State Farm Mut. Auto. Ins. Co. v. Penland, 94-0950

Decision Date06 December 1995
Docket NumberNo. 94-0950,94-0950
Citation668 So.2d 200
Parties20 Fla. L. Weekly D2653 STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Appellant, v. Tracy PENLAND, Appellee.
CourtFlorida District Court of Appeals

Appeal from the Circuit Court for Palm Beach County; James R. Stewart, Jr., Judge.

Richard A. Sherman and Rosemary B. Wilder of Law Offices of Richard A. Sherman, P.A., Fort Lauderdale, and Henry A. Seiden of Henry A. Seiden, P.A., Boca Raton, for appellant.

Peter M. Bassaline and Robert V. Romani of Farish, Farish & Romani, West Palm Beach, for appellee.

POLEN, Judge.

The appellee Tracy Penland sued the Culhanes and her own underinsured motorist insurance company (State Farm, the appellant), as a result of permanent injuries she allegedly sustained in a motor vehicle accident, when she was a passenger in a vehicle driven by Kristen Culhane. The trial court granted partial summary judgment in favor of Penland on State Farm's seat belt defense and the case proceeded to trial. The case was submitted to the jury with only one question appearing on the verdict form essentially asking the jury to determine whether Kristen Culhane or some unknown third party was negligent in driving the car, and whether the negligence was the legal cause of Penland's injuries. The jury responded to the question in the negative, thus finding in favor of State Farm. However, the trial court granted a new trial as it found that it was error to allow State Farm's kinetics expert, Miles Moss, to testify as to the movement of the occupants of the vehicle, as that was a matter within the common knowledge of the jury. State Farm appeals that determination, as well as the denial of its motion for disqualification of the trial judge, and the granting of summary judgment on its seat belt defense. We affirm the granting of the new trial and the denial of the motion for disqualification. However, we reverse the order granting the summary judgment on the seat belt defense.

The following quote from the order granting motion for new trial forms the basis for the trial court's decision to grant the motion:

During the trial of this proceeding the court permitted defense witness, MILES ELLIOT MOSS, to give opinion testimony as a Transportation Consulting Engineer. He informed the jury that based upon scientific engineering principles, and the examination of physical forces, he was able to determine the Plaintiff's probable location in the automobile at the time of the accident in question. Over objection, he did render such an opinion and placed the Plaintiff in the driver's seat (although he had previously given a sworn opinion that she occupied the front passenger's seat) based not upon an examination of physical forces but upon: (1) where the steering wheel is located in the automobile; (2) where a spider web crack was located on the windshield of the automobile. (3) The nature of the respective injuries of the occupants of the front seats.

The court has examined the testimony in detail and now recognizes it committed prejudicial error in permitting opinion testimony as to matters which were well within the common knowledge of jurors. See sponsors notes--F.S. 90.702

Although we may not have granted a new trial on this basis had we been the trial judge, due to the wide discretion afforded the trial court in making such a determination, we are not prepared to say that he abused his discretion in this regard. See Nicaise v. Gagnon, 597 So.2d 305 (Fla. 4th DCA), rev. denied, 604 So.2d 487 (Fla.1992) (trial court has broad discretion in determining whether to grant a new trial and its decision to do so on appeal will not be reversed absent a clear showing of abuse of discretion); Ford Motor Co. v. Kikis, 401 So.2d 1341 (Fla.1981) (if reasonable men could differ as to propriety of action taken by trial court in granting a motion for new trial, then there is no abuse of discretion).

The trial court was correct in its determination that the opinion of an expert should be excluded where facts testified to are of a kind that do not require any special knowledge or experience in order to form a conclusion, or are of such a character that they should be presumed to be within the common experience of all persons moving in the ordinary walks of life. Mills v. Redwing Carriers, Inc., 127 So.2d 453 (Fla. 2d DCA 1961). Based on this rule, it was perfectly reasonable for the trial court to conclude after listening to the witness testify that the facts upon which the expert's conclusion that Ms. Penland was driving the vehicle were based, were within the common knowledge of the jurors. The record does reveal that in spite of Moss's limited testimony as to the movement of the occupants in the vehicle, his actual determination that Ms. Penland was driving was based on where the steering wheel was located, where the spider web crack was located and the nature of the injuries to the two occupants. Specifically, Moss testified that one would expect to see facial lacerations from a spider web crack which was on the passenger side of the windshield. (It was Kristen and not Tracy who had the facial lacerations.) He also testified that Tracy's injuries (left knee and hip) were consistent with her coming in contact with the steering wheel which was deformed. He further testified that there is nothing on the passenger side of the vehicle to come directly in contact with a hip. He also explained that Tracy's left forehead bruise and black eye are consistent with her hitting the metal apell on the driver's side. These deductions were not based on the movement in the vehicle but the location of certain parts of the vehicle. As these are matters which the jury could have used their common sense to infer, we are not prepared to say that the granting of a new trial on this basis was a clear abuse of discretion. It is not absolutely clear whether the jury would have made these same deductions, but the trial court, which had an opportunity to listen to the expert and sit through the trial, was in a better position to make that determination.

The trial court also is afforded wide discretion in determining the admissibility of an expert's testimony, which further supports our reluctance to reverse. State v. Townsend, 635 So.2d 949 (1994). The fact that juries often give much credence to an expert's testimony and opinion also supports the trial court's exercise of discretion in this regard. See Florida Power Corp. v. Barron, 481 So.2d 1309, 1310 (Fla. 2d DCA), rev. dismissed, 488 So.2d 829 (Fla.1986) (recognizing that the importance and validity of the testimony of an expert witness are increased in the minds of the jury; thus allowing an expert to testify to matters of common understanding creates the possibility that the jury will forego independent analysis of the facts when it does not need assistance in making the analysis). Thus, as we conclude that reasonable persons could at least differ as to the propriety of the trial court's action in this regard, we affirm the trial court's decision to grant a new trial. In so holding, we are not precluding the trial court from allowing other testimony from Mr. Moss (or any other expert) on matters that are not within the jurors' common understanding.

We further note that we are unpersuaded by State Farm's reliance on Becker v. Williams, 652 So.2d 1182 (Fla. 4th DCA 1995), which it contends stands for the proposition that the trial court should only grant a new trial when the verdict is clearly, obviously and indisputably wrong. This language was used in Becker as the trial court granted a new trial because it concluded that the jury verdict was against the manifest weight of the evidence. This language has no application to the case at bar, where the trial court granted a new trial based on its determination that a witness should not have been allowed to testify. Thus, our decision to affirm the granting of the new trial remains unchanged by this supplemental authority provided by State Farm.

State Farm also argues that an appellate court cannot reverse a jury's verdict when the form does not list the theory upon which the jury reached its...

To continue reading

Request your trial
9 cases
  • St. John v. Coisman
    • United States
    • Florida District Court of Appeals
    • November 16, 2001
    ...section 768.73, remand is generally required so that the trial court may apply the correct statute. See State Farm Mut. Auto. Ins. Co. v. Penland, 668 So.2d 200, 205 (Fla. 4th DCA 1995). However, the 1993 version of section 768.73 does not apply to the instant case either because, unlike th......
  • Bergman v. United Services Auto. Ass'n
    • United States
    • Pennsylvania Superior Court
    • December 6, 1999
    ...of knowledge or experience on the subject, is incapable of drawing correct conclusions from the facts); State Farm Mut. Auto. Ins. Co. v. Penland, 668 So.2d 200 (Fla.Dist.Ct.App.1995), review denied, 677 So.2d 841 (Fla.1996) (emphasizing that expert testimony should be excluded where facts ......
  • Claire's Boutiques, Inc. v. Locastro ex rel. Locastro
    • United States
    • Florida District Court of Appeals
    • April 25, 2012
    ...are, in many cases, capable of reaching a conclusion, without the aid of expert testimony . . . ."); State Farm Mut. Auto. Ins. Co. v. Penland, 668 So. 2d 200, 202-03 (Fla. 4th DCA 1995) ("[T]he opinion of an expert should be excluded where facts testified to are of a kind that do not requi......
  • Claire's Boutiques Inc. v. Locastro
    • United States
    • Florida District Court of Appeals
    • May 11, 2011
    ...are, in many cases, capable of reaching a conclusion, without the aid of expert testimony...."); State Farm Mut. Auto. Ins. Co. v. Penland, 668 So. 2d 200, 202-03 (Fla. 4th DCA 1995) ("[T]he opinion of an expert should be excluded where facts testified to are of a kind that do not require a......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT