Parker v. Hoppock

• Decision Date: 21 May 1997
• Docket Number: No. 95-1678,95-1678
• Citation: 695 So.2d 424
• Court: Florida District Court of Appeals
• Parties: 22 Fla. L. Weekly D1317 Ralph PARKER and Ricky Parker, Appellants, v. Jeffrey Todd HOPPOCK, Earl Eugene Hart, J & P Enterprises, Inc., d/b/a Domino's Pizza, and Domino's Pizza, Inc., Appellees.

Page 424

695 So.2d 424

22 Fla. L. Weekly D1317

Ralph PARKER and Ricky Parker, Appellants, v. Jeffrey Todd HOPPOCK, Earl Eugene Hart, J & P Enterprises, Inc., d/b/a Domino's Pizza, and Domino's Pizza, Inc., Appellees.

No. 95-1678.

District Court of Appeal of Florida,

Fourth District.

May 21, 1997.

Rehearing Denied July 1, 1997.

Philip M. Burlington of Caruso, Burlington, Bohn & Compiani, P.A., and C. Calvin Warriner of Searcy, Denney, Scarola, Barnhart & Shipley, P.A., West Palm Beach, for appellants.

Michele I. Nelson of Paxton, Crow, Bragg, Smith & Keyser, P.A., West Palm Beach, for appellee Jeffrey Todd Hoppock.

James A. Coleman and David C. Knapp of Rogers, Dowling, Fleming & Coleman, P.A., Orlando, for appellee Earl Gene Hart.

Garrison M. Dundas and Stephen G. Hayskar of Brennan, Hayskar, Jefferson, Walker & Schwerer, P.A., Fort Pierce, for appellee J & P Enterprises, Inc., d/b/a Domino's Pizza.

Richard S. Womble and Richard B. Mangan, Jr., of Rissman, Weisberg, Barrett, Hurt, Donahue & McLain, P.A., Orlando, for appellee Domino's Pizza, Inc.

PARIENTE, Judge.

Plaintiffs appeal an adverse jury verdict in favor of Domino's Pizza, Inc. (Domino's). Plaintiffs also appeal a jury verdict in their favor against all other defendants, asserting that the amount awarded for economic damages demonstrates the prejudicial effect of improper testimony on the jury's verdict. We agree that the admission of impermissible testimony that plaintiffs' receipt of welfare and governmental benefits would adversely impact their motivation to work warrants reversal for a new trial as to all defendants except for Domino's.

Plaintiffs' claims arose from two interrelated accidents that took place in front of the Okeechobee County Civic Center. It is undisputed that in the first accident, defendant Jeffrey Todd Hoppock lost control of his vehicle, causing a head-on collision with another vehicle. At that time, Hoppock was working for defendant J & P Enterprises, Inc. (J & P), a Domino's franchise in Okeechobee.

Immediately following the first accident, plaintiffs Ralph Parker and Ricky Parker ran to offer their assistance. Shortly thereafter, defendant Earl Eugene Hart approached the scene in his vehicle. Failing to timely see the disabled vehicles, Hart collided with one of them, striking plaintiffs in the process.

As a result of this collision, plaintiff Ricky Parker had his left leg traumatically amputated below the knee. He also suffered a comminuted fracture to the tibia and fibula of his right leg. Plaintiff Ralph Parker suffered a fractured femur of the left leg, as well as severe fractures of the fibula and the tibia on the right leg.

Through special interrogatories, the jury was asked to allocate fault among Hoppock, Hart and each plaintiff for that plaintiff's injuries. As to plaintiff Ricky Parker, the jury found Hoppock 10% at fault, Hart 70% at fault, and Ricky Parker 20% at fault. As to plaintiff Ralph Parker, the jury found Hoppock 10% at fault, Hart 60% at fault, and Ralph Parker 30% at fault.

The jury determined that plaintiff Ralph Parker's total damages amounted to $536,600, which included $133,000 in past economic losses and $85,600 for future economic damages. The total award was within the range suggested by defense counsel as reasonable for the total amount of damages. However, the award of only $85,600 for future economic damages was significantly lower than the range of $150,000 to $198,000 suggested by defense counsel in closing arguments as appropriate for this element of damages.

As to plaintiff Ricky Parker, the jury awarded a total of $450,000, which was significantly less than the $648,000 suggested by at least one defense attorney. The total award included $146,000 in past economic losses, which was $22,000 less than the amount suggested by defense counsel. Moreover, the total award included $64,000 in future economic damages, an amount significantly less than the $260,000 to $300,000 range suggested by defense counsel.

In addition, the jury was asked to determine whether J & P was the agent of Domino's. The jury found that J & P was not Domino's agent.

GOVERNMENTAL BENEFITS TESTIMONY

Prior to trial, plaintiffs filed a motion in limine to prevent defendants from mentioning that plaintiffs were receiving various forms of governmental assistance. The trial court deferred ruling after defendants agreed not to mention that fact in opening statement.

During cross-examination of plaintiff Ralph Parker, the issue surfaced. Defendants first elicited that Ralph Parker had obtained a housing subsidy. When defense counsel asked if he was receiving any other forms of assistance, plaintiffs' counsel objected. The trial court overruled the objection, and Ralph Parker answered that he received food stamps and AFDC (a form of welfare) for his four children. During cross-examination of plaintiffs' expert, the jury learned that plaintiff Ricky Parker was receiving Social Security benefits.

Prior to the testimony of defendants' rehabilitation expert, plaintiffs again objected to any reference to governmental benefits and to the expert's anticipated testimony concerning receipt of benefits and motivation to return to work. The trial court overruled the objection.

The rehabilitation expert then testified that receipt of governmental benefits by those who earn at or near the minimum wage adversely affects a person's motivation to work. The expert had never met with nor spoken to plaintiffs and referred to no studies to back up his "opinions," which essentially amounted to no more than conjecture. For example, the expert testified that it would be "pretty hard to get fired up to go back to work with all the issues that you have to deal with if it, in fact, jeopardizes some of the benefits that you might have."

The theory put forth in the rehabilitation expert's testimony was woven into closing argument:

The fact that he decides not to go out and do that work because, why go out and work if you cannot end up with any less money in your pocket; that's another question, okay?

If he decides to take government benefits and not work, that's his choice, but it's not as a result of injuries he received in this accident.

Cook v. Eney, 277 So.2d 848 (Fla. 3d DCA), cert. denied, 285 So.2d 414 (Fla.1973), was the first case in Florida to address the highly prejudicial effect of testimony regarding receipt of governmental benefits. In Cook, a medical malpractice suit, the plaintiff received social security and worker's compensation benefits, which the defendant sought to admit for the limited purpose of rebutting or impeaching testimony concerning the plaintiff's motivation and desire to return to work. In reversing a defense verdict, the third district set forth the general rule that evidence of such benefits constitutes prejudicial error likely to influence the jury against the plaintiff not only on the issue of damages, but also on the issue of liability. Id. at 850.

The defendant argued in Cook that the evidence was relevant because it had been offered to rebut the plaintiff's testimony regarding motivation to return to work. The third district responded that this precise argument had been effectively disposed of by the United States Supreme Court in Eichel v. New York Central Railroad Co., 375 U.S. 253, 84 S.Ct. 316, 11 L.Ed.2d 307 (1963):

In our view the likelihood of misuse by the jury clearly outweighs the value of this evidence. Insofar as the evidence bears on the issue of malingering, there will generally be other evidence having more probative value and involving less likelihood of prejudice than the receipt of a disability pension .... (a showing of) receipt of collateral social insurance benefits involves a substantial likelihood of prejudicial impact.

Cook, 277 So.2d at 850 (emphasis supplied).

Our court followed Cook in Williams v. Pincombe, 309 So.2d 10 (Fla. 4th DCA 1975), an automobile accident case that resulted in a defense verdict in the trial court. We found reversible error in the admission of evidence that the plaintiff received welfare benefits for her children where that testimony was offered "for the purpose of rebutting the plaintiff's testimony regarding her motivation to return to work." Id. at 11. Pincombe agreed with Cook that evidence concerning receipt of such benefits tends to confuse and mislead the jury on the issue of liability. Id. The prejudicial effect of such evidence on the issue of malingering outweighs its probative value. Id. Thus, the testimony here concerning plaintiffs' governmental benefits and the resultant effect on plaintiffs' motivation to work was inadmissible pursuant to Pincombe and Cook.

Defendants contend that Pincombe and Cook have been effectively overruled by our supreme court's decision in Florida Physician's Insurance Reciprocal v. Stanley, 452 So.2d 514 (Fla.1984). In Stanley, the plaintiffs sought substantial damages for their child's retardation and cerebral palsy, which they claimed to be the result of medical malpractice. The plaintiffs elicited testimony concerning the expected cost of physical therapy, speech therapy and special education. Over the plaintiffs' objection, the trial court permitted cross-examination about the "availability and effectiveness of free or low-cost charitable and governmental programs available in the community to meet [the child's] needs." Id. at 515. Our supreme court held that "[g]overnmental or charitable benefits available to all citizens, regardless of wealth or status, should be admissible for the jury to consider in determining the reasonable cost of necessary future care." Id. (emphasis added).

Stanley did not abrogate either Cook or Pincombe. The holding in Stanley applies only to testimony concerning benefits available to all citizens "regardless of wealth or status" and then only on the issue of the reasonable cost of a plaintiff's future medical care. Welfare benefits obviously are not available...