Cardenas v. Miami-Dade Yellow Cab Co.

• Decision Date: 31 January 1989
• Docket Number: 86-1036 and 86-1164,86-647,MIAMI-DADE,Nos. 86-612,86-774,s. 86-612
• Citation: 538 So.2d 491,14 Fla. L. Weekly 337
• Court: Florida District Court of Appeals
• Parties: 14 Fla. L. Weekly 337 Daniel CARDENAS and Hilda Cardenas, Appellants/Appellees, v.YELLOW CAB COMPANY, Bruns & McKenna, Inc., a/k/a Burns & McKenna, Inc., Home of Yellow Cab Company, Inc., John Jurich, Yvon Jerome, and Liberty Mutual Insurance Company, Appellees/Appellants.

Page 491

538 So.2d 491

14 Fla. L. Weekly 337

Daniel CARDENAS and Hilda Cardenas, Appellants/Appellees, v. MIAMI-DADE YELLOW CAB COMPANY, Bruns & McKenna, Inc., a/k/a Burns & McKenna, Inc., Home of Yellow Cab Company, Inc., John Jurich, Yvon Jerome, and Liberty Mutual Insurance Company, Appellees/Appellants.

Nos. 86-612, 86-647, 86-774, 86-1036 and 86-1164.

District Court of Appeal of Florida Third District.

Jan. 31, 1989.

Bernard Goldfarb, Lawrence & Daniels and Adam H. Lawrence, Miami, for appellants/appellees.

Magill & Lewis and R. Fred Lewis, Kubicki, Bradley, Draper, Gallagher & McGrane; Hoppe & Backmeyer, Miami, for appellees/appellants.

Before SCHWARTZ, C.J. and NESBITT and DANIEL S. PEARSON, JJ.

NESBITT, Judge.

Husband and wife Daniel and Hilda Cardenas were taxi passengers whose claims, based on injuries Daniel sustained when the taxi's wheel rolled over his foot, form the foundation of the series of appeals and cross-appeals consolidated in this suit. We address only those claims of the respective parties which we consider worthy of discussion.

At the conclusion of a family visit to Miami, Hilda Cardenas telephoned Yellow Cab (Miami-Dade Yellow Cab Company; Bruns and McKenna, Inc., a/k/a Burns and McKenna, Inc.; Home of Yellow Cab, Inc.; and Yellow Cab employees John Jurich and Yvon Jerome will be jointly referred to as "Yellow Cab") and requested two taxis to transport the Cardenas family from their condominium to the airport in order that they could take a flight to their home in Venezuela. A stroller, used by the family's son, who suffered from muscular dystrophy, was placed in the rear of one taxi. As the taxis exited the condominium property, the security guard noticed the stroller and mistook it for a pool chair belonging to the condominium. He contacted Yellow Cab's dispatcher, who ordered the cabs to return the chair to the condominium. The taxis stopped on the shoulder of the highway where the drivers established that it was a stroller, not a pool chair. Nonetheless, the drivers decided that they had to obey the dispatcher and return to the condominium security gate. The Cardenas family, including small children, accompanied them under protest rather than be left on the open highway. When the taxis arrived at the security gate, Daniel opened the door of the taxi in which he was riding to exit. As he did, the taxi wheel rolled over his foot, causing severe injury to his ankle and foot. Daniel was taken to the hospital while the rest of the family took other cabs and made the scheduled flight to Venezuela. Daniel and Hilda Cardenas filed suit against Yellow Cab. At the conclusion of a jury trial, Yellow Cab was found guilty of false imprisonment, negligence and breach of contract of carriage.

As will be discussed below, we agree with Yellow Cab's claim that excessive damages for false imprisonment were awarded, and we reverse the judgment as it pertains to that issue with directions to award defendants a new trial. Additionally, we hold that it was error not to submit to the jury the issue of punitive damages on the part of certain defendants. However, as to all other issues raised, we affirm the judgment.

PART I

The Common Carrier's Appeal

We deal first with Yellow Cab's appeal. Various points are raised, all of which we find non-meritorious except for the claim that the damages awarded were excessive. We hold that the compensatory damage award for false imprisonment was excessive. Daniel Cardenas was awarded total net damages of $645,000, the sum requested by plaintiffs' attorney. On the verdict form, the jury indicated that it had apportioned the award forty percent ($258,000) for false imprisonment and sixty percent ($387,000) for negligence. The award was subsequently reduced to $529,000 after deducting the amount of Daniel's comparative negligence.

Concerning the false imprisonment damages, the amount awarded was clearly excessive in that the jury verdict was without a reasonable basis in the record. Bartholf v. Baker, 71 So.2d 480 (Fla.1954); City of Miami v. Graham, 311 So.2d 697 (Fla. 3d DCA 1975), cert. denied, 330 So.2d 17 (Fla.1976). The record demonstrates that the period of false imprisonment, i.e. the time between when the cab first stopped on the highway and when Daniel exited from it at the condominium, lasted approximately ten minutes. While the consequences of the plaintiffs' strongly protested return to the condominium were unfortunate and while the result was ascertainable physical and mental suffering on the part of Daniel, the excessive award of $258,000 in compensatory damages could only have been based on speculation, if not the sympathy, passion and prejudice, which the jury felt for the plaintiff and his family. See Lassitter v. International Union of Operating Eng'rs, 349 So.2d 622, 627 (Fla.1976); Graham, 311 So.2d at 699; see also, Washington County Kennel Club, Inc. v. Edge, 216 So.2d 512, 516-17 (Fla. 1st DCA 1968), cert. dismissed, 225 So.2d 522 (Fla.1969).

On the other hand, with respect to Daniel's claim of negligence for the compound fracture to his ankle and resulting injuries caused by the taxi running over his foot, the $387,000 award was not excessive. At trial, testimony established that as a consequence of the injury, Daniel was left with a six per cent permanent disability of the body and a twenty-five per cent impairment of the injured lower leg. He spent eighteen days in the hospital and his medical bills totalled $41,000 at the time of trial. As a result of the injury, he suffered complications in the healing of the skin covering the injured bones which required two skin grafts. It is probable that Daniel will have to undergo a future operation to remove poorly placed screws which were inserted in the ankle as support. He continues to have pain and limited mobility. There was evidence that an injury of this kind often results in traumatic arthritis in the ankle. In sum, based on the record before us, the negligence award of $387,000 was not excessive. See Erickson v. Liestner, 324 So.2d 208 (Fla. 3d DCA 1975); General Rent-A-Car, Inc. v. Dahlman, 310 So.2d 415 (Fla. 3d DCA 1975).

Accordingly, we affirm the verdict as to negligence damages, but we remand for a new trial on the amount of damages to which Daniel Cardenas is entitled for false imprisonment.

PART II

The Cardenas Appeal

A. Punitive Damages

The other appeal presented in this consolidated case is that of Daniel and Hilda Cardenas. The Cardenases raise various issues by direct appeal and cross-appeal. We find only two merit discussion. The first is their claim that the trial judge erred in not submitting the issue of punitive damages to the jury. The second is the allegation of wrongful dismissal of their claim against the taxi cab company's insurer.

Preliminary to our discussion of punitive damages, we address defendants' claim that the issue was not before the court. While the third amended complaint upon which this case proceeded to trial did not contain a claim for punitive damages, the previous complaints did, and at trial, the judge stated that the parties were on notice of the claim based on the evidence presented at trial. Consequently, it is irrelevant to our discussion whether the trial judge struck the motion to amend the pleadings to add a punitive damage claim or whether he directed a verdict on the claim.

Punitive damages for false imprisonment are appropriate on a proper showing of malice. Detention is malicious if the act causing the wrongful restraint is without reasonable cause. Harris v. Lewis State Bank, 482 So.2d 1378 (Fla. 1st DCA 1986); 24 Fla.Jur.2d False Imprisonment and Malicious Prosecution § 11 (1981). However, in order to recover punitive damages, the defendant's moral turpitude or wanton and outrageous disregard of the plaintiff's rights must be shown. Id. In the case at hand, there was sufficient evidence presented on the issue of punitive damages to raise a jury question as to the personal liability of the individual defendants, taxi driver Yvon Jerome and dispatcher John Jurich. There was testimony that Yvon Jerome was present when the Cardenases' disabled son was removed from the stroller which was mistaken for the pool chair. There was evidence that after stopping on the side of the highway en route to the airport and verifying that the stroller was not, in fact, the property of the condominium complex, Jerome nevertheless insisted on returning to the complex. There was further evidence that dispatcher John Jurich insisted that the taxi and passengers return to the complex even after being informed of the mistake. The sum of this evidence created a question for the trier of fact as to whether these two defendants exercised excessive and reckless disregard of the plaintiff's rights. Accordingly, the question of whether to assess punitive damages against Jerome and Jurich should have been submitted to the jury. See Harris, 482 So.2d at 1385.

On the other hand, the trial judge was correct in not submitting to the jury the question of liability for punitive damages as to the corporate defendants. We hold, as a matter of law, that there did not exist the required independent fault on the part of the employer necessary to impose punitive damages under a theory of derivative or vicarious liability as required by Mercury Motors Express, Inc. v. Smith, 393 So.2d 545 (Fla.1981). Neither was dispatcher Jurich a manager for purposes of corporate liability. See Bankers Multiple Line Ins. Co. v. Farish, 464 So.2d 530, 533 (Fla.1985).

B. The Bad Faith Claim Against the Insurer

Finally, we direct our attention to the Cardenases' allegation of a wrongful dismissal with prejudice of their supplemental amended complaint filed against Liberty Mutual Insurance Company, the liability carrier for the taxi cab company defendants. The complaint alleged that Liberty Mutual had breached its statutory duty under section 624.155(1)(a) and (b), Florida...