Cronin v. Kitler

• Decision Date: 14 February 1986
• Docket Number: 85-1237,Nos. 85-1206,s. 85-1206
• Citation: 485 So.2d 440,11 Fla. L. Weekly 447
• Parties: 11 Fla. L. Weekly 447 Karen Lynne CRONIN, William K. Cronin, IV, Gateway Leasing Corp., State Farm Mutual Automobile Insurance Company, Dean Brangers, Louise Jeffers, Tina Bodiford, Audrey Weeks, B.J. Weeks, Michael A. Weeks and Metropolitan Property and Liability Insurance Company, Appellants/Cross-Appellees, v. Ricky D. KITLER, Appellee/Cross-Appellant.
• Court: Florida District Court of Appeals

Page 440

485 So.2d 440

11 Fla. L. Weekly 447

Karen Lynne CRONIN, William K. Cronin, IV, Gateway Leasing Corp., State Farm Mutual Automobile Insurance Company, Dean Brangers, Louise Jeffers, Tina Bodiford, Audrey Weeks, B.J. Weeks, Michael A. Weeks and Metropolitan Property and Liability Insurance Company, Appellants/Cross-Appellees, v. Ricky D. KITLER, Appellee/Cross-Appellant.

Nos. 85-1206, 85-1237.

District Court of Appeal of Florida Second District.

Feb. 14, 1986.

Rehearing Denied March 27, 1986.

J. Michael McCarthy, Lakeland, for appellants Karen Lynne Cronin, William K. Cronin, IV, Gateway Leasing Corp., Dean Brangers, Louise Jeffers, Tina Bodiford and State Farm Mut. Auto. Ins. Co.

Donna F. Irvin and Robert Santos of Butler, Burnette, Wood & Freemon, Tampa, for appellants Audrey Weeks, B.J. Weeks, Michael A. Weeks, and Metropolitan Property and Liability Ins. Co.

Eugene W. Harris of Smith, Cassidy, Platt & Harris, P.A., Lakeland, for appellee/cross-appellant.

LEHAN, Judge.

Defendants appeal from an order granting a new trial in these automobile accident cases. The order approved a jury finding of no permanent injury to plaintiff and ordered a new trial upon those elements of damages not barred by that finding. We reverse.

The jury verdict form stated that if the jury finds no permanent injury, the verdict must be for defendant. The trial court, apparently referring to section 627.737, Florida Statutes (1983), found that the verdict form was erroneous because, as plaintiff argues on appeal, even though he did not suffer a permanent injury, he may still have sued for damages consisting of benefits not payable by his PIP insurance, i.e., twenty percent of his medical expenses and forty percent of his lost gross income, plus the amounts by which plaintiff's combined medical expenses and lost gross income exceed the PIP policy limits. See McClellan v. Industrial Fire & Casualty Insurance Co., 475 So.2d 1015 (Fla. 4th DCA 1985); Iowa National Mutual Insurance Co. v. Worthy, 447 So.2d 998 (Fla. 5th DCA 1984).

The trial court found that there was fundamental error in the jury's use of that verdict form and that, therefore, the failure of plaintiff's attorney to object to the form did not preclude a new trial. We disagree.

Under these circumstances in reviewing the new trial order we cannot defer to the trial court's discretion as in appellate review of an order which grants a new trial based upon error which was objected to in the trial court. When there is no objection to error in the trial court, the error is reversible under circumstances like this only if it is fundamental error, and whether or not error is fundamental is a question of law.

[I]f the error is complained of as fundamental error, that is a question of law and an appellate court is equally as capable as the trial court of reviewing those errors. Therefore, the weight given the trial court's ruling is not the same as when the ruling is within the broad discretionary power of the trial court.

Wasden v. Seaboard Coast Line Railroad Co., 474 So.2d 825, 830 (Fla. 2d DCA 1984). See also Sears Roebuck & Co. v. Jackson, 433 So.2d...