Cross v. Pumpco, Inc., 4D03-3793.

• Decision Date: 14 September 2005
• Docket Number: No. 4D03-3793.,4D03-3793.
• Citation: 910 So.2d 324
• Parties: Willie CROSS, Appellant, v. PUMPCO, INC., a foreign corporation, and Tarmac America, LLC, a foreign corporation, Appellees.
• Court: Florida Supreme Court

910 So.2d 324

Willie CROSS, Appellant, v. PUMPCO, INC., a foreign corporation, and Tarmac America, LLC, a foreign corporation, Appellees.

No. 4D03-3793.

District Court of Appeal of Florida, Fourth District.

September 14, 2005.

Kimberly L. Boldt of the Boldt Law Firm, Boca Raton, for appellant.

Scott A. Mager and Elaine J. LaFlamme of the Mager Law Group, Fort Lauderdale, and George L. Fernandez of Wolpe, Leibowitz, Alvarez & Fernandez, Miami, for appellee Pumpco, Inc.

Kenneth P. Carman of Carman, Beauchamp & Sang, P.A., Boca Raton, for appellee Tarmac America.

SHAHOOD, J.

In dismissing appellant's complaint with prejudice based on fraud on the court, the trial court found that appellant misrepresented, during discovery, the nature of his injuries to his neck and shoulder from a prior accident and that he failed to disclose a 1995 accident. We hold that the trial court abused its discretion and remand with directions that appellant's complaint be reinstated.

Facts

In July 2002, appellant filed a two-count complaint against appellees, Pumpco, Inc. and Tarmac America, LLC (Tarmac) for injuries sustained in 1999 at a construction site where appellant was working. Appellant alleged that when a concrete pump exploded, he was struck by concrete mixture which rendered him unconscious and caused severe bodily injuries. Appellant claimed that he sustained injuries to the left side of his neck and shoulder, lower back, left knee, right hand, right ring and middle fingers, and two broken teeth.

In interrogatories propounded upon appellant, appellant was asked whether he suffered from any "physical infirmity, disability, or sickness at the time of the incident," to which appellant replied "left knee injury." He was also asked to describe "each injury for which you are claiming damages" and any "injuries you contend are permanent," to which appellant responded "left shoulder, neck, lower back, left knee, right ring and middle finger — permanent pain." Appellant was asked to list the names and addresses of "all other physicians, medical facilities, or other healthcare providers" by whom he had been examined or treated within the past ten years and state the date and condition of injury. Appellant responded: "Paul Jacobson primary physician — general treatment, dates unknown, North Miami Beach; North Shore Hospital — 1995 for electrical burn; other doctors that I don't remember." Appellant also stated that he had not been the party to another lawsuit.

In his December 2002 deposition, Cross was questioned about prior accidents and injuries. He identified four prior accidents: (1) a 1983 automobile accident resulting in minor injuries to the right side of his back; (2) a 1991 slip and fall accident at the Miami International Airport involving "bruised back muscles (a workers' compensation claim was filed);" (3) a 1991-92 automobile accident involving "minor little back problems;" and (4) a 1995 electrical accident involving a left knee injury. For the 1991-92 accident, Cross stated that he was treated by chiropractor Marshall Bronstein for about three months. Cross also stated that he treated with Dr. Bronstein for the 1983 accident as well.

When asked whether there were any other accidents or injuries unrelated to the accident at issue, appellant replied: "I can't think of one now." Appellant also stated that Dr. Jacobson had been his primary physician for the past four years. When asked whether he had any prior problems with his neck and shoulder, appellant stated "never."

Following his deposition, appellees subpoenaed Dr. Bronstein's records. In a report, Dr. Bronstein stated that he treated appellant for injuries sustained in an accident occurring in 1995. At that time, appellant complained of pain in his neck, left shoulder, low back and groin. As past medical history, Dr. Bronstein noted appellant's 1995 electrocution accident, the 1991-92 accident and a 1991 accident. For the 1991 slip and fall accident, appellant stated that he was treated by Dr. Chase and that the injuries resolved with no permanent injury. For the 1995 accident, appellant treated with Dr. Bronstein for six months. As a final prognosis, Dr. Bronstein indicated that appellant suffered a permanent impairment as a result of the accident and that the accident caused damage to his cervical spine and lumbosacral spine as well as pain in his left upper extremity.

Dr. Chase's records confirmed that appellant was treated once for the 1991 slip and fall accident and once for the 1992 automobile accident. Dr. Chase's medical records indicated an injury to appellant's left shoulder.

As a result of appellant's responses to interrogatories and the medical records obtained, appellees moved to dismiss appellant's complaint on the grounds that appellant intentionally withheld information about the 1995 accident, the nature of his prior accidents, and the medical treatment he received.

In particular, appellees alleged that while appellant acknowledged a 1992 automobile accident, he failed to state he was treated by Dr. Chase and failed to state his injury. Further, appellees alleged that the injuries sustained by appellant in the 1995 accident were the same injuries for which he was seeking redress in the instant case.

Appellant filed an affidavit in opposition claiming that he neither misrepresented any factual statements nor committed a fraud on the court. He stated that he admitted to four prior accidents and that he treated with Dr. Bronstein for the 1992 accident. He claimed that he had since been informed that the subpoenaed records showed that the accident occurred in 1995. He then stated:

7. I was in no way trying to deceive the court or defense counsel as to when the most recent prior accident took place. I answered to the best of my ability and memory.

8. When asked if I had injured my neck or shoulder area previous to this case, I answered, "no."

9. The question was submitted as a part of a string of questions involving injuries to body parts.

10. After reviewing prior medical records, which were not in my possession while completing my answers to Interrogatories, I realize that I was in fact treated for my neck and left shoulder as a result of the automobile accidents that occurred in the early and mid nineteen nineties. Further, I was not in pain or disabled in any way or sick in the immediate time period before this accident, except for my left knee.

11. At no time was I intentionally trying to hide this information.

12. When asked if I was suffering from physical infirmity, disability or sickness at the time of this accident I answered no except as to my left knee.

13. Again, that answer was truthful and not meant to deceive. I was not in pain or disabled in any way or sick in the immediate time period before this accident, except for my left knee.

Following the hearing on the motion to dismiss, the trial court granted the motion to dismiss.

Analysis

Appellant argues that he did not intentionally withhold information from the defense, but rather, was confused as to the...