Geico Gen. Ins. Co. v. Dixon

Decision Date04 January 2017
Docket NumberNo. 3D13–3005,3D13–3005
Citation209 So.3d 77
Parties GEICO GENERAL INSURANCE COMPANY, Appellant, v. Thomas A. DIXON, Appellee.
CourtFlorida District Court of Appeals

Carlton Fields Jorden Burt, P.A., and Paul L. Nettleton, for appellant.

Kimberly L. Boldt, Jeffrey D. Mueller and Mario R. Giommoni (Boca Raton); Hoffman, Larin & Agnetti, P.A., and John B. Agnetti and David Perkins, for appellee.

Before SUAREZ, C.J., and SCALES, J., and SHEPHERD, Senior Judge.

SHEPHERD, Senior Judge.

This is an appeal by GEICO General Insurance Company from a trial court order denying GEICO's motion for new trial on compensatory damages in an automobile accident case involving an uninsured motorist in which the jury first considered and awarded compensatory damages against both GEICO and the co-defendant uninsured motorist driver arising out of the accident, and then reconvened to consider an award of punitive damages against the uninsured motorist driver alone. Before trial, GEICO and the co-defendant uninsured motorist driver admitted liability for the accident, and the court ordered that the plaintiff, GEICO's insured, was entitled to recover an award of punitive damages against the uninsured motorist driver in an amount to be determined in the second phase of the proceeding.1

GEICO's principal assignment of error is the admission of evidence showing that the uninsured motorist driver was intoxicated beyond the legal limit at the time of the crash in the compensatory phase of the trial. We agree and reverse and remand the case for a new trial on compensatory damages. We find the evidence of the uninsured motorist driver's alcohol use was irrelevant to the issue of the amount of compensatory damages, which was the subject of the first phase of the proceedings, and that any arguable probative value the evidence might have had—say, to the credibility of the testimony of the uninsured defendant driver—was substantially outweighed by the danger of unfair prejudice.

Because we are remanding this case for a new trial on compensatory damages, we also address two issues raised by GEICO concerning the sufficiency of the evidence to support the future economic damage award to the plaintiff because they are likely to recur in the new trial. A brief summary of the factual and procedural background of this case is necessary to explain our decision.


This action arises out an automobile accident which took place on May 17, 2009, in Monroe County, in which GEICO insured, Thomas Dixon, was struck head-on by a vehicle driven by Gerardo Alcebo. Alcebo was driving under the influence of alcohol at the time of the accident and ultimately was adjudicated guilty of driving under the influence causing "bodily injury." See § 316.193(3)(a), (b) and (c)(2), Fla. Stat. (2015). Alcebo did not have a policy of liability insurance. Dixon's policy, issued by GEICO, included uninsured motorist coverage of up to $20,000 per person.

In 2011, Dixon sued GEICO for breach of contract for failure to pay the amount of the uninsured motorist coverage and joined Alcebo as a co-defendant seeking both compensatory and punitive damages against him for negligently and recklessly operating a motor vehicle while intoxicated causing serious bodily injury. Prior to trial, Alcebo and GEICO admitted liability for the accident, and the trial court ruled, as a matter of law, that Alcebo was punitively liable for driving under the influence of alcohol at the time. Thus, the only issues remaining to be tried were the amounts of compensatory and punitive damages which should be awarded to Dixon.2 Before trial, GEICO moved to bifurcate the two issues and to exclude any reference to Alcebo's intoxication during the first compensatory damages trial. The trial court granted bifurcation, but nullified GEICO's reason for bifurcation by permitting Dixon to offer evidence and argument on Alcebo's intoxication during the compensatory phase.

Alcebo's intoxication while driving quickly became the central theme of the first phase of the trial. The trial judge himself began the barrage by instructing the jury, before the first witness was called, that "punitive damages are warranted against Mr. Alcebo as a punishment to him and as a deterrent to others because he was driving under the influence of alcoholic beverages ... to the extent that his normal faculties were impaired while having a blood alcohol level of .08 or higher and during the course of such driving ... he caused ... bodily injury to Mr. Dixon." Dixon's first witness was the state trooper who investigated the DUI charges. Counsel for Dixon repeatedly referred to Alcebo's drunk driving as "a conscious decision to operate a vehicle while under the influence of alcohol" and stressed that "GEICO stands in the shoes of Alcebo" for purposes of the compensatory damage award. Although the focus of phase one should have been on the issue of permanent injury and the amount of compensatory damages to be awarded, counsel for Dixon made Alcebo's, and in his stead GEICO's, callousness in causing Dixon's injury the central feature of the trial.

As to damages, Dixon admitted he had suffered from back pain since the early 1990's. In 2004, Dixon underwent spinal surgery to relieve the pain. Dixon testified he did not take any pain medication for back pain between the 2004 surgery and the date of the automobile accident. However, Dixon testified that after the accident he was prescribed Oxycontin

and gradually became addicted. After a second back surgery in 2011, Dixon began to take Suboxene to detoxify himself from the Oxycontin. Dixon testified:

DIXON: ... [Dr. Nordt] gave me the scrip to take to [the detox clinic] to tell him to detox me the proper way. So they put me back on the medication, and he slowly took me down off of it until he slowly put me on a drug called Suboxone

. Suboxone is designed for opiate addiction , and it's called an opioid. I can't really explain to you how it works, but it causes the brain to do something to where and it does have a mild painkiller in it, too.

COUNSEL: Do you take it every day?

DIXON: Every day of my life.

COUNSEL: How many times a day do you take it?

DIXON: I take eight—I take four milligrams, three times a day.

COUNSEL: And can you advise the jury what that costs you?

DIXON: It costs me $560 a month, like $565, something like that.

During closing arguments and without any evidentiary basis, Dixon's counsel suggested the jury should award Dixon a five-year supply of Suboxone

as future medical damages.

Next, in support of his claim for future loss of earning capacity, Dixon testified that on May 4, 2009, thirteen days before the accident, he retired from Florida Keys Aqueduct Authority after working there for a little over thirty-five years. He testified he was hired by the Authority soon after graduation from high school. He was later promoted to supervisor of engineering and worked in that capacity for the last fifteen to twenty years of his employment. At age fifty-three, he accepted a retirement package. Dixon testified that he planned to take three to six months off after retirement and then begin to supplement his retirement income by working "in the diving industry for hydrostacking [sic] dive tanks and the repair of fiber tanks." He testified he had hands-on work experience in this area through his association with a dive shop located at a Chevron gas station. He stated "the boss from there flew me and another guy ... up together to Chicago to get training in order to have a certification to be able to do it." Dixon obtained the certification but was never hired at the Chevron due to its closure. Nonetheless, he testified that he expected to subsidize his retirement by making $2,000 to $2,500 a month in that business after a brief vacation. However, because of the back injury he claimed was related to the accident, he could no longer perform that type of work. During closing arguments, Dixon's counsel suggested an award for future loss of earning capacity of $288,000, based on the scenario of Dixon working in the hydrostatic testing business for twelve years, or until he reached the age of sixty-six, at $2,000 a month.

At the close of the compensatory trial, the jury found Dixon suffered a permanent injury to his back as a result of the accident and returned an itemized verdict of $970,396.62 in compensatory damages. The award included $33,600.00 for future medical expenses and $288,000.00 for loss of future earning capacity.3 GEICO's motion for a new trial based on the evidence of Alcebo's intoxication elicited during the compensatory damages phase of the trial, and its motion for directed verdict as to Dixon's claim for future medical expenses and loss of earning capacity were also denied.

The trial court entered judgment against GEICO in the amount of $20,000.00, the uninsured motorist policy limit, and against Alcebo for the remaining amount of the compensatory damages according to the verdict. GEICO timely appealed.


We review the denial of a motion for directed verdict de novo , Banco Espirito Santo Intern., Ltd. v. BDO Int'l, B.V. , 979 So.2d 1030, 1032 (Fla. 3d DCA 2008), and the admission of evidence and denial of a motion for new trial under an abuse of discretion standard. Kalbac v. Waller , 980 So.2d 593, 595 (Fla. 3d DCA 2008) ; H & H Elec., Inc. v. Lopez , 967 So.2d 345, 347 (Fla. 3d DCA 2007).

1. Irrelevant DUI Evidence and Argument .

The trial court correctly exercised its discretion when it granted GEICO's motion to bifurcate the compensatory and punitive damage issues in the trial of this case. See Fla. R. Civil P. 1.270(b); Roseman v. Town Square Ass'n , 810 So.2d 516, 519–20 (Fla. 4th DCA 2001) ("[T]he trial court's decision to bifurcate is subject to an abuse of discretion standard of review.") However, the laudable purpose of the motion was annulled when the trial judge admitted evidence and permitted argument concerning drunk driving in the...

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3 cases
  • Zander v. Morsette
    • United States
    • North Dakota Supreme Court
    • May 13, 2021
    ...evidence of intoxication is irrelevant and prejudicial when a defendant admits liability for an accident. GEICO Gen. Ins. Co. v. Dixon , 209 So. 3d 77, 81 (Fla. Dist. Ct. App. 2017) ("In an automobile negligence case, when the defendant admits liability regarding the cause of the accident, ......
  • Fox v. Safeco Ins. Co. of Ill., Case No: 8:16-cv-2665-T-23JSS
    • United States
    • U.S. District Court — Middle District of Florida
    • January 23, 2018
    ...alternative employment, as required by Florida law. (Dkt. 68 at 9, 16.) Defendant cites to the case GEICO General Insurance Company v. Dixon, 209 So. 3d 77 (Fla. 3d DCA 2017) for the proposition that alternative employment is required in determining future loss of earnings. Defendant's argu......
  • McKinney v. Graham
    • United States
    • Florida District Court of Appeals
    • February 12, 2021
    ...the jury and increase the compensatory damages verdict." Id. at 918–19.This issue was again addressed in GEICO General Insurance Co. v. Dixon, 209 So. 3d 77 (Fla. 3d DCA 2017). Before trial, GEICO and the uninsured motorist admitted liability, and the trial court ordered that the plaintiff ......

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