Jiminez v. Faccone
| Decision Date | 03 October 2012 |
| Docket Number | 2D10–5156.,Nos. 2D10–4595,s. 2D10–4595 |
| Parties | Ana JIMINEZ, Appellant/Cross–Appellee, v. George FACCONE, Individually; and George Faccone, as Personal Representative of the Estate of Rita Faccone, Deceased, Appellees/Cross–Appellants. |
| Court | Florida District Court of Appeals |
OPINION TEXT STARTS HERE
Mark D. Tinker and Charles W. Hall of Banker Lopez Gassler P.A., St. Petersburg, and Curtright C. Truitt of Curtright C. Truitt, P.A., Fort Myers, for Appellant.
Debbie Sines Crockett, Mark A. Boyle, Sr., Geoffrey H. Gentile, Sr., and Michael W. Leonard of Boyle, Gentile, Leonard & Crockett, P.A., Fort Myers, for Appellees.
Ana Jiminez appeals the judgment entered against her and in favor of George Faccone and the Estate of Rita Faccone 1 in a personal injury action stemming from an automobile accident. She also appeals the award of attorneys' fees in favor of the Faccones. Ms. Jiminez raises several issues on appeal, including claims that the trial court erred in granting two pretrial motions for summary judgment. Because the trial court erred in granting those pretrial motions and thereby precluded Ms. Jiminez from presenting certain evidence in her defense at trial, we reverse the judgments and remand for a new trial. As a result, we also reverse the award of attorneys' fees. We do not reach the final issue raised by Ms. Jiminez or the issue raised by George Faccone in his cross-appeal as both are rendered moot by our remand for new trial.
George and Rita Faccone sued Ms. Jiminez for personal injuries allegedly sustained in an automobile accident. On the night in question, George Faccone was driving a 1986 Cadillac on Highway 41 in Collier County and was stopped in the left lane of a light-controlled intersection when his car stalled. There were six people in the vehicle, three of whom exited the vehicle in a failed attempt to push it through the intersection. Mr. Faccone testified that when he exited the vehicle, he activated the emergency flashers.
Ms. Jiminez, driving a Nissan Sentra, approached the intersection in the same lane as the Faccone vehicle. It is undisputed that a van was travelling in the same lane, between her vehicle and the Faccone vehicle. Ms. Jiminez testified that both she and the van driver were travelling within the speed limit. She also stated that although it was dark and raining, she could see that the intersection light was green but could not see in front of the van. As the two vehicles approached the intersection, the van abruptly swerved into the right lane and Ms. Jiminez, unable to stop, collided with the rear of the Faccones' vehicle. According to Ms. Jiminez, the Faccones' vehicle was not illuminated by lights, flashers or otherwise.
At the time of impact, George Faccone was outside of the vehicle; Rita Faccone was inside the vehicle, seated in the backseat with her seatbelt unbuckled. Although outside of his vehicle, George Faccone was not struck by Ms. Jiminez's vehicle. His claimed injuries resulted from being pulled out of the way of the oncoming vehicle by his son. Rita Faccone claimed injuries to her neck and back.
Prior to trial, the Faccones moved for summary judgment, or alternatively, partial summary judgment as to the issue of liability for the accident. Specifically, the Faccones argued that because Ms. Jiminez struck the Faccones' vehicle from behind, she was negligent and was the “sole cause” of the accident. The trial court granted the motion. Also pretrial, the Faccones moved for summary judgment on the issue of whether Ms. Jiminez was entitled to the threshold defense under section 627.737, Florida Statutes (1997), requiring the Faccones to establish a threshold injury in order to recover noneconomic damages. The trial court, adopting the magistrate's findings and recommendation, granted the Faccones' motion, thereby preventing Ms. Jiminez from presenting the threshold defense at trial.
The case proceeded to trial. In discussing jury instructions, the parties stipulated that the permanency threshold issue would be submitted to the jury to avoid potential retrial on that issue. Ultimately, the jury returned a verdict finding Ms. Jiminez eighty-five percent negligent for Rita Faccone's injuries and seventy percent negligent for George Faccone's injuries. The jury also found that neither of the Faccones had suffered a permanent injury in the accident.
The total damages awarded to the Estate of Rita Faccone were $82,935.18. The total damages awarded to George Faccone were $56,412. Included in the awards were damages for each of the Faccones' loss of consortium claims. Interestingly, although the Faccones' counsel requested only $1 in consortium damages for each of the Faccones, the jury awarded George Faccone $45,000 and Rita Faccone's Estate $41,466.59. The award to the Estate was the exact amount awarded for past medical expenses. It appears that there may have been some jury confusion as to the nature of consortium damages. After deliberations had begun, the jury raised a question as to the proper measure of consortium damages. It was only at that point the court realized that the jury had not been previously instructed on the loss of consortium claims.
Following trial, the Faccones moved for attorneys' fees based upon proposals for settlement. The trial court granted the motions and rendered judgment on the fee claim.
Ms. Jiminez claims the trial court erred in granting both motions for summary judgment filed by the Faccones. Our standard of review is de novo, McGill v. Perez, 59 So.3d 388, 389 (Fla. 2d DCA 2011), and in so reviewing, “we must ‘draw every inference in favor of the party against whom the summary judgment was entered,’ ” id. at 390 (quoting Galaxy Fireworks, Inc. v. Bush, 927 So.2d 995, 996 (Fla. 2d DCA 2006)). “Succinctly put, ‘[w]hen acting upon a motion for summary judgment, if the record raises the slightest doubt that material issues could be present, that doubt must be resolved against the movant and the motion for summary judgment must be denied.’ ” Itiat v. Foskey, 28 So.3d 140, 141 (Fla. 1st DCA 2010)(alteration in original) (quoting Jones v. Dirs. Guild of Am., Inc., 584 So.2d 1057, 1059 (Fla. 1st DCA 1991)).
In granting the motion for summary judgment as to liability, the trial court determined that there were no issues of material fact in dispute and that Cevallos v. Rideout, 18 So.3d 661 (Fla. 4th DCA 2009), was “pretty much on all fours” with the facts of the Faccones' case. Cevallos stands for the proposition that a “rear-driver plaintiff, like [a] rear-driver defendant, must prove that the lead-driver stopped abruptly and arbitrarily to rebut the presumption that the plaintiff's own negligence was the sole proximate cause of the accident.” 18 So.3d at 663. This presumption—that the rear-driver's negligence was the sole cause of the accident—
is founded on the perceived need to somewhat lessen the burden borne by a plaintiff to prove two of the requisite elements of negligence—breach of the duty of care and causation—which are inherently difficult to establish in most rear-end collision cases because the driver of the lead vehicle, whose attention is usually focused on events in the front rather than the rear of the vehicle, generally knows that he or she was struck from behind but does not know why.
Alford v. Cool Cargo Carriers, Inc., 936 So.2d 646, 649 (Fla. 5th DCA 2006). “The rule does not require the rear-car driver to eliminate every possible inference of negligence on his part in connection with the accident before he is entitled to have the jury decide the case.” Sistrunk v. Douglas, 468 So.2d 1059, 1060 (Fla. 1st DCA 1985). The driver of the rear vehicle “is required only to produce evidence from which his exercise of reasonable care under the circumstances could properly be inferred by the jury.” Id. at 1060–61. Thus, the driver of a rear vehicle is presumed negligent unless the rear driver “ ‘produces evidence which fairly and reasonably tends to show that’ ” the presumption is misplaced. McGill, 59 So.3d at 390 (quoting Gulle v. Boggs, 174 So.2d 26, 28–29 (Fla.1965)). “If the rear driver presents sufficient evidence to rebut the presumption, the case is submitted to the jury, without the aid of the presumption, ‘to reconcile the conflicts and evaluate the credibility of the witnesses and the weight of the evidence.’ ” Alford, 936 So.2d at 650 (quoting Gulle, 174 So.2d at 29).
Florida courts have consistently classified sufficient evidence to rebut the presumption in three ways: (1) “an abrupt and arbitrary stop in a place where it could not reasonably be expected or an unexpected” lane change; (2) “a mechanical failure, i.e., sudden brake failure, that causes the rear driver to collide with the lead driver”; and (3) an “illegally and, therefore, unexpectedly stopped” lead vehicle. Alford, 936 So.2d at 649–50.
In this case, it was undisputed that it was both dark and raining at the time of the accident. It was also undisputed that the Faccones' car was in the left lane of traffic, that the traffic light was green, and that the van travelling in front of Ms. Jiminez abruptly changed lanes. The parties disagreed, however, as to whether the emergency flashers on the Faccones' vehicle were illuminated. Ms. Jiminez claimed that neither the headlights nor the emergency flashers were on; George Faccone claimed otherwise. Sufficient evidence “fairly and reasonably” tended to show that the Faccones' vehicle was illegally stopped in the roadway. At a minimum, there was conflicting testimony regarding whether the Faccones' vehicle was properly illuminated, material to the above. Thus, drawing every reasonable inference in favor of Ms. Jiminez, as we must, disputed issues of material fact existed which should have precluded entry of a summary judgment, and the negligence issue should have been submitted to the jury. See McGill, 59 So.3d at 390...
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