Flamingo Oil Co. v. Veloz, 98-2258.

• Decision Date: 15 December 1999
• Docket Number: No. 98-2258.,98-2258.
• Citation: 748 So.2d 346
• Parties: FLAMINGO OIL COMPANY, Appellant, v. Jesus VELOZ and Sol Veloz, his wife, Appellee.
• Court: Florida District Court of Appeals

748 So.2d 346

FLAMINGO OIL COMPANY, Appellant, v. Jesus VELOZ and Sol Veloz, his wife, Appellee.

No. 98-2258.

District Court of Appeal of Florida, Third District.

December 15, 1999.

Holland & Knight and Daniel S. Pearson and Ilene L. Pabian, Miami, for appellant.

Ginsberg & Schwartz and Arnold Ginsberg, Miami; Levine & Finger and David Finger, Miami, for appellees.

Before NESBITT, GODERICH, and SORONDO, JJ.

NESBITT, J.

In March 1993, Jesus Veloz was repairing an automobile transmission at Bird Road Mazda (Bird Mazda) when the lift he was working under dropped two feet and injured him. Veloz alleged that on several occasions before the accident, he had complained to his employer about his lift "jumping up," or jerking when it was in the raised position. Flamingo Oil Company serviced the equipment at Bird Mazda on a regular basis. Upon being called by Bird Mazda, Flamingo's technician had inspected the lift, diagnosed that its seals were leaking oil, and told Bird Mazda that the seals needed to be replaced. The Flamingo technician had noted on a work order submitted to Bird Mazda that "all seals on Weaver twin post [including Veloz's lift] need resealing" and listed a cost estimate of $300 next to this notation. On a subsequent visit, the Flamingo technician added oil to the lift. Flamingo maintained it could do no more without Bird Mazda's permission. Veloz also alleged that the Flamingo technician had misrepresented that the lift was "done," which Veloz interpreted as an assurance the lift was safe to work under.

After his injury, Veloz sued Bird Mazda and Flamingo, arguing theories of negligent failure to repair, negligent failure to warn, and negligent misrepresentation against Flamingo. Flamingo's position was that it could not make any repairs without Bird Mazda's approval, and that any statement that the lift was done simply meant that the technician had done all that he had been authorized to do. In its defense, Bird Mazda maintained that Flamingo had the authority to make whatever repairs were necessary. The case was tried to a jury. At the end of the four-day trial, Flamingo filed a motion for a directed verdict on Veloz's three negligence claims. The trial court granted the motion as to negligent failure to warn, and allowed the two other claims to go to the jury. The jury was instructed to apportion fault, if any, between Flamingo, Bird Mazda, and Veloz.

During closing arguments, Veloz's counsel informed the jury that Flamingo's responsibility for damages would depend solely on the jury's fault allocation. Flamingo's counsel told the jury that this was a blatant misstatement of Florida law. Addressing economic damages sought, Flamingo's counsel informed the jury:

If Flamingo Oil is found one percent liable, one percent, they are responsible for every single penny of that. They will have to pay every penny.

On rebuttal, Veloz's counsel, stated:

And let me just say this: Let me say this in deference to Mr. Burd.[Flamingo's counsel] He's right about one thing, the percentages that you're going to award apply only to the economic damages.

If you apportion the numbers between Bird Road Mazda and Flamingo, that will apply, those percentages, only to these numbers.

The pain and suffering numbers that I asked you all about on the other page, the $250,000—two million dollars, I suggested those are not apportioned and he's right about that. I misled you. I apologize.

Forty five minutes after the jury retired they asked:

We're confused about question # 1. We have to say yes to answer any further questions. If we say yes is Flamingo Oil the only one responsible or are they held responsible as in question # 4 as to the %. Mr. Bird [sic] said that if they are found 1% guilty they are required to pay it all!¹

Thereafter ensued lengthy discussion between the court and counsel about how to appropriately clarify the legal effect of the jury's negligence apportionment and explain the doctrine of joint and several liability with regard to economic damages. At that point, Veloz's counsel requested that the court instruct the jury that "everything gets apportioned" according to fault. The trial court chose Veloz's explanation, concluding "I'm going to tell the jury all damages awarded are apportioned according to percentage attributable to each entity, period." When Flamingo's counsel objected, the court responded that "if you're so sure of your position, your position as indeed as I am, this is what makes reversible error. You now have an insurance policy. You hear what I'm giving him. I'm giving him an insurance policy for revers[al]²."

When the jurors returned to the courtroom, the judge informed the jury:

with respect to your question or questions, here is my answer: And I, as the Judge, tell you this to be the law. And again that's to take it—it in conjunction with what the lawyers told you because the law does take unusual turns under different

...