Lopez v. Cohen, 79-2281.

• Decision Date: 09 December 1981
• Docket Number: No. 79-2281.,79-2281.
• Parties: Omar LOPEZ, Jose Manuel Lopez Ambrosia Lopez and South Carolina Insurance Company, Appellants/Cross-Appellees, v. Isidore COHEN and Miriam Cohen, As the Personal Representatives of the Estate of Jerold Cohen, Deceased, Rochelle Vicki Cohen and Allstate Insurance Company, a Foreign Corporation, Appellees/Cross-Appellants.
• Court: Florida District Court of Appeals

406 So.2d 1253

Omar LOPEZ, Jose Manuel Lopez Ambrosia Lopez and South Carolina Insurance Company, Appellants/Cross-Appellees, v. Isidore COHEN and Miriam Cohen, As the Personal Representatives of the Estate of Jerold Cohen, Deceased, Rochelle Vicki Cohen and Allstate Insurance Company, a Foreign Corporation, Appellees/Cross-Appellants.

No. 79-2281.

District Court of Appeal of Florida, Fourth District.

December 9, 1981.

Edna L. Caruso and Montgomery, Lytal, Reiter, Denney & Searcy, P.A., West Palm Beach, for appellants/cross-appellees Lopez.

Marjorie D. Gadarian of Jones & Foster, P.A., West Palm Beach, for appellant/cross-appellee South Carolina Ins. Co.

Theodore A. Deckert and David J. Glatthorn of Brennan, McAliley, Hayskar, McAliley & Deckert, P.A., West Palm Beach, for appellees/cross-appellants.

PER CURIAM.

From an order granting a motion for a new trial, appeal and cross-appeal were taken, the lower court having awarded a new trial on all issues of liability and damages. We reverse and reinstate the verdict of the jury, but reduce the award to the plaintiff parents to $7,200; we deny the cross-appeal for new trial.

Plaintiffs, Isidore and Miriam Cohen, as the personal representatives of the estate of Jerold Cohen filed suit against Omar Lopez, Jose Manuel Lopez, and the owner's insurer, seeking damages for the wrongful death of Jerold Cohen. They also sued their own insurer, claiming under-insurance coverage. Omar Lopez and his parents and natural guardians counterclaimed against the personal representatives, Rochelle Vicki Cohen, and the owner's insurer, seeking damages for personal injuries. Both the decedent and Omar Lopez were minors at the time of the accident; Jose Manuel Lopez was the owner of the car defendant Lopez was driving, and Rochelle Vicki Cohen was the owner of the car plaintiff's decedent was driving.

Stated in brief, the Lopez vehicle was eastbound on a four-lane street while the Cohen vehicle was proceeding west, both approaching an intersection; it was late at night. The impact occurred just east of the intersection, when the Cohen vehicle apparently turned left or south across the street toward a convenience store. There was evidence that the control signal for Lopez was green as he passed through the intersection at a speed of 45 to 50 miles per hour and that the Cohen vehicle, without having on its directional signal or appearing to apply its brakes, turned in front of him; on the other hand, there was evidence that the Cohen vehicle had on its left turn signal, that the control signal for Lopez had already turned red, that he accelerated farther, running the light, that he left skid marks, and that he was traveling at a high rate of speed, the speed limit in the vicinity being 40 miles per hour. There also was testimony that Cohen had started driving about three months before the accident, that he was nearsighted and needed glasses, and that, from different witnesses, his glasses were found in the car and they were not found in the car after the accident.

The jury's verdict found for the plaintiff personal representatives and for the counterplaintiff Omar Lopez. Jerold Cohen was found 65 percent negligent and Omar Lopez 35 percent negligent; the jury also found that the counterplaintiff parents sustained damages in the amount of $10,000 on their claim for medical treatment and care of Omar Lopez, loss of his services, and damages to the vehicle he was operating.

Motions for new trial, together with other motions, were filed by the personal representatives and by Rochelle Vicki Cohen and her insurer. In its order granting a new trial the court stated "this Court finds that the verdict rendered herein is contrary to the manifest weight of the evidence as to both liability and damages, and further indicates a probable quotient verdict and a failure by the jury to properly consider the instructions of this Court in applying the law to the evidence."

In Wackenhut v. Canty, 359 So.2d 430, 435 (Fla. 1978) it was held that

Although an order for new trial need not incant language to the effect that the verdict is against the manifest weight of the evidence or was influenced by considerations outside the record, the order must give reasons which will support one of these two conclusions so that it will be susceptible of appellate review. See Thompson v. Williams, 253 So.2d 897 (Fla.3d DCA 1971). Orders granting motions for new trials should articulate reasons for so doing so that appellate courts may be able to fulfill their duty of review by determining whether judicial discretion has been abused.

Recognizing the ruling in Wackenhut that the trial judge must give reasons in support of his findings, in Baptist Memorial Hospital, Inc. v. Bell, 384 So.2d 145, 146 (Fla. 1980), there was added,

In reviewing the type of discretionary act of the trial court to grant or deny a motion for new trial, the appellate court should apply the reasonableness test to determine whether the trial judge abused his discretion. If reasonable men could differ as to the propriety of the action taken by the trial court, then the action is not unreasonable and there can be no finding of an abuse of discretion.

See Akers v. Palm Beach Newspapers, Inc., et al., 386 So.2d 282 (Fla. 4th DCA 1980); Staib v. Ferrari, Inc., 391 So.2d 295 (Fla. 3rd DCA 1980); Equitable Life Assur. Soc. v. Fairbanks, 400 So.2d 550 (Fla. 4th DCA 1981).

In arriving at its conclusion above to grant the motion, the Court noted:

a. The jury in this case apportioned negligence between Omar Lopez and the deceased, Jerold Cohen, by finding the deceased Cohen boy to be 65% responsible for the accident involved herein and the Lopez boy 35% responsible. There is considerable evidence in the record that the Lopez boy was speeding at the time of the accident and this Court feels that any evidence of contributory negligence on the Part of the Cohen boy would have to be measured in relation to the speed of the Lopez vehicle. This Court finds that the evidence presented at the trial cannot support a finding by the jury that the Cohen boy, if he was guilty of any negligence, was proportionately roughly two-thirds responsible for the accident involved herein versus only one-third responsibility to the Lopez boy.

b. When the various damage figures awarded by the jury are reduced in accordance with the doctrine of comparative negligence, the net recoveries to the parties are virtually equal to the total damage sums suggested by counsel for the Lopezes and South

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