Iris Probkevitz, as personal representative of the Estate of Denise Probkevitz v. Velda Farms, LLC and Joseph Dixon et al.

Brief Summary
On May 31, 2002, the plaintiff filed a complaint in Miami-Dade County Circuit Court, alleging negligence against Velda Farms and its driver, Joseph Dixon, as a result of a fatal automobile accident on Feb. 9, 2002, in North Miami Beach, Florida. After several settlement discussions wherein the plaintiff demanded $3 million and more, the jury trial commenced on Jan. 9, 2007. Hinshaw & Culbertson LLP attorneys Arthur Laplante and Sherri Mullins, who represented Velda Farms and Mr. Dixon, successfully bifurcated the case so that only liability was tried. After a six-day trial, the jury deliberated for 25 minutes and returned with a defense verdict.

Complete Summary
At 2:25 a.m. on Saturday, Feb. 9, 2002, a Velda Farms refrigerated tractor-trailer truck operated by Joseph Dixon collided with a Ford Taurus at the intersection of Miami Gardens Drive and N.E. 18th Avenue in North Miami Beach, Florida. The Ford Taurus was owned by Iris Probkevitz and was being driven at the time by her 15-year-old daughter, Denise Probkevitz. Denise was operating the vehicle illegally. Although she had a learner’s permit, an adult was not in the car. Laelani Day, also 15 years of age, was in the front passenger seat at the time of impact.

There is a traffic light at the intersection of Miami Gardens Drive and N.E. 18th Avenue where the accident occurred. At the time of the accident, the west and east bound traffic on Miami Gardens Drive was governed by a flashing yellow traffic signal, and the north and south bound traffic on N.E. 18th Avenue was governed by a flashing red traffic signal. Mr. Dixon was heading west on Miami Gardens Drive when he came upon a flashing yellow traffic signal. Denise was driving south on N.E. 18th Avenue and had a flashing red light. The Ford Taurus operated by Denise entered the intersection leaving no time or distance for Mr. Dixon to avoid the collision. As a result of the impact, Denise was killed instantaneously.

In her complaint, plaintiff Ms. Probkevitz alleged that Mr. Dixon negligently operated the vehicle at an excessive speed and in an overweight condition. She further alleged that Velda Farms was vicariously liable for Mr. Dixon’s actions because he was in the course and scope of his employment at the time of the accident.

Ms. Probkevitz also sued Rapid Ways Truck Leasing of Florida, which leased the tractor-trailer to Velda Farms. (Rapid Ways paid her $50,000 in exchange for her agreement to not object to Rapid Ways’ dismissal from the case pursuant to its Motion for Final Summary Judgment based upon the long-term lease statute, Fla. Stat. §324.021(9)(b)1). Ms. Probkevitz also sued: (1) Eckerd Corporation, alleging that the Eckerd sign on the northeast corner of the intersection obstructed the drivers’ views of oncoming traffic, and (2) Yorkland Miami Gardens, Inc., Amit, Inc., and Shamira Holding Corp., Inc. as the owners of the property located on the northeast corner of the intersection, alleging that they negligently allowed the placement of the Eckerd sign on their property and maintained a retaining wall with hedges which obstructed the drivers’ views of oncoming traffic. Plaintiff settled with Eckerd for $50,000 and collectively with the property owners for $150,000. To date, plaintiff has received total settlement proceeds of $250,000.     

Velda Farms and Mr. Dixon filed a Third Party Complaint against Ms. Probkevitz, individually, alleging negligence, negligent supervision, negligent entrustment and contribution. The only counts remaining at the time of trial were negligence and contribution. The Court ruled, Hinshaw attorneys believe incorrectly, that the defendant’s could not proceed under theories of both passive and active negligence against Ms. Probkevitz.

Laelani Day, Denise’s friend, sustained a severe head injury and significant physical injuries as a result of the accident. She filed suit against the same defendants named in this case as well as Ms. Probkevitz, individually. Both cases were consolidated for purposes of discovery only. All of the defendants have settled with Laelani Day except Ms. Probkevitz.

Velda Farms and Mr. Dixon denied liability for the accident. The posted speed limit for west bound traffic at the intersection was 40 mph, and Mr. Dixon testified that he was driving no faster than 28 mph-29 mph at the time of the accident. Speed tests conducted by the Florida Highway Patrol corroborated Mr. Dixon’s account that he was traveling under the speed limit at the time of the accident. Expert testimony also showed that he was not speeding at the time of impact and that Denise entered the intersection so as to constitute an immediate hazard to Mr. Dixon. Mr. Dixon, who is the only eyewitness with any memory of the accident, testified that Denise never stopped prior to entering the intersection.

The investigating traffic homicide officer noted that the concrete retaining wall and hedges on the northeast corner of the intersection created a visual obstruction for the drivers. Neither Mr. Dixon nor Velda Farms received citations as part of the traffic homicide investigation. The DOT post-crash inspection revealed that the tractor was overweight on the second axle. However, the evidence and testimony revealed that this was due to a shift of the product during the collision. There was no evidence to suggest that the second axle was overweight prior to the accident or that the product was loaded incorrectly.

Denise and Ms. Day were both 15 years old at the time of the accident. They held learner’s permits and when driving they were required to be accompanied by a licensed driver, 21 years of age or older, who occupied the front passenger seat. As the holder of a learner’s permit, Denise was only allowed to drive with an adult in the car between 6 a.m. and 10 p.m. Additionally, both girls were in violation of the Dade County Juvenile Curfew Ordinance which prohibited them from being in a vehicle without a parent or legal guardian from 12 a.m. until 6 a.m. The Court granted plaintiff’s Motion in Limine to exclude at trial any evidence of violation of the Dade County Juvenile Curfew Ordinance.

Sabrina Gonzalez, who was a friend of Denise and Ms. Day, testified that on one occasion she was in a car with Ms. Day that was being driven by Denise without an adult in the car. At that time, the girls had gone to the beach and on the way home from the beach, they picked up food for Denise’s family and delivered the food to Ms. Probkevitz’s boyfriend’s home where Ms. Probkevitz and her children were waiting. Ms. Probkevitz was outside the home as Denise drove up to it in her vehicle.

Ms. Day testified that on two other occasions she rode in a car driven by Denise without an adult present. She also testified that she knew it was wrong for her to be in a car with Denise driving without an adult in the front passenger seat.

On Nov. 9, 2005, a joint mediation conference was held with both Ms. Day and Ms. Probkevitz. Ms. Probkevitz’s demand at mediation was $3 million. Velda Farms did not make an offer to Ms. Probkevitz at that time because resolution of Ms. Day’s claim needed to occur prior to engaging in settlement discussions with Ms. Probkevitz.

On July 14, 2006, Hinshaw served a Proposal for Settlement in the amount of $50,000.

On Dec. 14, 2006, a second mediation conference was held at the request of plaintiff. Plaintiff demanded $3.200 million at mediation. The defense, led by Mr. Laplante and Ms. Mullins, walked out of the mediation without making an offer.

At trial, the jury deliberated for 25 minutes and returned with a defense verdict. Because of the possible exposure in this case, it was monitored extensively by the attorney for the excess carrier. The excess carrier instructed Hinshaw to seek to recoup our fees and costs from the plaintiff based on the filing of our Proposal for Settlement.

For further information, please contact Arthur Laplante  or Sherri Mullins or your regular Hinshaw attorney.

This alert has been prepared by Hinshaw & Culbertson LLP to provide information on recent legal developments of interest to our readers. It is not intended to provide legal advice for a specific situation or to create an attorney-client relationship.