Hayes Robertson Grp., Inc. v. Cherry
| Decision Date | 12 December 2018 |
| Docket Number | Nos. 3D18-106 & 3D17-2704,s. 3D18-106 & 3D17-2704 |
| Citation | 260 So.3d 1126 |
| Parties | HAYES ROBERTSON GROUP, INC., etc., Appellant/Appellee, v. Timothy Christopher CHERRY, etc., et al., Appellees/Appellants. |
| Court | Florida District Court of Appeals |
Dixit Law Firm and Shyamie Dixit and Robert L. Vessel (Tampa), for appellant/appellee.
Horan, Wallace & Higgins and Darren M. Horan, Key West, and David Paul Horan, Key West; The McKee Law Group and Robert J. McKee (Davie); Lewis Legal Group and Jeannete C. Lewis (Plantation); Brill & Rinaldi, The Law Firm and David W. Brill, Pembroke Pines, and Joseph J. Rinaldi, Jr., Coral Gables; Russo Appellate Firm and Elizabeth K. Russo, Miami and Paulo R. Lima, for appellees/appellants.
Before ROTHENBERG, C.J., and SALTER and LINDSEY, JJ.
These consolidated appeals arise from a tragic death and personal injuries in Key West, Florida, caused in a vehicular collision by an alcohol-impaired, off-duty employee of a restaurant company. In Case No. 3D17-2704, the decedent's estate and three survivors of the accident appeal an adverse jury verdict, the denial of their motion for a new trial, and final judgment. In Case No. 3D18-106, the defendant, Hayes Robertson Group, Inc., doing business as Fogarty's Restaurant ("Hayes Robertson"), appeals the denial of its motion for attorney's fees based on its three pretrial proposals for settlement to the plaintiffs. For the reasons which follow, we affirm the final judgment in favor of Hayes Robertson and we affirm the order denying Hayes Robertson's motion for attorney's fees.
Facts and Procedural Background: Final Judgment on Liability (3D17-2704)
At about 10:15 p.m. on October 31, 2014, an automobile driven by Daniel Mira, Jr. ("Mira"), struck from behind two couples riding Mopeds, seriously injuring all four of the Moped riders; one of the four died as a result of those injuries. The decedent's personal representative and the three survivors are the four plaintiffs in the underlying lawsuit for wrongful death and personal injury in the Monroe County Circuit Court.
Mira was employed as a line cook at Fogarty's Restaurant. On the night of the accident, Mira clocked out and left work a little after 5:00 p.m., went home, and returned about 7:00 p.m. with another off-duty co-worker. Mira and his co-worker had several drinks at the bar in the restaurant. The bartender testified that Mira did not appear to be drunk when he arrived, but did seem impaired after he left the restaurant for about twenty minutes and returned.
By the time Mira prepared to leave the restaurant, around 10:00 p.m., he was intoxicated. The bartender testified that Mira was slurring his speech and could barely walk. As an employee, Mira was entitled to a fifty percent discount on his bar tab, subject to approval by the manager on duty.
The number of alcoholic drinks consumed by Mira while at the bar that evening was disputed. Hayes Robertson never produced a copy of the tab. Hayes Robertson stipulated that three hours after the crash, Mira's blood alcohol level was 0.173 grams per deciliter--more than twice the legal limit. It also stipulated that, at the time of the accident, Mira's blood alcohol level was 0.20 grams per deciliter.
The plaintiffs sued Hayes Robertson, Mira, and Mira's father (as owner of the vehicle driven by Mira at the time of the accident). The claims against Hayes Robertson were based on (1) the liability of an employer which permits its employee to leave the business premises intoxicated, as elaborated in cases such as Carroll Air Systems, Inc. v. Greenbaum, 629 So.2d 914 (Fla. 4th DCA 1993), and (2) an exception in Florida's Dram Shop Act, section 768.125, Florida Statutes (2014), permitting a claim of liability against one who "knowingly serves a person habitually addicted to the use of any or all alcoholic beverages," for "injury or damage caused by or resulting from the intoxication of such ... person."
Proof that Mira was "habitually addicted" to alcoholic beverages, and that Hayes Robertson knew of that addiction, was vigorously disputed. The plaintiffs retained a forensic toxicologist, Mr. Ronald Bell, as an expert to address (1) "retrograde extrapolation" of blood alcohol content (BAC) levels,1 and (2) whether Mira was habitually addicted to alcohol.
The first topic, retrograde extrapolation, was resolved by the parties in the stipulation regarding Mira's BAC levels about three hours after the accident and at the time of the accident. The second topic, however, required a detailed inquiry into Mr. Bell's expertise and qualifications.
Mr. Bell is a Fellow of the American Board of Forensic Toxicology. His summary of qualifications as a "forensic toxicology consultant" includes a bachelor of science degree in chemistry, as well as non-degree graduate coursework in pharmacology. That summary further represents that he is able to "offer consultation and/or expert testimony in the following areas:
Missing from this list of topics is the subject of habitual addiction to alcohol and the medical expertise required to express a qualified diagnostic opinion on that issue. Mr. Bell does not have a medical degree, or any diploma or certification from the American College of Medical Toxicology.
In pretrial proceedings, Mr. Bell provided an affidavit opining that Mira "is an alcoholic."
Anyone who can achieve a blood alcohol concentration exceeding 0.16 [grams per deciliter] and display some degree of function even if poor (walking, talking, etc.), has developed enough tolerance to the overt behavioral effects of alcohol to be defined as habitually addicted to alcohol.
Mr. Bell further relied upon Mira's "Marchman Act"2 detention about six weeks before the accident, based on "his severe state of intoxication" and Mira's admissions "that he abused alcohol, often binged when consuming alcohol and was an alcoholic."
The only authoritative reference work relied upon by Mr. Bell was a medical textbook, Medical Toxicology: Diagnosis and Treatment of Human Poisoning, by Matthew J. Ellerman, M.D. During a pretrial deposition and additional pretrial testimony before the trial court on the motion to exclude his opinion on habitual addiction to alcohol, Mr. Bell conceded: the laboratory tests upon which he relied were only one criterion of many in Dr. Ellerman's discussion of the medical diagnosis of alcoholism, and he had not assessed the other criteria; medical toxicology is a different specialty from forensic toxicology; he was unfamiliar with the Diagnostic and Statistical Manual of Mental Disorders ("DSM"); the textbooks in the field of forensic toxicology do not address alcoholism; and he did not conduct any laboratory tests indicating that Mira's BAC exceeded .3 grams per deciliter at any time. Mr. Bell did not assess Mira's physiological dependence as manifested by a withdrawal syndrome, nor did he examine Mira's medical records regarding his treatment by a psychiatrist.
Before reaching its decision to exclude Mr. Bell's proffered opinion as to whether Mira was "habitually addicted to alcohol," the trial court also questioned Mr. Bell whether training in forensic toxicology could be a sufficient basis for "diagnosing a person as addicted to alcohol or an alcoholic." Ultimately the court concluded that medical toxicology and the ability to express an admissible opinion on habitual addiction to alcohol were beyond Mr. Bell's experience and qualifications. The trial court did not restrict its ruling in limine to a determination based exclusively on Daubert.3
The jury returned a verdict that (1) Hayes Robertson was not negligent in allowing Mira to leave the restaurant in an intoxicated condition before the accident, and (2) Hayes Robertson did not knowingly serve alcoholic beverages to a person habitually addicted to the use of such beverages. The plaintiffs filed a motion for new trial and other post-trial relief, which was denied after a further hearing. The plaintiffs' appeal to this Court, Case No. 3D17-2704, followed.
Facts and Procedural Background: Proposals for Settlement (3D18-106)
Hayes Robertson served proposals for settlement on the three individual plaintiffs at three different points in the pretrial proceedings. The first two sets of proposals offered $500.00 per plaintiff, and the third set of proposals offered $100.00 per individual plaintiff. None of the proposals were accepted and all were thus deemed rejected.
After trial and the defense jury verdict, Hayes Robertson moved for attorney's fees pursuant to section 768.79, Florida Statutes (2017). The individual plaintiffs opposed the motion, contending that the proposals were not made in good faith and that the proposed release of all claims appended to the proposals for settlement rendered the proposals ambiguous and unenforceable.
Following a hearing, the trial court entered a detailed order in January 2018 denying Hayes Robertson's motion and claim for entitlement to attorney's fees. The court canvassed applicable case law and, on the basis of its familiarity with the pretrial and trial proceedings, determined that the offers were not made in good faith.
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