Hartford Acc. and Indem. Co. v. Ocha, 84-1179
| Decision Date | 24 July 1985 |
| Docket Number | No. 84-1179,84-1179 |
| Citation | 472 So.2d 1338,10 Fla. L. Weekly 1798 |
| Court | Florida District Court of Appeals |
| Parties | 10 Fla. L. Weekly 1798 HARTFORD ACCIDENT AND INDEMNITY COMPANY, and Otis Parker, III, Appellants/Cross Appellees, v. Dolores B. OCHA, etc., et al., Appellees/Cross Appellants. |
Stephen F. Radford, Jr., and Frank G. Cibula, Jr., of Cibula, Gaunt & Pratt, West Palm Beach, for appellants/cross appellees.
Richard A. Kupfer of Cone, Wagner, Nugent, Johnson, Hazouri & Roth, P.A., West Palm Beach, for appellee/cross appellant--Dolores B. Ocha.
Otis Parker, III, and his insurance carrier, Hartford Accident & Indemnity Co., appeal a final judgment in favor of the appellee, Dolores Ocha, claiming error in the trial court's denial of their motion for directed verdict as to Parker's statutory liability under section 322.09, Florida Statutes (1979) 1 for his child's misconduct in operating a motor vehicle. Ocha cross appeals claiming error in the exclusion of evidence of the minor's blood alcohol level; in the striking of a punitive damages claim against Otis; and in defense counsel's alleged prejudicial remarks during summation. We find no error in Parker's appeal but reverse for a new trial on the cross appeal.
Dolores, individually and as personal representative of Franklin Ocha, her deceased husband, filed an action for wrongful death after Franklin was killed in an automobile collision with a car driven by Brian Parker, Otis' son. The liability of Brian was admitted at trial. Otis Parker was alleged to be liable by having signed a statutorily required parental consent form which makes a parent responsible for the misconduct of a child while operating a motor vehicle. Although no actual record of the signed form could be located the jury found from other evidence that such a form had been executed and that Otis was accordingly liable. During the trial the court excluded evidence of Brian's blood alcohol level, struck the punitive damages claim against Otis and Hartford, and overruled objections to allegedly prejudicial arguments made by defense counsel. The jury awarded compensatory damages against the defendants in the amount of $60,000 to the estate and $100,000 to Dolores as the surviving widow.
We find no error in the trial court's denial of a directed verdict on the issue of Otis' signing of the statutory form. Jean Mitchell, a drivers' license examiner for the Florida Division of Drivers' Licenses, was the examiner who issued a license to Brian. Otis admittedly was with Brian at the time Brian applied for his license. Otis had his own license renewed at the same time by the same examiner. Mitchell testified that proper identification including proof of age is always required of minor applicants, and a signed parental consent form must accompany an unmarried minor's license application. There were only two occasions she recollected where she neglected to get a written consent form from a minor applicant's parent or guardian, and on both occasions, her office supervisor, caught the mistake and it was corrected before the papers were sent to Tallahassee. C.W. Keith, the state director of the Division of Drivers' Licenses testified that when a minor applies for a driver's license, the Division always secures the signature of a parent or guardian on the consent form before issuing a license. He could not, however, find in the Division records the consent form signed by Otis Parker. Brian testified that when he went to get his license his father accompanied him because they both knew a parent had to sign for Brian. Otis testified that he did not recall signing any documents concerning Brian's application for a driver's license.
Section 90.406, Florida Statutes (1979), states: "Routine practice.--Evidence of the routine practice of an organization, whether corroborated or not and regardless of the presence of eyewitnesses, is admissible to prove that the conduct of the organization on a particular occasion was in conformity with the routine practice." Lumbermens Mutual Casualty Co. v. Alvarez, 443 So.2d 279 (Fla. 3d DCA 1983), stands for the proposition that circumstantial proof by an insurance company of routine office practice of informing applicants that they could not procure a policy containing a deductible if they had no collateral insurance coverage is sufficient to rebut an insured's direct denial that he was so advised, and thereby creates a fact question on the issue. Berwick v. Prudential Property & Casualty Insurance Co., 436 So.2d 239 (Fla. 3d DCA 1983), restates the general rule that mail properly addressed, stamped and mailed was received by the addressee, and that the requirement of showing proper mailing may be satisfied by proof of general office practices. Under the evidence here, and the law set out above, we believe an issue of fact was created as to whether Otis signed the consent form.
On cross appeal, Ocha argues that it was error to exclude evidence of Brian's blood alcohol level, and that a new trial on punitive damages against Brian is required. The appellants do not dispute the fact that the law has changed since the trial of this case, and that under the current law, Brackin v. Boles, 452 So.2d 540 (Fla.1984), the result of blood alcohol test is admissible in a civil action, regardless of whether the test was made for the purpose of the accident investigation or for a criminal investigation, the distinction relied on at trial for exclusion. The court excluded evidence that Brian had a .13 blood alcohol level 2 just after the accident. The punitive damages claim against Brian was chiefly predicated on Brian's alleged intoxication at the time of the accident. The court instructed the jury that punitive damages required a finding that Brian was "drunk." In closing argument defense counsel argued that Brian had to be found drunk to be punished with punitive damages and that while it was admitted that Brian had some drinks earlier on Christmas morning, "we don't have any absolute piece of paper saying that Brian was or was not drunk." The jury assessed no punitive damages against Brian.
The only argument advanced on appeal as to why a new trial on punitive damages should not be ordered is appellants' claim that the exclusion was harmless since there was evidence that Brian's drinking was not the cause of the accident. We reject that contention. In Ingram v. Pettit, 340 So.2d 922 (Fla.1976), the supreme court held that "[t]he voluntary act of driving 'while intoxicated' evinces, without more, a sufficiently reckless attitude for a jury to be asked to provide an award of punitive damages if it determines liability exists for compensatory damages." Id. at 924. Under Ingram, the exclusion of the evidence of Brian's blood alcohol level, when considered together with the legal presumption of intoxication, simply cannot be considered harmless error. Such evidence, like the testimony of an eye-witness to an event, has such a direct bearing on the critical issue involved, that it is improbable that its exclusion could ever be considered harmless.
Ocha also contends that if the punitive damages is retried, so must the compensatory damages against all the defendants. However, in Bankers Multiple Line Insurance Co. v. Farish, 464 So.2d 530 (Fla.1985), the supreme court ordered a new trial on punitive damages only and held that there is no rule of law that punitive damages must bear some reasonable relationship to compensatory damages. We follow that holding here and remand for a trial on punitive damages only.
Ocha also claims that her claim for punitive damages against Otis under section 322.09 was improperly stricken. Ocha relies both on section 322.09 and on Mercury Motors Express, Inc. v. Smith, 393 So.2d 545 (Fla.1981). Under Mercury Motors an employer may be held vicariously liable for punitive damages under the doctrine of respondeat superior, if there is proof of egregious conduct on the part of the employee and proof of some fault on the employer's part.
Ocha claims that since section 322.09 provides that "willful misconduct" of the minor should be imputed to the person signing, the parent is equally liable for any punitive damages that could be assessed against the child:
(2) Any negligence or willful misconduct of a minor under the age of 18 years when driving a motor vehicle upon a highway shall be imputed to the person who has signed the application of such minor for a permit or license, which person shall be jointly and severally liable with such minor for any damages caused by such negligence or willful misconduct.
We cannot agree. Notwithstanding the language cited by Ocha, we believe this statute was intended to make a parent liable for actual damages caused by the minor, but not for exemplary damages that are assessed as punishment. Since the statute itself is a limited abrogation of the common law rule that parents are not liable for the torts of their children, we believe the statute should be strictly construed in favor of the parent. Reading the statute in its entirety we believe its purpose is to make an adult, either the parent or guardian, responsible for any damages caused by a minor driver, whether those damages be caused by negligence or willful misconduct. Cf. section 741.24(1), Florida Statutes (1983), providing for parental statutory liability up to $2500.00 for certain damage caused by willful misconduct of minors. In view of the preceding discussion, any reliance on Mercury Motors is misplaced. Accordingly, we find no error.
Finally, Ocha claims that the court improperly allowed defense counsel, during summation, to compare the case being tried to other lawsuits, and prejudicial error resulted by the jury returning a verdict of one-tenth of what her attorney was asking for. The following were the comments in argument and the response by the trial court:
When you talk about damages, you have to be reasonable, based upon the loss...
To continue reading
Request your trial
-
Norman v. Gloria Farms, Inc.
...can ask for and hope you don't turn people off.As then-Judge Anstead, writing for this court, noted in Hartford Accident & Indemnity Co. v. Ocha, 472 So.2d 1338, 1343 (Fla. 4th DCA), petition for review dismissed, 478 So.2d 54 (Fla.1985):Suggesting that all claimants' lawyers always ask for......
-
Brown v. Seebach
...minors who drive within the State of Florida no matter where their driving privileges have originated. In Hartford Acc. & Indem. Co. v. Ocha, 472 So.2d 1338, 1342 (Fla. 4th DCA 1985), the court held that Fla.Stat. § 322.09 will be strictly construed. Therefore, the court must look to the wo......
-
Johnson v. Florida Farm Bureau Cas. Ins. Co.
...Boles, the basis for the former ruling had become erroneous. See State v. Adams, 466 So.2d 1067 (Fla.1985); Hartford Accident and Indemnity Co. v. Ocha, 472 So.2d 1338 (Fla. 4th DCA), rev. denied, 478 So.2d 54 (Fla.1985). The successor judge erred in concluding that the previous decision on......
-
Parker v. Hoppock
...harm to the already impaired reputation of the legal profession" and our judicial system. See Hartford Accident and Indem. Co. v. Ocha, 472 So.2d 1338, 1343 (Fla. 4th DCA), review denied, 478 So.2d 54 These remarks alone would not have warranted reversal, and we find the remarks harmless er......