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Dog Bites: 2 Bites = How Many Occurrences * Knowledge Of Unlicensed Driver Admissible * Expert Cannot Create Issue Of Fact To Defeat MSJ If Testimony Speculative * The Doctrine Of Invited Error
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January 8, 2014
CASE LAW UPDATE
Dear Ladies and Gentlemen:
This month we would like to share with you some recent opinions from the District Courts of Appeal of Florida. We are highlighting specific cases that may be of interest to you.
In Maddox v. Florida Farm Bureau, the Fifth District Court of Appeals reversed the trial court’s summary judgment in favor of an insurance company ruling that the term “occurrence” was ambiguous and thus should be interpreted against its drafter finding that two dog bites causing separate injuries were two separate occurrences under the insurance policy.
In Lopez v. Wink Stucco, the Second District Court of Appeals held that evidence that the driver of a vehicle was unlicensed, in violation of the licensing statute should have been admitted where the requisite causal connection between the injuries and the violation had been established.
In Ramsey v. Home Depot, the First District Court of Appeals affirmed a trial court’s summary judgment order in favor of the premises owner finding that customer had failed to establish that a wheel stop was a dangerous and hazardous condition which required warning by Home Depot. Moreover, the Court found that the customer’s expert affidavit was conclusory and had failed to create a material issue of fact regarding Home Depot’s failure to maintain the premises in a reasonably safe condition.
In Hernandez v. Gonzales, the Fourth District Court of Appeals affirmed the trial court’s denial of Plaintiff’s motion for a new trial finding that the trial court was within its discretion to do so because Plaintiffs failed to move for a directed verdict on issue of their entitlement to emergency and diagnostic medical expenses and submitted issue to jury who returned a verdict of zero. In accordance with doctrine of invited error, Plaintiffs could not use their error to move for new trial on appeal.
I. Maddox v. Florida Farm Bureau, 121 So. 23d 652 (Fla. 5th DCA September 13, 2013).
Facts and Procedural History
Homeowner’s insurance company brought a declaratory-judgment action against its insured and the insured’s girlfriend arguing that the damages claimed by the girlfriend and her son caused by a dog biting them respectively were subject to the same occurrence limit of $100,000 claiming that the two separate dog bites constituted one occurrence under the insurance policy.
The insurance policy provided as follows:
All “bodily injury” and “property damage” resulting from any one accident or from continuous or repeated exposure to substantially the same general harmful conditions shall be considered to be the result of one “occurrence”
The policy contained the following relevant definition:
“Occurrence” means an accident, including continuous or repeated exposure to substantially the same general harmful conditions, which results, during the policy period, in:
a. “Bodily injury”; or
b. “Property damage.”
The trial court granted summary judgment in favor of the insurer and the Plaintiff appealed asserting that the dog biting her son and the dog biting her were separate occurrences under the Policy.
Appellate Court Decision
The Fifth District Court of Appeal explained that in the absence of explicit policy language, Florida courts follow the “cause theory” which looks to the cause of a party’s injuries to determine the number of “occurrences” under an insurance policy. Quoting American Indem. Co., v. McQuaig, 435 So.2d 414 (Fla. 5th DCA 1983) the Court noted that the inquiry is “whether there was but one proximate, uninterrupted, and continuing cause which resulted in all of the injuries and damages.”
The Court held that the cause of the injuries were the dog bites and the bite that caused injuries to the Plaintiff was not the same bite that caused injuries to her son and thus each bite was a separate occurrence. The Court acknowledged that it was reasonable to construe occurrence as the entire dog attack or as each separate dog bite and thus the ambiguity would be resolved against the insurer.
II. Lopez v. Wink Stucco, 124 So. 3d 281 (Fla. 2nd DCA September 18, 2013) reh’g denied (Nov. 4, 2013).
Facts and Procedural History
This matter arose out of a motor vehicle accident involving a cement cargo van and a sedan. As a result of the motor vehicle accident, the female passenger of the sedan died. The driver of the sedan was the decedent’s 18 year-old nephew. At trial against the cement company and the decedent’s nephew on the issue of liability, the estate sought to introduce evidence that the 18-year old driver had never obtained a driver’s license. After the return of a defense verdict, the estate appealed and the judgment was affirmed. However, the Second District Court of Appeal in its opinion addressed the admissibility of the evidence that the driver was unlicensed at the time of the accident.
Appellate Court Decision
The Court explained that the admissibility of evidence of a violation of a licensing statute is a question of law that turns on whether the evidence is relevant to the facts of the particular case and whether there is a causal connection between the violation and the injuries sustained. The driver’s competence and experience must be placed at issue in the case in order to establish the necessary causal connection.
At trial, the cement company’s theory of defense had been that the driver had insufficient experience to safely calculate whether he had enough time to make a left turn in front of the cement cargo van. The Court held that the evidence of the violation of the licensing statute should have been admitted. Although there were issues of fact, the cement company’s theory of defense had established the requisite causal connection to support the admission of the evidence that the driver was an unlicensed driver.
III. Ramsey v. Home Depot, 124 So. 3d 415 (Fla. 1st DCA October 25, 2013).
FACTS, PROCEDURAL History
A customer brought a premises liability action against Home Depot to recover for injuries sustained when she tripped over a wheel stop in the store’s parking lot. The customer alleged that the wheel stop was a dangerous and hazardous condition, which Home Depot had a duty to warn her about. In addition, the customer alleged that Home Depot had a duty to exercise reasonable care to maintain the premises in a reasonably safe condition.
Home Depot moved for summary judgment arguing that the wheel stop was an open and obvious condition, which it had no duty to warn the customer about and there were no disputed issues of material fact regarding Home Depot’s maintenance of the premises in a reasonably safe condition.
The trial court agreed that the wheel stop was an open and obvious condition as it was in the center of the parking space and was clearly visible presenting no unreasonable risks. Moreover, the trial court found that there were no allegations that the wheel stop or the parking space were not properly maintained or that either suffered from design defects.
In support of its Motion, Home Depot submitted an affidavit of an expert who opined that the parking space met the requirements of the ADA, the building codes and the land development code. The customer submitted the affidavit of an expert which stated that Home Depot could have used a shorter wheel stop to eliminate the risk of tripping.
The customer argued that her expert’s affidavit created a factual dispute. The trial court granted summary judgment in favor of Home Depot finding that the expert’s statements concerning alternate parking lot designs were insufficient to create a genuine issue of material fact that Home Duty had a duty to conform to the alternate designs.
Appellate Court Decision
On Appeal, the First District Court of Appeal affirmed the trial court’s grant of summary judgment reasoning that the customer had failed to establish that Home Depot had a duty to warn her of an open and obvious condition. The Appellate court also found that the customer expert’s affidavit which attested only to his personal preferences and not to requirements of law, code, regulation or industry standards contained conclusory allegations that were insufficient to create a disputed issue of material fact as to whether Home Depot had maintained the premises in a reasonably safe condition.
IV. Hernandez v. Gonzales, 124 So. 3d 988 (Fla. 4th DCA October 30, 2013).
Occupants of a vehicle which was rear ended by another vehicle in a motor vehicle accident brought a personal injury action against the driver and owner of vehicle. At trial the Defendants admitted negligence but disputed both causation and damages. The Defendants presented evidence that one of the Plaintiffs had a history of significant pre-existing injuries causing the medical treatment and medical expenses incurred. Defendants also presented evidence that one of the Plaintiffs had been seen laughing and giggling at the hospital. Despite the fact that the Defendants had not disputed the reasonableness of the medical expenses or that they had been incurred as a result of the accident, neither Plaintiff moved for a directed verdict on their entitlement to the medical expenses. The verdict form agreed to by all parties and submitted to the jury included the following question:
Was the negligence on the part of . . . the driver of the vehicle . . . a legal cause of loss, injury, or damage to the Plaintiff[s] . . .?
During closing arguments each attorney argued that if the jury found that the Plaintiffs were not injured from the accident they should check no as the answer to the above question on the verdict form.
Counsel for the Plaintiffs argued to the jury that if it did not believe the Plaintiffs, it should not return a verdict in their favor at all. Thus, the attorney failed to argue that despite a verdict in favor of the Defense, the Plaintiffs would be entitled to recover expenses incurred for medical examinations and diagnostic testing reasonably necessary to determine whether the subject accident caused their injuries.
At trial the jury returned a verdict of zero damages against both Plaintiffs finding that the Defendants’ negligence was not the legal cause of loss, injury or damage to the Plaintiffs. The Plaintiffs filed motions for new trial arguing that the verdict was against the manifest weight of the evidence. The trial court denied their motions for new trial and they appealed.
Appellate Court Decision
The Fourth District Court of Appeal began by noting that the standard of review applied to a court’s denial of a motion for new trial is abuse of discretion. The Appellate Court ruled that the trial court was within its discretion given the Plaintiff’s failure to move for a directed verdict on the issue of their entitlement to the medical expenses and due to the Plaintiff’s attorney statement to the jury.
The Appellate court noted that even though medical expenses for emergency treatment and diagnostic treatment are generally recoverable, the verdict was not against the manifest weight of the evidence as the jury did exactly what it was instructed to do. Under the rule of “invited error” a party cannot invite error at trial and then use the error on appeal to seek relief. Thus, by allowing the jury to decide the issue of liability for all damages rather than moving for a directed verdict, the Plaintiffs could not claim error because the jury returned a zero verdict.
We hope you find the above cases helpful and insightful. Should you have any questions with respect to the foregoing, please do not hesitate to contact the undersigned at your earliest convenience.
Very truly yours,