Court Denies Insurer, Upholds $5.75 Million in Miami Beach Drownings

December 17, 2009

The insurance company for the city of Miami Beach has been ordered to pay $5.75 million in damages to the families of a man and the woman he tried to save from drowning.

Monticello Insurance Co. had refused to pay settlements that the city negotiated with the wife of Zachary Breaux ($5 million) and Eugenie Polyeff ($750,000), who both drowned while on vacation at the Seville Hotel on the beach in 1977.

In what has been a complicated, 10-year lawsuit, the Federal District Court in Miami ruled against the Delaware-based insurance company, according to Howard Pomerantz, legal counsel for Breaux’s wife and family.

According to the suit, on Feb. 20, 1997, jazz guitarist Breaux, 36, his wife, and three daughters were vacationing at the Seville Hotel on Miami Beach. Nearby, Rabbi Israel Poleyeff and his wife, Eugenie, 66, had rented lounge chairs and umbrellas behind the hotel.

Strong winds had created dangerous rip currents, though no warning flags went up, as city lifeguards did not protect the beach. That section of beach did have city-managed restrooms and parking. Private beach concessionaires had employees who appeared to be lifeguards, but were not, according to Pomerantz and Andrew B. Yaffa, legal counsel for Poleyeff’s husband.

When Mrs. Poleyeff was caught in the rip current, Breaux told his family to get the lifeguards, and entered the water to save her. Both drowned while Breaux’s wife and three young daughters watched.

“To the average beachgoer, the beach was guarded,” said Pomerantz. “Other beaches that were guarded had warning flags flying that day.”

The case created a landmark ruling in 2005, when the Florida Supreme Court held that cities, like private landowners, have a responsibility to warn beachgoers of dangerous conditions. “The city at the time had created the appearance of a protected beach,” Pomerantz said. “All we were saying is they should have posted signs that this was not a protected beach.”

After that Florida Supreme Court ruling, and with Monticello refusing to defend Miami Beach, city officials decided to negotiate settlements.

Monticello refused to pay the settlement, and asked the court to rule that the insurance company’s policy didn’t cover the city. But the court held that coverage existed on Miami Beach’s policy with Monticello.

The court also ruled that Monticello’s refusal to defend the case was wrongful and that the settlement amounts negotiated by the city were reasonable and were entered into in good faith without fraud and collusion.

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