on
July 5, 2019. The Discharge Summary Final Report shows
that Claimant was transferred to inpatient rehabilitation at
Tallahassee Memorial Hospital Rehabilitation where she
spent 77 days. After, she was transferred to her home and
underwent 42 days of outpatient rehabilitation.
Medical Expenses
A summary of Claimant’s past medical expenses, detailing the
provider, dates of service, and charges, reflects a total of
$676,935.36 in medical bills resulting from the collision.
A life care plan, prepared for Claimant, based on a life
expectancy of 85 years, anticipates her future medical
requirements to total $861,325.
6
Ms. Catalano’s Future Medical Expenses Amount
Physician Services $21,151.82
Routine Diagnostics $11,244.62
Medications $146,746.40
Laboratory Studies $11,265.76
Rehabilitation Services $36,678.36
Equipment & Supplies $59,044.97
Environmental Modifications & Essential
Services
$52,800.00
Nursing & Attendant Care $275,244.48
Acute Care Services $247,149.50
TOTAL $861,325.91
6
The Life Care Plan was prepared by Dr. Christopher Leber, a Physical Medicine & Rehabilitation specialist, who
has practiced medicine in Florida since 1995. Dr. Leber is a Board Member of the American Academy of
Physician Life Care Planners, and a member of the American Academy of Physician Life Care Planners
Educational Committee. SPECIAL MASTER’S FINAL REPORT – SB 70
January 19, 2022
Page 6
Lost Wages
Due to her life altering injuries, Claimant can no longer
perform her job as a nurse and was discharged from her
employment with Tallahassee Memorial Hospital.
An economic loss report,
7
prepared for Claimant, based on
her life expectancy at the time of the accident of 84.74 years,
calculate Claimant’s loss of earnings and benefits to be
$669,363.
8
Her loss of household production is calculated to
be $211,615.
9
Loss of Enjoyment of Life; and Pain and Suffering
Before the collision, Claimant was a member of the
Tallahassee Memorial Hospital team where she worked as an
emergency room nurse. She lived an active lifestyle and
enjoyed deep sea fishing, hunting, hiking, fishing, and
gardening with her family.
Since the collision, Claimant has pain on a daily basis. She
can no longer walk normally. She is limited to standing for
about fifteen to twenty minutes before needing to sit. She uses
a cane when she walks. She mostly uses a wheelchair at
home. Her right arm no longer straightens out and she cannot
raise it above her head. As a result, she has cut her hair short
since she can no longer brush it herself. She periodically
suffers from incontinence and depression.
Claimant can no longer perform basic functions required of a
nurse such as kneeling; performing CPR; lifting, pulling and
turning patients; or pushing stretchers and wheelchairs. As a
result, she cannot serve as a nurse or personally perform such
functions for her loved ones when they are in need. During
her recovery, Claimant’s partner of over 30 years fell ill and
had to be put into hospice care. Similarly, Claimant’s father
was placed into hospice care just days before the special
7
The Economic Loss Report was prepared by Benjamin S. Shippen, Ph.D., of Secretariat Economists, who has a
Ph.D. in Economics. Mr. Shippen has worked as an economic consultant and expert witness in statistical analysis
of employment practices since 2000.
8
Claimant briefly worked in a temporary OPS position with the State of Florida Department of Health in Leon
County from August 12, 2020 to June 30, 2021. This position paid $25 an hour. The earnings from this position
partially mitigated the earnings loss.
9
The Economic Loss Report estimates that Claimant will be unable to perform 694 hours of household production
per year that she would have otherwise performed herself. SPECIAL MASTER’S FINAL REPORT – SB 70
January 19, 2022
Page 7
master hearing. Claimant otherwise would have performed
these functions herself.
LITIGATION HISTORY: Litigation and Settlement
On July 10, 2020, Claimant filed suit in the Second Judicial
Circuit, in and for Leon County. On July 15, 2021, the parties
completed mediation in the matter and reached an
agreement.
On July 16, 2021, the parties entered into a settlement
agreement. DACS agreed to have the Florida Division of Risk
Management pay the $200,000 statutory cap prescribed by
section 768.28, Florida Statutes, and to support a claim bill for
the excess amount of $3,175,000.
On August 6, 2021, the Division of Risk Management paid
$200,000 to Claimant’s attorney which was disbursed as
follows:
Claimant’s attorney’s fees: $50,000 (25 percent);
Claimant’s attorney’s fees deferred on the uninsured
motorist settlement: $2,500;
10
Costs advanced: $23,494.50;
11
Medical care providers: $25,488.57;
Claimant: $98,516.93.
CLAIM BILL HEARING: On December 8, 2021, a half-day virtual hearing was held
before the House and Senate special masters.
Both parties stipulated to all of the exhibits submitted into
evidence. It was made clear that both parties fully cooperated
throughout the entire matter and responded to all requests for
documentation.
Claimant’s Case-in-Chief
Claimant’s mother, Loretta Catalano; Claimant’s son, Tony
Grimes; Claimant’s neighbor, Dr. David Greene; and
Claimant’s former colleague and nurse, Rebecca Berhalter
provided live testimony via WebEx.
12
The parties gave
10
Reduced from 33.33 percent ($3,333.33) to 25 percent.
11
Claimant’s Settlement Statement, signed on October 8, 2021, reflects that that the total costs advanced equal
$46,988.99, of which $23,494.49 are deferred.
12
All witnesses who provided live testimony at the Special Master Hearing are also included in a documentary
produced by Claimant detailing the events and depicting the impact of the collision on Claimant’s life (Exhibit Z6). SPECIAL MASTER’S FINAL REPORT – SB 70
January 19, 2022
Page 8
testimony that spoke to Claimant’s life before and after the
collision.
Claimant also testified as to the day of the accident, the
collision, her quality of life before and after the event, injuries,
and recovery.
Respondent’s Case-in-Chief
DACS did not admit liability but waived its case-in-chief.
Therefore, the respondent did not present or contest any
evidence, theories, or arguments at the hearing.
Counsel for DACS asked one clarifying question as to
whether Claimant was on the phone with her partner at the
time of the accident. Claimant admitted she was on the phone
and reiterated that she was hands-free and utilizing the
OnStar feature on her vehicle.
When questioned as to the whereabouts and condition of the
DACS employee who was driving the vehicle, both counsel for
Claimant and counsel for DACS explained that Burthe had
passed away as a result of the accident. Counsel for DACS
could not confirm whether an investigation was conducted. It
is unknown what caused the DACS employee to drift out of
his lane and into Claimant’s lane.
CONCLUSIONS OF LAW: Section 768.28, Florida Statutes, waives sovereign immunity
for tort liability for a claim or judgment by one person up to
$200,000. Sums exceeding this amount are payable by the
State through further act of the Legislature.
Regardless of any jury verdict or settlement, claim bills are
reviewed de novo when assigned to a special master, and
each element of negligence must be found within the
evidence.
Negligence
Florida jury instructions define negligence as “the failure to
use reasonable care, which is the care that a reasonably
careful person would use under like circumstances;”
13
and “a
legal cause of loss, injury or damage if it directly and in
natural and continuous sequence produces or contributes
13
Florida Civil Jury Instructions, 401.4 – Negligence. SPECIAL MASTER’S FINAL REPORT – SB 70
January 19, 2022
Page 9
substantially to producing such loss, injury or damage, so
that it can reasonably be said that, but for the negligence,
the loss, injury or damage would not have occurred.”
14
There are four elements to a negligence claim: (1) duty –
where the defendant has a legal obligation to protect others
against unreasonable risks; (2) breach – which occurs when
the defendant has failed to conform to the required standard
of conduct; (3) causation – where the defendant’s conduct is
foreseeably and substantially the cause of the resulting
damages; and (4) damages – actual harm.
15
Vicarious Liability
“An agent is a person who is employed to act for another,
and whose actions are controlled by his employer. An
employer is responsible for the negligence of its agent if
such negligence occurs while the agent is performing
services which he was employed to perform.”
16
Vicarious liability for the acts of the DACS employee is
undisputed and admitted by DACS. The vehicle that collided
with Claimant was owned and registered to the Florida
Department of Agriculture and Consumer Services. The
signed and notarized affidavit by Joey Hicks, the
Administrator for DACS, admits that at the time of the
collision Burthe was employed by DACS, was operating the
DACS vehicle with express permission, his actions were
controlled by DACS, and that he was in the course and
scope of his employment with DACS. Therefore, DACS is
vicariously liable for the collision.
17
Duty
The operator of a motor vehicle has a duty to use
reasonable care, in light of the attendant circumstances, to
prevent injury to persons within the vehicle's path.
18
The DACS employee had a statutory duty, under
section 316.089, Florida Statutes., to maintain his lane. This
duty required the DACS employee to drive the vehicle “as
nearly as practicable entirely within a single lane.” The
14
Florida Civil Jury Instructions, 401.12(a) - Legal Cause, Generally.
15
Williams v. Davis, 974 So.2d 1052, at 1056-1057 (Fla. 2007).
16
Florida Civil Jury Instructions, 401.12(a) - 401.14(b)(1) Vicarious Liability – Agency, Master and Servant.
17
See Florida Civil Jury Instructions, 401.14(a) - Preliminary Issues — Vicarious Liability - Owner, Lessee, or
Bailee of Vehicle Driven by Another.
18
Gowdy v. Bell, 993 So. 2d 585, 586 (Fla. 1st DCA 2008). SPECIAL MASTER’S FINAL REPORT – SB 70
January 19, 2022
Page 10
statute further requires that a driver not move from their lane
until after they have ascertained that this movement can be
made safely.
19
Breach
As the evidence demonstrates, the DACS employee violated
section 316.089, Florida Statutes, and breached the required
standard of care when he drifted out of his lane and into
Claimant’s oncoming lane of travel. With at least three
vehicles traveling in the oncoming lane of traffic, it was
clearly not safe for the DACS employee to move from his
lane of travel.
Causation
Negligence is “a legal cause of loss, injury or damage if it
directly and in natural and continuous sequence produces or
contributes substantially to producing such loss, injury or
damage, so that it can reasonably be said that, but for the
negligence, the loss, injury or damage would not have
occurred.”
20
The DACS employee’s negligence is the legal cause of
Claimant’s loss, injury, and damages. The collision and
Claimant’s damages are a reasonably foreseeable result in
the sequence of events caused by the head-on collision, at a
speed over 60 miles per hour, which was unavoidable even
with Claimant’s ability to reduce her velocity. A collision was
a foreseeable outcome from the risk produced by the DACS
employee’s failure to maintain his lane; and but for the
DACS employee’s failure to maintain his lane, the accident
would not have occurred.
Comparative negligence was not a defense raised during the
special master hearing, nor does the undersigned find any
evidence of comparative negligence in the record. Although
Claimant was on the phone at the time of the collision, she
was hands free and still managed to reduce her speed,
which likely minimized the impact of the collision.
Damages
Lost earnings and benefits $669,363
Loss of household production $211,615
Life care plan value $861,325
19
Section 316.089(1), F.S.
20
Florida Civil Jury Instructions, 401.12(a) - Legal Cause, Generally. SPECIAL MASTER’S FINAL REPORT – SB 70
January 19, 2022
Page 11
Past and present economic loses (not
including past medical bills)
$1,742,203
TOTAL $2,623,181
CONCLUSION: Claimant has demonstrated negligence by the DACS
employee and vicarious liability of DACS for the employee’s
negligence. A reasonably careful driver traveling down a two-
lane road would maintain their lane, so as to not drift into the
other lane with oncoming traffic. Under these facts, it can
reasonably be said that but for the DACS employee drifting
out of his lane, the collision would not have occurred, and
Claimant would not have experienced the loss, injury, and
damages that are detailed in the findings of fact above.
The damages sought in this bill, $3,175,000, are reasonable
given the outcome of the accident and Claimant’s pain,
suffering, loss of enjoyment of life, medical bills, lost wages,
85 year life expectancy, and future medical needs which are
still developing.
ATTORNEY FEES: Section 768.28(8), Florida Statutes, limits a claimant’s
attorney fees to 25 percent of any judgment or settlement.
Claimant’s attorney has agreed to this limit and included
related lobbying fees within the limit, as follows:
Attorney fees: 20 percent ($635,000); and
Lobbyist fees: 5 percent ($158,750).
RECOMMENDATIONS: Based upon the foregoing, the undersigned recommends that
SB 70 be reported FAVORABLY.
Respectfully submitted,
Shirley Sharon
Senate Special Master
cc: Secretary of the Senate