Florida Crushed Stone Co. v. Johnson

• Decision Date: 29 June 1989
• Docket Number: No. 88-1266,88-1266
• Citation: 546 So.2d 1102,14 Fla. L. Weekly 1554
• Parties: 14 Fla. L. Weekly 1554 FLORIDA CRUSHED STONE COMPANY, Appellant, v. Paulette Andrea JOHNSON, etc., et al., Appellees.
• Court: Florida District Court of Appeals

Page 1102

546 So.2d 1102

14 Fla. L. Weekly 1554

FLORIDA CRUSHED STONE COMPANY, Appellant, v. Paulette Andrea JOHNSON, etc., et al., Appellees.

No. 88-1266.

District Court of Appeal of Florida,

Fifth District.

June 29, 1989.

Rehearing Denied Aug. 2, 1989.

Robert E. Austin, Jr. and L. Hunter Limbaugh of Austin, Lawrence & Landis, Leesburg, for appellant.

Lamar D. Oxford of Dean, Ringers, Morgan & Lawton, Orlando, for appellees.

DANIEL, Judge.

Florida Crushed Stone appeals a final judgment in favor of Paulette Johnson, as personal representative of the estate of Brian Johnson, in a wrongful death action. We affirm the jury's finding of comparative liability but reverse and remand for a new trial solely on the issue of damages.

In 1985, Paulette Johnson, as personal representative of the estate of her late husband Brian Johnson, filed a wrongful death action against Florida Crushed Stone and other defendants. Mrs. Johnson sought damages to the estate, to herself as the surviving spouse and to the two Johnson children, Shemay and Chad.

The evidence at trial established that in 1984, Randy Belk drove his semi-tractor to a mine operated and owned by Florida Crushed Stone. Belk realized that he was at the wrong location and he hurriedly attempted to leave. In so doing, his semi-tractor collided with a tractor trailer owned by Brian Johnson, causing it to roll backwards over Brian crushing him to death.

The jury returned a verdict finding Florida Crushed Stone 95% negligent and Brian Johnson 5% negligent. The jury awarded damages in the amount of $700,000 to the estate, $300,000 to Paulette Johnson, $100,000 to Shemay Johnson and $100,000 to Chad Johnson. The total amount of damages was reduced by 5% for Brian's comparative negligence and by $750,000 previously received by the plaintiffs in a settlement. Final judgment in the amount of $390,000 was entered in favor of Mrs. Johnson, as personal representative of the estate.

On appeal, Florida Crushed Stone contends that the jury award of $700,000 to the estate of Brian Johnson was clearly excessive and not supported by the evidence and accordingly the trial court erred in denying its motion for remittitur or new trial. The test to be applied in determining the adequacy of a verdict is whether a jury of reasonable people could have returned that verdict. Griffis v. Hill, 230 So.2d 143 (Fla.1969). "The appellate court must be ever alert against the temptation to substitute its 'verdict' for that of the jury. On the other hand, we must not refuse to act to relieve the injustice of either a grossly inadequate or excessive verdict." 230 So.2d at 145. See also Lassiter v. International Union of Operating Engineers, 349 So.2d 622 (Fla.1976).

Under the wrongful death act, there are only three elements of recoverable damages for an estate: 1) loss of earnings, 2) loss of net accumulations, and 3) funeral expenses. See § 768.21, Fla.Stat. (1987); Bruce v. Byer, 423 So.2d 413 (Fla. 5th DCA 1982). The wrongful death act contemplates that the damages allowed the estate are separate and distinct from the damages recoverable by the deceased's survivors. South Shore Hospital v. Easton, 441 So.2d 161 (Fla. 3d DCA 1983). Loss of support damages are not part of an award to a decedent's estate. Salazar v. Santos (Harry) & Company, Inc., 537 So.2d 1048 (Fla. 3d DCA 1989).

In the present case, the decedent was 36 years old, married and had two teenage children. Just prior to his death, the decedent worked as a truck driver and earned approximately $18,000 annually. Before moving to Florida, the decedent had his own business and was earning some $30,000 to $35,000 annually. The decedent's death occurred at or soon after the accident and thus there were no lost earnings recoverable by the estate. The funeral expenses were estimated by Mrs. Johnson to be about $5,000. Thus the estate recovered $695,000 for loss of prospective net accumulations.

At the trial, plaintiffs' expert witness, Dr. Frederick Raffa, testified concerning the economic damage to the estate and to the Johnsons. Based on employment history records, information supplied by the Johnsons, the decedent's life expectancy, and average rates of income increases, Dr. Raffa testified that the future value of the loss of support to Mrs. Johnson was $492,685, the future value of the loss of support to Chad Johnson was $49,855 and the future value of the loss of support to Shemay Johnson was $35,211. Dr. Raffa also testified that the future value of the loss of net accumulations to the estate was $323,672 and that the loss of services to the survivors was $210,524 (based on the decedent supplying seven hours per week on household services) to $421,048 (based on the...