Bueno v. Workman

• Decision Date: 28 October 2009
• Docket Number: No. 4D08-2838.,4D08-2838.
• Parties: Claudia BUENO, Appellant, v. Ilene WORKMAN, Appellee.
• Court: Florida District Court of Appeals

20 So.3d 993 Claudia BUENO, Appellant,
v.
Ilene WORKMAN, Appellee. No. 4D08-2838. District Court of Appeal of Florida, Fourth District. October 28, 2009.

[20 So.3d 995]

Diana L. Martin of Leopold~Kuvin, P.A., Palm Beach Gardens, and Joseph C. Schulz of Vastola, Schulz, Harvey & Crane, North Palm Beach, for appellant.

Julie A. Taylor of Julie A. Taylor & Associates, Fort Lauderdale, and Elizabeth Russo of Russo Appellate Firm, P.A., Miami, for appellee.

GERBER, J.

The circuit court dismissed the plaintiff's motor vehicle negligence action against the defendant. The court based its dismissal on the theories of estoppel, waiver, and election of remedies. Because the record does not support those theories, we reverse.

The plaintiff stopped her vehicle at an intersection, waiting for an ambulance to pass. Her minor son sat in the front passenger seat. The defendant's vehicle then rear-ended the plaintiff's vehicle. The police aide who investigated the accident reported that both the defendant and the plaintiff said that a third vehicle rear-ended the defendant's vehicle, which then rear-ended the plaintiff's vehicle, and that the third vehicle left the scene. The police aide indicated he asked the parties whether they were okay, and they replied that they were.

Six days after the accident, the plaintiff requested the police aide to revise his report because it did not mention that her son sat in the front passenger seat. The plaintiff did not ask the police aide to

20 So.3d 996

revise the report's reference to a third vehicle.

Seven months after the accident, the plaintiff's attorney sent the defendant's insurer a letter seeking injury compensation from the defendant's $100,000 liability policy. The letter stated:

Our theory of liability is that [the defendant] rear ended [the plaintiff] and her son while [the plaintiff] was waiting for an ambulance to cross the intersection. Please be aware that [the plaintiff] speaks English as a second language. The investigating officer did not interrogate [the plaintiff] and got all of the information about the alleged phantom vehicle from [the defendant]. [The plaintiff] never took the position that there was a phantom vehicle. As you probably know, police reports are inadmissible.

It is undisputed that [the defendant's] vehicle slammed into the rear of [the plaintiff]. It appears very unlikely that another vehicle could have slammed into [the defendant] with enough velocity to also force [the defendant] into [the plaintiff] and then still have a drivable vehicle to make a speedy `getaway'. There are no disinterested witnesses to support this `phantom vehicle' theory. As such, it appears that the presumption of negligence of [the defendant] for rear ending [the plaintiff] cannot be overcome. It is also curious that although [the defendant] claims a phantom vehicle collided with her vehicle, she apparently could not identify the vehicle in any way to the officer, i.e., make, color, model.

When the defendant's insurer did not settle, the plaintiff sued the defendant. The complaint alleged that the defendant negligently operated her vehicle so that it collided with the plaintiff's vehicle, causing damages to the plaintiff and her son. One of the defendant's affirmative defenses was that any damages were the result of third party negligence. During the suit's discovery phase, the plaintiff maintained that no third vehicle was involved in the accident.

While the plaintiff was pursuing the defendant, the plaintiff's attorney sent the plaintiff's uninsured motorist (UM) carrier a letter seeking injury compensation under the plaintiff's $30,000 UM policy. That letter stated, in pertinent part:

An unidentified driver ... slammed into ... [the defendant] forcing a collision between [the defendant] and [the plaintiff]. The driver then sped away. Clearly, [the plaintiff] has no liability whatsoever for this accident and therefore is entitled to her uninsured motorist benefits.

In response, the plaintiff's UM carrier paid the $30,000 policy limit for the plaintiff's injuries, and $5,000 for her son's injuries.

After the defendant discovered the UM letter and payment, the defendant filed a motion to dismiss for fraud on the court. The defendant relied on the conflicting letters which the plaintiff's attorney sent to the defendant's insurer and the plaintiff's UM carrier. The plaintiff responded with an affidavit alleging: (1) there was no phantom vehicle which left the accident; (2) she did not speak to the police aide at the scene; (3) the police aide used the defendant's version of the accident when completing the report; and (4) she did not understand the report's reference to a third vehicle because English was her second language. The plaintiff further stated that, since the accident, she has maintained she never saw a third vehicle leave the scene.

One week before the hearing on the defendant's fraud motion, the...