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José Fernández estate in jeopardy after official boat crash report

The estate faces two wrongful death lawsuits, but issues of alcohol and cocaine use could limit damages for the other victims.
17 Mar 2017 – 5:45 PM EDT

An official report blaming baseball star José Fernández for the boating accident that killed him and two other young men is a major boost to wrongful death lawsuits filed against the estate of the former Miami Marlins pitching ace, according to legal experts.

But legal questions surrounding the behaviour of all three men could limit the liability of the baseball star's estate and the cases could end up in federal Admiralty court where there is no jury, potentially further limiting damages, the experts told Univision.

The families of the two other men on Fernandez's boat - Emilio Macias, 27, and Eduardo Rivero, 25 - are each seeking $2 million for the death of their loved ones, a total that could exceed the value of Fernández's assets.

An attorney for the Macias and Rivero families said in a statement that they hoped the result of the investigation would prompt all sides to reach an "amicable" out-of-court settlement.

“Though fault has been determined officially, the families of Emilio and Eduardo are not vindictive and simply hope that an amicable settlement of the lawsuit can be reached between the parties as swiftly as possible so as not to prolong the final closure for the many people who have been impacted," said Fort Lauderdale attorney Christopher Royer.

“The Rivero and Macias families have also lost their sons in the prime of their lives. Whatever happens, there are no winners in this matter, simply losses — those of the lives of three fine young men.”

However, a lawyer for the Fernández family said he was not satisfied with the investigation and had no plans to settle the wrongful death lawsuits at this stage.

"It's obviously very disappointing and the family is devastated," said the Fernández family's attorney, Ralph Fernández (no relation). He contested the findings saying other experts he has consulted said it was not clear from the evidence who was driving the boat. Evidence was also potentially contaminated when the boat was transfered from the jetty to a place where it was inspected by investigators, he added.


In photos: the investigation into the boating accident that killed Miami Marlins pitcher Jose Fernandez

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Thursday's Florida Fish and Wildlife Conservation Commission investigation report came out a day after a Miami-Dade judge granted a petition allowing the Fernández estate, reportedly worth between $2 and $3 million, to be administered jointly by the pitcher's mother and his girlfriend who recently gave birth to a baby daughter.

The families of Rivero and Macias are claiming that Fernández's "negligence" caused the deaths. The complaints allege that Fernández failed to comply with Florida state statutes "while legally intoxicated and/or under the influence of an illegal substance."

Macias and Rivero were the only two passengers on the boat, named 'Kaught Looking,' which was owned by the 24-year-old pitcher who was avid boater and fisherman.

Fernández was behind the steering wheel when his boat crashed into a jetty of rocks off Miami Beach at high speed in the early hours of Sept 25 2016, according to the FWC incident report released Thursday.

The report said Fernández was driving the boat in a reckless fashion without due care and attention. His blood alcohol level was over the legal limit and he also had cocaine in his system.

Legal options

Two independent lawyers consulted by Univision agreed that the report was highly damaging for the Fernández family, but added that due to the crash circumstances damages could be limited.

"This is a fantastic report for any lawyer who is suing the estate. The investigator served this up on a silver platter," said David Weinstein, a former federal and state prosecutor now in private practice with the firm Clarke Silverglate.

But several options remain available, including having the case transferred from state court to federal Admiralty court, which handles accidents at sea.

Admiralty court cases are heard without a jury and tend to result in lower damages than state court where juries can impose massive punitive damages for mental anguish and loss of career earnings. Macias and Rivero were not wealthy but both were professionally employed with potentially successful careers ahead of them. Macias was a banker at Wells Fargo and Rivero a sales rep at Carnival Cruise Lines.

Both men were single, limiting potential damages for spouses and offspring.

"Both sides will ask for numbers. It's a long road," said James Perry, a maritime lawyer with Perry & Neblett in Miami. While the FWC report cast the blame on Fernández, that did not mean Macias and Rivero were "just the innocent victims," said Perry.

The fact that both men were older than Fernández and decided to board the boat despite knowing alcohol and cocaine were involved would likely limit the liability of the pitcher's estate and any damages set by the judge.

"The court will look at alcohol, and ages, all of that," said Perry.

The FWC investigation showed that Macias bought three vodka's at a bar before the fatal voyage. Rivero had alcohol and cocaine in his system, although lower levels than Fernández.

The FWC report also noted that Fernández was upset after an argument with his girlfriend, Maria Arias. She told Rivero in a text message "he's been drinking and he's not in the best state of mind." She added: "I just need you to take care of him."

Florida's history of boating deaths

In 2015 the FWC recorded 737 boating accidents and 55 boating-related deaths. Drugs or alcohol were reported to have played a role in about 19 percent of the reported crashes. Males accounted for 95 percent of the victims of fatal boating accidents.

In 2014, a 23-year-old Miami man was killed by a boat propeller at a party on a sandbar. The boat operator, popular local DJ Lazaro Mendez, or "DJ Laz," was not charged in the incident.

After he was accused in civil court with wrongful death, a plea deal was reached and Mendez was ordered to pay a $500 penalty, give a $1,000 donation to a beach restoration fund and serve 120 hours of community service. He was also required to take a boating safety course.

Authorities said toxicology tests showed the dead man had been drinking on the night of the accident.

Insurance could cover some of the liability of the Fernández estate, though the findings of the FWC report could violate the contract terms, voiding any payout.

"If there is any insurance to cover Mr. Fernandez's liability, then it should be paid immediately to end the litigation," said Steve Pajcic, a Jacksonville personal injury lawyer. "If not, and the attorneys cannot reach agreement, they should at least agree to an early arbitration out of court. Otherwise, there is a real risk of attorney's fees eating up almost all the modest estate assets," he added.

In another twist in the Fernández case, Weinstein noted that the investigator listed a string of charges Fernández would have potentially faced had he survived the crash, including manslaughter.

"When a lead detective conducts a homicide investigation the legal conclusions about the appropriate charges are made by a prosecutor, not the police," he said. "Here the police officer is opining on the sufficiency of evidence to file charges. I am unsure what the motivation is behind that. What is clear is that these conclusions have irreparably tarnished his legacy." he added.

An FWC spokesman said "normal report protocol was followed," adding that information about possible charges "is always included."

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