Allstate Ins. Co. v. Kidwell, 98-3902.

• Decision Date: 13 October 1999
• Docket Number: No. 98-3902.,98-3902.
• Parties: ALLSTATE INSURANCE COMPANY, Appellant, v. Milissa T. KIDWELL, George R. Kidwell IV, Than Nguyen and Su Minh Huynh, Appellees.
• Court: Florida District Court of Appeals

746 So.2d 1129

ALLSTATE INSURANCE COMPANY, Appellant, v. Milissa T. KIDWELL, George R. Kidwell IV, Than Nguyen and Su Minh Huynh, Appellees.

No. 98-3902.

District Court of Appeal of Florida, Fourth District.

October 13, 1999.

Rehearing Denied December 29, 1999.

Richard A. Sherman of Law Offices of Richard A. Sherman, P.A., Fort Lauderdale, and Keith Bregoff of Law Offices of Lawrence J. Signori, West Palm Beach, for appellant.

Robert V. Romani and Peter Bassaline of Law Office of Farish, Farish & Romani, West Palm Beach, for Appellees-Milissa T. Kidwell and George R. Kidwell IV.

TAYLOR, J.

Allstate Insurance Company appeals the denial of its motion for a new trial following a jury verdict for plaintiffs in this personal injury action arising from an automobile accident. Allstate contends that the trial court erred in excluding photographs and testimony relating to the low impact and lack of vehicle damage in the accident. We agree that this evidence was relevant on the issue of damages and reverse with directions for a new trial on damages. Appellee Milissa Kidwell, the plaintiff below, was exiting I-95 during evening rush hour traffic when her vehicle was struck from behind by Than Thi Nguyen, the defendant below. Although she was wearing a seatbelt and shoulder harness, appellee said the impact was very hard, causing her chest to strike the steering wheel and her knee to hit underneath the steering wheel. The defendant, however, gave a different description of the force of impact. She said that just before the accident, she was completely stopped behind the plaintiffs vehicle on the exit ramp waiting for cars to exit onto Southern Boulevard. While stopped, she felt an itch in her shoe, like an ant bite, and reached down to scratch her foot. Her foot came off the pedal and she slowly rolled into the plaintiffs car, at approximately one mile per hour, and tapped it.

At trial, the defendant admitted liability for the accident but contested the plaintiffs claim for knee injury damages. She contended that the impact was too minimal to cause the severe knee injury claimed by plaintiff. To prove her theory on lack of causation, the defendant attempted to introduce into evidence photographs of the vehicles and testimony showing that there was no damage at all to the plaintiffs car and very slight damage to the defendant's. Plaintiff protested that it was undisputed that she suffered a knee injury and that the prejudicial effect of photographs depicting no vehicle damage would outweigh any probative value. The defendant countered that this impact evidence was highly relevant to her defense that the plaintiffs knee condition was not the result of the accident but was caused by a genetic or pre-existing degenerative condition. The trial court refused to allow admission of the photographs and testimony about the absence of any damage to the vehicles.

It is well-established that the admissibility of photographic evidence is within the broad discretion of the trial court and its ruling will not be disturbed absent a showing of abuse of discretion. Wilson v. State, 436 So.2d 908 (Fla.1983); Reed v. State, 224 So.2d 364 (Fla. 4th DCA 1969); Phillips v. State, 351 So.2d 738 (Fla. 3d DCA 1977). In arguing that exclusion of the photographs of the vehicles in this case constituted an abuse of discretion, Allstate relies on Traud v. Waller, 272 So.2d 19 (Fla. 3d DCA 1973) and Schoeppl v. Okolowitz, 133 So.2d 124 (Fla. 3d DCA 1961). In those cases, the third district held that it was error to exclude photographs of vehicles involved in an accident when the photographs were relevant to an issue in dispute. In Traud, the appellants were riding in an armored truck owned by Wells Fargo when they were struck by the appellee's car at an intersection. Liability was admitted but an issue was raised as to damages. The court held that photographs and testimony relating to the force of impact of the vehicles was relevant evidence as to the extent of injuries sustained by the appellants. Recognizing its departure from the general rule expressed in Barton v. Miami Transit Co., 42 So.2d 849 (Fla.1949) that "evidence of physical conditions surrounding such a collision might be excluded by the trial judge when liability was admitted so that a more speedy and expedient handling of such cases could be accomplished," the third district noted the supreme court's acknowledgment that this rule was not an absolute prohibition of such testimony. The Barton court stated:

It might well be that in the progress of taking testimony it would develop that the plaintiff should be allowed to show some phase of the collision to rebut evidence of the defendant, for instance, as to the force of the impact that resulted in the injuries. Should that occur the trial

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