Roy Ortiz was rescued from raging flood waters during the historic floods last September in Colorado.
His vehicle plunged into a creek in Broomfield County after hitting a portion of washed out road near the intersection of U.S. 287 and Dillon Road in Lafayette.
Ortiz is now filing an intent to sue the county and his rescuers for up to $500,000.
His attorney, Ed Ferszt, says the rescue possibly took longer than it should have because divers didn't know Ortiz was still in the car. He found a pocket of air and managed to stay calm for the two hours he was trapped in the cold water.
That intent to sue has sparked a firestorm of criticism.
He's been called an ambulance chaser and any number of other names.
But Ferszt says even though divers with North Metro Fire Rescue have a very difficult job, if they didn't realize Ortiz was still alive inside the car that was flipped upside down, those rescuers were negligent.
“Of course he was thankful because those divers did have a major role to play in saving his life that day,” said Ferszt. “That doesn't negate the fact that a mistake may have been made. I can understand why there's a lot of furor over people thinking that he's biting the hand that feeds. Does that mean that officers of North Metro Fire are above reproach?”
Ferszt says this is just the first step. He said they are also in the process of filing claims with the insurance companies of the two drivers who hit the wash out after Ortiz, pushing his vehicle further into danger.
“All we're doing right now is trying to put all the cards on the table because this is a big liability sandwich,” said Ferszt.
Ortiz realizes his rescue last September was a miracle given the fact he was trapped for two hours.
"'Aren't you just happy to be alive?' asked 7NEWS reporter Russell Haythorn.
“Well, I'm happy. I'm really happy to be alive," said Ortiz. “But I'm looking for some help with my bills."
Ortiz still suffers from shoulder issues and difficulty sleeping. To date, he says he’s racked up $40,000 in medical bills.
"I don't have the money to pay," said Ortiz. He also said he’s already receiving collection notices.
“People react like I am a bad man for filing this,” said Ortiz. “It's not like that. I just tried to defend my rights. My name is being defamed; I've been working for the same company for 17 years, I'm co-pastor of a church in Aurora. People know me. I’ve never caused trouble.”
Ortiz said since news of the suit broke, he has been criticized.
“My situation was taken out of context,” said Ortiz. “(Other members of the media) were attacking me. That makes me feel bad. I’m not trying to take advantage of anybody.”
Ferszt says the suit is primarily about the other drivers involved and the county not closing the road in a timely manner.
"This road was really dangerous to say the least,” he said. “Our thoughts were that the county should have made arrangements to close the road, or at least to mark it - or at least to check it out.”
Ferszt said the rescue is secondary with regard to the potential lawsuit.
“Local media picked up on that and the whole narrative became, ‘Oh - flood victim sues rescuers.’ And that's not even the case at all.
“Well what is the case?” asked Haythorn.
“Well, well let's talk for a second about the divers," said Ferszt. “If divers went into the water in an attempt to locate Roy and they didn't see him there, as dangerous a job that it is -- and we are thankful for first responders, that was a mistake. And the legal term for that mistake is negligence.”
Ferszt said the letter filed only says that it's possible that that negligence may have contributed to the length of time Ortiz spent in the water
“He presented with hypothermia among other things like tissue damage,” said Ferszt.
7NEWS obtained radio calls from the day of the rescue which do indicate emergency personnel thought Ortiz might be gone.
“And this is possibly going to be a multiple fatality,” the first responder is heard commenting on the radio.
“If they would have discerned that he was in that vehicle -- I'm sure there would have been attempts made to extricate him much sooner than there were,” said Ferszt.
Ortiz’s brother, Pedro Ortiz, was on the scene moments after Ortiz’s car plunged into the creek.
“And I'm talking to the rescuers and I say, ‘You're losing time, you gotta do something,’” he said. “They didn’t do anything to try and save his life. I talked to the tow truck guy who talked to the rescuers and he said, ‘two are safe, one has died.’”
“Divers went into the water, and didn't see Mr. Ortiz in the car,” said Ferszt. He said they didn’t see Ortiz for several minutes, perhaps even more than an hour after divers first went in.
Ferszt said rescuers treated it as a salvage situation, not a rescue effort.
“And when they were hooking their tow cables to the car, that's when they heard Roy banging,” said Ferszt.
“But can you see how people are critical of a lawsuit like this?” asked Haythorn.
“People can criticize whatever they want, but the facts are the facts,” said Ferszt. “They admit in reports they didn't know he was there, divers failed to ascertain if he was there.”
“People can’t judge me because they don't know what actually happened and can't pre-judge me on what they've not seen,” said Ortiz. “I believe it's not fair the way they portrayed my story without knowing exactly what happened that day.”
7NEWS talked directly with North Metro Fire Rescue, they did not want to comment.
Ferszt said they don’t plan to seek the full $500,000.
“Obviously, I don't contend that Mr. Ortiz suffered actual damages in the amount of $500,000,” he said. “But governmental immunity notice required you to state a figure.”