Johnson v. Florida Farm Bureau Cas. Ins. Co.

Citation13 Fla. L. Weekly 245,542 So.2d 367
Decision Date20 January 1988
Docket Number85-1667,Nos. 85-482,s. 85-482
CourtCourt of Appeal of Florida (US)
Parties13 Fla. L. Weekly 245 Charles JOHNSON, as Personal Representative of the Estate of Leonna Johnson, a deceased minor, on behalf of the Estate of Leonna Johnson, and on behalf of Saintain Eliodor and Charles Johnson, as survivors of Leonna Johnson, deceased, Appellants/Cross Appellees, v. FLORIDA FARM BUREAU CASUALTY INSURANCE COMPANY, Florida Farm Bureau Mutual Insurance Company, W.E. Schlecter and Sons, Inc., Everglades Celery Corporation, James Lamar Drisdom, Pullman, Inc. d/b/a T & M Leasing, and Insurance Company of North America, Appellees/Cross Appellants. Charles JOHNSON, as Personal Representative of the Estate of Leonna Johnson, a deceased minor, on behalf of the Estate of Leonna Johnson, and on behalf of Saintain Eliodor and Charles Johnson, as survivors of Leonna Johnson, deceased, Appellants, v. FLORIDA FARM BUREAU CASUALTY INSURANCE COMPANY, Florida Farm Bureau Mutual Insurance Company, W.E. Schlecter and Sons, Inc., Everglades Celery Corporation, and James Lamar Drisdom, Appellees.

Joel D. Eaton of Podhurst, Orseck, Parks, Josefsberg, Eaton, Meadow & Olin, P.A., Keyfetz, Poses & Halpern, P.A. and Freidin & Hirsh, P.A., Miami, for appellants/cross appellees.

John R. Beranek of Klein & Beranek, P.A., and Wiederhold, Moses & Bulfin, West Palm Beach, for appellees/cross appellants-Florida Farm Bureau Cas. Ins. Co., Florida Farm Bureau Mut. Ins. Co., W.E. Schlecter and Sons, Inc., and James Lamar Drisdom.

Roy W. Jordan, Jr., of Jordan & Stinson, P.A., West Palm Beach, for appellee/cross appellant-Everglades Celery Corp.

Marjorie Gardarian Graham of Jones & Foster, P.A., West Palm Beach, for appellees/cross appellants-Pullman Inc. d/b/a T & M Leasing, and Insurance Co. of North America.

STONE, Judge.

The personal representative of the estate of a child who was run over by a tractor-trailer appeals a judgment entered against the driver, the driver's employer, the owner of the tractor portion of the rig, and the company insuring the tractor. There are multiple issues in this appeal, cross appeal and consolidated appeal.

A few hours after the accident, the driver, Drisdom, consented to an officer's request to give a blood sample. The test results revealed a blood alcohol content of .188, a figure substantially over the statutory presumptive level of intoxication. The plaintiff sought punitive damages, in addition to compensatory damages, on the claim that Drisdom was intoxicated and that the other defendants knew, or should have known, that he had a propensity to drink and drive. The plaintiff alleged as a basis for punitive damages that Drisdom's employer, Everglades Celery Corp., was negligent in hiring Drisdom, and that the tractor owner, W.E. Schlechter and Sons, Inc., was liable for negligently entrusting the vehicle to him. The case was tried twice.

At the first trial, the court excluded evidence of the blood alcohol test results, considering it privileged under section 316.066, Florida Statutes, as part of the accident report. The trial judge thus granted the defendants' motion for a directed verdict on the issue of punitive damages, and the case went to the jury on the compensatory damages claim only. A mistrial was subsequently entered when the jury failed to reach a verdict on liability. However, the trial court entered a partial judgment on the punitive damages count. The plaintiff sought certiorari from that decision, but this court denied relief without addressing the merits of the petition. Thereafter, the Florida Supreme Court, in Brackin v. Boles, 452 So.2d 540 (Fla.1984), determined that the statutory accident report privilege did not preclude admission of blood alcohol test results, so long as they were otherwise admissible.

Prior to the second trial, plaintiff moved to have the punitive damages order set aside in light of Brackin. The successor trial judge concluded that he was bound by the earlier partial judgment as the law of the case. However, the court did determine that the test results were admissible in the second trial on the liability issue. The jury found the driver sixty-five percent negligent, the child's mother twenty-five percent, and the father ten percent.

During voir dire, five black jurors were excused. The plaintiff contends that four of them were challenged by the defendants on the basis of race. However, although the issue was addressed, a full and complete inquiry was not made by the trial court at that time because the opinion in State v. Neil, 457 So.2d 481 (Fla.1984), had not yet been rendered. A subsequent post-trial hearing was conducted in which the trial court found, without benefit of a transcript, that the prospective jurors had not been excused due to race. The court also agreed that the plaintiff could have a transcript prepared and could schedule a future hearing should he have additional evidence to present on this issue. However, the plaintiff did not pursue the matter further.

I

We agree with the conclusion reached in City of Miami v. Cornett, 463 So.2d 399 (Fla. 3d DCA), dismissed, 469 So.2d 748 (Fla.1985), that Neil applies in a civil trial. Where a party demonstrates a strong likelihood that challenges were exercised on the basis of race, the trial court must determine if there is a substantial likelihood that race was indeed the basis for the challenges, and, if so, conduct a further inquiry. However, upon a review of the record, we conclude that the post-trial hearing conducted in this case, applying the principles of Neil, was sufficient, and that appellant has failed to demonstrate reversible error on this point. See Blackshear v. State, 504 So.2d 1330 (Fla. 1st DCA 1987); Thomas v. State, 502 So.2d 994 (Fla. 4th DCA), rev. denied, 509 So.2d 1119 (Fla.1987); Johnson v. State, 484 So.2d 1347 (Fla. 4th DCA), rev. denied, 494 So.2d 1151 (Fla.1986). Further, there is no conflict with Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), because of the sufficiency of the additional inquiry conducted.

II

Upon admission of the blood test results, there was sufficient evidence to support a prima facie claim for punitive damages against the driver. See Ingram v. Pettit, 340 So.2d 922 (Fla.1976). With the admission of the proffered evidence, there would have also been evidence to support a prima facie case for punitive damages against the employer and vehicle owner. See Mercury Motors Express, Inc. v. Smith, 393 So.2d 545 (Fla.1981).

The trial court would not allow punitive damages to be reconsidered because of the previous partial judgment, despite the consideration that under Brackin v. 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 this subject was the law of the case. A denial of certiorari is not to be construed as an opinion on the merits of the petition. See Bevan v. Wanicka, 505 So.2d1116 (Fla. 2d DCA 1987); Bing v. A.G. Edwards & Sons, Inc., 498 So.2d 1279 (Fla. 4th DCA 1986); Accent Realty of Jacksonville, Inc. v. Crudele, 496 So.2d 158 (Fla. 3d DCA 1986), rev. denied, 506 So.2d 1040 (Fla.1987); Don Mott Agency, Inc. v. Harrison, 362 So.2d 56 (Fla. 2d DCA 1978). We therefore hold that the trial court erred in refusing to vacate the partial summary judgment on punitive damages and in failing to permit the plaintiff to present evidence in support of its punitive damages claims.

III

The defendants contend that the trial court erred in admitting into evidence the blood alcohol tests results taken at the request of the police. They allege that the test did not comply with the requirements of section 322.261, Florida Statutes (1981), Florida's implied consent statute. Subsection (1)(a) deals with the giving of a chemical breath test, and provides that the test shall be incidental to a lawful arrest and administered at the request of an officer having reasonable cause to believe the driver was under the influence of alcoholic beverages. Subsection (2)(a) discusses the test which determines the weight of alcohol in a defendant's blood, and requires that it be administered at the direction of the arresting officer in accordance with the rules and regulations adopted by the Department of Health and Rehabilitative Services.

The defendants claim that three statutory violations occurred: (1) lack of reasonable cause to administer the test; (2) lack of proof that a physician or other authorized party drew the blood; and (3) failure to establish the chain of custody. However, we conclude that these claims are unfounded. Section 322.261(a), which contains the reasonable cause provision, deals only with chemical breath tests. In 1982, the legislature amended and renumbered this statute as section 316.1932, which unambiguously provides that "[t]he breath test shall be incidental to a lawful arrest and administered at the request of a...

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